all right well as i said case number four has been removed case number four number sixteen three eight seven five zero ins against old wisconsin sausage has been removed from today's oral argument calendar and so we will proceed to case number hundred states against page sixteen forty one twenty  there's a lot more than just marijuana here isn't there you know you have him fall in this league or significant amount of time in the drive through lane some drugs or alcohol well i think there's two questions here i think the odor of fresh marijuana does not appear to support an inference of consumption with the district court found that the order of fresh marijuana gave the officer probable cause to arrest him for possession of marijuana now the other question i'm asking the court treats all of is whether or when you sleep in one's vehicle in a drive through lane stationary creates probable cause to arrest that citizen without other indicators of impairment and without administering any field sobriety test very late at night it's approaching one o'clock in the morning and this odor of fresh marijuana is there and we're supposed to follow a totality of the circumstances test for these various encounters i don't know why there wasn't at least reasonable suspicion that something was amiss whether it was possession of marijuana or whether it was operating a vehicle while impaired to justify the pat down  frisk basically and once the pat down happens the officer finds the gun he admits that he doesn't have a concealed carry permit and seems to me the jig's up well i certainly concede that the officer had reasonable suspicion to investigate the just painting the the surrounding circumstances very late at night where they are the officers by herself at that point it's sure looks like a terry frisk to me it was a terry frisk i agree even the officer herself didn't justify the searches incident to arrest like this or later did she her stated just pick a she was to look for guns or drugs before she placed mr page in the back of her vehicle to visit the player if she can smell that the marijuana run the fire kept to himself he responded to the scene assessed it and realized that this person did not need any medical attention and he felt certainly just comfortable leaving the officer alone with this two page he did ask her whether she wanted their presence to remain this page  for backup before she approached with mr page i think officer sometimes come into a habit or routine of simply patting down everyone the terry stuff but terry does not allow that these facts here his cooperation the lack of any other factors that would indicate that he was dangerous didn't noticeable you know he said he was sleeping he answered her question whether she believed him maybe a different story but nothing supports the inference that she was in danger she says she thought he was lying and that will make it dangerous he was sleeping and whether she believes him is objective he was asleep there's no denying that whether that was the sole cause was left to be investigated that's what she should have done in fact she herself about the drugs meissen that enough to justify a brief pat down because drugs doesn't make one dangerous the odor of marijuana does not make one dangerous at all and as we argued in the briefs and the government often does the inference it is too far to leap to presume that because someone smells like marijuana that they are probably armed and probably dangerous and probably threatening that's just defies common experience so i don't believe that fact supports an inference that this person was dangerous or presented any danger to anyone involved she responded to a sick or injured person call completely innocuous secure situation she went there to offer assistance not to investigate a cr observation warranted further investigation the terry stop not challenging that we're challenging the search so i certainly believe she's walker was entirely is entirely appropriate for her to approach pate to question him and to administer a field sobriety test which she did fresh marijuana which again from our position is that is not a support does not support an inference of consumption that basis was doing this certainly supports an inference of possession and wisconsin is not one of those states that has legalized yet can travel and the smell can linger and smelling like marijuana does not necessarily mean that one possessed it as this case is evidence of she smelled marijuana if you credit her observation from him he had no marijuana on him it was in the vehicle i think that demonstrates that proximity alone is enough to contract the smell of marijuana and taking the citizen and arresting them and bringing them to jail for me or smell i think is against the fourth amendment the protections that before does so that's our position now the district court also didn't reach the didn't believe she had probable cause to arrest him until she recovered that gun and given the facts of this case nothing suggests that paige presented a risk of harm or danger to that person yes it's late the more you haven't said anything about the neighborhood that's another thing they've brought up i mean there are we'd be putting our head in the sand not to realize that a certain neighborhoods where violence is more prevalent where guns are more prevalent that's true i don't think this record necessarily supports that and i think it's quite frankly unfair to reduce the fourth member protections for people found in these areas simply because their surroundings might have in the past be attributed to crime that has nothing to do with mr page and people simply passing through these neighborhoods are not i think  protected by relaxed constitutional protections so while that may factor into the totality of the circumstances that by itself nor with the other observations as he observed specifically his cooperation he did nothing whatsoever to raise an eyebrow that this person is dangerous he sleepy i think that falls on the side that he's less dangerous than one who was probably more alert or you know active or maybe belligerent argumentative none of those things were here so it well again i do think that's a fact that warrants consideration in the totality of circumstance court matthew craig on behalf of the united states this case is not about the smell of marijuana standing alone as the defendant has suggested instead as your courts as the questions asked of him indicate there are several other factors here which supported the finding of probable cause as to the possession of marijuana were operating while under the influence which would support a subsequent search incident to arrest those facts how is that what you