good morning may it please the court i am robin pac all i represent defendant appellant lamar johnson and i would like to reserve two minutes for a bottle the government is asking the court in this case to create a new exception to the fourth amendment to warrant requirement that exception is for a search incident to a possible arrest neither the supreme court nor this court has ever in any case cited by the government at least upheld a search  nt less search based on this type of exception what happened here differs from the traditional search incident to a to arrest exception for two reasons first of all the search preceded the arrest and second of all the arrest that followed the search was based on the fruits of the search the government attempts to get around this by citing to two separate lines of cases one rawlings from the supreme court and smith from this court that say that a the arrest doesn't necessarily need to precede the search two for to fall within this search incident exception and the second case is devon pack from the supreme court that holds that probable cause to arrest may be based on something different than what the officer stated in making the  arrest applying these two exceptions or these two variances to the search incident to rest exception in this case would go against the rationales behind the search incident to arrest exception that the supreme court has recognized in numerous cases including robinson knowles gant thornton and riley which are to preserve evidence for use at trial and also and primarily to protect the officer during the process of taking the person into custody in short search incident to arrest requires a lawful because stone deal arrest and the government has presented no evidence in this case and has pointed to none that the arrest there would have been an arrest in this case had the officer not first search m arrest even though it followed knowles it said nothing about nose it said nothing about search incident to arrest a long line it's in our cases make clear that in arresting officers and for the fact that he knows government bears the burden of showing an actual arrest and what the government so at some point but it's pretty hard to get around justice league statement is difficult for you i don't believe so your honor because the arrest it's the combination of the search proceeding the arrest and the arrest being based on a different justification what the officer justified the government nor the district court disputes that there needs to be an actual custody ill arrest to justify the search incident to a to arrest exception and here the officer made the arrest and the district court found that to be true based on the fruits of the search and the government to justify the search and submit to arrest not the arrest itself but the search incident to arrest needs to show that arrest would have occurred absent the search and the government has which bore the burden in this case has made no effort to do that to carry that burden but ok so i guess i have i think the same concern expressed which is i don't see how we could rule in your client's favor of without injuring the entire decision on the subject of thought processes of the officer because here i think you pitch the record as suggesting that the officer affirmative declared that oh no i was not going to arrest him based just on the marijuana or the was a driving without a license there were two reasons that the district court came up with your honor  i don't think this requires any inconsistency with devon pak as i said devon pak addressed only the fact of an arrest not the justification for the arrests the whole line of cases that began with the rand that's the problem and so i just i mean walk me through what an opinion in your client's favor would say that doesn't in any way rest on the subject of thought processes of the officer so it would say that where there is a search incident to arrest and the search precedes the arrest the government bears the burden of showing that the officer would have arrested but there you go your state your honor in cases as recently as peterson which we cited in our rule twenty eight a letter the district court heard the testimony of the officer and credited the testimony of the officer that the i believe it was the booking would have absent the prior illegal search and that's the kind of evidence we're looking for in this case your honor that the government absolutely did not present was an inevitable discovery issue and it's trying to reconstruct the world that would have followed from an objective standpoint had nothing to do with the officers thought process because here i gather your argument with completely fall apart if the officer said had testified affirmatively at the hearing oh no i was going to arrest him for the marijuana offense anyway right then your argument that would have been a much more difficult case your honor but this is a type of inevitable discovery that the government is relying on here although it won't acknowledge it because what happened at each stage of the officers conduct here was completely was was justified on a completely hypothetical basis by the district court the officer said that he was searching mr johnson for evidence of drugs he said he was arresting him based on the body armor he found during the search and he said also that he was searching the car based on an inventory search but the district court and the government have justified that sequence of events based on things that were completely hypothetical that would not have necessarily resulted in the arrest hypothetical that the officer had probable cause to arrest your client at the moment of the pat down for the marijuana found he could have done and if he had just said that's what i intend i wasn't tending to do i just didn't get around to it later your argument is completely out the window and so it seems to me the only way we could rule in your client's fabre is to say well the key difference here is that the officer sort of suggested that maybe he wasn't intending to arrest him at that moment i don't see