weekly's court counsel my name is daniel tell us what the federal public defender's office and i represent mr martez dixon on this appeal raises two issues and i'll begin with special issue the district court denied suppression of the evidence which was in this case the gun found in the car stand for finding that gun there is no case here the district court erred when it denied suppression of the gun and appealed the government defends the district court on two bases the application of the plainview doctrine and the application of the inevitable discovery doctrine either apply and here's why for the plain view doctrine to apply the police have to be lawfully present where the evidence is posting this what do you think the police should do when they find the driver of a car sleeping in the order lane at a restaurant at the terms of the invitation from the restaurant or ask the officers to jack the individual on that basis that would be something to consider of course that didn't happen here so you can consider how they find him trespassing that's actually an offense but he was not ever said to be tried a bottle of alcohol in the car seen from outside that's another offense there was an empty bottle your honor hard to tell whether something is empty until you test it i think the records had that it was empty you know look yes perfectly normal inference from this behavior is that the driver had been drinking and had passed out drunk right police draw that inference they got another offense which is drunk driving in addition to trespassing and so on certainly so normally you would expect the police are to go and do something about it like yes open the door get the person out it's not a case where you have to persuade them to drive away he has no  so what could be done short of doing the unlawful conduct that was done here many things you could try to wake him in a manner different than accessing the vehicle and shaking him police could tap on the window they could do was in a vehicle running  i believe the vehicle was and he's asleep yes and in the driving us that's six am true backpacks but nevertheless there's a lot going on the police access the vehicle and they can't judge easterbrook you just articulated reasonable suspicion there's no doubt there is reasonable i just articulated probable cause to arrest for three different events that we've been wonderful if it had been argued below and it wasn't and so they have not raised it below they can't rein raise it now probable cause was not the accessing the vehicle they said it was a terry stop the terry does not allow them to enter private property and that's what the car is so far it has however entered somebody else's private property and there's no right to be there well it doesn't til they ask for the individual to be j and that didn't happen here again so there is no basis to enter the vehicle reasonable suspicion allows them to investigate they could try to wake the individual they cannot access his car any more than he could go into his house reasonably putting the car and park in turning taking the keys out of the ignition would be it and then they could try to wake him knock on the window the safety rationale under smith which is the case the government relies on is accounted for in that case the vehicle surrounded it is immobile there's nothing that they need to do to then access the vehicle as they did it's the additional steps the police officers took here there was i think i think you just said it was ok to reach in and turn off the car and remove the k runs out of gas no no they would easily be able to wake somebody and he started easily once they made physical contact with them he could have been a while he didn't wake up when they tapped on the glass not at first but they didn't kept very long  from the officers all along they discussed it in the be a good before they got there was they were going to enter the be a call put it in park remove the keys there was nothing about let's make sure we wake him up before we go into his vehicle absolutely not you don't want to  three to react by hitting deliberately or not hitting the gas but well if there's really concern i'm sure the police could have purchased the car immediately in front of the vehicle to prevent that from happening wouldn't lurch forward but again this is a separate matter than whether or not the police have a lawful basis to enter the vehicle they need probable cause for it they didn't have terry doesn't allow them to access the vehicle that's the problem under the first part of plain view they were not lawfully present also the evidence was privacy given that he was not an authorized driver well under sanford he still has a right to resist a search of his person or his possessions under brendel and you had a right to challenge the physical seizure of him which happened here t the taking him shaking him so forth your honor that caused him to be moved that caused the gun to be seen these are all problems plain view just doesn't apply to the circumstance something might but not that in  way you've you've argued as i understand it that the there was nothing immediately incriminating about the visible fire but given the nature if the encounter was otherwise lawful is it reasonable otherwise we assume that there's lawfully spotted to secure the gun judge i suppose that that would be an exercise of the police officers discretion that may be something that they could do i have argued against that and so i can argue that again they only found out that he was a felon later they only found out about the void card later so if the police want to time but it's not unreasonable i would think for the there i magine that would be something but again this is a case where if the police thought that they had to do something what they did here was not the right thing that's i guess i'm still waiting for the better account of what they should have done well it's course in my view not our burden to establish that and i think it but what they should do ask mcdonald's do you want us to up there are things that can be done differently while the horns knock on the window louder spend more time don't as a first instance as they're planning to do once they first got the call plan to access private property wouldn't allowed if it's a house we want we should allow it if it's car there's something that should have been done differently here and it was the government's burden to show what exception to the fourth amendment's requirement allowed the police to access the vehicle and so far none have been articulated the plainview doctrine doesn't apply  they didn't witness a traffic infraction such that they were always going to order him out they didn't argue anywhere that the police officers there's no coin the testimony that i can recall with lisa said we're always going to order him out of the vehicle in search these are things that were incumbent on the government to establish the supervised release issue would be a way to