suppression there are three seven is whether the las vegas metropolitan police department or metro properly towed mr tourism's vehicle whether metro exceeded the bounds of an inventory search by opening up a latched closed air filter box which is part of the engines mechanics and three whether the district court erred and its order affirming the magistrate's report recommendation for anteing recommending the toe or the order for the search metro exceeded the bounds of an inventory search by opening up the latch closed air filter box the search contradicts supreme court and other case in this circuit that makes clear that inventory search cannot be a ruse for general rummaging around to find evidence of a crime and what of it both pretty clear that they thought this guy was a bad guy and that they were kind of thinking there's another bonafide reason then the search is ok in his bonafide reason under inventory search that there may be something here that would be dangerous have discovered by someone say on the whole law or wherever i i mean  i'm trying to figure out what the boundaries are of this purpose which is a legitimate purpose cross i don't believe there are two bonafide reasons for this search i believe there is only one reason which was investigatory however for inventory searches a search can be upheld to protect the police from danger and under supreme court precedents not the public generally it's only the police from danger and if we were to that here to protect anyone i believe the exception but swallow the role because if you can go to that air filter box to look for drugs or guns for a generalized notion for safety then there's really no purpose for an if the car contains again and couldn't anybody just get a hold of it and use it against the police or in bays caretaking the lot or that that would be true for basically anything honor and i believe that if we allow a search in this part of the vehicle for that purpose again it's not we're we're creating a new exception explain exactly where this air filter search i mean you can open it you can definitely open the front hood right correct you can open the front of the engine correct ok so where is this air filter exactly it was and there's a picture of it on the record already opened but there's a hood to the air filter and that's a dark plastic nontransparent material and it's connected to a base and there's latches around the side of it so what the officer did was undid the top of the box from the bottom and doing the latches and when he did that the air filters inside and the gun was on top of it and the but the policy that the it's important that the police department had a policy and they had a policy right and the policy allowed them to look under the hood the policy allows them to open the hood and check to see if there's an engine and a battery which is on the standard impound report form the policy does not allow them to undo parts of the engine but undoing parts of the engine and i understand that there has to be some limits but they didn't take a crowbar to take off and screw grew something this was the air pilcher which i think i thought there was some test market that's considered part of the engine or i don't know maybe maybe  but it's right there next to the engine is that right it's part of the engines mechanics you your honor and the and the radiator two you could look at the radiators well i mean you can unscrew and look at many parts of the car the oil tank the gas tank  radiator the fuse box basically nearly every single car component for the most part contains another item and when you refer to the policy with the policy provides is that any containers found within a vehicle may be searched and the containers in their contents must be in victoria on the standard impound report farm so presents a really interesting question if you can do that and they looked at their air filter why isn't that allowable it's not allowable because it's not pursuant to the policy because they can look in the radiator they can look open up the hood in visually inspect but they can't open the radiator that's correct your honor that's my position well that's your position what's your authority well my authority is well there is because the authority out there says you can look at any container well one i don't believe these are containers that are meant to be opened pursuant to that policy because if that was the case then metro pursuant to every inventory search would have to document the container so the radiator the air filter box the oil tank the gas tank and metro would have to ensure the contents of that container the amount of oil the amount of gas filters i'm with you in terms of what i think container means in the written policy it probably means a box on the back seat a cooler beer cooler on the back seat that kind of a container but what if we are what is the record shows us and i think it does that even though it may not be in the written policy it is the uniform practice to do this is that sufficient for it being the policy of also may be wrong but i'm trying to figure out how do we define policy here no your honor i don't believe that would be sufficient because let's say even if it's not the policy that they go ahead and look in these parts of the car component then that would also contradict supreme court and i circuit law that limits enough inventory searches are ok so long as they are a standardized police procedure that limits their discretion i know but my question is for it to be a standardized police procedure does it have to be written down it does not your honor so if their standard procedure is they always look in the airconditioner in the air filter box that sounds like it's their standard procedure even if it's not written down but the problem with that your honor in my my position is that it would not limit their discretion then they would have full discretion to look at nearly every single car component well but it depends then on their uniform practice of their uniform practice is they're going to dismantle the gas tank i guess that's the uniform practice but i doubt that is their uniform practice but those air filter boxes are very easy to open and according to the record live god here is a fairly standard place for bad guys to hide things guns drugs etc and your honor that is why they went into that air filter box but that to me is what warrantless search they would need probable cause which they do not have here  then the question is if they think that there might be a gun there is a danger to