think your honor and me please of course the central issue in this case is whether the small during marijuana cigarette in a trash can in a kitchen provides on its own probable issue wasn't that the issue was whether a crime was committed in the house aroma of marijuana coming from within the house act is the beginning of the probable and that was the warrant it didn't i says search the house at three thousand and eight and i probable cause was that marijuana was be possessed within that house now turns out when they get in the house they see the butt there but that doesn't mean there's not marijuana elsewhere but doesn't mean it is there is probable cause right so i don't know will cause that a crime has been committed justifying a search exactly and that probably is what you're not even disputing warrant says search the house or don't say search the house but leave the attic ok or leave the toss at the upper brain because there's nothing up there warrants a search the house probable cause to believe that some criminal any evidence will be present at a cases so what happens is there they apply for a warrant for simple possession of marijuana no you apply for a search the house that's what they applied to search the house of three thousand they were not entitled to search the house under a th amendment principles based on the fact crimes committed there they can go in secure the place and they can collect obvious that they want to see count but they can't search the house so they take the evidence of fact that was exactly as they requested nuclear things like firearms financial documents electronics in things that for which there is really no enough to say that it's still writ least it has no time for so there's at least partial cooperation because they get there early smelled the odor and only see the burning cigarettes a hole i think governs so that the tip was not that he was using marijuana or just possessing threesomes the chip was that he was manufacturing crack cocaine and selling crack and marijuana and had a fire and sale of the drugs on the one hand is different than simple use in whole out that he was falling for they when they looked him up and they got to the house and they smelled marijuana which operated the tips that he that  stuff relates to the session that it was drug dealing and a firearm in this court held very clearly in home that simple possession so the smoking marijuana is simply not relevant to the distribution of using marijuana relevance as an even lower standard than probable cause because it's anything to make it fact more likely in hall says quote we agree and therefore hold the defendant's prior conviction for possession of a drug is not relevant common they smell marijuana in the passenger compartment car but then they search the trunk of the car in the th circuit affirms suppresses the evidence and says probably cause has to be tailored to contain so when they know it's in the past or current change go in the tru just total surplus if they could pick up a cigarette when they saw they could have but they didn't you know that you don't need a warrant police with a warrant for a rifle they search only places where rifles must might be and quote must terminate the the marijuana could have been anywhere and they've worked looking for a particular serial number joint they were looking for marijuana right but so when they smelled the marijuana at the door and then they say if you look at the actual last line of the affidavit says w search was being knocked did i witness what was believed to be a marijuana cigarette in the kitchen trash can sitting on the top of the trash still burning smell coming from the site him was also consistent with marijuana and they testified they testified that that was the marijuana smell when they open the door for mr g when mr jones opens the door and they smell it they ask imports are you smoking up and so was the burning marijuana cigarette they smell this isn't a case where there's like we're all marijuana they're smelling the fresh wrong one they smell the burning joint they found the burning joint that's the beginning and end of problems so there are all these cases that say that particularity means that there is not automatically probable cause to believe there's more the same and i'm going into my we talked we've talked about the right for there are any of those  delivered the contraband the under control delivery and the got a warrant to search the house for any more child pornography he might have and the th circuit suppressed that and said no you had probable cause to believe this particular stuff you delivered was there but not automatically more not typically the government gets around that by producing profiles and saying typically the way these things work is where there are some there's more of the same they do the child pornography cases the sports on its drug courier profiles but there is no profil court to do no more than apply its existing costs whereas siding with the defendant in this case would require the court to rewrite the law contra i think your honor is questions were exactly on point if presence of an ongoing crime that is the possession of marijuana provides probable cause to believe that there might be more marijuana in the house which justifies the warrant which justifies the full search and this court has said that in any number of cases let's start with the proposition that odor of burning marijuana provides probable cause for a broader search the court has said that in white loise humphries and card let's start with the proposition that once you see an individual marijuana or cigar or cigarette somehow you're supposed to stop the court has never reason in that fashion and i would point the court to at least give it would become sort of a silly proposition that you see  a marijuana cigarette burning in a trash in a house and which you can pick up because it's contraband interpolating and you go get a warrant the warrants limited to getting that stick of marijuana in the trash could the question is would you need a warrant for you need a warrant because there's probable cause to believe that because that cigarette or there may be other cigarettes exactly so and the court has to reason in the see this case which was a case where officers entered a living room based on the exigency created by the smell of marijuana the motion to suppress in that case included marijuana cigars a bag containing crack cocaine a pistol and a shock