know our lighting system we don't have lights obviously in this set up so good she's a will tell you when your regular argument time is running to a close when you've got a couple of minutes left and  states versus whole sandon what mr groups may please the court michael caruso from the federal public defender's office on behalf of jose antonio morale of us the physical entry into a home is the chief evil at which the th amendment was directed the local police here in fort pierce florida did not respect this principle the affidavit that the local police detectives submitted to the state court judge lacked probable cause and effect are related in overlapping reasons the government is not entitled to the defense of good faith in salvaging the suppression of the evidence in this case for probable cause to be established this court revealing to know you know looks at the totality of circumstances and i believe that there are a number of factors that show that the totality of circumstances did not establish probable cause as the st point i would like to say judge will consensus opinion in the  circuit think judge wilkinsons opinion is the fullest expression of why courts in trash poll only cases need to be in that type of evidence with a healthy degree of skepticism you know judge wilkinson writing for the court referenced the supreme court's greenway case which permitted the government to search a person's trash without a warrant the reason according to the supreme court the government can do that is because there is a last an expectation of privacy and a lesson connection to the house when someone puts their trash on the curbside ironically as the th circuit a road the relevance of the trash whole evidence to determine probable cause depends on the connection to the house so there is that inherent tension between greenwood  were attached to in that sense in the graphic sense to the folks in the house but it isn't the fact that there were two separate and distinct poles three days of art a distinction of some moment between this case and lyle i would respectfully disagree judge marcus of course the fact that there were two poles in this case is a difference but i would say that that difference is that any significant moment you know if you look at the cases there's a broad consensus that one trash coal is ordinarily sufficient there's also a broad consensus that trash pull evidence can of course be used as corroborating detail you know if our cases in between those two poles i would say that we're much reasoning applies in this case you know i'm not here to say what is a trend or what is not a trend but i think when you look at the character of the debris found in these two pol revealed a couple of smoked blunts and the tatters of a bag that presumably is used to store tiny amounts of marijuana so i i think in our case that chew would not be a trend because of the minimal amount of debris found and actually the closeness of the polls i think the closeness of the polls in this case supports our position you know in our briefing i use the party analogy so say for example and we're not conceding that the drugs were ever in the house but assume for a moment that there was a party in the house on a monday night and someone in the house marijuana so after the party they clean up the house they put some of the trash in the garbage and they put it out for the for the pick up the next morning now we know that sometimes the party debris does not get picked up all the same night of the party so imagine the next day after the trash is pulled up they continue cleaning up for the from the party and find these these two snow blindsided tatters i'm back and they and they put that in the trash for the friday pick up so i wouldn't say that in our case it's a trend if there was more drug debris and more knew the course of the p c here oh absolutely your honor if you look at the totality of circumstances and i'll get to the to the other point you raised about the connection point that personal use marijuana is is ordinarily bought and consumed in a very prompt fashion and i think that to polls with the minimal drug debris with the polls being so close d in time that is the best case the government has that marijuana was smoked in the house but what the what the affidavit must must show is not whether mat marijuana was in the house at one point in the past but whether it's currently in the house and i think the warrant affidavit just has no evidence to show that at the at the time that  was submitted to the state court judge that marijuana was currently in the house and i also hear last year or turn the good faith exception issue on sympathetic to your baseline one tell me why you believe the good faith exception not apply well one as before a i fully answer your question as a baseline of course the government has the burden to prove good faith and the government shows to introduce no extrinsic evidence on that point with regard to the substance of their good faith defense you know we would say that a reasonable well trained officer which we submit the detective in this case was not he had only been a detective for two months seemingly had no experience with submitting affidavits for warrants in fact this could have been his st try  we don't think are reasonably well trained we don't believe a reasonably well trained officer wouldn't rely on this warrant because of the minimal amount of drug debris and that the fact that there was no connection in the trash to the house if you look at the leonard case from the th circuit the case the judge marcus referenced earlier the core holding of the latter was that there had to be some in dish with in the trash back that connected th trash to the house that is a flat out holding of that case in our case the magistrate judge not only wrongfully assigned the burden to mr morale as but also ignored that it did it's unclear whether the district court did because mr morales his trial lawyer did not make that point in his objections so there's no there's no evidence either way from the written material that the district court misapprehended that now she did adopt the are in are in the hole which and they are in our did did shift the burden to the defense so as to that point that's our best evidence of  smoked he said he didn't know that at the time of though he conceded at the hearing that he knew that the particular neighborhood in which the the residence was located was known for drug use on the street so you know to to more fully answer judge jordan's question about good faith you know if you look at the state law cases that both parties subsided there is nothing in those cases upon which law enforcement officers would most likely be trained to lead them to believe that to trash holes by relying exclusively on cheap trash holes with minimal drug debris and with no connection to the house within the trash would suffice either jacobs you know which had much more evidence like surveillance anonymous tips you know database searches found found p c but that's not a trash hole only must be presented to them that evidence wasn't presented to them at the hearing before the magistrate judge in fact at one point mr morales defense lawyer was asking did you have anything more like a tip evidence regarding the lack of good faith he pointedly asked the young detective whether there was any evidence in the trash linking the house to the trash the government objected and the magistra as to both determination she should afford no way to that i submitted in my brief that the pictures that the police officer submitted to the state court judge with my eyes it doesn't seem like several bags it seems like one bag and with regards to the word kush i think that's consistent again with personal use of marijuana  about the meaning associated with the word yeah yeah your honor so so kush is a slang term for marijuana it's as if i went to mcdonald's and bought a hamburger stamped on and you use the meryl streep example that might be particularly relevant and arguably are