and please the court my name is jordan tinsley i represent to the appellant the wayne jones mr jones comes before this court arguing that the lower court erred by denying his motion to suppress in this matter the princip error committed by the lower court is an error of fact finding in its brief the government accused mr jones of rigidly parsing the events of this traffic stop but i think in fact that that's what the district court did the district court made a finding that the arrest of mr jones did not occur until after this firearm was recovered in a search and they had  run his criminal history and determined that he was a felon that factual finding which locates the arrest subsequent to the search is belied by the record every single officer that testified in this suppression hearing candidly admitted that mr jones after he was removed from the vehicle for driving with a suspended license would not be allowed to return to the  the passenger compartment of that vehicle officer kelly who was the principal officer conducting the traffic stop at mit id that as soon as he heard from dispatch that that mr jones was driving on a suspended license that he made the decision to arrest mr jones and he exited his patrol car with the intent to effectuate that arrest and was in the process of arresting mr jones when the officers became concerned about mr jones's alleged furtive movements the fact finding error committed by the district court facilitated a prohibition which is the exception found in michigan versus long and that's the exception actually applied in the two cases cited by the district court which are this court's decisions in morgan and sanford both of which are easily distinguished from the instant case because in both of those cases it was apparent that mr morgan and mr sanford would be allowed to return to the passenger compartment of that vehicle under appropriate circumstances which is a possibility that is absolutely utterly foreclosed in the instant case by the candid truthful honest testimony of the officers effectuating this traffic and about the presence of the passenger your honor i think that's an astute observation there certainly was a passenger that remained in the passenger compartment of the vehicle her name was martha knight there is testimony from the suppression hearing that none of the officers regarded her as threatening if if they did i assume that they would have taken some action to subdue her restrain her remove her from the passenger compartment of the vehicle if there was a gun left in the seat you would have access to arguably she may your honor but she was not engaged in any kind of activity that suggested that she had any intent to access or that or that she posed a threat to those officers whatsoever  was the idea of a protective sweep is to get into the situation where you know if to respond to some kind of threatening behavior absolutely your honor but a person or a protective sweep is only permitted if you find that this was a terry stop and that the sweep was conducted as an extension of a terry stop this became an arrest and the moment at which this encounter between mr jones and these officers arrest is really the heart of this whole case and our contention is is that you cannot say that that arrest happened after the search if anything the record supports a finding that the search was in to the arrest and therefore the rule from gant must be applied and the rule from long is in applicable you can't have a protective suite after an arrest that's essentially the limitation announced in gannett and the district just can't call this one thing in order to salvage the search i'm sorry you are good but did officer morris know that officer intended to arrest you know at the time that he you know in fairness i think that the record is silent as to that your honor i don't think that obvious or morris was ever asked about that nor did he respond to any questions that give insight with regard to his knowledge there's a lot of discussion in ga particularly in response to law enforcement concerns about creating some some line that is not bright enough by overruling belton etc and obviously offer service safety is of paramount concern not just to the court but also to criminal defendants and citizens alike and the need for a bright line is to some degree reasonable in this case all that officer morris would have had to do is say hey danny hey officer kelly what are we doing with this guy ok and then they could make a decision about which rule is applicable and i realize that this to some degree was a dicey situation in that they're acting in the heat of the moment but at the time that the search was conducted the exigency was gone it was totally evaporated mr jones was at the back of the truck with his hands on the rear of the truck he was surrounded by three officers who were heavily armed it was a fully controlled atmosphere at that time when officer morris decided to search the truck now the government would like you to believe that this is some kind of limited intrusion because supposedly officer morris only searched the location where he allegedly saw mr jones's furtive gesture but the regine the record actually belies that assertion as well because it's clear that officer morris observed jones moving his hand under the seat if that actually occurred and then when he searched he searched under the floor mat so there's not an actual tie between the exit didn't see that they say they observed and the search that was actually conducted in the government overstates its case by trying to say that i mean these officers to their credit were honest about what happened in the course of this traffic stop and based upon those honest admissions this court has to conclude that the lower court applied the wrong rule i c m into my rebuttal time unless there are further questions i'd like to reserve that the court also notes so that there's a reasonable suspicion to believe that the the situation is still not secure the reason to believe the the the law enforcement concerned is not completely go away simply because there the question about whether there is an arrest or terry stop is not the determining factor here here the determining factor is is there still a risk to law enforcement as you want to point it out there is still the passenger who is there there is this notion that she is not a threat but the officers also noted that the gun itself was not a threat it was a risk and here the risk is that that passenger can obtain control of the gun and become a threat to the officers the whole point of michigan being long is to ensure that there is never a threat in the first in the area where mr jones's hands were moving granite there was this notion about was the gun underneath the seat or was it under the mat when officer morse came around the corner he saw this bulge that was in the mat and all he did was with the mat and saw the gun that was a very limited intrusion