allow a gun to be sitting there or at least the possibility of a gun to be sitting in the air filter box in the tow yard for two weeks however long it is it may be that people understand that if these are impounded cars here's a good place to look for a free gun again there's there's there's the danger is related to the police not the public overall ir motive he thinking suspicious that there might be again in the car you should have gotten a warrant before they opened the air filter box that's correct and the officer testified at the hearing that he had no problem cause to believe here so how do we i mean how can we apply johnson when there's an appellate waiver this court recognizes an exception to the public waiver when it's an illegal sentence and that's in flower and that's in bipolar and both of those johnson now if we were to apply johnson to the sentencing guideline here and look at the sentence actually so let's prepare the p s r with johnson in mind with the sentence actually given have been an op departure it would be to extreme upward departure because his new guideline arranged as the government briefed and i agree with would be thirty three to forty one months well then i'm looking at the first full paragraph on page eleven of the pl portion of the sounds that were departure from the sentencing guideline range as determined by the court well if we were to determine that johnson applies here this looks like an up or departure now maybe as the court should be read i think you can read it either way we believe at the time obviously johnson didn't exist mr torres the sentence was properly calculated it's been since rendered unconstitutional due to that due to johnson but since this is on good morning that please the court i'm elizabeth wait for the united states first just to talk about the the search the air box as the officers testified first of all the officers who testified testified that as their practice if the air box is accessible they they look at it all the time they open anything that opens it's what they said they look inside the gas cap to see if there's something there they open the sunroof if there's something there if it opens if it's a container that's that's accessible and can be opened they open it the officers testify you arguing that the written policy that says container means the radiator yes that's crazy oh ok well  understand it contains things and the officers testified that in their experience people but things in there you know you don't need to give a concession you just got from the other side there were police procedure doesn't need to be in writing all you need is that  proceed right and the officers did testify both of us are evans and officer donaldson testified that the standard practice if the air filter box is accessible they open it up every single time and they both testified to that  i don't know that we need to if you have any other questions about that well yeah i do have a question about this i mean it's clear they're looking for i mean it's just obvious they're looking for contraband it's also possible that they are trying to protect themselves yes but frankly i have trouble seeing why they need protection of themselves from us i mean they've got the guy in custody so he's not about quality just doing the search he's not about to go reach into their air filter box pull out the gun and shoot because they've got full control over him right how is it necessary to protect them as distinct from the general public that they get that out of there because they're going to have custody over their car in the impound lot yes they are i assume the impound lot is going to be locked i mean how are the police in danger by having that sitting in a locked impound lot well the supreme court addressed that that specific issue in colorado versus her teen and and this is that three seventy three footnote five they talked about the reasons that you can do an inventory search and that such knowledge of dangerous dangerous weapons in the car can be helpful to avert any danger to police or others they say that may have been posed by the property and then in a footnote they kind of take the dissent to task for that because the dissent said no protecting the police is not a real issue here and the majority says but in doing that the dissent overlooks the tellus testimony of the officers who said that inventories are also conducted in order to check for any dangerous items such as explosives or weapons so this is a prime court imber teen accepted that if there's you know if there's a risk that there's something dangerous explosives or weapons in the car it is a legitimate part of an inventory search to find that as a have found things in the air filter box and that's where they're looking they're hoping to find something now this time to right exactly i mean this is this is a place where people put things now yes more often than not if you're going to put something in your air filter box chances are it's something that you're trying to hide so it's more likely contraband than not but but if there is a reason to believe that something that personal property could be in this box the fact that if there is personal property in the box it's probably contraband can't preclude you can't preclude the officers from inventorying at i mean if there was but it seems to me as the old you're basically got the intellectual structure of a room stop that is to say i got any plausible excuse to stop the car it doesn't matter that i'm stopping the car because i'm trying to get a bad guy about whom i have some suspicion you're saying that if i got any plausible reason to connect is to say safety it think that you know what rand says in the in the stop contacts is that the subjective motivations of the officers are simply irrelevant i mean here what we have is that inventory but i think you're basically arguing for that intellectual construct here yes when when the police conduct would have been the same regardless of the officer subjective state of mind no purpose is served by attempting to tease out the officers true motivation for this forum from from this court's decision a believe what the testimony was they were doing this inventory search and obviously conducting it per las vegas metro regulations and as soon as they found the gun they stopped and called the gun officer you know the gun and the fire research aren't they supposed to put everything they find on this report yes and i think that they were in the process of doing this what evidence is there in the record that they