how that can be squared with any of the cases that begin with because the court has relied on officer testimony in situations like this where there needs to be a custodial arrest the government bears the burden it was in addressed in makkah bail by the california supreme court and in read the new york hi court this is the type of testimony i agree that we would have a much more difficult case if the officer had testified that he would have arrested mr johnson anyway but that is not this case your honor the government had the officer on the stand it bore the burden of showing what would have happened if the officer had not made an illegal rest based on the fruits of the prior search and the supreme court needed the supreme court nor th court has ever held that probable cause to a raw it is enough there has to be an actual arrest and the arrest in this case was clearly based on the fruits of the search in the officer's mind as the officer testified and the petitioners person we do not believe it particularly important that the search preceded the arrest rather than vice versa yes your honor wrongness is distinguishable because in that case it was clear in contrast to this case that arrest was going to occur the arrest that followed it didn't say that as well as what the chief justice said it's clear but it's clear if you read the entire order including the facts because he was arrested based on the drugs and his admission to the drugs that were found in this in the search of the purse which he did not have standing to challenge just english if you're just english and then something that wasn't there that doesn't help you too much when the overall statement itself are you saying that we disregard the state of the supreme court i just believe that the statement the supreme court in that case which was only a paragraph in iraq there lengthy opinion needs to be distinguished based on the facts of what happened in that case moreover pretty long paragraph it's almost a half it is a but i think again if you read it in the context of what happened the officers were executing a search warrant and in that case had been present for forty five minutes awaiting that and he had admitted to the drugs found in the search and that's what he was arrested based on  good morning may please the court my name is philip since going to represent the united states if i may i'll just pick up with a couple of those points that the court just heard first the point about subjective versus object  intent as the court seems to agree the supreme court has been abundantly clear over decades of case law that objective intent is what controls and there are lots of reasons why subjective attack is just not a good way to judge the fourth amendment so that so that i mean this that what you're asking our court to do in this case i mean to speak for myself it makes me very uncomfortable because it confers almost unlimited discretion on officers to basically harass people that they were not otherwise going to arrest because the offense was too minor for whatever reason just to go on a fishing expedition to see what a search well will turn up and i guess i that's the one thing that gives me the most concern about adopting your position here so i wonder if you have any response to that kind your honor i do i have a couple of responses my first  course here in arrest did occur so it's for another day probably in the one nine hundred eighty three action actually illustrates the very danger of the rule your asking us to adopt because if the officer otherwise was going to let mr johnson and johnson go on his way right and decide in the guy looks you know i don't know i don't know anything about mr johnson but whatever it is that piqued this officers interest in  him caused him to want to do a more thorough search of him to see if you could turn up some other evidence of criminality for which of an arrest really would be warranted that's exactly what happened because it was only because he did the pat down search that he discovered the body armor body armor than the drugs and guns and so forth yeah so that's what i'm saying to me that's exactly the kind of abuse that your rule is going to create right your honor respectfully we just don't see it that way and as i say here the arrest did occur so we think we're well rooted in the case law in the situation where the as your honor supposing a sort of speculative but let this person go on but someone like mr johnson he looks suspicious to me i want to i want to dig a little further and lo and behold evidence of further criminality turn that's what i'm saying i just don't think that's the kind of discretion we should confined on officers and that's i don't that seems to me that what your rule will create here well i don't think so and a couple of points so first of all i want to be clear about mr johnson so when this officer before conducting any search here's what he knows about mr johnson johnson's riding a vehicle that's not his own there is no proof of insurance or registration in the vehicle the odor of both burnt and marrow and fresh marijuana is emanating from the car plastic bags and pill bottles are in the glove box mr johnson sort of fakes as if he's looking for the registration but just kind of pats the items in the glowing is disputing that the officer had probable cause to arrest mr johnson for a marijuana offense if you wanted to but but i gather that he didn't quite get around to saying that he was going to arrest him for that anyway right he there is no indication one way or the other what his intentions were at those early moments i would note the list goes on johnson's a felon he's a suspect in officer homicide his license is suspended my point is that there are a lot of bad facts here for mr johnson this is not the case not writing an opinion and assuming we were to publish that's just going to apply to your to this particular individual do you understand i guess i don't do that i'm expressing absolute so but you started to say that you had some responses i guess i just what you pivoted to seem to me was if you're all the bad facts for