evidence that a legal substance may be present yet here local deputies from the washoe county sheriff's office conducted an intrusive warrantless search of the car based only on the faint for friend to friend it's one of those wonderful long sites and that's as a person who's most or otherwise consumes marijuana in a public place and then i look at the me or in a moving vehicle is guilty of a misdemeanor in this case since the car in which ray was riding was stopped for a vehicle violation the officer smelled marijuana in the car and a dog alerted to the set of marijuana why wasn't there probable  cause this statute says if you consumed it in the car that was moving that's a violation had nothing do with the quality had nothing to do with anything else you just smell in the car the dog alerted there was a moving violation of the car he was in do we take that into account there is no evidence in this case that either the driver or the passenger consumed marijuana in a moving vehicle deputy s pull out of the tao and stop that car almost immediately it is legal to smoke marijuana before getting in a car it's legal to smoke marijuana if it's parked on private property and it's legal to transport marijuana in one explanation for that but with probable cause you have to prove it you just have to have evidence that a reasonable person looking at the situation thinks that you know this is probably a violation of the law and based on the statute that i indicated here moving violation i mean and moving vehicle smoking or consuming marijuana in the moving vehicle is a violation right so why isn't there probable  deputy gamble arrived on the scene afterwards you know that specifically that it was a faint smell there was no evidence that either gentleman had smoked marijuana in that car no smoke was seen there was no there was no end of a joint and mr cannon the car's driver specifically said we haven't smoked marijuana the drug test us if you're concerned that we smoked marijuana in this car drug test and he offered that for himself and for mr gray and  the government conceded below there was no concern in this case that the driver was under the influence no field sobriety test was administered by the way your client was a passenger that's  standing there is your client have to complain about this and she didn't have the search of the vehicle and she didn't own the vehicle or have any interest in it standing was never raised by the government either below four in the  th circuit as an issue in that jurisdiction it is jurisdictional but because the government charge mr grey with possession of the backpack the firearm that was in the backpack and the photographs that were in the backpack firearm in the other things that were in the backpack he didn't have possession in the car but the question we're talking about here is kind of the president told question you ever get to the backpack you're saying understandably that there was no probable cause but in the case like this where you have the statute that i've cited the facts that we cited what do we do with that if it's a closed question does the does the government lose and if so what do you cite is the basis for that well i think we can all agree that the probable cause standard is more than it's possible there was marijuana in that car and navigating this question of whether there is probable cause in a recreational use state is a new question but it's one that is paramount to the th circuit because so many of the courts or so many of the states that have legalized recreational marijuana are in the th circuit well i admit that the recreational use is going to change things no question and consume or or smoke marijuana in a moving vehicle there was a scent around a long time moving vehicle the dog alerts you i gather you would mitt it is a possibility that there was probable cause it's not a strong one but you agree with that i think that it's a possibility ok marijuana was smoked in the car although it is my contention that there are not it isn't there probable cause to think that it was in the car which is a violation of marijuana has a strong smell and one ounce of marijuana is a fairly substantial amount and so there were two was burnt versus raw there isn't a single fact that suggests it was a bronx marijuana smell there was smoke and all of the courts that have considered this question they've been state courts a washington state court and the supreme colorado supreme court they've all found that in order to have probable cause to search a car there has to be some in addition of criminality or that there's actually contraband in that car and they've laid out a number of factors that can give guidance to this court such as extreme nervousness despair and accounts from the driver and the passenger the notation of multiple cell phones on the passenger seat that's a guidance to this court as to what factors need to be looking towards each so forgive me for interrupting but i because your time is getting limited i want to put one question that i had which was presumably the purpose a good driver so the the fact that there was a smell of marijuana doesn't tell you anything about when the marijuana was could and there's no reason to infer that it was smoke while the vehicle was moving right i agree honor and i believe that if there was a concern about driver safety they could have conducted the next steps that law enforcement always conducts when they're concerned about driver safety such as administering a field sobriety test but no officer ever indicated a concern about driver safety and in fact the government has conceded the driver safety was not a concern in this case nor the statute required to be the driver or just the consumption well being of it in the car if it were just the driver then i'd take the point but in this case there's no requirement of amount of marijuana is a federal crime and rd well on that point that was never meaningfully raise polo it wasn't part of the judge's decision so why haven't you forfeited that argument sure so  it was not part of the judge's decision i would say that it was raised below i would want you to where we need page two hundred and twenty four of the record in it with this is in the government's response to under the heading the detection of the odor of marijuana  probable cause the government wrote that the status of marijuana as contraband has not changed in these states referring to states that have legalized some uses or some consumption of marijuana despite certain amounts being legalized decriminalized under federal law marijuana remains illegal in any quantity so i think it is fairly preserved if i know it doesn't matter what the officers were thinking but if if it wasn't raised other than that please can we really fairly consider that federal law was the issue they were saying all schedule c we got to stop this guy is that why they were doing that as he said i don't think that the subjective min between state laws and federal laws when considering what is probable so your position is i gather that and as your learned opponent says we've got all kinds of states within the th circuit that have now adopted or may soon adopt laws that permit limited amounts of marijuana use possession and so on of marijuana for a variety of purposes to be perfectly legal but that doesn't change the edge we'll see in the federal law is it your position that regardless of say medical marijuana use let's say that mr gray desperately needed medical marijuana and he had a permit in california for medical marijuana and the police dopy never mention federal law could he be chargeable from your perspective on that basis well i think that that you have to separate that question into a few pieces ok so st i think there's no question that federal criminal