if it please the court francesca for a chair on behalf of chad stephen wilson i intend to save two minutes in rebuttal as i said you better watch it will probably take you over mr wilson asked this court to reverse the district court's order denying his motion to suppress evidence because the evidence was seized in a warrantless search of his closed backpack in a car that was parked in a commercial parking lot after the driver of that car had been arrested and given consent to search the car when the officer was searching that car the other two occupants of it had already been detained and they were on the curb in front of the car the parking lot is depicted in exhibit one in one thirty eight for the courts information when the officer was searching the car the driver was handcuffed in a patrol car the other two were detained on the curb outside the car not handcuffed when when the officer was searching the car and the search was nobody doubts that the search was legal because there was consent correct could the officer of opened the glove compartment to look inside i believe he could have yes because he had the driver's consent to search and he did have a driver's consent he did so and when the officer searched the car he didn't know whose backpack it was right that's correct could he have opened the backpack it's not really a backpack i take it it's a drawstring sort of backpack could have opened that inside the instead of taking the time to learn whose it was yeah i mean it seems to me if the law says he could open the glove compartment and look at it it's probably also true that he could have opened the backpack to look at it some trying to figure out whether or not his ability to do so somehow dissipated because he took the backpack outside the car i think in this case he could have searched the glove compartment because the driver of the car is typically also the one in control of the glove compartment but this backpack was behind the driver's seat and the only occupant of the rear seat of the car was mr wilson so you don't think he could have opened the backpack inside the car i don't think he could have so let's let's assume as the record shows there was a firearm inside the backpack yes when the officers required to put and they sent somebody away they sent the third passenger away let him drive the car away didn't they have some right to search what was in the car before they put somebody back in perhaps with a live weapon i believe that well the facts could have developed differently than they did depending on what they were going to do with the car our contention is that they could have seize that backpack long enough to obtain a were it to call from the scene in order to see if the court would authorize t search of the backpack i believe that the officers could take any step any cursory view scuse me any cursory look inside the car before they released that to a third party but at that point when they're releasing everyone if they had chosen to leave the backpack inside the car i don't think they had or they didn't have to look in that back but as i understood it the backpack was in the car it was just behind the driver seat that's correct and you think just because it was behind the driver's seat and yet in the car somehow the officers couldn't have has searched the backpack while in the car i mean the problem comes in that it seems to me the testimony is that this backpack was put in a safe place now a safe place i don't know what that meant exactly so i was reading it very carefully wasn't put there because it was safer was it's safer than trying to search it while leaning into the car because it seems to me that's the testimony that it was safer than trying to search it while leaning into the car because it could have been saw searched in the car in my view so if you'd respond well you know first it wasn't argued below that the officer had that authority it was conceded that the driver's consent to search the automobile did not extend to consent to search the backpack but had it not been even if it had been argued below that well i guess i'm not sure what ther or because argued or not argued below makes any difference my worry here especially in this particular matter is that i'm going to give discretion to the district judge for finding facts but i'm not necessarily going to give discretion to the district judge for the law so that's why i'm asking you the question then i would back up and analyze it as weather and search incident to the driver's arrest would have authorized the search of that backpack behind the seat if and i don't believe the search incident to arrest would have extended to that because then you have against situation there the driver himself is in the back of the police car the difficulty here is that we have two other people so i'm still trying to get at my sort of first question i don't think the driver consented to the search of the backpack i don't think it i don't think i believe that's quite correct and no one argued that below but if if you come into my house and i consent to a search of a room do the police have the ability to open the drawers in that room yes and see that's so for me for me the difficulty and i ask you to respond to it is that once he consented to the search of the driver's compartment of the car why weren't the police and titled inside that compartment to just open up things to make sure there were no weapons there well your hypothetical asked about drawers in the room where consent to search had been given i think it would be different if there was a purse or a suitcase in that room fair enough so there's a person you know they somebody consents to a search of a room and there's a person there the police are not entitled to open it up to just make sure there's no weapon and that's correct we have cited cases in the briefs as well about for example someone who gave consent to search the passenger compartment of his rental car and it was not found to extend to search the purse that was found in the rental car so a person has an expectation of privacy in an item like a purse or a backpack even though it's located inside an area where someone else has control of the room so but now you're talking about consent again and see that's the problem i gree with you that the consent didn't extend to the search of the of the item i'm just trying to figure out once legally inside a place to search why the officers aren't entitled to at least make sure there are no weapons in there well and under schimmel i think that they would be able to look inside any container nearby when the person is being arrested as a search incident to arrest and my argument in this case would be that the search incident to arrest exception wouldn't apply to that backpack incident to the arrest of the driver but what about incident to the rest of your client well he wasn't arrested form and by the time that search of the backpack occurred he was detained outside the car on the curb and was released he was at least terry detained outside the car wouldn't you agree he was at least terry detained yesterday why wasn't an incident of that terry stop because it was not within reaching distance of him or the other detainee at the time of arrest or the time of detention and the interesting part is the officer even commented on how hard it was to get mr wilson out of the back seat it's at the at twenty three she describes that back there it's awkward to get in and out of that place so he gets out of that car he's patted down she retrieves and secures