need you don't you need do you think your strongest case is probable cause to think that the drug offense the marijuana offenses occurred thus a search incident two and a arrest course the rest us and take place for another minute or two  do you think that there was and not all by itself i mean i think it's set then record on just and unless there's some rule that the police can just frisk everybody who's walking through certain neighborhoods do you think that this pat down it can be sustained independently i do think there's enough to find this is a justified terry frisk i do think the more straightforward and very solid ground for affirming would be probable cause which the district court found and that's that follows both from the fact that this court's cases have said repeatedly the probable cause follows from a struck us and a distinctive odor of marijuana in cases like peters and moseby th has repeatedly affirmed the search of a vehicle based on marijuana which gives as your honor's question in a kid a distinctive enough smell the think that marijuana is in a certain place and the court has then applied that principle to finding probable cause to arrest somebody in the williams case and so to not follow that here would be to suggest as i think the defendant is asking that there are different probable cause standards for a rest versus search and that it's the smell of fresh marijuana not far i think that's right although i would note that in cases like peters in peter's what the officer smelled was burnt marijuana and the court said that was probable cause to think that there would marijuana there in the car and so the court has not really tried to finally parse current versus fresh because it makes sense that if one hasn't burned it it likely as there and some may still be there probable causes certainly less than a preponderance of  evidence of the evidence standard so you have that line of cases and then you add to it the conduct that the officer found here you have where this person mr page was falling asleep for some period of time in a drive through lane where i'm not sure what he did side here but just if you can continue certainly so again where he was where he'd fall asleep how long he had fallen asleep and then his demeanor which she observed afterwards she described it as somewhat sleepy eyes were low seemed invasive in the questioning not wanting to say anything perhaps because he knew that he was trying to conceal wrongdoing and so you have those additional facts here that  about the sequence here she arrived and very soon as upon approaching the vehicle detected a strong smell of marijuana both from the vehicle and from the vehicle itself a from the vehicle also and that's important here to recognize it to sort of acknowledge the factual setting or the factual posture of this case in that there has been a waiver of any challenge to the finding of facts of the smell that was found there was an evidentiary hearing the magistrate judge marijuana not to smoke but having observed it and so the court recently made a factual finding that appellant at the appendix page fourteen the court finds that the officer did smell fresh marijuana coming from page and his vehicle there was no objection to that from the magistrate judges finding it so that's the finding here on appeal and so again considering the sequence she undoubtedly even if she had not frisked him would have further investigated the car to see what was the cause of his impairment or why there was that order of marijuana coming from the car and so even if there had never been a first here this record is very solid to say that she would have been evidently approached the car smelled marijuana and under cases again like peters moseby and others she had probable cause to search the car at that point so you're also saying really not that as she approaches the car if and when she makes just isn't the decision that she wants to put paint in the back of the police vehicle she needs to frisk him anyway i'm trying to remember that part of the argument under the our second argument under the terri yeah ya part of that  when she makes that decision because she's alone and plans to investigate further that she needs to detain him and not have him just standing there as she would go run his name in a record or approach the car again i believe by the transcript of the bed the denture hearing you'll see that the car was actually still operating so the car a chance to turn it off and it needs to be transported by somebody other than mr paige certainly and so she needs to detain him and it's a very reasonable given that she has to come in such close proximity to him to ensure for her safety that he doesn't have a weapon on a minute on him at that point so this case is different in that regard than terry itself where the officer was just engaging in a citizen on a sidewalk and a few questions may have dispelled the suspicion and the person could have gone on his way here mr page was not going to be allowed to just go on his way the officer needed to keep acting and so that increases the potential risk to her harm and further justifies the  mystery i think the importance here is that the position advocated by the government allows citizens to be arrested without any marijuana ever being recovered now while there may not be much case law to support that the probable cause standard is different for search than it is for an arrest the interest of differen liberty interest versus a privacy interest so i think it requires greater deference and of course the search protocols to search is intended to find the basis for the subsequent arrest under this scheme they never need to find any under the government's theory for example the officer could walk up to the vehicle smelled marijuana never searched it never taken any more steps to investigate and taken paige to jail for that fourth woman doesn't require doesn't allow that excuse me finally when it comes to inevitable discovery there is simply no basis in the record to conclude that it would have never been discovered we are simply speculating and i don't think it's possible to divorce the government's proposed inevitable discovery from the tainted act as soon as she searched him she lacked a viable basis to do so and she arrested him based on the fruit of that search for that reason those fruit should be suppressed where did they find the gun on his person on the porch yes it's in the back of his waistband correct and which we ha even ask him if he was armed she just went straight to that terry require some sort of investigation a brief detention to ask him questions that didn't happen here she just served him right away and recovered a gun we are asking this court