good morning and welcome to the th circuit we have judge gold and i are very happy to welcome judge bastion from the eastern district of washington who has that with us a number of times by designation so we welcome him back we have judge gould on the video here can you hear is judge yes i can hear you thank you thank you the st case for argument is united states versus lamb case started with a terry stop where officer magoon told mr lamb he was detaining him until he could figure out what was going on the officer then dead an illegal terry frets it wasn't until the issue was litigated in the district court that the government took the position that this was instead a search incident to arrest but as the district court found this wasn't a search incident to arrest as there was no probable cause for it before the search began and the search wasn't contemporaneous with a later arrest as an initial matter there was no probable cause at the time of the search there was a discrepancy between the photocopy of the id card and the information from the d m v this isn't enough for probable cause with a common name such as henry lee and where officer magoon said he had to see the card itself wouldn't you need to add to that the fact that  officer knew he had bought two watches worth one hundred thousand and twelve think consecutive days and also he appeared to be ready to flee as soon as he saw the police so it's not just the fact that we have a thirty year discrepancy in the license isn't that that's true your honor but even if this court were to find probable cause at the time of the search mr lamb should still prevail because the search was not contemporaneous with the arrest but that that's correct that he bought two watches in into two days or was about two and the officer said he was about to flee i'm not sure that the video shows that but your honour's can take a look at i don't think that we credit the storekeeper statements necessarily because i'm not sure that it is suspicious to buy two watches in two days at a watch store and moran but as i said getting to contemporaneous notice mr lamb should prevail on that pron well well counsel you might not be certain that it's suspicious and i might be concerned that it's not suspicious but we don't run jewelry stores the people who do and who do so i have to watch as they say in their opinion it's suspicious and isn't that something that the police officers in making their probable cause decision and the judge in reviewing it can can evaluate that these are the experts these are the people here every day and they found it suspicious your honor the storekeepers are there every day and i wouldn't say that they're experts the way that we look at police officers as experts but they do have experience i think it's notable that the officer here who was on the scene and spoke to those storekeepers said that he needed to see the card itself to verify whether it was fraudulent and he's telling mr lamb on the scene when mr lamb comes back the officer says i'm detaining you until i can figure out what's going on so i see that in a way as a credibility determination by the officer who is on the scene about what he thinks of those storekeepers statements but but your honor is correct yes ness our position is that the arrest happened at a proximately the eleven minute mark that was when mr lamb was told that he was under arrest and was taken away to the police vehicle which is just a few minutes after as opposed to eleven minutes so if i understand your honor's question if it's whether he was arrested at the time he was mirandized i i would submit that he was not arrested at the time he was mirandized because he has been already told that he's being detained detained not arrested to figure out what's going on to if we look for mr lance perspective he thinks he's being detained and then there's this interrogation and about halfway through that the officer does read the miranda rights but the miranda rights have this perhaps tonic quality to lawyers but but to mr lamb or to someone in his position i don't think so they don't that doesn't tell him you're under arrest it's not until later that he's told you're under arrest and he's  a little confused by this contemporaneous argument in terms of the timeline so it help me if you would walk through because we've got the detention we put him in handcuffs there's a miranda where in there do you claim is the contemporaneous notes somehow as a break sure your honor so the intervening events we have here that create a break between the search and the arrest so the government says that the arrest happened at about the six minute mark when officer move told mr lamb he'd be going to jail today so between even if we take that even if we take the government's position there's six minutes in between the search and the arrest there we have we have mr lamb sitting down officer immigrants it's him down he's sitting there calmly there is a lengthy interrogation and then there's the finding of the card and that's about at the six minute mark then after that six minute mark there's the getting of the storekeeper statements officer magoon goes to the back of the store and gets statements from the storekeepers he's looking at the couple watches that mr lamb had viewed that day and he is speaking to dispatch on this follow up so those are all intervening events we identify we'd also submit that where as here the search preceded the arrest the contemporaneous pronk must be that much more rigorous so the search and the arrest must be essentially arrest when the suspect has been told or eleven minutes eleven minutes for us six minutes is just adopting the government's position because even under their position but where the suspect mr lamb was told he was being detained that would the search incident to arrest doctrine from its justifications which are protecting officers and preventing the destruction of evidence the idea behind the exception is that when the arrestee knows he's being arrested in this fraught situation he will act in a particular way that he wouldn't act when he thinks he's being detained so very close in time to the formal arrest the arrest you might also know he's being arrested so in the moments right before the arrest like in smith and rawlings we might allow a search incident to arrest under the same justifications but not eleven or even six minutes before when he's told he's being detained do you want to save the remaining time yes your honor yes i will do that thank you substantial evidence even before the point of any are you bill or us of guilt in this case the district court