i'm arguing this case on behalf of the defendant appellant there in kendall mr kendall is the feeling in the district court order denying his motion to suppress he has two bases for making that argument the st is that the search was unconstitutional to begin with the nd is that assuming argue endo that the search was constitutional the officers actions during the search exceeded the permissible bounds of a constitutional inventory search so what i'd like to do is begin by talking about the bases to begin the search in the st place and then nd move into the arguments  connected to this nd issue that has to do with whether the officers actions exceeded the bounds of a const constitutionally permissible inventory search let me before you go there asking just a simple question on the facts was the gun holster visible from outside of the automobile and if so before we ever got to searching that an officer see the gun holster your honor the gun holster was visible only after an officer started the inventory search so it was not it was not visible to anybody that was just walking around the car and i think that's borne out in the video evidence that the court has had an opportunity to look at their officers that are looking into the into the car with the flashlight kind of looking around at one point they one of the opposite was with mr kendall's permission grabbed his cell phone out the front seat of the car but no officer  seen the holster or anything like that until the st officer went into the car after they had decided to impound the vehicle and do an inventory search so as a threshold matter the car in this case was not impeding traffic or impairing public safety and i want to make clear that while in in our opening brief mr kendall did call into question some of the standardized criteria that were used in this case that's not the thrust of his argument he's he's not trying to persuade this court to reverse the district court order based on any kind of violation when it comes to the standardized criteria peace of the united states if that may just make sure i understand that concession florida the wells says that you have to be well regulated in order to allow this kind of a inventory search and you're saying that you are raising that is you know you're conceding that when you're focusing on the things i'm focusing on other things your honor i  focus on is the idea that there was no legitimate community caretaking rationale in this case which is needed along with the standardized criteria to to satisfy this court pursuant to united states what i do want to focus on is my client's assertion that there was no legitimate community caretaking rationale in this case which is required along with the standardized criteria in order to satisfy this court  united states sanders so how about a point where they found the holster did their become a community caretaker rationale then your honor at the point where they found the holster i don't believe that there was enough information in the st place for there to be probable cause to support the idea that there was a crime committed just having a holster on your front seat doesn't amount to probable cause by masoud the holster and then break into the car trying to find the gun would be the russian well if the court is asking whether there's as an officer safety concern not asking community caretaker which is obviously if there were a submachine gun on the dashboard everyone would agree that there's a community caretaker rationale if there's a firearm on the seat i think the same and if there's a holster on the scene what about your honor i don't believe that just seeing a holster on a seat on the seat  justifies this from a community caretaking standpoint because if an officer sees that holster and uses the information  that he now knows that there's a holster on the front seat of this vehicle and decides that there needs to be additional investigation i think that's what that says i think that falls into the suspicion that there's something else hidden in the car that for that idea that an officer sees a holster and bend makes the decision that on a community caretaking rationale he can then take panels off of the interior of the vehicle i know of at the trial court level there was some suggestion that there was an officer safety justification for it and there was some suggestion that there better perhaps it amounted to probable cause but no argument at the trial court level or at this appellate level that i've seen up to this point has been made that seeing it an empty holster justifies taking the appeared reasonably to be efforts to conceal things by moving back and forth into the car moving is hands and so forth over the past day or sections or so that they now had a nd piece of information that he apparently reasonably could be construed to be concealing things yet i think that that evidence could be used to apply for a search warrant community care so at that point we all know we've all d seen plenty of cars on the sides of the road if they're left there very long they don't have any tires when you come back and they get your windows broken out to see if there's cell phones that are left in the in the console and so forth so  your owners could see from watching the video that there was high suspicion on the part of these officers when they finally got mr kendall pulled over they pulled him out at gunpoint they handcuffed him and they put him into custody in the back of a police car but from there i think that that's i guess i'll respond in two ways i think that that could be plugged in to this this police officer and the other officers involved are always investigating they're always doing police work they're never you know not paying attention to things like that but the case law is pretty clear that when you talk about an impound and a search an inventory search those are separate and distinct from this that the type of suspicion that these officers had when they were following him when they pulled him over when they saw the holster on the front seat of the