as we currently know it and protections afforded there with our debt and law enforcement will have complete autonomy to physically inspect any area any crack any seem connected to the joints that may be true behaviors on that walkway were him in judge he was mere inches away from the garage door i think the body camera that's part of the fire the record in this case will show he was mere inches away he wrote in his affidavit of probable cause that he smelled the odor of raw marijuana coming from a crack in the garage door well telcel didn't he also say that he smelled the marijuana before entering the driveway enjoin she didn't say that but i think it's convenient testimony neither on cross examination either his police report nor the affidavit of probable cause findings which did make those findings and said it made the findings that the smell was coming from the crack in the garage door which were came from it got out of the crack in it yes but as the court can view in the record when he brought the other deputies over to him to smell the crack they were mere inches away from the garage door in the district court hold neither the walkway nor the have to look at the specifics of the property towards the west side of the building is more of a i guess how setting it up the east side was two doors to the commercial side of the building when you look at the west side of the building as  mr powell testified on examination was that there were no trespassing signs posted up into the driveway on the west side of the building the west side isn't where the o dynamics of this property correctly the west side of the residence face towards the public roadway and has a driveway and raj on the east side of the residence has two doors on one into the residence in the other into the grunge that's current  what it be fair to say then that even if the driveway is curtilage that the walkway is not because it's part of the commercial d portion of the property that's correct the walkway would probably be a divider between the commercial in the residential portion however the deputy smell the smell the marijuana coming from the gracia door in the driveway well ok why you smell it in the walkway that he's not on the curtilage and that's correct and the district court didn't make those findings and it was the st time anyone in the courtroom had heard of marijuana coming from the walkway and i would ask the court to err on the side of the district court's findings which said he was inches away off of the driveway what do you do about the case of the thing driveways are generally not right to be free of unreasonable governmental true zhen would be of little practical value if the stage agents could stand in a home's porch or side garden and trawl for evidence with impunity and i think when you're standing next to a commercial storm theory and i think that's correct however when deputy cox got to the area where the garage door was it was clearly residential at that point that's why why should we consider you your is it's our gains what if that's the correct pronunciation or hardness why should we consider that property based argument when the district court that night you motion on a privacy base ground under caps and that's that's a very good question to judge i think that the court did the incorrect done analysis and when those factors are taken into account i think that society is prepared to recognize a reasonable privacy interest in a garage into grudged horse connected to a house even though it neighbors a commercial property essentially if the court affirms the district court's findings what it's saying is even if you need a commercial property there are no private interests a north of mr powers residence and notably mr powell testified that that area was a commercial area he said he had it all rented out and it was where customers could store their vehicles in fact a deputy did testify to that there is a video of his body cam where at believe it's about the three men in fifteen nd mark or right about there you can actually audibly hear the deputy take a deep breath confirming a that what he's doing he's trying to confirm that he smells marijuana from a commercial area now the district court did not make a finding that that was the st time that it was smelled but it didn't make a finding that he was not credible in that regard just whatever reason it chose to move directly to the to the driveway where deputies confirmed that they smelled it your st turning back into a that this really is a case that's unique and it's unique because of the facts surrounding where mr powell decided to live this is a commercial facility it's called anytime storage it's subject to presumably dozens of licenses that have been issued to customers where they can come and go twenty four hours a day seven days a traversed what the government really designates is three separate areas a commercial road to the east of his residence that is between storage units in his residence and also provides access to that storage area for vehicles north of his residence law enforcement can also traversed through that storage area north of his residence where they faced the smell for the st time marijuana coming from the garage before alternately going onto the driveway it sounds like there's no real disagreement that the areas east and north of mr powers residence were commercial parts of anytime storage so i won't go into a deep done analysis of why that is business isn't it more accurate to say that a property has a mixed use and that mr powell lived there on the property i mean he he he lived in the mobile home on the property that's his residence so it isn't purely commercial no you're absolutely correct your honor it is not purely commercial at the time deputies go on to it the interior of the office has certainly been converted to a residence and no one is arguing that mr powell did not have a reason watch petition of privacy in his actual residence on the property but notably your honor there was no intrusion into his residence at least not until law enforcement obtained a warrant so although it's mixed use the other areas remain commercial and we know from don that in order for a commercial entity to have a reason west petition of propriety see in its areas in need to take an affirmative to actually exclude the public and that never happened here so mr powell he started leasing the office about september th two thousand and eighteen it's clear from the record any time storage didn't start operation that day there was tendency to mr powell it took no steps to modify the licenses it already issued to the general public it took no steps to exclude the public from the areas north of his house use of his house or even west of his house and you honor is this is notable because as the testimony showed there was really two ways to access that storage area were vehicles could be stored north of his house one could enter through any time storage property and you could park on that road but another way that the public or a customer could access that area would be to park on the garage and interest through that opening north of his driveway so there was no step to stop customers from continuing to engage in that practice to the extent that they they wanted to now obviously mr pal he had to have a way to park his car in his garage and he certainly could have driven over that driveway but there's nothing in the record to demonstrate that the customers were deprived of their rights to to cross the driveway to go there so this is not his guardian situation really it all means involve an implied license here the record demonstrates we have expressed licenses for customers to come and go over that area and presumably since law enforcement testified they routinely pretrial this area with that with the consent of the owner and the fact that nothing's been modified there's really no basis to to argue that law