this is not a search of the entire car it is not a search of everyone in the car is a very limited intrusion that is limited to the things he sees when he comes around the corner after having seen this person tell him i'm searching for my cell phone when the cell phone is hands and so in these circumstances this is not the government that's being overly intrusive and is someone's personal liberty is not someone who is going further than what's necessary to address a risk it's someone who has a legitimate articulable concern about someone who's acting in a high crime area at almost midnight it's around ten forty five or eleven o'clock when all this is happening on the person just told him something that's untrue and this officer has a legitimate concern for safety and the safety of others that are there officer kelly get him out of the car we've got to deal with him because there's a situation that's developing if we don't deal with that something back it happened that's essential what he's telling him at that point in time this is a very fast moving situation and you can't rigidly par to say that one point this happen five minutes later this happened all this is happening at one time the reason that matters because the whole point of mission to be along is to ensure that officers can act in swiftly moving situation and here one officer morse knew that there was a person who potentially was dangerous to him causing a risk that can potentially become a threat in regards to the notion that every officer knew that the mr jones was not going to be returning to that car again it goes back to the fact that there seems to be no record that officer morse knew that mr kelly had a suspended license so he would have no reason to believe that he's not coming back to the car much less that officer kelly had decided to arrest him even if he knew that though what's in officer kelly's mind is not was determinative it's what's communicated to mr jones none that had been communicated yet one of the objective they may cut both ways but in one way you don't know who you're dealing with which makes their research circumstance it's late at night you don't know who you're dealing with than the person is not telling you the truth all those things together even without the statements about him going to jail are reasonable suspicion and if the court has no further questions the government will rest in our briefs and would ask for this quarter firm the judgment of the district  so i think the honorable judge has picked up on something that i did which is that the government wants to collectivize the knowledge of these law enforcement officers and that reasonable suspicion determination when it supposedly helps them but they refused to collectivize the knowledge of the officers when determining whether or not there was an arrest being effectuated at the time of the search but they can't have it both ways i mean it's fundamentally unfair to say yeah we'll collectivize their knowledge and presume they have a hive mind for purposes of determining whether or not there reasonable suspicion but we're not going to say that they have a hive mind for determining whether or not any kelley is arresting mr jones at the time that officer morris undertakes the search at issue here so i mean they can't have it both ways if they want to say we can have collectivize knowledge of these law enforcement officers for purposes of a reasonable suspicion determination we should have to collectivize their knowledge for purposes of determining whether or not there was an arrest being effectuate what was the that reaching and how did he react his reaction to that was to ask ops or tele to remove him from the vehicle which officer kelly was already going to do officer kelly admitted as soon as he heard from dispatch he was on his way to go arrest mr jones and that arrest was in process at the time that this search occurred there was no risk to these officers once mr jones was taken out of the passenger compartment and removed from the car because they all knew based upon their experience with suspended driver's licenses that he's not going to go back to the passenger compartment of that vehicle passenger is removed at the same time they were not your honor and obviously mr knight remained in the vehicle at after mr jones was removed but all of these officers honestly admitted that this night was not threatening they did not perceive her as a risk whatsoever she was fully compliant throughout the course of the traffic stop she was alternately cited and or she was even cited she was just released from the location of the traffic stop with zero law enforcement consequences whatsoever and this notion of the passenger was barely argued in the lower court because this testimony just does not support the belief that these officers perceived her as a person who may have access to weapons or any intent to use them we expect our law enforcement officers to go into harm's way and we expect them to do that in a manner where they maintain their composure where they exercise restraint we don't ask them to go into those situations and act a fool and do things willy nilly i mean it's not asking too much and it's not second guessing these officers to ask them to say once mr jones is secured and the exigency has a lot has evaporated to say what do we do now are we putting this guy in the patrol car in handcuffs and taking him to the are we going to let him back in the call is there any possibility that we're going to let him back in the car if there is then they can do a protective sweep if there's not in the gap the rule applies that is a bright line and that's exactly what they were asking for sort of removed over the years by the supreme court i don't believe so your honor i mean i think gant reacted to a loosening of shy mel that was effect you waited through belton and over time the supreme court wisely recognized that belton was on more ring that exception from fourth amendment guidelines and effectively the fourth amendment itself was unraveling as a result of the interpretation of shy coach the belton decision was i think a couple decades after that and then we had a couple decades of absolute confusion where and essentially they were searching every passenger compartment whether there was an arrest or not and the court recognized in gant that that was an absolutely unconscionable erosion of the fourth amendment and we had we had effectively of this aerated the fourth amendment through that bilton decision and they reacted accordingly in the gantt decision to the extend of these limitations to searches incident to arrests what this court would do by approving this search is allowing the district court to make an end run around again by calling that we're arguing the district court said this guy wasn't arrested until after the search it did that for the very reason that it allows the search to be salvaged under the long exception if it can separate that