car all of those things have to do with d you know police work the types of things that these officers do every day and if they decided that they wanted to pursue this type of a search and take apart the car because they believe there was probable cause to do that or because they wanted to apply for a search warrant there was nothing preventing them from doing that but the basis that they gave her for doing the search at the time was they're communicating community care taking rationale pursuant to the new inventory search and that's the argument that was put forth by the government at the trial court level it's the same argument that's being made here at the appellate level by the government and i think with that when when this court looks at the non exhaustive  criteria that are listed in the sanders case i think that this does cut in mr kendall favor the car was legally parked on public property in a residential neighborhood not one car passed by the scene of this stop for the entire forty five minutes that officer or body camera that the court was allowed to watch that this is not a situation where this car was impeding traffic or impairing and public safety in any way an alternative to impound did exist the car could have been towed and i know that that doesn't that there's no discussion of that between the opposite and you had to go if you took or you still need to off the equation when it's too i believe it does your honor i think that if mr kendall had the wherewithal or the resources at the time to ask to call a friend with a tow truck or call any of the telling companies in town then he's taking this car off of the officers hands and there's no there's no basis at all for the officers to do an inventory search because they're not doing the impound in other words mr kendall is doing his own impound was it wasn't there a problem with that idea though because he couldn't prove that he owned the car it was registered to somebody else it had a license plate that was purportedly for a different kind of car he had no license no registration so how can they then trust him to have the car towed someplace else i think it is confusing because one of the st bases for the stop was that the license plate that was aired was not coming back to the hondo which is what mr kendall is driving but that confusion about the license plate was cleared up soon after mr kendall was stopped but what wasn't cleared up is that mr mr kendall was not allowed to drive the car he didn't have a valid license he didn't have insurance and you're correct the car was not registered to him but he was buying in the process of purchasing the car from a woman who were calling c m in th briefs there was a brief conversation with c m also at the scene none of the officers proposed to cme or to kendall or suggested to them that they had an opportunity to tow the car i'm not necessarily saying that that's their obligation to do that but i'm i know that mr kendall as i said did not at the time this is happening have the wherewithal to start a conversation with the officers about that so  from kendall's point of view that particular piece of the sender's criteria is a toss up yeah i think even even if they could have done that wouldn't it have been reasonable for them to not want to let him the interview said hey don't don't go through it i'm just going to have it towed to my house i mean don't they have a reasonable position at that point to say well we're not letting you take this you can't remember you all that well i think your honor that that sort of is a good segue into another piece of this that's important for me to talk about because it's it was a justification that was given at the trial court level and also justified these are men and their answer brief if an officer who suspects that the minute he turns his back the suspect is just going to go on continuing crime or do something else unexpected that's illegal that's not a basis to justify an inventory search that's a suspicion of criminal activity that hasn't occurred yet and that's maybe the inception of an investigation into criminal activity that hasn't occurred yet so it doesn't it can't be justified on you know inventory search or community caretaking grounds which has been the justification all along by the government so let me let me let me hypothesize something for you here so what if i'm the owner of that car and he had fact stolen it and the officers told him go ahead and take it even though they knew it wasn't registered to him and he could produce nothing that show it was him i mean at that point don't they face liability for me for letting him take my car a nd time attention in that hypothetical your honor but those are not the facts of this case the facts of this case after a couple of attempts to speak with the c m the owner of the car they were able to talk to her and she confirmed that she was in the process of selling the car to kendall and that he was making payments and that she held the title of the car until he was finished making the payments that are so there are enough on that but by the time they learned that information had already been embalmed taurine and it was on the truck that's correct your honor i mean and that's i mean one of the reasons why kendall is arguing that this was pretextual in the st place i mean that there was a whole lot that could have been done and should have been done prior to getting that vehicle on the  alternatives to impoundment exist here or there were no good alternatives to empowerment the defendant was alone yet no valid license he had no proof of ownership were any sort of documentation connecting him to back car so in that regard it was unknown whether the defendant could have called a friend for example and asked them to pick up a car because there was no way to know whether he had a lawful authority to direct someone else to pick up that car if the defendant had been released at the scene and then allowed to drive the car away i think that not only be a legal operation a car would be an issue but also a hazard a