both win or both lose your honor this is a motion on a motion to suppress and we submit that there were about the smell i was pretty impressed with the part of your argument about out the cop doesn't mention to the judge that the fifth is by a woman who says she heard a conversation a couple years ago and he doesn't mention to the judge that the woman's under him and for multiple counts of theft and welfare fraud there is left all those things out but thing that i wonder about is the smell on the one hand you've got the neighbors saying they couldn't smell anything and they sure can smell it over the hay and the horse manure on the other hand you  least thing they did smell it had why don't we have to go with the district judge on that or first of all your honor the fact is that most of the information that the that a magistrate should have had to make terminations as to whether or not you officer could smell the marijuana was not in the affidavit there was no indication of the distance at which the officer was when he claims to have smelled the marijuana there was no clear indication of where on the property he was when he claims to smelled the marijuana and as is further laid out at the curing in this case it turns out based upon the expert testimony we had that the clearly is a fundamental question as to whether there is even a possibility based upon some information that came from informant what the affidavit does not tell the magistrate is how old that information was back it was two and a half years old fails to indicate that the informant was in fact someone who had a grievance against one of one of the parties her ex husband he's not somebody that was ever indicted in this case but he had some relationship with one of the with the codependent in this case and he fails to lay out the fact that he was just under indictment  dishonesty there is a mention in the affidavit that he had previously been victims of crimes of dishonesty but essentially that was basically kind of given short shrift additionally there was an indication about some power in the fact of the matter is all we have  and hearing it turns out that the d a actually testified that there was no way that he could have possibly determine the size of a grown based upon the power consumption and what it what was brought out of hearing was the fact that the is that there was a number of factors that were not presented to the court so in terms of the question of whether there's fact there were certainly some factual findings that this report made and that while we do take issue with those there's a more fundamental problem here in the file and that fundamental problem is that the information was not there there was not there was not sufficient information that was presented to the magistrate when he really made his determination whether to grant or the the tip provided by the confidential informant present necessary to support of finding a probable cause ok as a matter how unreliable that confidential informant was of course your honor the we would submit in this case it absolutely should have been because in fact the court even though the court's saying well it's only the initial piece of information that starts it the court was in fact relying upon unreliable information that that's ultimately what comes what we come down to  out hearing that there's also a lot of reason to question whether it was even possible for him to have smelled that there were signs there was evidence that the defense brought in an expert and the expert testified that wood stoves is there anything real typical about this trailers so that it would just be assumed by the magistrate the residents did or did not use that's something that everybody knows in oregon and i just don't know i guess i would have to say your honor there isn't anything that's just a given with regard to that because certainly this happened in a rural area pine oregon eastern oregon it's an area where there probably is electricity and would be the most common i just don't know about it and it sometimes and assumption by a magistrate would be reasonable there snow on the ground in january and fairbanks alaska some time at it wouldn't be because people heat all different ways that's from trying to find out i understand and i guess i would have to say that i don't think there's anything that the magistrate in this case could automatically assume would be the basis of a heating and please the court i'm terry wood and i represent mr viewers if i could maybe respond to a couple of questions that the court directed to mr friedman regarding whether the court is required to accept the district court in relying on making that determination and that was based on the fact that agent landers had withheld this material information about the informant withheld the fact that the conversation where there was a marijuana grow discuss occurred two years prior to the time that he began investigating the fact that that agent landers failed to provide the court with information that it needed to determine his ability to reliably smell i believe that the judge hogan found and in that respect that the defense evidence established that there was a good likelihood that he made a false positive other words that he honestly believed he smelled the marijuana but he didn't if that's true your honor but i believe that there are two fundamental issues here one was a frank hearing that challenge the veracity of mr landers on a number of issues the other issue though was regardless of how the court ruled on the franks claims whether the warren itself still provided probable cause for the search and we've argued at least mr beers as argued fairly extensively that the warrant did not opinion regarding the detection of marijuana odor was likely was also includes very and not supported by any factual basis that a magistrate can determine that that opinion was reliable and so basically without the opinion of our consumption without the opinion of the detection of the marijuana odor then the warrant fails to state probable cause regardless of whether mr landers made recklessly false statements and it has one more time what would effect odors what are you asking us to hold your honor we are asking the court to to hold of course to reverse the district court but to do so on the basis of the need for there to be a humanly impossible to detect the odor accurately detect it not to think you smell but to accurately sell it i'm having trouble reading the judge's order i can't figure out exactly what it is you would have us hold  of marijuana we've argued that's clearly erroneous the other issues that we've argued for lack of probable cause are all questions of law does the affidavit within the four corners contain a factual or conclusion is that's to general for me maybe my colleagues understand it but i don't in the context of this case it looks to me as though the problem with the affidavit is that the policeman it looks very much as though the policem was intentionally deceptive covering up the indictments of his confidential source the motivation of his confidential source the staleness to the information from a confidential source and the affidavit is dodgy about the policeman was