case number seventeen dash six four three zero usa versus mark brown argument not to exceed fifteen minutes per side mr ali may proceed for the  that morning may please the court nec alec on behalf of the defendant a poet mark brown your honor says you can see from the briefs there are multiple fourth amendment issues at play in this case and this is a very fact intensive i'd like brown and the district court was in error in admitting the evidence found there as i said on august sixth twenty sixteenth roughly two am mark brown entered the  chastity smith chastity smith is the person who the police relied on for consent to enter the room she lacked both the parent and actual authority to grant consent to the room and further she was she did not voluntarily consent because she lacked capacity as is it the records show that two people had checked into their room the records showed that the only signed register in your honor was mark brown there were two little two people listed to guess but the only the record shows that there were two gas and that were correct and she is with mr brown so isn't it reasonable to infer that she is the second guessed it after further inquiry and their behavior throughout the night it is not necessarily reasonable to infer that you know there's another woman as well or there was not another woman there are no other people but if i can explain them how they entered in her behavior after that i can show why it's not who you think the other guests that  rooms there and there's not a lot of people down the lobby where they came in and there's her and your car yes sir that was it at the time but there were no other people seen with them that she claimed and no one else saw any other room with his credit card mark brown was as i said the only signed registered guest to the room at the time so what i mean if he is a occupant of the room i mean she has right to allow somebody to go into the room doesn't she even if she doesn't have a key i mean if she's she if she's been given a license to that room she can let people in that room she cannot beat she did not have the authority to get a key to the room and i know who cares about a key i mean i'm saying she she has business been given by the hotel licensed to stay in that room and because of that she can open the door and let somebody in country i would disagree or on i thought the fact because she did not sign for the review didn't have the contract that that's that's that fourth amendment law that was at that point it's limited by contract rights i don't think so i wouldn't say limited by contra grace i was relying on the case of united states versus call blow which states that really the lodestar of this is the authority to get one i think you're better argument is that even though she consented i mean she may have been impaired when she consented that he objects that overrides her consent and pursuant to georgia versus rand i mean that i mean that's real clear and even though the judge found to the contrary the affidavit certainly says that because of brown's objection we hear by seek the warrant i think that's i think that you're better than just your i'll pursue that argument that well i mean you can do whatever you want ok i will get tonight let's let's assume let's assume that we just accepted everything you said she was intoxicated that you couldn't give somehow the door was open and that was not a questionable was that they didn't have any right to be there the real issue is the search and so the question becomes let's exclude all that time to evidence from the more doesn't the morant without that good evidence have sufficient probable cause stated that the warrant would have been issued anyway i do the front desk clerk at the time she repeated chastity smith's statements to the police that chassis wanted to leave she didn't really offer anything incriminating to the police at all but she said that the report from the clerk said that smith had said that he was armed and had additional weapons in the room that and she said another individual might be present and she feared for her  safety she provided the officers with drugs that she said she had gotten from maine drug dog hits on the vehicle if i know it's on the door tell me why that's not enough to get a war a drug dog hitting on the vehicle that is separate from the room that was in the parking lot that alone would not provide probable cause her other does that would not that would not be a controlling factor i would say that the other factors taken together chasity smith stated that there was a meth lab in the room there was not proven to be one once they went into the room she gave  to not be true doesn't have to be that's what i agree and you're arguing well there really wasn't a meth lab and there are so therefore the word should have been issued well then you have to look at the time it was issued and what was represented to the magistrate and whether that established there was probable cause if there was a crime committed and the defendant committed a guess and also the area to be searched would lead to the evidence i agree i just seen her in accuracies if you combine them not just one alone her not been but career we have we don't look after the fact we look at them at the time right yes ok we just pick up that affidavit we strike out that stuff that all of the things that you're complaining about why isn't when we look at probable cause once again to tell you the circumstances what are the things that she was saying even at the time that they went into the room before they got the search warrant some of them were shown to be inaccurate i know that is not credible anyway not not credible enough to get a search warrant because of her state of mind the time she stated is you know out of her head jittery going one hundred miles an hour multiple police officer said she was under the influence and she'd never been her state of mind taken together with the fact that much of what she said was proven to be false as i said before about the meth lab other people being around and the fact that a drug dog hit on a car do not add up to  probable cause that the room contained drugs and i would yield the electoral well for you to talk about probable cause can you move on to inevitable discovery i did not brief that i would say that i it is seems kind of obvious to me was unconstitutional if the second search is constitutional we would have to exclude the fruits of the poisonous tree from the unconstitutional warrantless search but if we did that and the war is supported by probable cause then the the evidence that were seized the gun and the drugs would come in i'm so what what's wrong with that argument to respond i would say to the inevitable risk of discovery firearm and they they found a third gun with the warrant search and then they found the drugs with the warrant search so that's sufficient to state a conviction i i disagree in that i had the inevitable discovery doctrine would not would not apply because i thought that warrant would not have issued were it not for the what i'd say should the evidence of it should be excluded i don't think the inevitable discovery doctrine would allow