judge right heard standing order yes because the interplay as i understand this court's decisions in capice and thompson is that we're in condition supervised release or vacated there are to be ends now on the standing order regardless of what it says now needs to be accounted for in determining what the total sentence is also for the advantage of my client if he's engaged in any meaningful rehabilitation post incarceration per peper versus united states he should have the opportunity during the full resentencing hearing to present that to the district court he got five months short of a statutory maximum two hundred forty month sentence in this case your honor i'd like him to have every opportunity to try to convince the judge about what it is that is a fair punishment and challenging the condition supervised release part it's a procedural mechanism for him to get to do that so it's important and it is consistent beauty may please the court i'm tollywood she and i represent the united states in this appeal the district court properly denied the defendants motion to suppress because in a court correctly found that the officers acted reasonably at every step in investigation they reasonably believed based on the facts and circumstances that they were faced with that they were likely facing an intoxicated driver situation the first thing they did when they arrived at the scene was ensure their own safety and the safety of the others around by removing the keys from the running vehicle you also have an open container law that prohibits open containers i believe they do your honor but i'm not a i can't give you the specifics off the top of my  head the next thing they do is they attempt to wake the defendant and the passenger in find out what the situation is they acted reasonably in doing so and when the defendant did wake up they reasonably requested that he exit the vehicle and as the district court found all of these steps were reasonable as your honour's have mentioned there were various facts that showed bed there was likely an intoxicated driver the time of the day the fact that it's a weekend the open bottle but in the car the fact that there's two individuals passed out the officers had reason to believe that there was an intoxicated driver situation and they took steps they took reasonable steps in response now the defendant has challenge their ability to enter the car at all but we have a safety concern here which is removing the keys from the cars a reasonable step to ensure everyone's safety and we also have the fact that the defendant has remained unrespons all the way through this encounter the police didn't just stumble upon this this was they were called to the scene after the defendant remain under spots of at a mcdonald's for a period of time when they arrived he was still on responsive to the police have to open the door was the window open to  take the keys turning to turn it off and to accuse there is some conflicting testimony about the windows themselves were actually open or not the police did open the door in order to reach across and remove the keys and said that the door was in fact  point in this encounter the defendant is going to be removed from the vehicle asked to remove from the vehicle to determine if he is fit to be driving at and it's serious that happened the gun where it was located would have been officers were lawfully present when they saw the gun it was in plain view and as your honor asked was it incriminating whether it was incriminating and it's our position that you have a gun in this situation which is found you know wedged between a seat in a center console it's accessible to the driver there are circumstances under which that would still be a lawful physician but on the totality of the circumstances here it was reasonable for the officers to at least secure the gun while they're dealing with the defendant and to determine whether he's lawfully able to come to possess that firearm and that's what they did and as the district court found that was a reasonable step them to take i just wan briefly touch on the supervisor elise conditions there's only two challenges they're both easy fixes and just right her standing order shows what those fixes would be there's no reason for a  if for example it was on a rule to show cause i don't know that how we would address that issue of whether the standing order if someone was alleged to have violated the standing order how that would end up playing out rule rule thirty two point one  wants the effectively there's a standing order rescinded one of the contested conditions and changed the terms of the other contested condition that by defining what the jurisdiction is do we know as dixon said that he's perfectly happy with the new definition of the jurisdiction but he can't leave that we don't know that for sure and well he has a right to protest that if he hasn't said i'm happy we're in trouble i think why i think we have a condition that it's that subsequent decision by th problem with our case law on that particular question is that prisoners are often released to districts other than the ones in which they were sentenced so that's something that can't really be addressed were decided until the prisoners actually released into your honor's point and that the standing order does tell probation to essentially inform him of what the jurisdiction is and that i believe takes care of the court's concerns about the vagueness challenge as to that condition and whether that can be done just by relying on the standing order alone or whether a limited remained is necessary here i don't have a great answer for you on that but either way the result is the same and that one had a chance on a rule to show cause type issues too have that played out yet i mean i know i understand the point the hearing is not needed you know if the change in supervised release conditions is favorable to the defendant the government is entitle to object as well but if i don't hear any objections from the government i'm not going to raise it so i don't believe in this circumstance or any objection as there are other things a standing order the standing orders amended by the judge right and those conditions the conditions of supervised release imposed by the judge these days are now in line with that same order yes if the court has no further questions i would conclude by asking that the court affirm the district court's denial of the defendant's motion to suppress and if the court decides to order every man for the supervised release conditions that every man should be limited in a full recent saying is defense or the prosecution objects to the terms applicable to mister mr dixon of judge rinehart standing order if there is a concrete objection then there may be a need for a hearing under rule thirty two point one c two if there is no concrete objection then it may not be necessary to hold a hearing but we need to figure that out before deciding what to do both parties have two