deceptive but i don't have a finding one way or the other that i can really fast and on to that's correct i just open didn't didn't find deception other than the material act on deception your honor he said and just about i know he said well the only really didn't matter about the informant because she just triggered the investigation but i can't tell whether he says the policeman was trying to fool the ma find regarding the mr landers sense of smell that finding is on page one seventy five a record and he says doesn't make a finding regarding the reliability what he makes of finding is that he found agent landers to be credible with respect to his representations regarding the detection of marijuana so he found him to be credible and that i concept from whether the person is reliable you could be the most credible believable person in the world and yet provide untrustworthy information because you're the information's not reliable you didn't accurately perceive might trigger memories well selective perception basically says memories are your mind contributor to the honest belief that you're smelling something that you're not that's your argument that the where the court finds lander's credible there on page ten goes to the question of frank but does not go to the question of the legal basis for the version in the waters are correct correct or under does not go to whether the that whether there is a basis for the magistrate to determine the reliability of that opinion that he smelled marijuana is when he smells of marijuana whether there are other structures and how close they are to the source are you going to be saying that i don't have that as a matter of law in the circuit that we need to before somebody can say i smelled marijuana that we are going to have to come yan and tell you how far away i was standing here i'm saying that that would be one that's a factual basis for somebody to evaluate it and the court you know would find that that's just incredible you know what if  incident similar distances and that would be something that someone who yeah although that's that's true i mean when you when you down to the to the to the those kinds of details but the district judge does does find that he's been on something like thirty five he's offered place the court good afternoon i'm steve gunnels i am a specialist at the united states is horny and i represent the government in this case i represented the government at the motions to suppress hearing in the district court as well and to the point of obvious dishonesty he says in march two thousand and four we got an anonymous tip and makes it sound like that and then he says that the informant hadn't seen the marijuana grow  ham but it overheard conversations grow it apparently been in operation for several years i would understand that to mean that unless somebody told me otherwise that she heard these  to two and a half years ago and then it goes on to say power usage is not dropped below twenty six hundred kilowatt hours per month well i just happen to notice my last electric bill one of the sixteen fifty and i don't have electric heat i have oil hot water along the baseboards so it didn't look that high and he didn't really say any comparison to show that it's hot and he doesn't say what electricity usually runs in that area or for those kind of railings and then he's talking about what the informant is like and paragraph thirty seven he goes on about all these things about fifteen twenty years ago i don't know turns out she's under indictment for a whole pile of real serious crimes of dishonesty so i figure this policeman is deceptive and then all i'm left with is that he says he smelled the marijuana but he didn't say how far he was away why by itself is apple evil in light of the other evidence of dishonesty your honor i'd like to deal with those things one of the time well i've told you frankly what's on my mind and i don't care you know that i appreciate that you know your honor when the agent refers to the source as became clear to me first of all say that i think it's easy to confuse what's within the four corners with what came out of frank's hearing agent landis testified at length about his investigation and about his prior experience and that is in the  excerpt of record available to the court he was a he is a very experienced agent he has spent twenty some years as an agent investigating marijuana cases also not the and that struck me as additional less evidence of trickery actually if you tell me tom things not under oath that's false and then i truthfully say in an affidavit what you told me neither of us has committed perjury b i understand that your honor i can tell you that the reason for the relaying of information from one agent to the other is that agent landers is an agent in bend oregon agent flannery is an agent in eugene oregon  eugene is is where the magistrate court is and so information was conveyed to say the five hour round trip and that that came out of to frank's hearing as well and so that answers that question although i understand that concern the reasons that i agreed to treat agent landers as the a fine and in the franks hearing it was because i didn't want to encourage what the court suggested would be the trickery of saying  page seven of the order the court writes it is unclear just how much landers and flannery knew of the information regarding the confidential source at the time the affidavit was prepared but some investigation was conducted and material information bearing on the reliability of the confidential source was the mid from the affidavit nonetheless the information from the c f is what started the investigation and does not provide the primary support cause the agent testified at the franks hearing that he used that information from the source as what he referred to as a tipster just the information came in he decided to use that in order to launch into this investigation where he was conducting surveillance where he was attempting to smell the odor of marijuana and so on he further testified that he had conducted in excess of one hundred marijuana grow investigation in thirty five of which sticking with your question what what is within the four corners of the affidavit is that agent landers has extensive experience both domestically and internationally with marijuana growing investigations is familiar with the odor of marijuana let me back up for just a minute to the informant how could anyone possibly swear that a grow it's been going on for a couple of years based on the evidence that somebody says she heard a conversation between two people about the grove who were two and a half years ago well you're out of the i don't believe that the agent swore that the growth had been going on for two years i believe the he swore that the information provided by the source was that the growth had apparently been in operation for several years when i meant that you're right i assume according to the source it had been going on for that long and i would say you know last conversation two years was two or two and a half years ago the weather whether it was known to the agent or not i don't know but when he omitted it i don't know that it had any bearing