based on a failure to display registration tags in violation of four thousand and eight their waiver of the issue is much more explicit than simply the failure to mention it as well they state repeatedly in their papers that this arrest was based on it violation of section twelve five hundred of the california vehicle code when the defense wrote in its reply that characterization it was very explicit that the government was proceeding this way and it was somewhat atypical typically in these cases the government argues numerous theories in the alternative to defend the search in this case they chose for stretched for strategic reasons to assert only one basis the reason they did that i believe from their papers it was that they i don't think that the record is sufficiently developed to say that there are certainly circumstances where probable cause exists for the failure failure to display tags but as as the record stood prior to the evidence re hearing there there was very little mention of the tags well beyond the officer testify that was the reason that he originally pull mr smith over he did testify to that and and we we had no quarrel with that providing reasonable suspicion for the stop however at the hearing because because the issues were explicitly narrowed in the papers and verbal even by both the parties and the court prior to th evidentiary hearing or at the commencement of the evidence or hearing that issue wasn't explored that that issue was not litigated at all by the parties as the as the government notes in its brief visit court the relevance of section four thousand and it was not addressed by the parties below nor did it figure into the the court's order below the neither was the issue of marijuana something that was litigated in the evidentiary hearing below it wasn't even investigate after the defense after the defense stated explicitly to the government and to the court that it understood that this single ground was being advanced the other grounds were essentially out of the litigation they were touched on lightly but not in the way that they would have been touched on if they were an issue but it seems to me that where that gets you is into the morass of if both sides had been aware of the state statute regarding failure to produce identification at the time then the government government would have done the reasons are first that the government committed itself quite specifically and pointedly to this one basis and even did  clear at all that they would have been able to go before judge armstrong and say by the way that's not the case that the the statement of the officer which essentially admitted but it's so it's speculative just to say that the government would have been able to go back before judge armstrong and correct that error or that they would have had the motivation to do so for example the government was aware of the early on in its first response to pleading before the california vehicle code procedures were ever discussed so it's not as if the failure of the court or of the defen point to recognize your position would be that even though there was a valid probable cause to arrest mr smith the fact that the government chose improperly to pursue another theory somehow the original probable cause for europe as well i think that the the record should be divided into two phases in the first in the first place because the evidence rehearing is not a complete evidentiary hearing it is one in which the parties understood that probable cause based on registration was not being litigated so i don't think it's possible to concede at this point that there was that there was in the record probable cause for registration prior to the evidence rehearing but certainly i believe that the government may waive base legal bases in defense of a search and thereby have the exclusionary rule result in the search is unreasonable until proven otherwise by a prosecutor and i would like to reserve the rest of my time morning honors my name is mary jean chan and i represent the united states and peel there are two grounds on which this court can affirm the district court first and primarily the arrest was valid under state law and second even if it for examination in this case the district court expressly found that prior to making your arrest of mr smith the law enforcement officers asked mr smith for identification in it in addition to the driver's license and that mr smith produced no identification whatsoever you've held has never contested that the arresting officers have probable cause to believe that he was driving without a license in violation of california vehicle code twenty five thousand a which is the jailable in this demeanor and until their reply brief to this court they never contested that there was probable cause to believe that he was driving with expired registration in violation of california vehicle code four thousand a an arrestable infraction now the opponent argues that the government waived this basis in fact the government has done no such thing if you look at the briefs the primary case t or your honor it is not necessary to remand although that would be the only remedy that that the government was to just would be prudent if the government if the court were not to affirm the district court how for now twelve eight  code twelve you know one point five is not actually applicable in this case it only hit its attention or rests solely on the belief that a person is an unlicensed driver by its plain language and does not apply to arrest for expired registration but more importantly  it doesn't apply to driving an arrest for driving without a license when when the subject also does not have other identification that would enable followup to say taishan in this subject does not have a driver's license if they're able to provide other satisfactory identity so basically it hits an officer from double counting the mere fact that a subject does not have a driver's license and and  completely discount the availability of other reliable satisfactory evidence that identity of identity for examination so because the district court found that the officers for identification that he had no identification that would make citation possible plus the fact that he was driving without a license or that the officers had probable cause to believe that those two things in combination ma a driver's license and not solely on the belief incidentally because he confirmed that he did not have a driver's license so it was not a mere belief that was the basis for this even assuming that the officers in this  from that resulted from the stop for which the tribal rangers that issue did not have expressed they did not have authority to make and this circuit said that that seizure was fine under the fourth amendment because there was reasonable suspicion to believe that criminal activity as defined by tribal law well that's but and it didn't matter that the tribal rangers did not have authority to make that stop right but the state again that being does not specifically address the validity it was a different situation because in that case there was no question about forty three o two vehicle code forty three o two which expressly authorizes raised but from the opinion the opinion itself and the wording repeatedly says that why explore is that this is the only basis and i can't remember the exact citation but the opinion in a footnote a warrant that was out for i'm draping who turned out to be mr bingham's brother but that the district court had concluded that this was the sole basis for the arrest that is the absence of a driver's license was basis that the officer testified that a more reasonable interpretation of the law is that because twelve you know one point five emphasize the school and belief that it can be read in conjunction with forty three o two as opposed to eliminating it does not provide other satisfactory evidence for identity for examination so one might be able to read that an officer might reasonably read that and say well if he doesn't if the subject doesn't have a driver's license i don't care whether he has identity other identity i can arrest him based on forty three o two and what twelve lead on one point five clarifies that is not the case that you cannot double count that if there is other identity that makes citation possible and of course identity is important  space notwithstanding section forty three hundred or any other provision of law a peace officer may not detain or arrest of person soley on the belief that the person is an unlicensed driver it's very clear that twelve eight zero one point five is not subject to an identity requirement it's clear by the terms of the statute the government expressly waived this case of probable cause below and they may have done so for a number of reasons but they have to live with that choice the government is presenting this court with two options essentially to make findings based on issues which were not litigated below or t and have an entirely new hearing with the same witnesses but simply allowing the government to assert a new grounds for a ras which they have not asserted below clarify my memory a little trouble here because  understanding is that if the arrest is for failure to produce any kind of life then there's no problem under state law is that correct no the the one circumstance where there is no detention permitted regardless of the ability of the detainee to identify himself is and harassed based solely on section fall five hundred driving without a license and that person is an unlicensed driver so if he believed at least as testimony you say it was litigators testimony that the evidence you're hearing the officer was that the reason he arrested him was that he didn't have any if the person can be identified or not under under section twelve a one point five if you can't arrest him for not having any idea unless there's an underlying violation in the first place that's right ok so you're saying in this case the arrest was for being an unlicensed driver and it was that was if and when and when twelve eight or one point five east states soley on the belief i i take that to mean that's the thank you both for your arguments