merits i've made an argument in my reply brief about the procedural default the standard in the case law a sensually as to if a party fails to file objections at the district court that generally that is considered a procedural default and afterward he would then be precluded from arguing that issue on appeal however there are exceptions to that in the court has said the u s supreme court has said that the court may resolve and consider those issues quote in the interests of justice and it's never really been fleshed out in with too much specificity as to what exactly constitutes in the interest of justice there have been some cases where this court has found that a change in the law might satisfy the interests of justice in this case i'm arguing that there is an issue of ineffective assistance of counsel and that that issue in of itself is sufficient to excuse the procedural default now i understand generally that with an ineffective assistance of counsel argument those are made just said and then one slightly broader question in connection with with why we differ normally i see questions as a we don't know why lawyers did what they did so isn't it at least conceivably possible that the lawyer and your client did discuss this and your client for whatever reason told him not to file a motion not to object you just want to go to trial you want to get over what well your honor i i don't disagree that generally  it's not difficult to think of some conceivable reason it's interesting because actually just morning i myself was sitting i was thinking to myself what could be a conceivable reason why you wouldn't preserve the issue to file objections yeah it certainly it's possible that the client has a i'm not going to but at the same time you know the client essential went to trial only to because after the issue was resolved against him you know he really didn't it was in his opinion he didn't believe he had an option or they would have had any any better result had he just said well ok i'm going to plead at this point i'm at least going to try the issue again and see what a jury says about it i don't know what the conceivable issue could be i mean it's simply a matter of preserving it's more of an issue preservation as a post like a strategic this decision like whether i'm going to call a certain witness or whether i'm going to make a certain argument during my opening or closing statement maybe i'm going to argue that there wasn't constructive  instance i just can't think of why you wouldn't have at least filed the objection to preserve i guess the point is we don't know do it well we i agree we don't know i don't want to say i don't want to spend all your time on this particular one  hundred more importantly taking us to the next we have cases that basically set forth three factors that we look at to excuse forfeitures of this type and none of you don't seem to make a claim  reason why we should excuse this fits within any of the recognized reasons or factors that this court has set forth is that is that a fair statement well i agree your honor that there have been certain instances in which the court has defined what would constitute proper an excuse to satisfy the procedural default but i also think it's a fair statement to say that the case of the case law isn't that  developed as to other instances and i couldn't find any cases in which the procedure he thought was set aside or was civically addressed in the context of a failure to file objections i let me let me be more specific you know what the three factors are that we've cited in the case it's right correct are you claiming that this case falls within and under any of those three factors i agree and no your honor i agree it doesn't fall within the factors that the court has applied in the past though it was so what you're what you're then seeking is that we extend these factors to include ineffective assistance of counsel and have you found any cases anywhere that have employed ineffective as assistance of counsel on directory view for purposes of forfeiture or waiver i have not found any cases your honor that hold that point and the reason i was arguing the supreme court's decision in kimelman was because that was an ineffective assistance of counsel claim in the context of a motion to suppress i understand it arises in a different procedural context however the in the import of why i was citing to the supreme court's to review a claim of a th amendment in effect of this is of counsel as to failing to file a search and seizure so by any allergy i'm arguing that i believe there is at least a sufficient basis and the supreme court's precedent to extend the holiness to setting aside the forfeiture in this case given that it's never been that clearly defined the supreme court and thomas arne sat in a footnote that if you think certain instances that make constitute an arguable basis forfeiture would be for harmless error if something is harmful be to harmless error standard so that might be one way to look at it but it certainly isn't the only way i understand that this court case law is nearly set in certain states as well a change merits i mean we have pretty strong there's a pretty strong record on the merits as to the on a reasonable list of the of the search and seizure at least as to the scope and duration even if we were to assume that the officers had reasonable suspicion to initiate the the officer essentially testified there wasn't anything illegal about being on this property he testified that he didn't have any and there was nothing illegal illegal going on even after he talked to the defendant asked him for his i him some few questions so you're fifty six minutes into the sa and at this point the officer openly testified no reason here of any criminal activity i mean that this stop and continues for another six minutes you