discontinue noise violation a city noise ordinance under the balancing test set forth in the united states versus hensley again been used in a robbery i'm sorry with your gun involved in the robbery i'd have to check but i know for a fact it was a felony and i know i believe it was armed but i i can't say for sure i'd have to refer to the case but i think the court brings up an important point and that's the difference in the nature of the violation that we're dealing with mr grig states if the court him wanted to the court could have said once you've got reasonable suspicion that a person is  crime whatever kind of crime then you can pull them over but the courts are short course they can say whatever they want but if they say something that is outside the scope of the facts of their case as was the fifth anyway as some people would see it so they might not have said any crime or misdemeanor because that issue wasn't presented in that case that is adequate although i'm merely typical of at least how some of them write their opinion so then that would mean we now have to take this case and figure out you know what makes sense in light of their name that's absolutely correct what i would say to that is justice o'connor indicated that we have to use been completed before they arrived on the scene about an hour but what difference does it make if any at all in this matrix of factors that we need to consider that under idaho law one cannot an officer cannot arrest somebody for a misdemeanor unless they witness the crime well i think that that how does that fit into this thicket of facts i think the court still has to determine overall whether under the fourth amendment this was reasonable but i think the fact that the legislature has spoken to the fact that police in idaho can pull someone over for this very type of thing speaks volumes to what the interests of the government in preventing this type of offense that is being completed are i also would point out the judge w district judge expressed we found there was no public safety danger where as in hensley you have an armed robber or robber i forgive me if i don't remember yes and running around obviously the public safety danger there's extreme  there's also some indication that you could have misdemeanors that would be dangerous if you've got an intoxicated driver you would want them off the street but if a gentleman who blasted a stereo arguably blasted it for a couple of seconds by the as i understand it the officer didn't know the guy's name they didn't know who the driver was and so they didn't go on to complete it right then they have to try to use other methods to figure out well the certainty and to the exclusion really of all of the other factors articulated under hensley what i would say is number one mr greer given given a previous verbal warning by the homeowner's own admission that had been a hold to officer mcguire the responding officer and off from acquiring knowledge that when that happens ample police have to make a record of it now he did say that it would have been unreliable to hold it up honors in park buter but officer mcguire said i could have called this patch when asked how long would that take the find out if mr griggs name was in the can in their computer he said it depends on how busy they are and then he said i was going to bother with that because this was no big deal the easiest thing would have been to just pull him over my position your honour's is that just because it's easy doesn't justify it under the fourth amendment because you're still dealing with an on what an intrusion without a warrant you're pulling someone over that's still an intrusion on that individual's liberty and i think you i'm sorry i might be wrong on th i thought the judge when mel in the suppression hearing phase of this made a finding that the other method of trying to find out his name was unreliable there is some confusion here and i think it's of pull it up and that's when the question you didn't say that was unreliable what he said was that we don't know how much time it would have taken because it depends how busy dispatch is and to me it wasn't i think a deal in the first place so i don't think that judge will say that this patch would have been unreliable i think the concern there was we didn't know how much time it would take but there was never an effort if it's a general balancing thousand it seems like it sort of boiled down to balancing that the interest in law enforcement investigation about a completed misdemeanor versus the intrusion on fourth amendment values of a limited very st i agree with that but what i would just add is you had a police officer himself saying we didn't have much of an interest in this with all respect it was a noise violation it wasn't that big a deal it wasn't an emergency i wasn't going to bother to c dispatch and i would note that when he arrived seen mr grig was parked down the street he was still available and after mr her male started relating this to him off from acquire didn't make any effort to try to contact mr gregg down the street and that there's no indication i would just note the government has the burden of proving the village idiot stops there's no indication that couldn't have been tried i would also say that there was concern that mr grig might be driving away but we had another officer go out when he got out and they if they see him drive by stop them we want to cervical the citation i will judge when the insults that you couldn't find it that was reasonable under the fourth amendment because there there is no need to identify the person you have a place you have an testify he never asked to try to call the license plate into just have to get a return to see who it was there were other alternatives it wasn't just a total absence of any means to identify mr grig and i think if you take that measured  misconduct in this case and when i say that i knew no intent no disrespect for my colleague my friend but i think that in this case in the trial he let himself be carried away and i think that what we are facing is a perfect storm of prosecutorial misconduct in the trial we had misconduct and in my opinion was continuous throughout the rebuttal argument it was very we have felt chained we had severe inflammatory remarks and we had unwarranted attacks in my view and defense counsel and finally all of these went unaddressed by the district court over several objections in fact i made four objections one  time you want you to think the government or that they backed it off in the sense that on the second go around of that argument as with as i recall the prosecutor left himself out of the equation and he left out the jackbooted nazis he just said they want you to hate the government and you know not only the a t f guys that's correct and i do but i don't think that that's an appropriate thing to say first of all i'm entitled to do whether they're if you have faith in store people off the street the government i think went way overboard in responding to that and basically with the change the whole tenor of the trial it with the jury in the position of having to choose sides are we going to vote not guilty now because that guy is a guy who wants us to think he's attacked looted nazi as well as the two other agents and he wants us to hate the government and that that polarization just simply has no place in a federal criminal trial i about we used the term we undervalue for the agents testimony repeatedly by number one talking about basically he didn't just vouch for the agents credibility either out for his own position his special role as a prosecutor let me explain this when he gets into the immunity yesterday that's correct he says let me explain to you what monahan didn't explain to you these agents went to talk with mr papa because i think it's when these agents want to talk with this republic because i think it's important for you to understand what use immunity is it is a tool that we as law enforcement officers used to get the truth this is doing two things that are prohibited it's telling the jury things that the prosecutor test for i'm saying testify about which i think he did get he never test he never said anything about the reasons why we give immunity the only thing if you're ready to