with regard to rule eight fifty one and rule thirty two those are rules with specific protocols that need to be followed in order to ensure that a defendant understands what is happening in moving forward especially a case with such significant consequences the purpose of the a fifty one requirement is to make sure the defendant makes an informed decision before proceeding to trial and lane and survive this require every man for re sentencing now mr smith's rights have been violated and he is serving that sentence of life the court ruled that this was and a search incident to arrest but it's our position that this was not a search and search and to arrest because  think judge wardlaw was actually on the panel in that case and in that case the ninth circuit held that as long as the search is roughly contemporaneous to the arrest then it's to how do we get around that smith case i mean a judge wardlow wrote a concurrence in that case but i don't think it's controlling so assume that's so not her opinion controls but the court's opinion controls how do we get around the case well i am familiar with that and i believe two times prior to coming back and then physically lifting his shirt and it it amounted to quite a by elation of his privacy at that point in time and i i mean i think any time you have a search into your rest there is go some by lation of what we would normally think is privacy much or what the officer has probable cause to arrest him at that time and notice is there something in his waistband what is the officer to with the officer under the smith case is the officer not allowed to look to see what it is well in this case he chose to do that by forcefully lifting his shirt which i think was a bit unnecessary given the fact that there were no weapons to be located  and i understand the court's position with regard to the other smith case i am familiar with that is there any other way we can distinguish that case i haven't been able to identify any other distinguishing characteristics the other i guess concern that i had was that if you look at dickerson this was a lot of squeezing sliding manipulation by the officer and so it did i was not a trial counsel and i was not counsel at the time of the motion to suppress it it did seem to be a bit excessive if those if that evidence was obviously excise from the warrants we've got i would say submit to the court that we don't have sufficient information for probable cause for the search warrant for the b m w or the hotel one of my biggest concerns was that unanimity instruction was not given at trial and i have compared this case to the carrera ventura case and i'm familiar with that but the facts are somewhat different in this case because in this case two firearms were located in a hotel room and one firearm was located in the b m w in the koran ventura case all of the firearms were located in one specific residence and so it's highly possible that the jury could have made their determination of guilt not agreeing as to which firearms that were it could have been the two firearms in the hotel room or it could have been the one firearm in the b m w and so we don't have unanimity if that's the case the two firearms were they  related to the drugs though all three physically all three firearms were listed i do concede that rule forty one doesn't apply in this case with regard to my argument of the sloppy police work and violation of smith's constitutional rights but crawford does state that if a search is conducted by state officers under a state warrant and is federal in character the legality of the search should be analyzed in light of the federal constitutional requirements and those provisions of search warrant criminal rules designed to protect the integrity of federal courts and obviously my client is very concerned that his rights were violated because the execution of the search warrant should not have occurred until after ten o'clock pm and the labels on all the evidence seized reflect five p so what is there to say was not a dumb mistake but actually the sort of court of five rather than not rather than after ten o'clock well the testimony was that the search occurred at ten o'clock and again i wasn't counsel at that time but i have no reason to doubt that officers truth truthfulness my position would be that these things need to be followed these rules are made for a reason and my client has very significant concerns that sloppy police work can have him in prison for the rest of his life and that these things need to be addressed appropriately and so i understand that mistakes occur i can certainly appreciate that but when it comes to somebodies freedom forever it's a problem and i know you want trial counsel but i i just had a question and maybe this is really a question for opposing counsel here a fifty one for life at least when i was a prosecutor were pretty rare and i was wondering what was it about this case to the extent you know with just plead plea offers were not taken or how did this case get to mandatory life good afternoon lori soak for the united states in answer to your question it is very rare for us to file an eight fifty one that mandates life there were plea offers that were rejected but that wouldn't in a number itself be a reason the reason is six prior felony drug convictions and that's the analysis that we use in the district of montana is just that how many how long over a period of time it is a remedy that we do not use often and it was used in this case for that reason i was just curious if there was an offer made in this case western life