have a lead in minutes into the stop and they're searching the car so i mean what i'm what i'm essentially asking the court to consider is at least in this instance their ship there there isn't any discernable reason why i counsel wouldn't have at least filed those objections and a minimum to preserve the issue and that that ineffective assistance of counsel should inert to the benefit of the client and as as the supreme court said in gentlemen that i believe the government should bear the brunt of that responsibility for the ineffective assistance and in kimelman the supreme court made clear that right prevails that is the right that they're not going to set aside and the interest of saying and finding some sort of forfeiture for a th amendment claim and that was why the supreme court said in to moment net you know it would not act as a foreign that they would consider it under that analysis so i understand your honor your point justice judgment and i understand that there is not a case on all fours but there is certainly enough authority to suggest at the ineffective assistance of coun claim would be a sufficient basis to satisfy the not jurisdictional waiver issue to at least consider it in the instance and given the strength of the merits it makes it even that much more questionable white house a wouldn't it but in order in order to pursue this then we have to basically look st at the merits you know if we agree that this would have been a meritorious motion to suppress then backward then we go backwards and say you had to have raised it you didn't so therefore we grant we grant relief we're here you know i understand that you disagree but there are some there are some very good reasons on the merits on taking the other side of a case very some very good reasons on th suppress would have been granted anyway well your honor i mean i mean i may disagree with you on that on manton's the killer point about the merits of the suppression issue when i read the transcript i mean the district judge never cited to the testimony  it should be affirmed because mr smith waived his right to appeal that ruling when he did not object to the magistrate judges report and recommendation nd the suppression really should be affirmed because the district court got the amendment analysis right the officers in this case stopped mr smith based on a reasonable suspicion that he was trespassing they've been investigated that suspicion in a diligent and expeditious manner finally the suppression really should be affirmed because the officers in this case acted in the good faith belief that their conduct was in fact walk and any th amendment error that they may have committed was not sufficiently culpable as to warrant application of the exclusionary rule i would like to begin with the waiver issue because i think that is the clearest and most straightforward way in which the court can resolve this appeal it's been well settled for a number of years now that it ordered to challenge a magistrate judge a suppression ruling on appeal a party must st object to that ruling in the district court it's undisputed that in this particular case the magistrate judge reminded mr smith of that rule in the report and recommendation and despite that reminder mr smith did not file any objections to that report a recommendation under this cour precedent that is a clear waiver should it be cancer or a future as opposed to a waiver under the supreme court case well be the way that this court has treated it is as a waiver they basically treated it as a knowing relinquishment of your right when you have a situation where the district court in a measure a judge has specifically informed parties of this rule that is how this court has consistently treated it that's how this court's case  consideration that this court has has treated it as a waiver that adds the language of the court is used it has it is essentially treated it if you use the a lot of framework as now admittedly your honor the court has recognized that you can have exceptions at excuse me just more did you have a question i was going to give you a case but i was also wondering if you are going to particular case in the criminal context exception that would swallow the raver rule and as the conversation which as we keep pointed out earlier it shows exactly why it is the case because in almost every one of the situations where you have a defendant who doesn't object to measure a judge report a recommendation or doesn't suit raise the kind of objections that if it would later like to raise an appeal he's going to be able to point back and say my attorney was ineffective and in almost every one of these situations the court is not going to be in a position with a clear record to really address the deficiency prong of the ineffective assistance analysis and so the only way that it could assess whether there is in fact a true ineffective assistance claim that merits going to the merits of the case would be to to look at the prejudiced problem and if it is to do that it's going to sensually have to engage with the merits and so by craft creating this is an exception the court would be created an exception that would swallow the rule that would defeat the whole point of having the waiver rule because it would require the court to engage with the merits to determine whether or not it should engage with the merits and again that would defeat the whole point of having this waiver rule and that any legitimate reason for defense counsel not to object to this  s i think there could have been reasons in this case we don't know all the reasons that were going on defense counsel but there certainly could have been reasons this is a case where that the defendant in this case was insisting on going to trial he knew he wanted to go to trial and it might have been a reasonable strategy on the