marijuana and three the government's failure to meet its burden of proof to the essential element knowledge of status under really hates that was raised in appellate motion to file a supplemental br one question about the scope of the issues which is you also make that the issue here are you also argue about the probable cause for the arrest but i understand that to be in the context of the d n a swab in the inevitable discovery issue is that right or do you make an independent welch did not provide voluntary consent to the search and three the government has not met its burden to avail itself of the united will discovery doctrine counsel could we go jump to the rd prong i think you have a pretty good argument that it doctrine here to dispense with the warrant requirement first as judge straw mentioned we challenge the probable cause to arrest that the arrest in this case was unlawful because the probable cause was insufficient  i think the nd issue and probably the more important one for the court is even if the court were to view the arrest as lawful i don't feel the government has met its burden to show that the d n a sample would be taken subject to the arrest as the court is aware the government has the burden to show that there's a reasonable probability that the evidence would have been discovered by lawful means in the absence of the misconduct and that the government was actively pursuing a substantial alternative line of investigation under connor now here the x the government has failed to put in evidence to granted if the sample was denied during booking is that just an assertion or is there is there evidence of that and before this your court your honor the evidence that the government put on regarding regarding th issue consisted of simply ten lines of testimony during the the motions hearing the government asked case agent warner if the subject had not agreed to provide a a sample what was his normal course of practice i'm sorry i'll quote it what in your normal course of practice would you have done officer warner responded i then apply for a search warrant that requires him to provide a sample of the government then asked have you done that in the past yes and discussed that he had done it many times he then asked officer warner if in circumstances like this even we've and we we have an implicit finding that that was credible with what is there to counter well the credibility obvious or yes we don't have a record to challenge the group officers credible the court accepted  sufficiently established the truth of what he said well look there it was there was an ink to the contrary in the record your honor there may not have been anything to the contrary in the record however i believe the court aired and finding that and the district determination that the d n a would have been inevitably discovered appears to have relied on maryland the king and the booking process however there is no evidence in the record of the booking process of hennepin county there's no evidence in the record that either of the three defendants that were arrested at the scene and were then booked in the head up in county jail had a d n a sample taken at the jail or that that's part of the process and in my experience not from my experience and had it been county what about the scientists you i know that judge cries alluded to it but this is a cordial conversation from what i can tell there's no coercion now maybe you could argue that that he was somehow duped or didn't get money into warnings you've already got my d n a on the system and he said something to the effect that well we need to do it anyway basically it's procedure yes and then there was not compliance excuse me the suspect of a right to refuse consent but when but also in misled the defendant to believe that this is common practice and that he didn't have a right to did nothing to us way fear the the assumption that he had no choice what's the standard of review here though isn't it clear air and that's the problem i'm having i mean even even if i would agree with you that there is no consent here don't we have to do we have to defer to what the district court fact found because it's a factual finding it is a factual finding although i would say that the clear air in here ed many in the d n a evidence based on consent certainly affected the defendant substantial rights at trial the government relied in  opening statement and its closing argument it very heavily on the d n a evidence and in fact said that he was charged in closing argument stated that he was charged because his d n a was on the gun you know i would submit that what would casey says that's enough to overturn a suppression that may not be enough on its own but your honor i submit that the evidence that was put forth a trial you have three gentlemen that were found in the home all who were felons in possession only my client was charged and the government's own words in trial where he was charged because of his d n a it was on the gun i submit that the evidence here without that you know evidence would have been insufficient district court found that was based not only on the c r i information but welch was selling drugs out of his house and storing drugs there which was confirmed by a photograph but it  was cooperated by the investigation they did surveillance at that house saw mr welch there the night before the search so a lot of short term traffic to and from the house but most importantly when they go in there with the search warrant mr welch is held in a back  that are broken their cell phones in half which is pretty incriminating conduct their search mr welch and they finally got over almost five hundred dollars and twenty dollars bills on him and it was established at this marijuana they were selling girls for twenty dollars a bag and there's a whole bunch of the synthetic marijuana in the house and the guns are are in plain view in a kitchen closet so there was ample reason probable cause to arrest him and then as far as that consent goes the conversation was completely cordial i just listened to it again last night and if it's in the record i urge you to listen to it they're joking they're talking about the maury povich show  when