it please the court your honors my name is jason meeting her with me at counsel table is mr ray mckenzie together we represent the united states in this matter your honour's respectfully the district court committed multiple errors here  first and foremost the judge didn't provide any due deference to judge nichols who issued the warrant here additionally the district court failed to apply and even cite the a political precedence of this court in addition the district  court didn't afford good faith to a warrant that went through multiple layers a review century what we think the district court did here was conduct a dyno of a weighing of probable causes if the district court where the issuing judge and under gates that's not into the house and what he's indicated was page two of four everywhere that i was going to be searching for drug possession is the very same place where eventually he found the firearms electronics so if you look at what he was searching for transactions to either conduct that business or disguise that business that's evidence that you can look for business of drug possession correct you know so let's say he's buying drugs or texting someone to say hey i'd like ten grams of drugs talking about a civil infraction so your honor if you look at robinson versus state that's the maryland state case and that says that drug possession marijuana possession specifically of any law enforcement but i'm not sure that just any trash poet will do because they are there's a particular danger it seems to me  law enforcement yes yes under the right circumstances i thank you but the problem is that you know in and of itself apart from the warrant banned in property so it's not there's no fourth amendment protection in your trash once you put it to the curbside and on the property but i'm not sure you abandon your fourth amendment rights and let me mention one thing that you know i  included a defendant's prior criminal record involving drug offenses and gary you had much more than you had here you had a trash poor with with plastic bags with heroin residue fo baggies packaging materials so you know under those circumstances you know you can see the but there's just much more than we have here this is this is pretty scampi well you know i guess my view is this court has held frankly that that the odor of marijuana alone is enough and here we don't have just the odor that was the humphreys case that decided that here we don't have the order we actually have the drugs themselves the owner of marijuana emanating from a residence or car on loan is enough f morning so i'm glad you asked that your honor to kind of guess the question that you were asking earlier about these tips there was this tip that there was information and we know now what it was he got it from detective bunts who's a homicide detectives homicide detective said that we found  body and that body had a cell phone on it and one of the last people that was in that phone call was mr lyles was presented to the judge so the specifics of all of that was not what was given to the judge was that there is going to everybody's trash and saying oh we found drugs in this person's trash let's try to get a warrant for that house that i think might be unreasonable but what we have here is an officer that searched no and again your honor we didn't i don't particular form of investigation for this reason the as we've to mention you don't need a warrant and yet at the same time you can call it abandoned property but at the same time there is a  i mean this can just this can this can just it can give the offices of a free license to just go through people's trash on the on the marijuana to in turn can conduct a comprehensive more than comprehensive search for someone's home but not reservations many agree with you there we don't know how many stems were in monte three but all saying gary was actually just residue on some of them as i actually think we have more drugs than frankly was in gary but to address the concern you have your honor about this willy nilly law enforcement do want to get back to judge d is question i think it helps answer the concern that you have this tip we didn't just go to every house on the block saying let's try to find a house that has drugs in it we only went there because the tip said that this particular house so there's a really good answer for that this was a murder investigation there was a question frankly as to whether mr liar's wiles was the trigger pull or the getaway driver maryland law on search warrants they don't get sealed forever sometimes so that's why he put it in there frankly a little bit more vague than i would imagine a judge would have some discretion as to what to disclose what respect toward and when well so the officers could go back and explain why it needs to be under seal and things of that nature but i'm glad your honor you mention this idea of the discretion of the judges because that kind of gets us to this good faith section and maybe we have a reasonable disagreement  use that as a basis where does it go from here i mean well what the what what are we going to say what cases we go you interaction what is going to tell you doesn't matter what neighborhood you live in someone just and we've apel that principle a number of times but in in the instances where we upheld it the evidence that was known to the office and not disclosed in the affidavit was mentioned in the briefing at least with some degree of specificity as to what it was but this seems to me so if they are what is what is tip was if it was it was more concrete that would that would be something else but my basic my basic question is that i think this may be one of those areas fourth and then areas that's fallen between the police just deciding on the abandoned property rationale that they can just go through any trash that they want and and but even if it's on the sidewalk  the the person whose trash it is doesn't sever all connection with with the contents of a well your honor i guess and my red light is on there is this alternative reality where maybe a jogger runs by unties the trash throws some marijuana stems in there and runs way maybe that is a fact but maybe it so you know and it's a party that some people and my point your honor is that was a decision the judge nichols made to say i actually think the most reasonable explanation here is this was mr lyles is trash this was wiles's drugs and even if all together now in this room we could come up with