the court steve mosques on behalf of mr police though i'll i'm a dog owner and it's a given that i'm legally responsible for the conduct of my dog whether it's biting a person tearing up a neighbor's won or making sure i have a plastic bag to pick up its ways during a walk i'm responsible for that dog the social interest protected by those laws that the fourth amendment is just as important as those rights that are protected by those was civil laws and even criminal laws regarding what my dog does the case before the court in this on these particular facts allows the police to circumvent the warrant requirement with their dog as long as there is no intent to facilitate injury into the vehicle intent isn't generally not a requirement in fourth amendment jurisprudence typically it's an objective test it's not a subjective test in looking at the facts in this case i would draw the court's attention not to the conduct of mcginest the dog handler officer mcginn but instead officer sanders the officer that was responsible for opening maintaining and controlling the door during the passengers exit i understand that the government forwarded to the court government exhibit three which is a videotape of that particular transaction and in the video tape it is undisputed that officer sanders unlocks opens the door to handle opens the door this way and as the passenger exits the vehicle he keeps his hand on the door continually  that the passenger first of a passenger chose to leave the vehicle as opposed to sit in the vehicle during surgery and was putting on his shoes or something that is not seen the video because it you are correct that that is that was necessary the passenger did opt to leave the vehicle however i believe the focus has to be on police action and police conduct based on the facts as they occur and what you can also see in the video is as sander's hand is on the door it's not in jeopardy of closing it doesn't need to be held open he opens the door maintains his hand on it perhaps creating the impression that the door would slam or closed back on the passenger but that was totally gratuitous on his part it wasn't necessary and as the passenger walked to the rear  sanders immediately when he turns in the doors out of vision he follows a mat and that door does not move so my analysis or approach to this would be that we have to focus on police conduct because that's what the fourth amendment prescribe is police conduct and would we have a different situation if the passenger had opened the door yes that that would implicate different interest because the fourth amendment would not opera i believe the law is clear that when a dog alerts to a v had all the exterior of the vehicle that that does constitute probable cause to then search the car the problem in this case is the no i believe stone affirmed the action based on two fact based on two factors the it was the driver that opened the hatch back and the dog instinctually jumps into the car and they were troubled by that and i put my reading of stone is they're troubled by that because typically prop to enter into the car to cross the threshold does require a finding of probable cause that i believe mcginnis certainly is somewhat responsible for the dog but again i believe the conduct of sanders is really key here if mcginnis can't control the dog and the dog jumps and well i guess initially i would say yes mcginnis is responsible but yes it's his dog it's he's the handler he knows the routine so on some level i think it's arguable that he did have a duty to get the door based on the risk that he would enter the vehicle but again i believe  however he would do that by closing the door by taking a tire lead on on the door lyons is also a case out of this circuit and again i would point out that in that case the passenger opened the window willingham is a case from the tenth circuit where the police opened the sliding door and they did find that that violated the fourth amendment so again the key fact here is police conduct police action and willingham supports the view that police officers and their conduct are are key to to this particular issue  do want to bring i know i'm into my rebuttal time i do want to briefly address inevitable discovery which was raised in the government response brief i would want to point out that was not argued by the government below or addressed by magi strate or district courts we don't believe there's a factual basis developed to preserve it for a view and i would assert that whatever alliance they could have had on inevitable discovery has been  and again it was never raced the driver side window but again you know we're talking at two searches did not locate these drugs they had to take the vehicle to the police station and moved there means it was smelling drugs before it entered i don't believe that factual record has been develop my name is bret benjamin i'm an assistant united states attorney representing the government and i was the attorney for the government at the suppression hearing and this is a fact intensive inquiry based on the claim that the officers conduct violated the fourth amendment and so i'd like to begin by discussing this evidence the record regarding the vehicle inspector his name was inspector sanders who was with the canine officer at the passenger side door and his conduct during this process of the door opening and i think what the videotape evidence would would show is that in fact it was the passenger mr sund of all who opened the door and i recognize that is disputed by by the appellant but in any event the door was opened because the passenger how do you like did to exit the vehicle and so this was not a scenario that was created or designed by the troopers to facilitate the dog's entry into the car he was asked if you want to get out transcript of the suppression hearing on page eighty seven and ninety three there are some indication by the sergeant of trooper mcginnis that the dog was it that the current volved is a it's a mini cooper it's a very small vehicle and the sniff begins at the rear of the vehicle but the video demonstrates what the officer testified was that almost immediately from giving the signal to begin t all the fallback would be that there was sufficient more than sufficient reasonable suspicion that the dog was to react into her alerting to this odor of controlled substance and i would get to this later in my argument after discussing inspector sanders but that the nature of the circumstances here were such that the dog was because of the course of action they had undertaken to deploy the dog the fact that the window was down and the aggressive nature in which the dog alerted the dog was going to war whether the door had been opened or not  specifically states that i'm relying on on lions and stone with similar circumstances where the dog instinctively entered the vehicle during the process of alerting to the odor of narcotics yes your honor it was the passenger side of the mini cooper your honor the testimony of the troopers was that because this encounter was occurring on i seventy and the traffic was moderate to heavy i think that between any event i seventy is a big highway and the initial trooper involved in the stop believed it would be more safe for him if he approached on the passenger side  to begin the traffic stop and so when the inspector and a canine trooper arrived at the scene to have a conversation with the passenger all of the conversation is occurring on the passenger side of  mini cooper through the opened passenger side window roadside when the door was open i think the first point i tried to make is that it was opened at the at the rick if not the request but at least the indication of the passenger that he desired to get out of the vehicle and what the video evidence demonstrates is that after the passenger has unlatched and begun to open the door this is the point when the inspector who is standing on the paved shoulder places his hand on the top of the passenger door as he does so it shows that he steps back from the paved shoulder onto the grassy median and there is a slight incline in the manner in which he steps he then maintains this position standing with his hand on the door while the passenger of mr sandoval puts his shoes on and the  peeresses perhaps using this as a balance while he is standing there after the passenger shoes are on the passenger stands up they the passenger and mr or the inspector look at each other and the inspector then simply gestures with his arm in the direction they will walk to stand in a safe place while the the canine is used to walk around the vehicle but there is nothing that demonstrates an intent by the inspector to control the door or to prevent the passenger from closing the door there's simply no reaction either way by either of these parties to to close the door l your honor i recognize that there were findings on the intent i think of course that the inquiry primarily needs to be on the conduct of the officers and whether or not the conduct was designed to facilitate an unconstitutional intrusion by the canine but i believe the findings on intent are more relevant based on the record at the hearing and the testimony  officers that they had no intention of creating a circumstance to improve their their chances of their odds of getting a positive yes your honor that was the testimony of trooper mcginnis and that he upon approaching the vehicle was unaware that the do or would have been left open because he had turned to go get his dog when the passenger  court was so to the extent that these facts are important i would urge the court to conduct that review i would note the district court order did find that and this is on page three of district court document forty nine that although officer sanders not mr police opened the passenger passenger door and touched at last that there was no intent shown as to why he particularly did that one of the cases i believe it may be lions brings out that there's no affirmative duty on the part of the police to close the door or the hatchback or the window i would simply draw the court's attention there is an affirmative duty to comply with the fourth amendment and intent is not relevant to this determination and based on the conduct in the videotape we believe that that is  and i agree it does say absent misconduct and the way i would simply type in this conduct to the police actions to whatever they do in this particular case by the officer opening and maybe the passenger undid the latch but clearly the officer opened he keeps his hand on it and i just i don't believe it's reasonable to infer that any person at all is going to get out and remove the officers hand from