asked to give a sample says well my d n a is already in there it wasn't in the form of denying or refusing it was in the context of you know save yourself some time you've already got my d n a and then the officer explain wasn't an affirmative response i mean it certainly wasn't an affirmative response that he was consenting well the actually the district court found that it was an affirmative response and the officer testified out without contradiction at the motions hearing that it wasn't of an affirmative response when the officer explained to him that you know you're already in the system we have to take a new one each time welch didn't dispute that didn't disagree basically just open his mouth and let the guy take the sample is not just acquiescence to authority well it and there was no claim of authority like there was in the case the defense relies on in that case it was a airport stop and the woman three times refused the pat down search three times i asked and she refused and then they did it anyway and this well they said we're going to do it anyway and she said ok go ahead and do what you have to do that was not consent and that defendant testified at the motions hearing and made that record welch did not testify at the motions hearing saw that you have on the record is the officer sworn testimony that he consented and has cooperated by the audiotape which is just a court listened to and made a finding that the unity was calm and cordial those are quotes that welch complied without hesitation and that he quote was cool with the officer taking his d n a sample so there really is no basis in the record to overturn that fine welsh was told that it was customary for everyone in the house to be given a buccal swab or d sample was said truthful or was it deception now it was truthful i mean based on the officers experience he does these all the time and when you go in there and you find convicted felons that apply to the i believe there were some mother and children in the premises as well there was that they probably would not have gotten a d n a swab from the the child and i don't know but it was not accurate i don't know if they did it from the mother but they did it from all three suspects who were huddled in the back bedroom walsh that it's customary for us to take people's d n a when we do search warrants find firearms and we find prohibited people around these firearms so i asked him who was a prohibited person if he would give me a a sample question did he agree to get one yes that's the state of the record so i don't think there's any deception now at all and it wasn't a statement by justice system has given d n a samples three times before and importantly he had just told the officer i'm just a visitor here i don't know nothing about guns i know nothing about drugs i'm just a visitor here well ok will you give  sample at that point it's in his interests to say sure wrong with it because that's his defense i've got nothing to hide i'm just a visitor here so he wasn't tricked into doing us this was his own choice can you tell us what's in the record to it's at page twenty of the motion hearing transcript question hypothetically if mr walsham out agreed to give you a d n a sample voluntarily what in your normal course of practice would you have done and then not apply for a search warrant that requires him to provide a sample and have you done that in the past yes how many times over fifty times question and in circumstances like this where someone is a felon and arrested in proximity to guns and drugs every ever been turned down on a d n a warrant like that no one followup can remember ever being turned down on a d n a warrant at all no but the point is that the supreme court has said you don't need to get a warrant maryland versus king says if you're arrested for serious crime you don't have the right not to consent you've got to get one as part of the booking process now in heaven county they're a little more protective of defendant's rights if you won't get one voluntarily  go get a search warrant and it's routine this officers never been turned down in over fifty occasions is that a problem though i mean you rely on the district court and the magistrate judge rely on maryland versus king as i recall and  i think it's this case and really don't get into the warrant issue and the fact that it's not a routine booking procedure and had it been county seems to me tip to to potentially be a problem because we have to guess as to whether or not there would be a warrant issued and what that whether the o well he said testified he would is no guessing about it and that was an contradicted and i know from my own experience that that's what they do all the time they go get a warrant if there's no consent and i've never seen one that wasn't granted either but you don't even have to get there because the consent is so clear here but i do want to touch on this real high if issue i was never directed to file a brief on this you said that you would take the issue of the supplemental brief under consideration but right what am i missing well i'm by believe that there was a council put in a supplemental brief as well based on real high of and she just said there was one or three issues i just want to make a record here that if you want credit yeah yeah and i could go on because if you look at the p s r use been all of his prior convictions were for well over a year i think the shortest was thirty six months the longest was sixty months there's about five of them there's no argument possible that he didn't know he was thank you your honor just to clear up the record on july th two thousand and nineteen counsel filed a motion for leave to file the supplemental brief with the supplemental brief attached and the government is correct that we received an order that after multiple times the government said well we were going to do it anyway i don't believe that's correct i believe what the the testimony was that officers told the defendant that's what we do we talk to people we search people's bags we pats rich people that's what we do every day which i believe dispense with the warrant requirement for the search and i thank you for my time and we request three man