united states court of appeals for the st circuit is now in session all persons having any physics before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court orders in session today's cases will be called as previously announced the time should be as a lot of the counsel the st case today is united states for us richard sylvester appeal number nineteen dashed two thousand one hundred and twenty seven attorney drake please introduce yourself on the record not the function of courts to write impound or inventory policies or procedures because courts quote are hardly in a position to nd guess police departments as to what practical in ministry of method will best deter false claims against its employees the supreme court also teaches that the th amendment doesn't demand any particular policy choices as long as the exercise of an officer discretion is channeled toward a community caretaking purpose in wells for example the court makes plain that quote policies of opening all containers or of opening no containers are unquestionably permissible in our case the hancock county impound inventory policies reflect the choices made by those police officers and city leaders and their choices are perfectly valid in so far as the th amendment is concerned there is no argument otherwise by either party according to hancock county officials the best way to specious claims of sefton when a vehicle needs to be removed from the roadside is to see if there is a way to avoid having the police take custody of the car at all the policies direct the police officers to ask the defendant if there is a rd party who could take custody of the vehicle before the officers are ready to leave the scene impoundment by the police is the ne mr can i ask you about we know the question was not us right he was the do we know why the officer did not ask and there's no direct evidence as to that on the record but one inference i think this court could draw from the method and which the impound inventory policies were violated is that by virtue of not asking whether there was someone there to police who could not the words what's in the record that suggests that you'd have to draw the inference that the reason he didn't ask was because he wanted to investigate well your honor at my answers to part the st is there is nothing in the existing rive minutes the policy is so they could run a drug dogs around the car at the initial plan was to do that at the side of the road and initially the plan was not to impound the car at all it was only until they learned  then the car's just there and there's clearly a safety reason to have the car removed once the question's not asked so what authority you have that tells me that the breach of a policy here our standard of review would be clear clear air if you will the district court clearly yeah but just just on that so i may be i think it's clearly clear on the so what we have is no finding as to why he didn't ask and then a finding that the impoundment itself following not asking a breach in the policy was for the nonce investigatory purpose was for caretaking function we do have signing so what are we supposed to do because those two things seem to me a little bit difficult to put together because if the reason for not asking was investigatory i'm not sure what pressure that puts on that we are to measure this according to an overall standard of reasonableness and as part of that whether the officer or officers were in compliance or not was a policy is relevant and whether they are subject intent is also relevant so we have a finding by the district court that there was a breach of policy i don't think there's any dispute about that we also have a finding from the district court that there was an investigatory intent now i understand this court's case not to suggest that neither of those things either independently or together are dispositive but if we are then evaluating the totality of the circumstances in order to reach a reasonable miss conclusion the question is what other evidence is in the record that points towards reasonable that points in a different direction because those other two findings point in favor of sylvester all we have and this is what the district court  on is the disputed need to remove the car from the side of the road our position is that just triggers the need for the police to follow the policy and the policy dictates that the officers do something other than what they did and here contrary to the government's suggestion it's not just sort of a do minimalists in consequential policy violation mr sylvester tells the police that there is a potential  party available they don't pursue that with him further and instead instead of following the policy and impounding the car telling it to a lot and then inventory  may just finish the sentence and no mess straker i'd ask you to answer this question as i understand the policy there was a technical violation and terms  not notifying him and the opportunity to contact us rd person but the policy goes on to say but this person must be at the scene that plainly did not a slide or be able to violation of the policy i believe the answer to that question lies in deputy mcfarlane's cruiser cam video that video demonstrates that the police were on the scene for at least half an hour during the time they were there their cars were surrounding the escalator and so there was no public safety concern well the police were on the scene and as i say they were aware that i beg your pardon a busy route one in a huge crowd police cars obstructing the a line of traffic and you think there was a nose safety concern even posed by that well the officers themselves for example do not appear to see the need to direct traffic i don't disagree