that was rejected many times in fact if you look at the procedural history of this case it's rare for us to criminally complaint a defendant like mr smith in and we did that because of information that we had before as well as the amount of drug that we had at the time put him in a perfect position in our view to cooperate with us and that wasn't his choice and we understand that and so then we had to analyze his history which quite frankly wasn't known to the extent at the time turning to what happened on in january of two thousand and fifteen on the day  defendant but the only reason that this eight fifty one was filed is because the number of convictions simply if he had rejected are plea negotiations but only had say one or two prior felony convictions this is eight fifty one would not have been is not a specific policy that we have in the district of montana or in the department of justice in general as to you have to have this many or that many but we do consider in a situation like this how many over what period of time it is a reset of the statute that congress has put into place for individuals like mr smith who have been drug users and  their entire life his first conviction started at age nineteen and now he's in his forty's and so at some point as i stated at the sentencing to the district court the statute and the government judge do that here know and that is there is no excuse for that and it certainly isn't just the district court's fault the government needs to be policing this as well and certainly with the errors that were committed with respect to complying with a fifty one b the government's not going to put that all on the court but we don't want to be here arguing harmless error but that's where we are your honor and we believe it is harmless error in this case because of the statute of limitations provided under eight fifty one and the fact that five of these convictions  outside of mr smith's ability to even challenge them that is different from the rodriguez case where it was remain because eight fifty one wasn't at play eight fifty one but i will tell you the government if we had any question even standing here today that these convictions were mr smith's we would tell you to remember to give him an opportunity to challenge these we have had no indication that any of the convictions are not him and even on appeal the focus of the appeal is procedural here there is not a statement here a conviction wasn't mine or this wasn't me so just to follow on which toward i was asking when he was brought in for this complaint your expectation was that he would cooperate we were hopeful your honor and was that one of the plea offers that were made to him whether he cooperated numerous plea offers your honor as you saw there were seven continuance of the trial there were four different counsel before we got to the fifth trial counsel so we started over a number of times in this case and certainly  were there with the plea agreement or plea offers that did not require cooperation certainly yes thank you turning to what occurred when we found the drugs so the possession with intent intent to distribute even though there was methamphetamine found in two locations it's one crime as you've read from the trial transcripts i'm certain this was an individual living in a motel who they surveilled at the motel they had information that he was distributing methamphetamine out of that motel room in fact done three controlled  his girlfriend who was living with him they were driving the same car they watched him earlier in the day get into the car and knew that he had a suspended license and active warrants for his arrest and  when he drove away that is when the montana state trooper was called in to effect a traffic stop and arrest him for the outstanding warrants and for driving with a suspended license and whether the trooper thought he was conducting a pat down search it was a search incident to arrest which under the smith case as well as others is roughly contemporaneous with the rest so what occurred here very quickly a methamphetamine pipe with residue was found on mr smith which expanded the scope of that search to anything that would be evidence of that crime as well and methamphetamine certainly would be so the district court quite frankly didn't find this a close call in terms of the fact that this evidence was a seized as a search incident to arrest with respect to the unanimity instruction i think i've explained that with respect to the fact it's one crime and even though there were two locations where drugs were seized that's a factual distinction that doesn't make a legal difference it is one crime on that day and not really ever citing unfortunately we always have to make that claim i guess when we're standing here asking you to affirm on harmless error and that's what we're we're asking you to do a remake and in this case would result in absolutely the same sentence that was impos ok thank you very much counsel thank i somewhat disagree with the government's position that every man would result in the same result because if you look at the lane and surveillance cases which i cited and reference in earlier argument those required re man for reset and saying but without the use of the a fifty one and hence match and so that would be our position if this case was remanded on the fifty one issue and i have nothing further unless you have additional questions ok thank you very much counsel for your thank you to both of you for your briefing argument today this matter is submitted and this panel is in recess until tomorrow