good morning your honor the one thing i wanted to say do both parties on behalf of the panel is that extent that rehab issues are  implicates rehang issues so we will have to wait to see what these prior panels do and we will be bound by what those panels do to the extent that they though and just make a couple of points i think are important regarding my client's case i'm thinking about for instance us be balding that's dealing with the police here we have a conviction so couple of things in terms of the government's argument  st about waiver one of things i really when i look at this issue it seems you can't wave something that you couldn't see so for instance you know in physics you discover a new particle doesn't mean it wasn't there you're finally looking at it and ra clearly is looking at the status element and saying that this is a part of life twenty two and that court should be charging juries it seems to me and also that element needs to be proven  so the government's argument that this is somehow waiving waiver like in the context of a plea agreement i would understand where waivers explicit you're making a knowing decision here that can't be a knowing decision since you didn't have back to front of you just because you can't see something by france in the plea agreement you have collateral consequences which is are specifically stated to a defendant understands that if something happens in the future they can't get a benefit so i think this is a little bit different in that circumstance this is a person who exercise few no fine of a point but that's you know the position that we're taking and it seems unfair or if you look at due process to say that because a lawyer can't imagine you know what nine justices of the supreme court do at a point in time to you know that you committed this offense after having a felony conviction and there was no real reason to challenge it because there was nothing in terms of your subjective viewpoint about it so for instance say i borrow say someone had me hold a gun a cousin or something like that and i had no intent to actually possess it they used it we're just keeping in the storage of my house maybe now with reiki i'm going to my client made a start that i may discuss that issue saying that for it's it like this is belonged to the relevant category of person supervised release for a prior conviction and federal court your honor well narcotics conviction that's correct your honor i'm not i do think that goes to the merits i'm not saying that it's impossible to prove this element but i of my arguments on this point i do want to talk about the the search here and in this case and in my reply brief i really was focusing on what i do consider in issue up maybe this is too colorful language t took place so like for instance the commonwealth vs massachusetts terms of trolling i understand in our jewish prudence that's a factor that now can be used in the totality of circumstances but it's the initial the observation saying it's a clip which isn't a knock you i think the court can't make any more of them than what multiple defense attorneys on behalf of mr figaro i have made of them what use they put them before the district court they put them to the witnesses and tried to extract every possible concession were credible what mr figure i was asking here is to take documents from the cold record and to overrule a district court's credibility determination and it's not a document that was recently discovered it's not a document that just became available or some some video that totally throws the case into a new light it's a document that everyone has known about since the beginning of the case and has been use significant difference at the end of the day two of them the probable cause for the state and not a point that for instance advantage the state or the officers in some other way allowed them to search some other vehicle or some other home or some other person it really thought was just what part of the car  was searched and if you review that video you could and this is this is done a record but every single fact that is relevant in this case occurred on the passenger side of that vehicle every i will say that mr figaro is not pointing to other parts of the record that support the officers explanation which the district court heard as to what happened here among other things the other officer or goddard who was on scene we should have read the affidavits before we sign them but here's what actually happened and then you look at the video and everything else about the circumstances it doesn't change the overall picture in the district court considered that and gave a very reason a thorough opinion and took time to distinguish other cases particularly from the state court where officers had document credible if the nations had not given definitive statements about what they saw on what they observed and so you really have here the level of of the court are going to consider even if this wasn't a strategic decision and for all the reasons in our brief we've indicated why it was a strategic decision that mr figaro would not want to put his prior felony status in front of the jury or in front of the same district judge who was overseeing supervised release at the time of this trial even if it wasn't a strategic decision there's no circumstance under which this case was remanded on this basis alone he would not do the exact same thing not make the affidavit a statement of ownership even just a claim that everything that was in the vehicle was mine without any specifying that was my firearm those were my stolen credit cards we would have some basis on which to contest and oppose this motion that never happened and so what the evidence the government put forward showed was that actually this car belonged to the other occupants mother she was out of state in georgia believe mr figaro had just moved t car for a couple of seconds to get it from the middle of traffic over to the front of the fire hydrant so there was not really a circumstance where he had any expectation of privacy in some other person's mother's vehicle that he moved f five he does have possession and control of the car but with the automobile exception in particular one of the reasons for the automobile exception is that the courts have consistently recognized a reduced expectation of privacy  automobiles and this is that kind of circumstance because at the end of the day if a person gets into someone else's car a borrowed car they can possibly say i have the same expectation and believe as if i got out of my own car flee from the area to search and it's usually again in the automobile contests not in the context of a home and so there are special circumstances here certainly because it is an automobile because of the flight because it's not his car it's some other person's car was out of state  and that leads ultimately because the district court didn't consider the merits of that argument simply assume that argument were left to them with the probable cause determination that was made it was a strong determination was a determination based on the record so to say that mr pickerel would not change strategies had if we were to go back i think really goes too far he's complained about mr womack not being called to testify he's complained about the fact that officers as he sees it were be cross examined vigorously enough about womack's possession so i do think to say that he would not that somehow our position would remain the same goes way too goes too far and i think that we have argue more or less in terms of the concession issue i do think that here we have an a litigant to defend it who has who is a very different viewpoint about the strategic decisions that were made in a prior time i do want to make one i made misstatements  commonwealth versus massachusetts commonwealth versus warrant that's the flight case it's an interesting case showing that you know african americans may have a different viewpoint about about police activity and why that in of itself should not be looked on as a factor car does not result in the individual giving up standing here but it's important to note the car was parked so this is not a situation where someone sort of fled a running car this was a car that's parked at that point so so they said he was playing running is to use pulling the scene or leaving evidence that's not the case the evidence was already sitting there part i see my time is close to me i do have a couple more points wanted to say this in closing about that the hunch that we saw what we're trying to really illustrate is that you know here's just a person putting an object in a car and that end up to helps starts the whole point of police inquir terms of accepting pleas practices and france they use the term high crime neighborhood that's in my view sort of code language for we can sort of not really push so hard for constitutional rights here let's you know a little bit more