two knives and he's directed to sit on the curb in front of the car and it's a two do car with the doors open so presumably between the detainees and the car that back seat behind the driver is not within anyone's reach is the testimony were he about where he was asked to stand conflicting i don't believe that at the time the backpack was found there's any conflict and there seems to be some conflict later about whether he was behind the car on the curb or there is some conflict or there is difference in testimony of the two officers about where everyone was when officer bryson was searching the backpack when he had already put it on the hood of his patrol car as i understand it your client was not carved he was never physically contained and he was at best ten to fifteen feet from the officers at the time that the officer had already secured the backpack on his patrol car that's the correct distance but it what do i do with ross so used to be like ross says searches of vehicles with probable cause that the vehicle contains contraband the officers may open and search containers found in the vehicle my answer is that this in this case there was no probable cause that that container contained contraband the government thank you good morning mayor please the court i'm hannah horsley and i represent the united states i believe the court's questions go really to the heart of the matter here which was the officers come upon a situation they have to make decisions in the field about their own safety and the safety of the public in this very small parking lot where people are coming and going it's dark it's after eleven pm in the middle of winter and by now the officers have found four different weapons on each of the individual occupants of the car the front seat passenger had one that he dropped during the initial encounter with officer kerridge and kicked out of the way as if he was hiding at the driver had one that was between the seat where he was seated and the door that the officers found when they were moved him to arrest him and mr wilson had not only the one he admitted to the officer and told the officer he had at the time he was patted down but a second knife that he so what's what consequence is it half that they didn't actually decide to arrest him and put him in the back of the car i'm worried a little bit about manipulation of care and had they arrested him and placed him in the back o of a patrol car we'd have the gate situation when we we would your honor so instead they keep him on the curb and they don't handcuff him and they keep searching and now you've got an argument that he's within distance and therefore could could get ahold of the weapon what do we what consequence does the decision have not to arrest him when they could have to do wait until later and see if they can find more while you're on i think this is why the case recognize we need to look at it not from twenty twenty hindsight but the situation the officers around at the time as it's quickly unfolding they do at that point have probable cause to arrest for possession of the restricted weapon the knife they have another passenger there they're trying to dynamically figure out what to do i think exercising less control and restraint by choosing not to arrest and handcuff him at that time while they're still trying to figure out what's happened and whether there are other weapons in the car which they both believe is very possible in light of all the weapons i've already found on the histories of each of these occupants of the car so for them to have deferred and try to continue figuring out if there's something in the car that's dangerous if there is something on them that's dangerous i think is reasonable under the circumstances and there's really no evidence here that they were simply trying to manipulate the situation and kind of have an opportunity for a reasonable suspicion search by leaving mr wilson out of custody and in fact mr smith was still out of custody so even if they had detained will serve arrested wilson and had him cuffed in the back of the patrol car they still have the same potential concerns about m eventually released at the sea was he was allowed to drive the car away that's correct can you address your inventory argument it makes sense to me until i read the portland code which doesn't seem to cover the situation so what would happen under the portland code in this situation if the backpack if you're mr wilson were arrested taken to the county jail lives or the city jail and and what would happen with his backpack if they hadn't opened if that were the case because of the nature of this backpack which is as you indicated earlier as these little drawstring nike backpacks i'm sorry there's not a photo of the backpack itself was there before the district court at the hearing and we can make that available to the court if you wanted to see it but it really is more like a purse or a fanny pack as the inventory policy provides for it's a small backpack with a little drawstring people students all over the country wearing them all the time to have to follow this policy that inventories of the personal property in the possession of such persons meeting people arrested and now in custody will be conducted according to the following procedures  would allow the inventory of this nike big if you i think just based on the record we have the nature of this backpack it was see it was right next to the defendant it was at his feet and the back seat of the car that doesn't have anything to do with the inventory policy does if you were suitcase with open it inventory no your honor and if it were a fanny pack they would so why is this closer to a fanny pack than a suitcase because the nature of the backpack it's one of these small backpacks that's used specifically like a purse or fanny pack to carry money and or other small valuables it's not really that small is a it's much larger than a p so i think it's very clear on this record the district court was not clearly erroneous and finding that at the time the officer searched the backpack those two passengers both the defendant and mistress meth was definitely within the realm of possibility for them to get to the backpack the officers had a reasonable suspicion that they were armed and dangerous could get to the backpack and out of fear for their personal safety as well as others in the parking lot that night the search was reasonable and we ask that the district and for the court all right thank you very much will you have some time i don't remember how much i would give you a minute thank you first on the inventory policy it was not a foregone conclusion that mr wilson would even have been arrested but for the firearm that was found so i think the inventory argument fails for that reason as well and it would require we man if anything for the court to be contemplating upholding the search on those grounds but back to the gantt issue i think that this court could be stronger in its holding about what gant requires and that is a person  unsecured but still outside of reaching distance of the weapon is not someone that the officers have to fear can reach into the bag and obtain a weapon in other words i don't think that they manipulated the rule by keeping him on secured on the curb his being unsecured on the curb meant he didn't pose a threat to them they never said that they feared for their safety from those two men thank you thank you eighty one six three zero two five two is  and we thank our insole for your argument thank you very much