against this so i can tell from the picture during the break i can look at it more closely but at any event i think it's irrelevant because there's no evidence that that mr morales or any one in that house was distributing drugs you know when when buyers of marijuana buy from distributors it's not uncommon to have the word kush or other slang terms for marijuana on those bags i don't think it's indicative of whether the issuing judge had a substantial basis to conclude that a search would uncover evidence of a crime he did because the two trash holes shown a pattern of illegal activity that reasonably appear to be ongoing but even if this court disagrees suppression is not wanted to because the good faith exception applies where officers a  want evidence should not be suppressed i'm less the officer is reliance on that warrant was entirely unknown reasonable here the police reasonably believe that the evidence found during stablished probable cause there was no case that the defense has cited that indicates otherwise no case where there were two trash calls like we had here where a law out there where we are the it's not one hundred percent that one trash pope cannot be enough we can look at the case in briscoe out of the th circuit where they did only have one trash hall but it consisted of who are the marijuana seeds that were recovered and twenty five dollars marijuana stems so there are be a manhunt to agree that was recovered was considered to be certainly we would not at pursue that here we would not support that was an after probable cause in the nd trash home where there were the pictures disclosed in discovery not that were attached to them aren't but the pictures of the evidence that they had were at least five it appears to be marijuana plants that is a little bit more than three stems but i  the property is situated on the south side of this street it is adjacent to an empty lot basically the way the houses were set up there is no residential area and there just doesn't happen to be home on that neighboring lot but the search warrant was clear that the trash can have been put out on trash day trash collection day for that neighborhood and they were situated at the northwest corner of the property and hundreds of the address law is next to the adjacent lot yes your honor but that location is at the end of the driveway next to the street for trash pickup it is quite reasonable we would say that trash cans that are put and at the end of a driveway that anyone passing by could add additional material to that trash bin however that was an argument that was made below and the magistrate and the district court judge both believes that it was reason because the evidence that was recovered in this case was recovered from within field trash bag like multiple layers of having been sealed that it was if had he hand written the word kush on it and the officer testified and i believe put in the light that that indicated a reference to marijuana now whether we can marijuana or selling given the in incentive testimony small quantities doesn't that yield a reasonable inference that the occupant was not necessarily need the the search warrant didn't necessarily need to find evidence of the traffic of marijuana marijuana possession is still illegal and even if it were only limited to personal use or possession of marijuana that would be enough to justify a rd one for additional evidence of a crime but affidavit he wasn't even able to present another evidence of that to even warrant a hearing on that so the hearing and the testimony that was elicited was elicited only i and it i don't have the exact language right in front of me but it does say that law enforcement received an anonymous tip that the defendant was selling narcotics things we are not limited to the four corners of the at the peanut we can consider other evidence from the record in this case because this court is making it in no vote to terminations whether they're  our position judge ginsburg is that the record before the court at this point because your honor they're making you need to know how to terminate and you you do have that information before you know and should be able to consider to suggest good say i think that you are definitely right that it's there and it was of this view that this is not the most powerful piece of evidence honor we are not relying on that exclusively by any stretch it simply was one additional piece of information that we believe the court could consider and i have found the exact language from the p s i i if i can read it for the court or in their grads who are it says on or before a particular date well before the warrants were apply for law enforcement received information from an anonymous source who stated that the defendant who they under knew morales was yelling narcotics from his residence located at and then it gives the address that was the target then paragraph was based on anonymous information the anonymous information that st lucie county sheriff's office conducted to trash paul and then it goes on from there and i don't think we would have expected  there was not going to be a hearing at all it was going to be limited to oral arguments until the court decided well you've raised this issue now about the empty lots here at oral argument that you have n that wasn't even included in the brief everything that was in your grace is not enough to even have testimony elicited however now that you raise this extra issue will give you the benefit of the doubt and we will take testimony on the issue of potential omission related to the empty lot so under those circumstances your honor there is some i think that provides some explanation for why the prosecutor did not go into great detail about what led them to conduct the anonymous i'm sorry but this trash p that i couldn't find a single case that would allow this court reviewing the district court proceedings tra la i it's odd a matter that was not presented during the suppression briefing or  if that's the case when the defense lawyer asked the court and the prosecutor what other evidence did you have been a prosecutor stood silent i think that's telling about the import of this information and as to the  lack of objection you know defense lawyers at sentencing after a conviction have to make these difficult choices as to what to check to and it was really of no significance to mr morale is that sentencing and the reason why i called it a stray more was because there's just simply no identifying details you know who this tip was given to when it was transmitted if it was transmitted to detectives saline but so we think it rethink it's not appropriate for this court  consider the bottom line under the martin case is to establish probable cause the government has to show or the state has to show two things the defendant's connection to the house which only appears in a conclusory statement in the in the a it and the connection of the evidence to the house and the cause of the lack of in disha residency within the trash didn't satisfy that element as well you know if we if we look to the good  argument the government didn't sustain its burden a reasonably well trained officer based on the cases that have been cited would not have relied on this warrant this was a rookie detective presumably his  warrant and he just did not show reasonable reliance on this warrant we would also say that the cost benefit analysis is in mr morales his favor you know that to turn effective suppression in this case would be very strong because essentially have bottom it's a lack of effort by the police to conduct a robust probable cause determination and the cost is very minimal the evidence recovered in these two trash pulls is a misdemeanor in florida under twenty grams of marijuana is a misdemeanor and can you imagine the unbridled discretion this court d would be giving to the police if they c conduct a whole house search based on three stems and a few smoke blunts based on that evidence to search a person's entire home do you not think that