enforcement was where factually what what what what where some express license something written down somewhere in the record your honor there is a belief to samples of a lease agreements for customers who rent space from any time storage and those lease agreements provide access to customers twenty four hours a day seven days a week notably your honor that includes for example making a payment so a customer there was a  was a payment drop box on one of the doors to mr powers residence and presumably a customer could approach that to make a payment there's nothing in that agreement providing access to the property that suggests the customer can't go anywhere on that property there is one fact in the record your honor the does demonstrate anytime storage presumably to for the benefit of mr powell did take a step to exclude people including law enforcement which is that there was a no  trespassing sign on a small yard to the southwest of his his residence but there's it's undisputed in the record law enforcement never actually entered that yard throughout the course of this case well tell so let me just ask if if the driveway was in fact curtilage is there still a pathway for this court to us are absolutely your honor st of all marijuana's st melt from the actual commercial area north of the building that's undisputed testimony the district court didn't find any finding really at all about that but that's undisputed but efficiently your honor there is some accident see here made this or you're on i'm not certain that this is actually in the record because the crux of this case was obviously the methamphetamine so i don't know i do know your honor began its b s of the record to me the court should not consider this but one of the individuals inside testified he had been smoking marijuana or not testify but related to law enforcement he had been ultimately your honor and it's one more question about the driveway i noticed that in your brain if you said that dr weiss frequently are not subject to a reasonable expectation of privacy but don't we have that case i think that it obviously has to be taken into account and i will say your honor there's another recent denial of cert by the supreme court which was both that versus vermont where i believe was justice gors did did he was quite displeased by some game wardens who had lingered for about fifteen minutes on a driveway appearing in through windows and and never even made it to the front door to knock without knowing the specific facts of the case you cite i would discern this case is distinguishable even though that was a denial of service from what occurred in that and the reason why i would assert that your honor is here we have a totally different fact pattern in terms of the actual landscape where the house resides which is material which is that we may have over at lapping licenses for customers it appears that that this area really remained commercial in every way except for the interior of mr p home and law enforcement st detected marijuana not on the driveway or even in the area that is arguably connected to mr paul's residence but instead on that commercial walkway north of his residence if they smell these vapors disappear or they go away obviously they district court didn't make a finding a mat and i'm uncomfortable offering a firm opinion without that opportunity to research that further and i'm saying be happy to do so if this court entitled to be and they did what we want law enforcement to do which was they've been left in obtained a search warrant and executed later that your honour's telcel are you relying at all on a theory of in evitable discovery think i did brief that i don't think the court needs to get there but obviously there's a question about whether or not law enforcement should have been where this is not a question we wouldn't it is a question but there's a dispute about whether law enforcement should have been on the driveway the government does raise the issue of inevitable discovery which really the doctrine seeks to place law enforcement in the place it would have been but for an unlawful search if this court were to conclude that for some reason the district court erred in law enforcement should not be on the driveway again the record is is undisputed that law enforcement st smell the marijuana from from that commercial walkway north of the residence so the outcome would have been the exact same they could have left at that moment knowing the facts they knew and obtained the very same search warrant which would have led to the same exact discovery of methamphetamine forgetting is that debbie cox is purpose when going around the other side of the property wasn't knocking tock he testified that it was to do a protective sweep while the deputies were on the east side of the building they were knocking  that's that's correct until he got to be driveway when he went up to the garage door that was directly yes that's correct that's correct george he testified that his purpose was not not in talk or to reach the front door there it was a security sweep and that differentiates this case from the other cases that have allowed someone or law enforcement to go to the back door in particular shock and hatfield and rains where those instances they didn't go into the backyard or to the back door it was allowed further there was no testimony that that door was commonly used for any kind of people going into the property in matter of fact the testimony was the opposite of that of the three law enforcement officers that were doing surveillance earlier that evening testified that people were him judge seymour st i don't believe there was any reason to believe that firearms or any kind of weapons would be involved why this would be a dangerous fella is so i'm not sure that the rational for a protective sweep is there as it was in shock further at the point when deputy cox started doing the protective suite to go around back it's different than shock because law enforcement the neighbors had previously smelled marijuana so there was some suspicion that there may be marijuana there or not however in this case there wasn't that suspicion and to judge kelly's point judge he yes he went up on that walkway on the side went through the opening in the fence and then got was in the driveway when all the way up to the driveway to the garage door and that's where he smelled marijuana coming from the crack in the garage door but i think that this case inevitably is very different than the other  cases i don't believe there's any evidence of any kind of exigent circumstances or consent schuck in the shut case they had a purpose of going to the back door because it was known that that was a back door  was commonly used there was no testimony whether there was any evidence of surveillance cameras as in shock in shock there was no evidence that someone was living there unlike powell case and most importantly i think is that in the shut case the neighbors originally called law enforcement because they smelled marijuana here or there wasn't i would like to talk about the inevitable discovery though if we were to strike the portion of the search warrant containing what deputy cox's findings were of marijuana all that's left in that's in the four corners of the search warrant is mr delatour statement that two days prior there was marijuana in his vehicle as the court notes and the record shows there was no indication in that search warrant where he obtained the marijuana that he smoked marijuana at mr palace residence or anything like that it's just that someone left his house and had marijuana  marijuana in the side on the sidewalk way and said it was up the driveway and next to the garage door and if there are no further questions i think the court for the time for your time thank you thank you to both counsel for your arguments this afternoon the case will be submitted and kelso are excuse