part of defense counsel to say look i've lost this suppression rolling i don't think there's really strong bases to challenge the suppressing ruling a part of the district court because i think the magistrate just provided some pretty good reasons that i'm going to have a hard time challenging and it is a better use of my time energy resources to focus on preparing for this trial and i think there were a lot of issues that issues should be contested and then facts work i said at this trial this this wasn't a slam dunk possession gates and i think defense counsel could have made a reasonable strategic decision that instead of focusing my resources on challenging a suppression roy but i don't think i have a really solid base the challenge i'm going to focus my resources on preparing for trial that would have been a responsible reasonable strategic decision we simply don't know what the decision was that was made how it was made why it was made and that's another reason why it's it would not be very helpful to craft in effect that this is a council exception because a lot of the kinds of information i missed a deadline then the district court should review the merits of the suppression issue at that point to decide that there was i see  actually prejudice that bennett and one of the easiest ways and usually would win the cases of the six are probably one of the only ways of the court would be able to assess that is is to sit on a gauge with the merits and say well you can't possibly have been prejudice by this because you didn't have a good basis to object there's no reason to believe that the outcome of the proceedings would have been different had you raised these objections because your objections are merit on that certain limited way so the merits then would be able to be examined under the whether there was ineffective assistance of counsel would be to engage with the merits and that's the very reason that we're suggesting the court not crafted ineffective assistance of counsel exception to the waiver rule because that kind of exception would functionally swallow the rule and i re time trying to get that in and i i really would appreciate you know an honest and direct answer to this is if we were to go down your path and say normally i see is to be raised in a twenty two  here there can be evidence of what was motivating this boy or not to act then if we were to go down that path and say that's the time to raise then the same issues in our arguably in front of us if we excuse the forfeiture or would be in front of the district court initially on the twenty dollars to fifty dollars and then you know in front of us there's nothing different about the issues because the focus that you're saying we would so if that's the case because i know it's hard for me to see a legitimate reason for a trial lawyer not to buy objections to an r and r that's totally had burst your mind but you're green with meat that the prejudice would you would be engaging in a similar type of analysis yes but the the ditch or court wouldn't necessarily have to engage in that analysis depending upon the deficiency i mean your hypothetical i think that that would that would likely prefer a strong  question is should you craft an exception a new exception a brand new exception that has never been recognised in the court's case law before for in effect it was insecure and we're saying a court there any case that holds the opposite in terms of a binding case that you can't use i a c in a criminal case where the defendant's lawyer has failed to object to a very adverse decision and in response to suppress your i'm not aware of a case in this circuit that is expressively said that in effect of this it's of counsel is not an exception but i'm also not aware of any case where the court has said that it does qualify as an exception in the case law about the exceptions in the way rule is very clear that it should be an exceptional extraordinary circumstance and that simply because you have a situation where somebody is constitutional rights may be at stake that alone isn't a bit self enough of a basis to justify excusing the waiver rule and so i think in the cases yes those are a those are criminal cases that have said that that this should be an extraordinary extraordinary compelling circumstance and an example of that is when you have say new case law that comes out you have a supreme court decision that comes out after that is your court decided the issue in the supreme court decision is right on point of course at that point it is far more in the interest of justice for the six circuit you just go ahead and address the issue despite the that cars had a known cars had entered onto a vacant property that was known to be vacant by the neighboring the neighbors in the area the officers went to the scene they saw exactly what this reporter described as all property that appeared to be clearly a band that it was a rundown house overgrown yard it was very dark there was a car with its lights off this was consistent with the officer's own experience of finding properties like this where there would be squatters where there would be potentially drug addicts that were trespassing and the officers were very clearly concerned that this might be possible trespassing so they went to investigate that that is reasonable under this this court's precedent in nothing  your honor i think it wasn't prolonged at all and i'm encouraged the court to look very carefully at the videos of the stop because what the video shows what these officers are trying to do throughout the entire stop is investigate this trespassing like they were trying to determine who is on this property and do they have a reason to be there in the course of investigating that they learned some more information about mr smith that he was a convicted felon that they were firearms