that it was a busy road i don't disagree that the car needed to be  moved to your point about why would it be reasonable for them to think someone might be able to arrive on the scene right about what is hardly my question my question was that they could have viewed this as at most a technical violation of the policy because the policy require that there be somebody there are or someone who would made earlier which is that it's actually crucial because it was plausible to think that in a half an hour someone else could have gotten to the scene and by not offering him the opportunity to make a phone call to make those to the officer could reasonably have led them to think well no one's going to get you're in time but we just don't have a sign saying by the district court reading this record whether it was going to take too long as that's why he didn't pursue it or whether the reason he didn't pursue it is because he was eager to be able to get the docs and without a finding on that what we really can't resolve this because the system says as we review that was clear we don't make fun so certainly my preference would be to have the support remain and as opposed to outright affirm if it believes that that is that sort of that missing he fact but again i think the record supports the notion in this court could comfortably ok thank you attorney craig please meet your device at this time attorney live pez please introduce yourself on the record for us good morning may it please the court  disagree with the notion that this was a consequential policy violation or that it was the police officers failure to ask about a rd party to remove the car that allowed them to keep the car in custody that is contrary to the district court's factual findings in this case what the court found was that this was not a i believe the word the court used was a serious policy violation because there was no evidence that there was anybody else available to remove this car promptly so do you disagree with your sister's assertion that mr sylvester say it that there was somebody available to come get the car i do your honor i don't believe that's what the record shows i  believe what my colleague is referring to is his statement that he was going to meet his girlfriend's mother at mcdonald's that's all it says and the district court found that that provides no information about whether that was an appropriate person to move the car we don't know whether she had her own car with her we don't know if she was life tends to be don't know whether mr sylvester or his girlfriend the registered owner would have given her permission and we don't actually know how far away the mcdonald's was and so the court raised certainly i think policies can help cabinet police discretion they can prevent arbitrary decision making and certainly the compliance with a standardized policy is strong evidence that there was no pre finding about whether the reason for the breach of the what the reason for the preach of the policy was not specifically but we do know that i wouldn't make sense to get on it because suppose that the evidence was supposed it was a finding below that he didn't ask the question because he really wanted to investigate and he knew if he didn't probe he'd be able to impound and then he'd have a safety justification but it does require made that chain of findings and then sa therefore it's fine wouldn't that be problematic i think potentially but i think that it would be potentially permit them doesn't make sense to get the district court to make a finding on why it breached the policy we just don't have a finding on that score to me it seems like a fairly critical fact if we're going to take seriously that it matters to him because i think it matters to have a policy your honor but i don't think the policy should be dispositive in a case like this where we have such a clear community care taking it's not to breach the sponsor that it's the reason for the breach that might be dispositive we don't have a finding as to the reason for the breach we just have a finding that there was a breach which i know in your brief you can test depending on how you read the but we don't have to check i have two responses here on our one i think that here there was a finding that the consequence of the breach wasn't significant and other where it's mr sylvester said my girlfriend lives around the corner and this is her car or i had he said i'd like my girlfriend who's ten minutes away to come of this car and they had ignored it and then i think we might have a situation where the consequence of th suggests the officer supposed to crocked the car the driver as to whether he has somebody who can come into the car he was never prompted that's correct but there was a little odd to say well he never said that somebody could come get the whole point the policy is maybe a driver wouldn't know that and they're to be prompted to say actually you can drive this way if you have somebody nearby and very simple to ask and it wasn't perhaps that's true your honor but i would still play into the fact that the district court made a factual whining that there was no evidence that there was anyone who could move this car and that is an important factual finding that i do believe is entitled and it's for meaning and deference and what that capsule finding shows is that the breach here was not ultimately of that this didn't impact the ultimate outcome i'd also point out that but it's this is this still feels circular because even though the court made that finding that there was no one available the police didn't ask the defendant if there was someone available that's correct your honor to thompson but there was also no evidence presented that there was anyone