for the admissibility of the evidence because of the fact that it would not have been in the warrant which would not have allow the effort david for the war which would not allow a warrant to trigger the issue is when you go back to probable cause if there were if there were probable cause to issue the warran explains that i saw what he said at the suppression hearing and this is on at our thirty one ad one seventeen is that the only thing that brown said was i have nothing to say my lawyer will speak for me representation i think that the district court in this case found that there was no refusing to look at this in the district court consider the affidavit and how to dismiss it with the district it was brought up in the suppression probable cause i think it was because at the end of the case because what they found in there supports the conviction and the fruits of the prior war was supported by probably because at that point a dog had hit on the room they had walked the dog along that entire floor it only it only reacted on one room and i was mr brown's room i chassis smith had said that there were guns in the the serial numbers then one may not have been able to use the question is what was the basis of their determination that he was a film that they had looked at his criminal history at that point that had based on evidence from the initial walk into the room the question becomes don't you have enough they are to state probable cause to have done the search yesterday and then you have inevitable discovery i think you've got some problems with the other i think you've got problems with clearly intoxicated witness you've got problems of concealment you've got problems of objection even if the guy said i didn't look at it it doesn't matter what the police officer says after the fact he presented an affidavit to a judge that said this man objective and under the law if he objection i can be able to go in so put it all aside do you need it no afraid the the desk front desk clerk also said that she was afraid of mr brown she had given some methamphetamine to police it was a bag it wasn't viewed as a time but it was a bag full of small crystal that would have been the affidavit if they had never gone to tara that all would have still been in that search warrant affidavit so even if you strike everything from the room it's still there still enough there to issue the warrant and for probabl not that while she appeared intoxicated that she clearly answered her questions that she was hyperactive bet she was responsive and then miss the other ms smith the desk work i had testified that she agree and that's problematic under the law isn't it there could be a problem but it's there is also evidence that she was responsive that she gave good information a lot of it which was corroborated it is a factual finding that she was rebuttal with the issue of the film one status of brown it was testified to by officer tim smith in other smiths in this case that his felon status was not known until after the serial numbers on the guns were wrong they could just do it check on him can't do they have to trace him through the gun they just trace it through their database to see if he's got a felony conviction i mean they could do that but this is a matter of time when we're talking about well i would say could be faster to just a criminal check on them to find out what his criminal record is rather than trace the serial numbers i mean i mean that the felon status i think is that's certainly go charged charged with possession of the guns but that's because they were in his room not because he owns them they don't have to prove he owns the guns to say they've got possession i was just getting to the issue of one of the arguments under arizona versus six which i think you were alluding to judge strange was that you if you pick up a piece of evidence and start to read of serial numbers before you have any probable cause that is an incriminating item that violates the dictates of that case that was the point to make when the when the officers intercepted him in the lobby did he give in his nine he did not he pulls what he said is i'm not going to talk to you at all until i have an attorney from what the record states he said he they approached him he approached them in the lobby and test the smiths also there they asked for id and wallet so i mean he identified himself in that and as much as he gave them an accurate identification his wallet he had his wallet on at that time boy he was in his pocket and they asked for id to which he then provide health in what is given them the ability to find out his found status truly but once again they did not know at that time they did he did handed over the was just saying about when he was approached brown did was compliant with the officers he was held to the whole time and to get to the issue under georgia versus randolph which you alluded to earlier judge griffin he objected even though the record doesn't state exactly how he did it i would credit the sworn testimony and sergeant highlanders the affidavit that mark brown did in fact object because of this objection we have to get to the judge i would i think you should yes that's why they maybe his name was on there but it is never alluded to in testimony that the police would have checked for it least on the record checked about brown's phone status before they had talked to smith before they had gotten consent to go upstairs just as a matter of evidence i've never seen where i believe there has to be a preponderance of the evidence and the inevitable discovery doctrine that evidence will be found i don't know what's the what's the difference that they know that there's drugs up there  second charge is felon in possession of the fire but they still have police probable cause to go for the drug right i don't even if they don't always have felt right to go into the room for the drugs i don't think so just because chastity smith handed a before i do not think it is what was in there are the bald repetitions of chance these misstatements from marlene smith chose to dismiss providing inaccurate information for the most part some of it was truly but a lot of it was not inaccurate her condition would also show that they please should not rely on her because of her mental and physical state and the fact that a drug dog hit on the car doesn't necessarily tie a car to a room that's upstairs more than one hundred probably more than two hundred feet away from the the car itself and i see that i'm out of time really my last argument was one just about the dog hitting on the door brava hitting on the room to provide probable cause wasn't brought up but the case of florida versus george dean's would suggest that there's problems with that though that case was limited to running a drug store going to head out in the affidavit as if it's not but it was brought up in to show that there might be probable cause to be given to enter the room don't think it's talks about the dog hitting on the door of the room right correct ok all right any further questions all right thank you very much your case will be submitted i believe that concludes the oral argument docket you ma