in his vehicle once they had that information they were trying to investigate that suspicious circumstance so there's nothing here that indicates the options on reasonably prolong th suggested that the officers conceded that they had no reason to believe that mr smith did anything wrong that that's simply not true if you look at the portion of the record that he's talking about it was very clear that the what the officer was agreeing to is that there was nothing suspicious unless it was trespass that until they found the gun they didn't have any reason to suspect mr smith the other criminal activity but they suspected that he was trespassing that was clear the officer never conceded that he didn't suspect in the video legal activity  said he suspected of a trespassing and that suspicion was reasonable and they investigated that by trying to determine who was on the property during the course of that investigation they developed further suspicion and that's what that's you actually my time is up for the reasons oh sorry i was muted i bet it happens all right i don't know your hours i just want to circle back to just a few things as far as this is the argument that this exception would swallow the rule you know i respectfully disagree this court has many times howled and past cases that it is a rare instance in which the court will consider and i ac claim on direct appeal i don't dispute that a right and by arguing that you know allowing it to happen in one instance or finding out i see would be a sufficient basis to excuse a waiver i don't think that opens a floodgate given that there are so many instances of i c claims that clearly would be disposed of without the court's consideration of using those claims for finding waivers for instance failure to call witnesses failure defectively cross examine those would be given very little consideration most likely by the court as if those were the i a c claims that were being raised as an excuse for why the court should should satisfy the waiver but this is different as judge moore said i can't think of any legitimate reason why you wouldn't preserve that argument simply by filing objections the district court could just overrule the objections you proceed to trial i mean it's wouldn't you if we were more limited if we said this would if we allowed legacy claim for failure to file jackson's two of our in our in a criminal case wouldn't that rule have lied everytime where there is no sufficient or discernable basis for professional discretion as to the underlying basis of the i c claim i think that the court could craft an exception that's more narrow as opposed to saying any and all i see claims  you know may serve as a basis i think it could be a more narrow exception your honor how do we how do we do that in this case where we don't know why the the the lawyer didn't file an objection  moore put forth a very interesting hypothetical about maybe he just missed that deadline and if if we had those facts and that became then the basis for for a very narrow holding that's one thing but we don't have any facts upon which to base it other than as an argument that there was a good claim here on the merits which requires you then to address the merits in every one of these cases well i think at least in this case i think that the merits are reflective of of the deficiency of coun and if i could just for instance turn it around so you have a district court who rules against the client on the motion to suppress and he essentially relies on context based factors and there's no mention of the fact that the officer s i know that my brother counsel i may disagree about the import of the testimony but the officer says quote there was really no indication that any illegality was happening there that was after this is five minutes and so you know i think that when you when you look the part of the problem with that is that at that point most of the time was spent looking for the squatter that todd said was there that that smith said was in the house and then the next series of time was spent looking for the woman that was supposedly or been aiding in the woods that drove that suppose he drove the car with the with the guns and then all the police officer does is he walks by and shines a flashlight there's no law that says you can't shine flashlights and tires and in fact we get dozens of cases and say you can't and before he acts upon that knowledge that he saw the gun your client admits there's guns in the car well your honor the way i would respond to that is number one know rather than me either justify what the police should have done or didn't do to the officers testimony is there was nothing you know illegal going on this is i mean it's into the search later on he says well anytime involved in a search i just like to look around  sounds to me like the absolute basis of an in articulable or a nondescript suspicion or no basis yes i just like to look around and see if i can find anything is there it is there is there any dispute that some measure of this time was spent looking for the squatter that your client's that was in the house i don't dispute that that happened that was off about five minutes into the about five minutes into the stop but my problem is what when you look at the record you have the st two minutes in and they stop and if the reason for the stop is they suspected that my client was either homeless or a squatter that that belief was quickly dispelled within two and a half minutes so then the question is how do you get to five minutes and then six minutes and then eleven minutes and the officer says on the stand i mean i think the court should accept the officers testimony at face value when he says there was nothing illicit illegal going on i see that i'm out of time unless the court has any questions for me i guess ill and they're on my re