laws apply throughout the united states by virtue of the supremacy clause so there's no law or action that a state can do to remove from a pulpit billy a federal a federal criminal prohibition the separate question prosecutorial priorities which is entirely fair game and there's yet another question of what states want to choose to authorize their officers to do what remedies they want to give them and how they want to interpret their own constitution now going back to whether the argument has been forfeited there where those passing references that you mention but i don't see in the record where the government ever argued straight forward to the district court forget about the state law issue judge the federal law issue is dispositive or anything remotely like that and the judge clearly didn't understand the government to that or he presumably would have addressed it in his opinion i don't think it was articulated repeatedly i think the main interest of it in the ruling and based on the court's questions seem to be on some of the state law arguments but i do think that the language that i cited to you at page twenty four dollars of the record does speak for itself in plain terms that marijuana remains federally prohibited in any quantity does it make any difference that in this case the problem isn't the marijuana it's what it led to nature of the violation that winds up in court should not affect the th member amendment protections and you know i think it's sort of illustrates the arbitrariness of crafting a rule where the defendants reasonable outpatient expectation of privacy changes based on the identity of the officers who may be conducting the search and i think this court's recent decision in part us well articulated that principle and it applies equally to this case so for example if federal officers had been conducting this particular search i do not take mr gray to be arguing that they would not have probable cause to search for a violation of federal law and and look whether there's a good case law to that effect right the  doesn't translate automatically into a violation of the th amendment in fact it's irrelevant so the supreme court for example and cooper said that the question here is not whether the search was authorized by state law the question is rather whether the search was reasonable under the th amendment and so i think that principle applies equally in this case so that if the police local police don't have probable cause but this  that somebody is going to rob the bank and they're looking for the money but they also know that the person has just gone to the dispens ary and purchased an ounce of marijuana and it's gone into his house that it's in his house they can say ok we are now federal officers we're going to search for the marijuana we have probable cause for that and then they go through the whole house and find what they were really looking for so you get this this is a pretext you think that's perfectly all right well i guess i would want to separate the question it's into two pieces i mean st as a th amendment matter free pretextual seizures and searches are permissible and that's the holding of ran in the supreme court and i think that's well established law so there's there's no automatic th amendment problem with the three tests but i want to be careful to separate this out into say that states are free to define the authority of their officers and to craft state remedies either under under statutes or their own constitutions to control the conduct of officers and i'm not here to argue that the that the th amendment somehow prevents them from doing that it's just that those sorts of violations don't translate into exclusion and of evidence in federal court under the federal th amendment so i've just taken a look at your government's response to defendant's motion to suppress and i must say it appears to be directed ninety nine point nine percent towards whether this was valid under devadatta law so are you saying supposing that what you have the passage you just read as the one and only passage apparently referencing federal law was in a footnote that would be enough to preserve it i think a clear articulation of the principle is enough but if you're not convinced by that i think there was also clearly probable cause under state law here well then you understand that you would not have to reach asked and i'm happy to address that for my remaining minute if you have questions on that front i'm at when you have an additional question i would like to address very briefly the u s currency case because i think it's really the only precedent that my friend has cited in support of the rather novel proposition that the th amendment looks to a difference between federal and state violations and i think it's really important to look at that cape case carefully and understand what it's saying so i think the best reading of that case is that it's about the sufficiency of an affidavit in a very particular context and not really about the sufficiency of probable cause based on facts so in that case you had state officers applying for a state warrant before state judge and they made material admissions of fact which essentially hid the fact from the judge that the conduct they were describing would have been lawful under state law in that very narrow confines context where the the state judge presumably would have no reason to automatically think that the officers were investing in a violation of federal law that the decision u s currency says well the officers in that case should indicate it so that the magistrate can apply the facts to the relevant what law they think has been violated i don't think that that ruling translates at all to the warrantless search context where there's no ex ante indication of what law you think has been violated and i think it would be sort of it wouldn't make much thank you i'd like to briefly address the federal jurisdiction and shall so the government never argue that federal law was a dispositive issue it was raised in mr gray's motion to suppress in his as a separate section that the fact that marijuana is legal under federal law had no impact on this case and the government never responded yesterday counsel i think i know the answer but i want to be sure you have case law that says that if the government doesn't raise the federal issue at all that it goes away in other words it's a legal issue would it go away in other words could if they had never raised it before the trial court but it was an independent ground would it still be viable or is it just gone i don't have a key surveillance planes i might be happy to provide for their briefing if it would assist the court i frankly think there there is no federal marijuana issue in this case regardless these words local deputies conducting a local traffic stop they were not trained in federal law they were not authorized to enforce federal law they were thrusters but i'm not sure i know the top of my head that the federal aspect of this just goes away any more than the fact that the felon in possession issue is the ultimate issue and that clearly a veteran's day the fact that he's mr gray has been charged and convicted of a federal statute and that he was in federal court means that the federal th amendment applies to this case on everything and we of course agree that that is the standard and this case the fact that this was a local deputy conducting a local traffic stop means that this was not a federal case this was not a joint task force these were not d e agents investigating federal law according to the government's argument local deputies from  strategic decision that the district court level we're going to make argument x we're not going to pursue argument why and here's why i thought the law was pretty