to look at the cases where we sort of grapple with this difficult question of what does that mean for proof beyond a reasonable doubt at the trial or added different stage here where you're just seeing whether that's  mediately apparent that this could be violation what would be necessary in that context as compared to a full blown jury trial context right and that  substance the quantity of which was understated and he admitted to the officers contemporaneous to the seizure of the gun not that he used marijuana half hour or one time but that he was a user of marijuana trapped in the terminal definition that what information is relevant to determine the probable cause four determination in other words they got some additional information from me in the squad car do you some further questions and your position is because two those questions are that information they got from him shortly thereafter that that can be used to support the immediately the are here respectfully requesting that the court affirm the district court's decision which denied motions to suppress both of the i r physical evidence that was seized and the statements made there is simply no clear error on this record in the judge's decision i will briefly go over the facts and we're talking about probable cause while briefly point out some of the relevant facts and when the court is familiar with them we're talking about an early morning one hundred five am traffic stop his car smelled it again there was consent to search a glove compartment he went up and did that and confirmed the odor of marijuana which resulted in the search of the vehicle in the back of the vehicle there marijuana paraphernalia showing concurrent use so we have what i would say is the prior use which is why the defendant smells of it and appears to have you most good and then we have evidence of continuing use which is the drugs that were found the torch that were  that was found and so we have all of those items that were found along with this concealed weapon and i guess i take issue that something in a black bag on the floorboard in the back seat of the f o b i don't know how you conceal it  maybe there are probably ways better than that but as is pointed out in the hatton case the court took that into consideration there and said even a poorly concealed firearm is incriminating b very nature because they're trying to conceal it so given all of those things the defendant was arrested he did provide a urine sample that was positive for marijuana and he was interviewed and he was interviewed fully provided when miranda advisement and then he was interviewed again over the phone following another and advisement both of those involve him having a full discussion and it doesn't take very long to those discussions with the officers to understand the defendant knows what's going on he's having a knowledgeable discussion with the officers and i realize that he testified one simple yes or no that he never understood is miranda advisement but he didn't give any specifics as to what he didn't understand and when he was asked about the specifics of them or added but as he indicated well he understood that part of the understood that part and so it's difficult to understand what part of it he didn't understand and he certainly didn't accuse record than better we did have the most suppress a couple of notes from the district court opinion when he noted that the bats in large clear that the traffic stop was valid and the search was based on probable cause that doesn't seem to be an issue before this point was raised before this court there is no question that the search of the ba the issue is whether the firearms incriminating nature is immediately apparent a couple of things struck a little bit about what it means to be immediately apparent and or the court is aware of that but then we're back to the probable cause standard not to beyon what was found on the defendant was cash the cash in another itself is not incriminating necessarily but that is the under these circumstances so we're back to all the respects that we were just talking about is early very early morning hours the attempt to avoid the officer the smell of marijuana on the in the car the marijuana at the marijuana smoking her family and all those were also hidden in the car the officers i believe didn't hit that bag but they were concealed in duffel  so certainly those factors taken together and taken as a whole do lead to have probable cause to seize that gun and to continue the investigation which is what they did do wait we can look at what they do at the time they seized right the moment they seized the gun well i think you can look at more than that but i don't i do think they had enough when they seized and then you have an individual who is actively smelling of marijuana there are drugs  other circuit cases that indicate that guns and drugs and go hand in hand for sentencing him and purposes that has been address so you can you say the drugs just so i understand what you're talking about i know the case not the dark marijuana which would suggest recent use in that location and i think is that he had watery eyes maybe as well did they have any other in any did they know about anything else in the car at that point when they took when they seized the g testimony is that two officers are searching two different sides of the car one officer found a gun on the floorboard in the bag on one side of the car all the other officer is searching the duffel bag that contains the marijuana wax and the paraphernalia so specifically i don't know whether the record was clear on timing that certainly before they seized the firearm and took it with them to the to the one for to the detention center but they wouldn't know those things and i do think you got to consider i think the investigation gets to continue and i think you got to ask for the questions the officers get asked for the questions and i think they get to consider that evidence as well when we talking about charging or other if that's concealing i'm i'm not really i mean it's happening every day in every street in north dakota it's just hanging out in the backseat of a car but whatever that maybe once you've got the drugs once you've got the gun what you get the guy using the essentially that you can't remove it because it's not apparent that it's criminal to possess that then because you haven't got the elements all nailed down for the crime which you have some evidence towards every element of the offense of being in a  concept we're talking about law enforcement officers who are seeing and perceiving things as they go and experienced lot worse than officers who have done some great investigation and i think their perceptions and their conclusions on the side of the road were the right ones that night they all these things in ads are too good to get that drugs let's keep the investigation going so i do think they get to seize those i did so i guess i'd argue that's why they're incorrect in that assertion court knows he doesn't have to be asked if it were a that to continue the conversation in both of those cases and again it doesn't take very long listening the defendants an intelligent young man he's articulate he wasn't having trouble responding to questions he wasn't answering on that would be you had a bit of a break in custody and i don't know if you've had a chance to look at the video is fresh meaning to move it five minutes at a time but there's a break where he is by himself waiting for the officers to  initially could have changed his mind at any point in it and it was presented by the officers as here's an opportunity to help yourself out but after miranda they had that discussion with them and again rand is not a concept that he was unfamiliar with share more i mean i do kind of throw that out of that as a counter argument and i see what you're saying i do think if you listen to these statements in the troll car they were in cope with glory but it's not that he gave a lot of knowledge they had a kind of back and forth the sketch and the officer said i don't understand what marijuana waxes used for but just sort of having a discussion about drug use so there were some statements made but i don't know that there was anything that was i buy it here i dean thank you to both two counsel for your argument today there were very helpful and we will take the matter under indictment