don't list this again they are really to research if they had if they had finished the inventory the gun would have been listed along with all of the other things and there have been cases from this court that have i think it was this court might be the circuit i'm sorry that said that the inventory that the inventory is clearly a ruse when the officers don't even bother filling out a form they don't even less any of the things and here they were officer ev testified that they were doing the inventory search and as soon as they as soon as they saw the gun because they can't touch the gun they call the firearms folks to come out and sort of take over that investigation so they were opposing counsel i think i don't think that that language has ever been interpreted to mean anything other than the district court but if it were would we construe the language of exam big us against the draft right so there's like an insurance contract yeah and you guys are the insurance jury that the problem with that is if if that were the case i mean if the interpretation is that a defendant reserves the right to appeal any portion of a sentence that's an up departure from the guideline range as determined by the court of appeals that would nullify an appeal waiver because the defendant could always argue the district court calculated the guideline range incorrectly the court of appeals should recalculat differently such that now the sentence i got is an upward departure every defendant who was challenging the guidelines calculation would be able to appeal to this court if this is a narrower business not every defendant saw the reason well you know that the court if it were applying the proper way it was a live case today would vote yes and so as determined by the court that turns into a kind of a narrow situation rather th any time you sort of disagree with what the district court why would just make two quick responses that i see that my time has run out but if you don't mind first of all the defendant in the plea agreement i mean basically the argument here is that the guidelines was calculated incorrectly and in terms of who made that error it was the parties that made that air the district court specifically said that supplemental excerpts of record at page seven i think the court said i am therefore going to impose sentence based on the guideline range stipulated to by the parties in the plea agreement so if anyone made a mistake and you know obviously in light of johnson the guideline range would be different but what the what the district court was doing was accepting that the parties stipulation in their valid operative plea agreement now also in the plea agreement the defendant specifically waive the right to appeal the manner in which the court determined the sentence on the grounds set forth in eighteen u s c thirty seven forty two which which would otherwise allow the defendant to appeal a sentence imposed as a result of an incorrect application of the sentencing guidelines and that's exactly what we have here that this was now in retrospect incorrect appl application of the sentencing guidelines and the defendant wants to appeal it the defendant explicitly waive his right to appeal that the government has fulfilled i mean if this were to go back to if this were to go back there are still a binding operative on the table and so this court would have to excuse the defendant from the provision where they stipulate to the range and then presumably would have to excuse the government from its promise to recommend a guideline sentence because when we agreed to recommend a guideline sentence we thought the range was ninety two to one fifteen so i'm not sure how this court could excise a couple of provisions from a valid plea agreement i mean the government has done what it's what it said it would do it no the the national sort of the direction and i think you've probably already seen this in some other pleadings the government does believe that that because of the decision johnson the  that he qualifies as an armed career criminals so a sentencing enhancement based on the prior crimes of violence why isn't this  sufficient to entitle him to challenge the crime of violence adjustment especially in light of what you just said that you agree yeah yeah that applies to the crime but by like crime adjustment that he received under two k two point one well to me is it close enough that he are sufficient enough that he reserve that right to know and in fact i think that that provision in the plea agreement really argues in favor of the government because what was very clear is that the defendant fully understood the ability to preserve appellate review of specific issues he reserved his right to appeal the suppression issue he reserves the right to appeal a determination that he qualified as an armed career criminal but the court found that he didn't qualify as an armed criminal he didn't reserve the right to appeal a determination that he was a career offender but the court also found that he was not a career fender so so so that to appeal plane or it could reserve his right to appeal you know based on changes of law that it's a negotiation and they you know they offer stuff and we offer stuff we you know obviously  eleven the defendant needed our consent to the to appeal the suppression issue and so that was part of the negotiation i think when you come back to the fairness of it though this was you know this defendant has thirteen felony convictions and it is true that the way the law is right now not a single one of them qualifies after after discounts and after johnson notwithstanding the conduct which you know by any measure of common sense these error i think that that if the defendant had reserved the right to appeal no it actually probably well yeah imagine we're going to get requests for that and you know and these are negotiated things and we'll either read to him or we won't know and we'll go to trial or you know the defendant could have pled straight up he wouldn't have been able to appeal the suppression issue but this was part of  and like i say i mean now and this and this i was just thinking about this if this were to go back i mean that this court would have to somehow find a basis for excising the defendant's promise to stipulate to the base of fense level of twenty four and i think you know fairness would dictate that the government would have to be excused from its promise to recommend a guideline sentence because that was you know and i just i don't see any basis for this court doing