available and i would submit that that is evidence that that tenant could have provided to the district court you know my colleague has said that was no following of the policy no asking the prompting of the driver if there was some and that that evidence or hearing it came out that the officer who was supposed to follow the polls he said well i don't want to find out whether somebody was nearby because i wanted to do the rather than in order to solve a safety problem then under our pretext an aspect of the standard isn't got a problem i don't think it necessarily is your honor what's your best case for suggesting that when there's evidence that the breach of the policy was for an investigative purpose the fact that the policy could have been complied with without having investigatory purpose means that there's no th amendment  see a case that tells me one way or the other what to do with that situation well i would i would point the court to kucha and the result of which both say that even if the police do have an investigatory motive as long as there is an objective lee reasonable basis for moving the car they may act on it ends up but what i'm saying is that's not a case in which there was a breach of the policy and what i'm positing is a case in which there was no safety reason for the breach of the policy only an invest and what you're saying is that secured if nonetheless you could show that you could have complied with the policy and for safety reasons still have had the same result i don't know of a case that says that i don't believe that this  has dealt with a breach of policy case per se but but what i would suggest is that i guess my point and maybe i'm not making it that clearly is that if the breach even if it was purely  investigatory reason doesn't ultimately impact the outcome they still needed to move this car and so there's still an objectively reasonable basis and i guess i would you know posit the the other way judge  they didn't ask because they wanted to keep the car but there was in fact no one else move the car they still need to get it off the side of the road that is the only objective lee reasonable course they can't leave it where it is and so i think that is important of judge for me finding here is that they they plainly needed to move this car and we had no reason to think there was any other way to do it so regardless of what their reason was for failing to ask it again the record is silent on that i agree ultimately this was  officers at the hearing testified that they didn't think that they were exiting but they just didn't want to get a warrant can they defend going in on the ground that objectively the circumstances were a kitchen in thing so here are the exact circumstances as an situations there is a subjective element to this there is but what the court has said and it said it most recently in dollar is ario is that if you had mixed motives than then the objective reason trumps essentially that if there is an objective like reasonable basis on which to proceed it doesn't matter that the police also had an investigatory motive and so i think this idea of pretext we can see they wanted to know what was in that car that is plain right they they invited the canine to test with one last question on this record since the car the police were with the car for house them hour how could we be clear that nobody could that the defendant would have to proffer something to show that somebody was nearby yes i would suggest that if the case there's there's no evidence as we've argued that the mother had any ability to remove the car at all i' m a little unclear about this half hour his service because as i understand it the half hour is see an entire time period for that the car is pulled over to this side and the period of time after he pulled out of the car and ask questions is actually less than half an hour exact correct i think that's correct right i don't have the exact time but if you look at their videos of the traffic stop there is a significant period of time where they're standing with mr sylvester i think they're waiting for confirmation information on the warrant inventorying a property that was honest person so that is correct at lunch yes thank you thank you as you can reach your device this time and attorney drake if you could reintroduce yourself on the record for your two minute rebuttal to mesa drake or mr sylvester i just wanted to pick up on the point that i think judge karen was making in the circular nature of the state of the record in terms of the availability of the girlfriend's mother at the side of the road the reason we don't know the reason the officers don't know whether that woman would have been able to get there before they were prepared to leave is because they don't ask and their failure to ask is it still your opponents making a slightly different argument which is that may be true but she's saying it doesn't matter because if in fact nobody was nearby then there just isn't objective safety reason for doing it and you could have put forward that  some evidence that somebody was nearby but you didn't it's somebody was nearby just a yes no correct we have until maybe but i think you're ponce maybe just want to answer this it might be a different case if we knew that there was somebody nearby then objective in the absence of indication that somebody is nearby that you have a safety problem i think that that what i just read to the court is an indication that there is someone nearby i agree that i don't have anything on the record after the know that it is the factual scenario of this case there is no real test if i may just finish and you can finish one sentence no resemblance to this court disconnect from the meeting at this time