public person has no like no license and no insurance so if there were some sort of accident i would of course be a danger to the public a lack of insurance not to mention the taillight problem and i will note that so when the officers called dispatch the license plate came video there was discussion about maybe maybe it had been called in ron b b it was a honda accords with acura but i don't recall there being testimony clarifying the officers were able to defend it's have quite confirmed that but even if they had confirmed the license plate was proper they still don't know if this defendant if this person has any lawful authority to drive it works direct what happens to it and i think that that fact really undermines my opposing counsel point call a room but he never he never said i'll take care of you with a tow truck or you basically what i understood was the simple civil code the prior order and you can earn it i am still in the court that's correct that's my understanding as well there is no indication on the dash cam video that he asks to hire a tow truck for example and take care of themselves and even if he had that still present the same problem of your releasing the car to the truck driver at the defendant's direction without even knowing whether defendant have any say in the car whether they can direct it to go anywhere quite think that under these circumstances as the defendant just presented the officers with no good option no good alternative other than what about taking the car key then locking the car so that wasn't discussed in the policy your honor so i think that that would be something that officers would be concerned with acting outside of policy and also i think that presents another issue of liability if you know as video the officers were getting off shift other officers were coming on shift and i think that that jose has its own obstacles and i will note that while that factor itself asks whether there are alternatives to alternatives to impound it because it was improved just i think that officers would have the possibility that defendants property if it was his property could have been bought it wasn't provided for in the policy so perhaps the have to activate the policy and start searching so i don't know why the policy i don't think i'm not saying that it would prevent that your honor i'm just saying that in the absence of a directive to do that under the policy i'm not sure how the officers could have been set up to do as there was no testimony at the hearing opposing counsel to no less than he testimony at the hearing whether that could have done but even if it could have i still think that the possibility of defendants property being tried to call c m the registered owner she didn't answer then they called from defendants on did not answer and i believe at that point is when they are other two officers who arrive to assist off sarees act when the officer caught and the officers impounded the car under the community charity function and that was for community safety and in the inventory search the purposes in that case want to protect the police from false claims protect the police and the tow truck driver from anything this community anymore and so f you're saying that it has to be an inventory sir i believe because once it's locked up in an impound yard or on the photo you're not worried about any community kids getting guns anymore concern behind the door panel and that's why that search wasn't proper under community charity can function but i think that if you're analyzing separately the search of those or if you're in or as an inventory search st of all the officers need to secure all the defendant's property right on any valuable property contraband valuables and a gun that's also on the policy so they need to do that but i guess i disagree that there is no safety issue after her when the car is being towed away there was testimony at the suppression hearing about how the tow truck driver has to get inside the car to pull the car  was very messy and so i think that it's very reasonable to think that items could be set anywhere but under the the search was still appropriate constitutionally because the officers for securing the defendants property per their policy so that you couldn't later cavities light under dash board or force i can see the false pedal in the center console because you certainly can look in councils and apparently you saw something at the bottom of the council  o there was something underneath so that was really not mysterious to me but i am i am i must say i'm more concerned about whether a pure inventory search will allow you to try to open up under the glove compartment as so i think that lugo is distinct for a couple reasons st of all the officers had no reason to be searching for anything illegal for a gun because that was the only thing that they were looking for and that arnie found out and also with regard t in this space looks like it had been tampered with and so the district court probably concluded that it was basically a big ship container and the officers explained that if there's a place in the car that looks accessed or accessible we'll go through that because that's where dressed down because somebody walked by on the sidewalk a kid perhaps might see the holster and trying to get into the car to find the guy i just was reviewing a quote from south dakota b opperman that says quote an inventory search is a routine administrative procedure designed to affect three distinct purposes protection of the owner's property which might be stored in the vehicle protection of the police against claims of lost owner vandalized property and protection of the police from potential danger so i don't think  that the hypothetical that you pose while it's a it's a legitimate concern i don't think that that fits within the framework of opperman in the framework of an im into research so i just wanted to take a moment responded out a bit more more clearly thank you any questions from the panel thank you both for your arguments and the cases submit