found that the arrest of the defendant was inevitable prior to and independent of the fruits of the search the search of the contents of the wallet and nd the court credited the officers uncontroverted declaration that based on standard police practice and procedure he would have removed and search all physical items on the defendant's person for in d c area weapons narcotics or contraband prior to transporting the defendant to them or in county jail what kind of contraband was the expecting to find wallet well your honor in this particular case the officer would have been expecting to find the id and stolen credit card that he identified as a fake id and a stolen credit card in his conversation with the defendant prior to any search so this isn't the government's position that this search assuming there was probable cause to arrest this search did fit into the instant to arrest the foundation which is to protect those at the scene  basis however we know that this court can also affirm the district courts denial of the defendant's motion to suppress by finding that the search of the defendant's wallet was incident  yes it is our position that this was a proper search into the incident to russ one there was probable cause for the us prior to and independent of the fruits of the search our position is that the search was roughly contemporaneous with iraq yes where the government in the district court disagreed however is whether or not this was the proper scope of the search incident to arrest the district court did state that there was probable cause for a search in fact that this report statement in this is that expert of record thirty four seats in this case i don't think the wallet was necessary for probable cause the district court also went on wallet may have been a valid search but opening that wallet and looking through it was not necessary to officer safety was not necessary to prevent the destruction or concealment contraband now this is where the government disagrees with the district court because the president of the united states supreme court and of this circuit is very clear that as part of a search incident to arrest you may not only seize the items on the individuals person but you m and in fact that's the exact language and united states the robinson that was reiterated as recently as two thousand and fourteen and riley v california and united states v robinson the supreme court looked at whether or not the officer was authorized to seize a crumpled cigarette curtain that was in the defendant's front jacket pocket and whether or not the officer was authorized to also look and inspect inside that cigarette curtain and the united states supreme court said having  a lawful search come upon the completed package of the crumpled package of cigarettes he was entitled to inspect your honor it's based on this that the government's minutes that this cerberus now the defendant has spent some time talking about contemporaneous and here or there arguing that the the arrest happened eleven minutes after the challenge now the government's position before the district court in before this court has always been that the a rast happened at the time that the defend it was merely mirandized he walked into the store he was handcuffed the officer then emptied his pockets after emptying his pockets he double locked those handcuffs sathya defendant down then he inspected the wall at that moment and within that same minute after inspecting the wallet he mirandized the defendant and then began to ask him certain questions within five minutes of mirandizing the defendant he states you understand this is a felony but you're going to jail today eleven minutes after the search is when the defendant was  police vehicle we have to look at the totality of events here and arrest is a fluid event and here it's very clear that their arrests happened quickly on the heels of the search be consistent with this the supreme court's precedent and rawlings v kentucky at this point the rest of the arguments fall away and any th amendment challenge is resolved saying that there are no questions from the piano i respectfully ask that this court affirm the district court and hold that the search of the defendant's wallet was appropriate as an incident to his arrest and in any event that the looking into the wallets wasn't part of the probable cause decision made by the police why didn't after they arrested him why didn't they just ask for war well your honor i think that this is precisely the question that the supreme court addressed in robinson and that the th circuit addressed in the united states people where we had can't look at each case in this this again items in his controlling or no which doesn't really apply here can be searched and in united states v robinson i believe they dealt with that exact question well once the wallet or the cigarette package was in law enforcement custody wasn't it safe from destruction such that officer should have gotten a warrant and ultimately the court  pac it was unlikely that robinson could have access to pacs contacts but unknown physical objects me always pose rest no matter how slight during the tense atmosphere of a  that regard both in riley which dealt with the cell phone but affirmed robinson in its applicability of a search of physical objects found on the defendant person and in robinson both court both times the united states said even when the item is in law enforcement custody can be searched thank you thank you honors thank you inevitable discovery because the inevitable discovery exception is only for routine procedures that would discover the evidence in any case it can't be about searching for specific evidence of the crime illegal terry frisk that he did not a routine inventory search that would be acceptable under inevitable discovery the district court clearly erred here under inevitable discovery by failing to determine what evidence was tainted by the illegal search of mr lamb's person and wallet moreover the government's evidence on an admirable skivvy was seriously lacking most glaringly there was no evidence of what the officer would have done had he not found the id card in fact he said he needed to see the id card in his report there was also no evidence of the jail inventory policies at the jail government's brief on page twenty three dollars they take the position that it was at the five minute mark which is actually six minutes on the video and for these reasons we ask the court to reverse the district court thank you thank you thank both council for your argument this morning the case of united states versus