on at least in his mind according to the the court's finding in his mind he used her information as a as a tipster only and conducted this investigation subsequent to that it was the investigation what he learned from his own perception that really forms the basis for the probable cause and that's what the district court found i interrupted you as you're about to go on and the electricity with regard to electricity gone or the agent i mean as i think there's there are two two criticisms being made of the agent in his affidavit one is that he's overstating things and then i think there's another that he's understating for example criminal history or other things well actually the consistent with a marijuana grow or is indicative of a marijuana grow but is high enough to support a sizable marijuana grow in other words this isn't a trailer  would wither these plants but it's a trailer that is capable of containing a marijuana grow and i think that's when you get into when you get into power usage record in investigating a marijuana grow case you can you can boil the numbers any which way you want no number tells you that there is a marijuana grow there or even is likely the all you can determine is that this power usage is capable of producing marijuana in this size of a enclosure and so that's that's what the agent did he didn't overstate the evidence that four years that he has seen her time and time again come into the place apparently trying to hide her self by pulling down the flaps of the garage door as soon as she  the garage and he further says that when he approaches the house from the wooded area behind the house he hears the sound of exhaust fan and his in his training and experience exhaust fans are would agree that the most significant claim by the f b i and is that he smelled on two separate occasions marijuana from a proximity and downwind and he concluded based on his training and experience that the he believed there was probable cause to search that house didn't understand something about the garage when i pulled into my garage i always get out of the current hose go right away so we will lose all the key and what suspicious about portable set up garage as soon as she enters the garage she gets out immediately holds on the flat which for a convicted marijuana grower will be significant in the in the sense that she didn't want law enforcement to be aware of her connection to that house on this your own private areas no reason to preserve it certainly there's no heat coming from that that building or it's one of those as i picture it it's one of those portable structures with plastic rods and flap that goes up and down and that's how i picture it in the affidavit and so we have these two separate issues one is whether within the affidavit itself there's probable cause  reasonable magistrate finds that there's a fair probability that marijuana will be found inside the house if there's something suspicious about the garage portable rock not not the garage  i don't believe that anything suspicious about the garage itself there was no marijuana growing inside the garage the marijuana was all growing inside the trailer near the garage the the suspicious thing or the fact that's mentioned in the  it is that it's in is this why her gets out of her car she pulls down the flap and he sees that happening time and time again which could have an innocent explanation or it could have a if there was something suspicious about the garage if i didn't see what was suspicious about going down the last month or so i think the the the gist of that entry into and you know i think the danger is when we and that's what i meant about writing part of this it's you know what i what i'm i feel compelled to say is that that's why i think this court should give such  deference to the district court in its credibility finding because i was there i was there at the motion hearing to see agent landers testify about his career this case  that when the only the only time that it could be that the issue could arise whether the agent intentionally or recklessly omitted material information from the affidavit there was no finding by the district court again that agent landers intentionally or even recklessly omitted material information the court did not clear when the agent came to be in possession of that information and when he made credibility finding the judge the district court judge consistently found that agent landers was credible in fact more credible than the defense expert with regard to smell and with regard to power usage information and so i would urge this court to on the frank issue to defer to the district court on those credibility finding and with regard to the four corners of the  direct the court's attention to the transcript on to just seventy four of the transcripts why no seventeen with regard to the knowledge of the officer with regard the next page on page seventy five of the transcript and again this would be at wind twenty two going to the following page and it was on seventy four nauert seventy five i guess and then the next page seventy five with say too much is variable in the individual grower i've seen anywhere from four marijuana plants under a thousand how hell i'd like to probably in excess of eighty one hundred marijuana plants depending on the size and how they grow so no i can't relate disaster that's correct and then at that hearing but before holding a hearing the judge says would there be enough even without that even without the dishonest  judge did grant the franks hearing what we what i think the problem is facing this court is that the opinion of the district court is lacking in a number of respects with regard to the very questions that you're asking the court essentially which is the woman in the trailer was a convicted dope dealer and the policeman smelled marijuana to me that it be enough for probable cause but if part of the totali circumstances is not only that she's a convicted bill dealer and the police moved mel's marijuana but also that the policeman who says that he smelled marijuana as tried to deceive the court with some deliberate and highly material omissions and i wonder if i'm supposed to apply totality of circumstances differently i don't know exactly what bottom line i think what the court has to conclude is that if it suspects that the officer was being dishonest that you've got to disregard his other side whatever other information that he provided but i mean what if the district judge also hearing as he did and says i think the officer was in on a not smelling marijuana again we would suggest that the court has to consider that that was a conclusory opinion that it was stated by the perception that the officer had there was an expectation that he was going to smell marijuana dogs have been tested there is an objective standard here we have a subjective determination and i guess what we're suggesting is that where we have this kind of subjective standard then you have then in terms of totality you have to look at everything else that the officer has provided to determine whether or not to believe him and based upon the scientific evidence that this come out of hearing would suggest that he should be disbelie