testify to impede is i think five seventy three to five seventy nine certainly made of action objection and i made four objections at one point one was sustained because prosecutors said they're not trying to hide anything from you they were turning over reports none of that was in evidence so i said objection in that one was seen of the others were trial through the defense might also point out that the that the defense also is the first party that introduced my role in the decision offered us unity when it cross examined not use that but in this situation this this isn't the case is a little different from your standard prosecutorial valjean if you read united states versus her manic which i cite in my brief that that's a that's a clear case where the prosecutor where there is no evidence whatsoever the record the prosecutor was involved in the situation and investigates decision and they're saying we cannot and making themselves a part of the invest here this is this is different because the fact that he says on actual record five twenty four in other words did you say what you say today mr papa won't be used against you or did you offer me any for prosecution and robbie says that what he said would not be used against him and then he goes on used there was evidence that when they interviewed that he told them that but one story and then they came back with a second or a view and he told them a second a second story that was different materially different from the first story that was that was through special agent ready set have a question about this this whole issue it's it's a little strange because at first blush seems ancillary to the main issue which is the guy's got the gun in his car did he know it was modified and you know is he guilty of the weapons of found and then everything gets off on th side track about whether use immunity was offered to mr proper and whether the agents offered it because they thought they had a weak case and then we get the vouching issue in the us we get nazis and vouching introduced in response to that so of the whole trial having one off on this issue it seems i know you guys are probably probably in boise everybody goes fishing together as are probably buddies apart from this trial incident of the sort of went astray a little and what i wanted to know was where does it fit into the or your first question the absolutely the fact that this this whole use immunity issue is it was collateral to mr grace kelly and i made that very clear in my rebuttal argument i call it after i finish immunity argument i told the jury that's not what this case is about the case is whether the government has proved its case beyond a reasonable doubt then we box is never collateral well bias wasn't but the fact that the agents were trying to get trying  towards the end of my argument but it is a plain error review with with regard to my to my comment about the jack jack booted nazi's this from on i'd point out mr monahan's objection was not to the rhetoric of the comments and let me be very clear i were not arguing that the comment was was justified or or was proper that that the district court  government complied and mr money didn't jack but if you look at his objection it's first objection to that rhetoric it's on page sixty seven he says i certainly did not accuse mr luke off in any way his comment wasn't again to object to request a curative instruction to move for a mistrial and then also to file a motion for a new trial so there are a number of opportunities to bring this to the district court's attention and he never he never for the first time on the point the prosecutor's comments jury were improper and prejudicial and that's that's the purpose of the plane or reviewing and in this case the comments although we were not arguing that they were that they were  the contrary this in this particular case only thing i can say is is that in this case i was i was brought in to the the case into the evidence both in mr mani answer jamma nation and then to getting closing argument it during his opening salvo and so in this particular case use of the word we and us had some foundation underpinnings in the evidence that's all i can say on that on that particular issue i did want to turn to the to the there was a comment about whether what a judge will had found regarding the reliability of the of the system for checking out whether prior complaints had been made against check to see if a verbal warning was issued and it was not at all certain that there would be any specific information about the defendant or the vehicle or the circumstance what officer or what judge what all of pressure on the judge when when goals finding where there was justified or not wasn't limited just following it up on the computers rain right he was saying all thing would be on reliable the problem with this system and it's in the testimony of officer mcguire is that the only way he had to check this out was to go to have his dispatch go to the address of the complainant in this case jeffrey harm out and run a search to see if any officers had been out there or not i mean the court found that the system that the police department has or crock matching is unreliable you know i don't think he found specifically that that's just it was unreliable but it was and maybe better words jeffery her male had reported the officer this was not that this had been an ongoing problem that and one occasion he'd even confront of the person not this not mr greg but somebody else and that person had threatened him with a firearm and that he had called in and told them you need to call us when it's actually happening as we get out there they didn't know who this person was there's a law on the books that's been enacted by by the city on the list of the city code violation hensley with they had was a recently completed cry where the suspect was still on scene they didn't know who he was they didn't have any real alternative methods that were readily available to them to learn who we got a l ordinance doesn't it have to be a certain death of a level before it violates the noise ordinance and was that ever a stablished whether there was even a completely calm i don't believe that that in this particular code there was a decimal requirement it was a distance scene that there's there's the quality of information which was absent in that you get a case just of mine talks about the fact is a recently completed crime and the fact the suspect is leaving the area in that the police have no certain method for obtaining motion to suppress my physician is that if the police can always pull over as a matter of convenience then the other factors that justice o'connor in the majority and hence we talk about mean nothing and obviously the court i think so one of them to mean  something the police also i would say this wasn't a case where they had no idea who this gentleman was there were alternatives the house down the street calling dispatch calling in the license plate they had ways to learn who this gentleman was because mr grey had already  given a verbal warning by the police at some time in the past i do wish to object to the government's claim that i'm the one who brought him into the equation with respect to the offer of immunity if the court looks at my time and then i asked mr koehler again at any time response it's possible i can't remember i can't recall we could do to the fact that we went out there to find out the situation with the firearm that's possible yes two questions where i didn't get the answer i needed so now i need to jog his memory all right did you tell him the prosecutor had offered him immunity yes i believe i believe so i do not recall what you believe so i'm thinking yes with respect to the object did get cut off to say that the objection improper argument didn't compas the nazi remark is i think unfair i would also say that compared to the other cases such as combs wetherspoon her i need far more objections and that men were made in those cases made an attack on defense counsel objection i think that all those taken together met the harmless or standard i see that my time is up i want to thank you for this opportunity thank you we thank you both and we hope that you whatever the result in this case that you do go fishing