point he was secured and had that had only committed the traffic offense and yet the policeman interest are put into the rear pocket behind the passenger seat touched on the issue concerning the trial court's consideration of mr foust prior convictions for the purposes of the peach and us supreme court recently decided in arizona the suppression hearing after the defendant testified so that the state while ready to present a witness was precluded from doing so or did the state say no crime officially case on the suppression hearing therefore we don't have to put on any i believe it was the court that truncated that sitting for the say i never saw them at the hearing the question is did the officers basically secure away from the vehicle on the able to access the weapon that's ultimately found and you're saying that can't control the situation absolutely now what do we do with stop itself was lawful but the search was not even though the motion to suppress said the stop itself was because certainly if it's only if if if after the defendant testifies the only question is whether prime fish case has been made out of the burden shifts to the state to come forward and question the forest whether prime fish case if it if you reverse are right that is correct ok right so i feel let me let me ask you let me say i was ask you this regarding a policy question before us if this sort of here if we find it here occurred and it seems to me it's up plain arithmetic air we know when the prior convictions were we can add ten years to that and if the trial is beyond those ten years that's sort of impeachment commissions should not be limited and the state should be able to do that same arrest made a call calculations if you want to go that far and they shouldn't seek did but they did in any way they might your position pressure at the suppression hearing i do know that if it later which came out no came out during the trial and then but that was the testimony of an officer yes i think i just curious how the issue of everybody seems to assume and this is josh we'd like to you at least offer our officer officers testimony to at least the limited an issue that might be raised on appeal as to whether or not the defendant ran through that red light  may be there could have been done obviously it is a heard of this record and then and then one when we look at the evidence and while just to determine whether or not the motion to suppress properly does not we can also look at the most at the evidence at trial to determine holocaust to stop a car on the gang issue is in a different aisle procedural posture to the extent that this issue was never litigated a factual straight or firm and so i think if you look at if you look at can you get a straight affirmative if you acknowledge that that the point raised by just scale is really a fact question at that is whether or not he was a sufficient distance from the we can affirm on that question that you've just brought out to us that is whether or not the senate was still sufficient three within the range of acts i suggested i think the facts your honor is this case here and that is that on the record at hand what you have in front of you is that there is a furtive movement to the rear pocket of the passenger f  benefit of the camp before he challenge the search under the belts and and its progeny he did so and a rather show case came down from the u s supreme to require counsel to meet and that's why we have a rule that says that a case on a i'm direct appeal is subject to a new ruling because we want to give everyone the benefit of creativity of defense attorneys that you know the defense attorney in this case at all your honor in in ghana in bridgewater those searches were but it gets back to the fact that he could have let me get it he didn't and as a result it is not properly before this court and a novel or or a unique position to hold the defendant to but but it would be precedent setting in in terms of a can't application not not necessarily forfeiture you're right or for sure happens all the time rule how hard can it be they can be ten years older and where they'd be on that ten year there were however a couple of points i'd like to make about those higher convictions is front of the court and in this case the circumstance is different and that is that the court there's those prayer conditions were that were offered that were two or more elements of the time for mitchell criminal charge  that the defendant was on trial for so that the on the trial court was at least aware of those convictions are going to come in anyway this is really coming for purposes of proving that sheriff right additionally you have the ninety nine i believe it's a burglary case which is another element of a gun charge that beth was with in the gum or a time period and it was offered for barrel impeachment purposes and cumulative at this point that the court was properly aware of the defendant was a convicted felon and down the ana the cumulative nature makes it different than the nailer case and rights once the judge says there are committed the judge never says anything out else about those convictions the record is silent as to that so there's the case that this case was not litigated i'm sorry this case is not challenged on the basis of the search in the trial court there is no argument that this council could have been ineffect for not challenging the search in fact he clearly leapt at this heat on he challenged a different basis and that being the style your honor with only want the discovery to show we don't know what he saw with us in the tora search or something like that then maybe i can't independent basis absolutely why can't would not apply here under any reason we did not have an evidentiary hearing there's a lot of facts we don't know where those windows were open whether they were close ya know we would be asking for you to affirm the for the reasons given and for the reasons i brief for you to affirm the defendant's  i think to do with the ultimate discovery of the gun after an appropriate inventory might have taken place two or three days later that that is true however there is nothing in the record to suggest that there is any sort of in inventory search there's