mr johnson so what's the more general concern  response to the concern of course and if i may the the point is that the court in these specific facts and respectfully i don't think is condoning arbitrary searches or discriminatory searches i think there was a good  are is it your view that we don't have to do that well my view is you do not but if you wanted to your honor i believe it's united states versus smith essentially combined with some of the principles the second circuit recognized and  court of appeals in lewis but it's already essentially this court's opinion in smith it's very close to those facts smith picked up on rollins and the point that simply arrest and search don't have to go in that order if they're substantially contemporaneous that's the language this court the supreme court abused and you wonder if i could i do want to speak to that broader concern about the potential we don't think it's present here but the potential that this truly could be discriminatory pull someone over just for speeding for example no other facts yet that is technically in the rest of the offense so you do this except sort of search our main response is that  the supreme court already thought about that problem in ran in atwater and it inserted atwater of course was a contentious five four decision but it the court did provide an answer and the answer is that in a rest is lawful if there is probable cause for any offense in atwater it's not buckling your seat belt and the court in that case the supreme court very openly acknowledged that the petitioner in that case was humiliated subjected unfair humiliating invasive treatment by the police but the court said as a fourth amendment matter it was ok right now i that whole line of cases beginning with rand has led us to where we are and i think that's what caused justice ginsburg to say last term maybe we need to rethink this because we have seen the kinds of abuses that leads to a not so i guess i'm still waiting for maybe there is no assurance you provided you  hey that's the law sorry you have to apply what the supreme court told you that's fine if that's the response but if you have something else to respond to is wrong sure in terms of limiting principles one very obvious principle we see looking between daven pac and knowles is that so long as a counter with an individual is ongoing there is not yet a citation also not yet an arrest then the sort of search we see here is proper if however the person is released or let alone if they're cited like a noles then plainly no search is no longer a search is no longer proper so we think while that encounter is ongoing that is the moment in time or the window of time that an officer can proceed as here searched then arrest but as i say if the person is released it's not like you could be no on second thought come back search later that would be improper our view is there any outer limit in your mind in terms of time constraints if the if the opposite was still searching two hours later with that be within the confines of the fourth amendment i think that would start to present a real problem and there are a number of ways to think about that one in the car stop contest is is rodriguez the supreme court's decision of a couple years ago which talks about the reasonable duration of a car stop relying on the fact that there were a lot of problems that could cause the officer to have a reasonable suspicion of this particular detainee so on and that's why i ask you in that context how long can suspicion linger how long can a search go in those circumstances your honor i think in that case there would be other cases that would be relevant just opinion on how the search proceeded of course  the invasive searches like strip searches a blood draw that's all off limits under well established pre court law of course you couldn't search the cellphone or luggage that the person is holding that's other supreme court cases so i think there are plenty of cases that say the search would simply be of the person and not things like cell phones in pockets not overly invasive like body cavity it would necessarily have to be a pretty quick process as long as it takes to search someone's person within those limitations and if i may the defense has repeatedly mentioned the couple of state supreme court cases that have gone the other way on this issue our view is those are against the overwhelming authority including all of the federal authority except possibly the seventh circuit in a sort of confusing decision for many years ago but those are  read and we think the fundamental flaw with those cases is that they get at what the court recognized a moment ago which is that they are relying on officers subjective thought process and the supreme court has said again and again that that that's not the way to think about honor we're not asking the court to rely on the officer subjective thought process as we are asking the court to rely on some evidence of objective testimony from the office or whatever it is that there would have been an arrest absent the search in this case and again the government has not produced that your honor is correct that this was a very intrusive search the officer put his hands on mr johnson's body and went into his pockets and this this any concerns the officer had could have been and addressed in a much less intrusive way finally what the court that the government is asking this court to to create is a search incident to probable cause exception that it would apply when a situation is ongoing but that runs counter to the supreme court's repeated reliance on the rationales for a search incident to arrest exception those are during the process when the officer is actually taking the person into custody and evidence that may be needed for trial also and not to be diminished arrestees reduced expectations of privacy and you honor when a person when that one officer just has probable cause and the situation is ongoing as the government says none of those come into play therefore this court should decline to extend the search incident to arrest exception thank you