error under the very stringent when the defendant entered a conditional plea rather than went to trial on the abuse of discretion and not holding an evidentiary hearing it's really important to the ages of the two people we knew what the was a screen shot the defense attorney argued in the motion that one of the reasons he was entitled to a hearing was the tattoos so then the question becomes i guess whether those tattoos showed in the video there's also your honor i  think just the fact that once twenty was twenty seven you have to see you know some twenty year olds who are very old some look very young some twenty seven year old so i think you have to put you had to have the two men sort of side by side and the and under hanks and that mistake of law means that failure to hold hearings an abuse of discretion but also very important your honor if you look at excerpt a record twenty two to twenty three there is this long back and forth between counsel for the  two things here st you have the court making an error of law which makes this decision not to hold a hearing an abuse of discretion under hearings and nd you have the court basically indicating that if it hadn't been for that error of law it would  determination yes because you need to know what the video showed about that tattoo you need to know how this twenty year old looked compared to a twenty seven year old and you need to know you know those sorts of things there also may be underlying facts about the officer's conduct to go to the question of whether they had to have probable cause because it was no arrest st is whether they had to have reasonable suspicion because it was just a stock you know how they got out of the car and drew the gun actually even on the record you have before it you have five published th circuit opinion you have the good case which held the searches don't rest was allowed and you have the  narrowly you know starting with the justice scalia opinion and concurring opinion in their earlier days but basically the court then went to ing the supreme court has really brought that search incident to arrest exception back to the officer whether it was three or four feet away like it was in the nap case that i saved from the th circuit with the cop standing in between but more important or honor you have three facts here that were pressing that were like the fact that the court relied on in the officers we know there was some delay and i think it sounds like at least it was more than a minute or two and nd you have an officer going back and forth at least one of the officers between his his vehicle and the defendants so you had that intervening act which was one of the intervening acts that was given weight in the other cases rd and i think this is really significant you have this intervening act of questioning why did you run you basically have the officers time well the record your honor i believe shows he was i don't know the record shows what the probation search condition allowed and most important your honor it shows no the officers would not know about  probation service condition and the case law in this court i said the united states versus job case the case was crystal clear that officers can't rely on a probation search condition unless they know about the probation service condition and more importantly know what searches it allows you know different curvaceous search conditions allow different thanks so there's no way the government can use the probation search rationale here to avoid the problem they also of course cannot use the inevitable discovery problem convicted of a crime punishable by imprisonment for more than a year that's where the why did you run because i had a gun is really damaging that implies that he knew he couldn't have a gun no matter what and that's where the almost not quite but almost impossible for an appellate court to make that determination so i think here he gets of the drive's plea even if that the only issue we prevails on but of course our position is there's the other issue  same clothing that he was wearing in the video that he had posted an hour or two in a previous that morning at the time that mr torres left the apartment or the house she left with that known gang that the judge specifically said if we only did whether there was cause that would require an evidentiary hearing why don't we take the district court at its word and quite familiar with this and here it just kind of slipped they believe that the time to be a felon they believed him to have an outstanding arrest warrant they believed him to be on probation search terms and they they certainly had what evidence that they believed him to be on identity you can always have a mistake but it means you have to have had a reasonable leaf that this guy was the right one that you should arrest right yes wrong or so if there person that they believe had an outstanding warrant looks completely different than the description so different ite different weight etc that that is not the situation that we have here certainly  so i don't i know you don't agree with that but just assuming that were the case how is it harmless error here well i think in this situation your honor there is certainly  the test is whether you can save yada reasonable doubt this didn't contribute to his decision to plead guilty i judge bresso wanted to address your question you asked about things you saw and judges statements that seemed to indicate he thought there was reasonable ness there were a couple statements like that on the other hand you also have the exchange of excerpt a record twenty two to twenty three where he saying well gee i'd have to have a hearing and if you look your honor defense is right about and reasonableness the government the prosecutor said the record is clear and contains all the information it doesn't contain some critical things it doesn't contain the whole video it doesn't maybe maybe not get a tattoo comes over here maybe there might be other shots of the video that showed it i'd like to look at and i say well i'm not so sure the tattoo on the video wouldn't show of course i'm biased the trier of fact did make a finding about facts may no finding about whether in the video you can see the person snacking and the tattoo on the neck was missing so it's not just there's two things missing here there's evidence that wasn't in the record like the video the whole video and evidence about height and weight and there is the district court not making findings based on whether the pictures of the supply whether that tattoo on the forehead could be seen and that kind of thing