different alternatives we don't get to do that we get to saying judge nichols we're going to give due deference to you that was your determination if you wanted more information on that tip if he said the problem that i have is i mean given the amount of drugs the materials that were found in this trash what is the basis for searching for the birth of items in this war to include photographs and video recordings and the like i just don't get that well so it goes to those specific ones go to attribution and ident in other words you want to know to point that it's actually it's his house he lives there if you've got photos of himself there that suggests he lives in there in our view and we're going to leave the twelfth one firearms out for a second if you look at twelve of the thirteen of them they are all reasonably related to drug possession and actually expressly they say we want to look for photographs eccentric cetera to the extent they relate to the aforementioned violations in other words we're only looking for photographs to the extent they relate to and help us prove drug possession so in my view it's not a general them let's let's even say that you know for whatever reason and we talked about firearms we can see below that those weren't covered by the p c that you know it was overbroad in that respect it still doesn't matter in the sense that the remedies we exclude  i don't believe toiletries were mentioned your honor but i do think there were a number of things in there but look at certainly the vast majority were gun we've conceded that firearms there was no p c for  legal impediment to just going house by house by house by house in overall block or series of blocks to see if you could find them all three stems of marijuana in the warrant that completely searches the whole house so if you look at the thurmond case and briscoe that's what they say that to that sort of behavior you saying we don't need reasonable suspicion we don't need probable cause we can we we don't need any kind of showing to search the trash and that once we can it you know i there's a danger here and it's not only a danger of a privacy but there's a danger of oh just people being set up of an office or planning goes home of  marijuana in the trash or neighbor putting the other end to throw suspicion on someone else or a guest in someone's house during that it just is just i don't know it just seems to me there ought to be something you ought to do something a little more than what you've done and to get this broad an authorization on the basis of three three spams of marijuana in some authority here and in your own also admitted that you don't actually have to agree with me to reverse here again if we look at the good faith issue and we look at when judge nichols said judge nichols looked at these facts and said i actually find it perfectly reasonable the most reasonable explanation that i can think of is that this was mr lyles as trash this was mr miles as drugs this was his rolling papers and these were mail that was addressed to him because it was in that trash is right out front the house maybe there's these other case that just pushes the whole thing to an extreme and you say we were in a minute something that seem reasonable which is of ultimate fourth amendment touch tones on the one particular  when you keep pushing it pushing it pushing it suddenly you run into a case where you say you want this is this just seems to me to go very far and we're not just i aware of any circuit which is held that you need some sort of reasonable suspicion or anything to get your trash and i can consult with my colleague to see if he's aware of any but i'm not not that is not facts presents that case that's all i'm that's all i'm saying after speaking soley for myself but i'm concerned about what happened here understood your honor and i do hear your concerns and maybe what i would say about this case is maybe actually it isn't in my case and the way i see that is to mention with this was an indiscriminate hey this is a high crime area let's check everybody's trash in other words they don't go to that house unless they get that tip from packs of rolling papers and those facts are insufficient both because of the small quantity of drugs and because of the lack of a temporal connection between the trash in the home so as to quantity the six recognized in abernathy that quantity of drug paraphernalia recovered from the defendant's garbage is crucial in determining whether problem existed and that's because with marijuana as with any other substance a large quantity of drug refuse suggests repeated and ongoing drug activity which makes it reasonable to assume that more drugs remain in the house when the amount is very small we don't have the same inference it's the same common sense inference we would make with regard to any substance five papers in a pack or tanner fifty we we also know that rolling papers can be used for perfectly lawful purposes people use them to rule cigarettes tobacco cigarettes all the time and this court has construed the record in the light most favorable to the prevailing party which is mr lyle past there was some small amount of marijuana in the home perhaps although as this quarter suggested maybe not even that because why does it have to be in the past where you say well well if it's in the trash doesn't have to be but i think most logical inference with a small amount of a substance like that is that it's no longer in the home and that's true for two reasons one is i think we would make an inference with any substance so if for instance the police searched the trash and found thirty empty diet coke bottles we would reasonably assume that someone in that home really like steak coke and so are likely to find more diet coke in the home and if they search the trash and find two diet coke bottles we wouldn't make that same entrance we would think maybe someone had a diet coke or two over the course of a the home but we don't necessarily see there's more in the home or so when you're dealing with a wart you're dealing with probabilities and really i mean it's not an absolute inference one way or the other obviously by definition imprints is not absolute but but so i mean these are guesses don't need to be exact so it's equally why wouldn't be equally probable that two marijuana stems might suggest that there still remains some use or amount of marijuana  drugs are usually sold and consumed in a prompt fashion and so the more