but the opinion noted that when the officers into the living room there was a marijuana roach in the ashtray under my friend on the other side's theory that's a stop sign exactly as you said judge plea and they have to stop but of course the police continued to search after they discovered the initial contraband that was do exactly art burning join i thought they had excluded what the district court held frankly we think incorrectly was that a protective sweep was not warranted in to my friend's argument framed as generously as i can and explain why i think it's still wrong here he is correct that there are cases involving individual unique items of contraband were courts have said you have probable cause for that specific thing but not more of and so for example he cites the weber case from the th circuit out of control delivery of child pornography where the th circuit said well that gives you probable cause for  repeat not probable cause to search the house for child pornography there are two things to say about the st is i don't think that's right on the merits especially in electronic child pornography cases these days we regularly apply the normal inference that if we have read that case they rely on the lafave search and seizure treats and all of fav gives an example in that treatise where he says let's say you know that a target has two items of stolen property that may not support the inference that he's a fence whose house is full of stolen property that he's someone but then and this appears at volume two of section three seven d of the modern edition of the fake lafave drops a foot and he says on occasion this some means more inference may be permissible but the determination must be made on a case by case basis but no two hundred and fifty one dollars and then he says that inference is most likely in contraband although individual cases may raise difficult questions so even kind of the earth source for this proposition writing if the contraband cases are different and marijuana possession is a classic contraband case if the police believe that ongoing marijuana possession is happening in a premises in under the supreme court's decision and ross they can search the entire premises pursuant to a valid warrant that's precisely what with respect to the whole case respectfully i think the federal public defender simply misstates the context in which that case kurt the reason that the court said that a prior possession into him was not probative on the issue of traffic is because the defendant in that case it made it that he had previously possessed marijuana and knew exactly what it smelled like and that was a case where the facts involved the overwhelming smell of wrong marijuana if the defendant here had walked out on the porch and said something like i admit i have marijuana in the house then maybe you wouldn't have needed to cite the road on the trash but there's a total disconnect between the facts on all and the facts i want to say just a few words about the fire the federal public defender makes the argument that because the warrant here didn't cite the firearm structure it was overbroad to seek a firearm in the course of applying for the judge a g your question was exactly right the  aside because even on a pure marijuana search warrant this firearm is going to be discovered and saved but on the merits we think that's wrong for exactly the reason judge niemeyer that you alluded to the statutory cit important to constrain officer discretion which is part of the justification for seeking a walk but she or the magistrate was not viewing probable cause in the abstract the magistrate was written up a because based on all the facts that had been disclosed by the officer applying for the warrant which included the full contents of the tip and all of the information corroborate it and of course the tipper said that this defendant dealt cocaine and marijuana and in doing so he possess what's that to prescribe or it makes great good sense for the police to try to seek a firearm even if they don't cite a firearm statute and you know in preparing for this case i was trying to think of examples that would explain why that's so you know imagine there were a temper who called a tip line and said there's a defendant you every day goes outside i watch him purchase quantities narcotics takes them back into his house where he stores and every time he does that he wears a very distinctive orange i possession in many contexts independent affects but that does not the fact of the matter is it was part of the modality of this trial as alleged in a tip that it had been sufficiently corroborated when the police plan let me ask you this on the corroboration no it would be sufficient to decide the case purely on the grounds that once there's the smell of marijuana consistent with white louis humphries carter the police could have applied for want to search the house for marijuana full stop everything else only bolsters the government in the final analysis your honour's the officers in this case conducted careful investigation they received an anonymous tip they took investigative steps to corroborate it when they did so they happened upon evidence of an ongoing problem they froze the scene they went to a possible comes from right just circuit splotch row in the th circuit not found anything i'm th in the thirteen that's pretty much all the the idea is when officers don't know the say they just know marijuana but they don't know where it's coming from i've i don't believe so you know in a lot of these drug distribution cases the government brings in a parade of addicts that say i purchase drugs every day and use them immediately from stores so i think it's or in the search drug addicts typically will store their drugs in this location or something this warrant has none of it has no profile evidence no testimony under oath by the officer about why they need to go beyond this marijuana cigarette that they've would say ok let's make sure there's no more marijuana in the house and madge said ok public post lead cause there's already some now so forced on them and says supported by oath or affirmation i'm think the court can take judicial notice of the practices of marijuana smoke i think that has to be in the warrant so if the police want to do that and search the entire house they have to describe to the magistrate that they're applying to here's why we think that people that one bit of one marijuana cigarette indicates that there's