probable inference upon finding drug refuse that whatever drugs were previous in residence had been consumed and discarded in other words drugs are not usually the kind of thing you simply leave lying around the home in the past but one is such a small amount of marijuana that i don't think it's reasonable to assume that there's more in on and to there's a lack of a temporal connection between the trash and what i mean by that is one as i just said drugs usually get consumed promptly substances in that particular no not necessarily for the reasons that i just when i think your honor we're getting out earlier that people do you know they're out jogging or whatever they're walking by they they put trash in a trash can that's just i've done that to raise a concern or come and there's something else going on in this case that i don't understand and it has to do with a homicide an attempt and or whatever so i don't understand but that's not fully developed in the records so i don't know that i can take it into account really but it's just that the the the technique of these we can set up of a sort of paradigm which is which folks police departments can just say whoa hey this is something that we know they're very few constraints on we don't need probable cause we don't have a reasonable suspicion we can just go and if we if if we found something off somebody then we can get an as a super broad warrant and that that's  surely reasonable is under the fourth amendment require some degree of proportionality i would think we tween what you find in the breadth of the warrant that you secure and and you know there again is the scamping s of the evidence in the trash that bothers me to the breadth of the warrant doesn't bother me per se as long as it's a more serious crime yes your honor it's being investigated but for all i know from watching this record you've got a very small  proportion between what was discovered in a trice poem the open ended nature of the war there is that history is troubling here it is your honor and that's i think why in every other  defendant had prior convictions for drug crimes some circuits that in that case that each of those things individually meaning including the cannabis would not be sufficient to establish probable cause and that's what we have here we have a small amount cannabis and nothing more so for that reason we think both cases i'm saying for the second argument even if the court thinks there's probably cause and that is arguable the word is still invalid in whole and that's because under an exception to the severance action which is discus meld it with plain view principles and all you know all kinds of questions about just how likely are you to find evidence of this and that those are n p r questions well whether you drugs the third statute referenced in the warrant had to do with money laundering that's money laundering statute people don't launder money from possessing drugs that's the longer the proceeds are distributed drugs they also keep records of distributing drugs but they don't keep records generally speaking of possessing drugs this evidence if you are this war and if you look at it in a sort of commonsense holistic way is clearly aimed at getting at evidence of drug distribution not drug possession and so the war evidence of a robbery one was evidence of drug distribution and one was evidence of drug possession and the district court but as to the robbery and distribution the p c was clearly insufficient i thought it was a closer question on the simple  broad exactly and and you wonder there's also no evidence in the record about how long the trash had been sitting outside it might have been there for two days and i've been there for a week there's no evidence in the record about how long the trash had been accumulating in the house before it was out on the curb manager thank you honor i would like to spend the bulk of my time on rebuttal talking about good faith because i think let's assume for example that we say that on a probable cause side this wasn't enough we do have to look at good faith and what we have here under messerschmitt we have an officer who went through several layers of review he had a supervisor look at it he had the district attorney look at it and then he had a magistrate judge look at it and everybody said this is sufficient and you know detective mccloskey doesn't have a law degree he reasonably relied upon everybody that said this was sufficient he also looked at the status of the law he had you know gary in monte thaw saying if you find contraband in the attachment was the same one that the supervisor approved and that the judge approved in other words you know i've had a number of occasions where a judge would come back to me and say you need to tailor that attachment down council you don't have enough here and we do that and  three stones and and that's the over of breath of the war in relationship to possession of marijuana and it and it's both of those both  those in combination those two points make it a tough case for the government it's not just it's not as one of them it's a combination of both of them that make make it seem to me to be  and again even if this core provide some guidance then ok we know that going forward but in this case we think good faith prevails doesn't that you want to mention because i took my break just because i think this court actually in gary addressed the hypothetical you had judge when about the joggers and things of that nature in here in that opinion gary it's page three twenty seven of the opinion the appellant has offered circumstances in which a trash can evidence might have come from some other residence but what the court said here is a finding of probable cause doesn't require absolute certainty so in other words even if the defendant is saying somebody else put that in my trash we've already talked about that hypothetical and gary said it doesn't matter words the district court didn't address this layer of review issue that's another error that we say was committed because i think with the district court just said was i think this war isn't right i'm going to throw the whole thing out and sort of didn't look at you know herring says we have to look at the culpability of the office here and here there was none and again these multiple layers of if you do mean something again what is a reasonable officer believe he's not a law doesn't have a lot of very if a bunch of lawyers are telling him this warrants ok