may i reserve two minutes for rebuttal yes you name it thank you may i proceed me so this is really a textbook case where a trooper should remove a car from the side of the road by having it towed and then prior to the towing should conduct an inventory search the district court erred in ruling otherwise and in suppressing all the evidence that was derived from stemmed in any fashion from the inventory search including the salt statement of the defendant needed to be suppressed and so we challenge the entire gamut of at the suppression ruling  unless the court has a different preference i'll start with the impoundment st and then go to the inventory search nd as far as the impoundment goes you may recall that mr rivera conceded in the district court and again now apparently on appeal that the impoundment was lawful because after the police pulled him over the side of route eighty four it was quickly discovered that he lacked a license and nobody else was present in the car to drive it from the scene so a written state police order directly on point authorized the two knowing of the vehicle from the side of the highway and that's exactly what the trooper did now the district court didn't specifically fault the impoundment decision but it did say or suggest anyway that there was no impoundment at all because the defendant's car according to the  district court was never in police custody now we address that point in our brief but suffice it to say that the supreme court's decision in katie says that when an officer is having a car of the police at the direction of the police that car is in police custody the police are exercising a form of custody or control over the car in that circumstance and the mere fact that the trooper initially offered to mr rivera that he could ride with the tow truck once it arrived wouldn't change that calculus at all because even if rivera added ridden with the tow truck the fact of the matter is that car would have remained in police custody it would have been towed at the direction of the police the court has no questions about the impoundment phase which gears  which is a single page document it's the inventory search form that the trooper later fill out on it's remaining and it refers to the name of the tow truck company but i don't believe it refers  location of the tow truck company from memory it's something like interstate towing but i don't believe the suppression hearing record reflects the distance between the point of the stop and where the tow truck  company was located just before you go on through the next is of your argument i just want to make sure i understand thing about the terminology you're using when you use the word empowerment what is the legal if the latter in other words even in the scenario that you just described where the officer tells the defendant we need to tow your car from the scene and the defendant proper has his own tow truck service  a or or whatever it is still the case in that scenario that the car is being taken from the roadside at the direction of the police well that it has been at that that seems surprising i mean suppose he had a passenger with him and he said i know i can't drive you right you got me but i'll have my friend drive there call i don't think we'd say the police took the car into custody and impounded in that situation and how is it different if he says there's  well let me address your question i believe judge chaos has question which i haven't quite gotten to which is the scenario of the person in the car who is able to drive a car from the side of a highway course that's a completely different situation where there's no need to tow at all right there's no need because as the state policy reflects and has as just the you know as a matter of reasonable community caretaking standards we have a of whether the towing is at the behest of the driver or the best of the trooper is the same i'm not following why one would do well in that scenario it's still at the behest of the police it's just the defendant is expressing his own preference for a tow truck company to take the car away it's still a primarily a police decision that this car cannot remain at the side of the highway and now you've gone from custody to decision that decision would be the same with the passenger i don't follow you i'm sorry sure if he had a friend who could drive the place in the making the decision to car can't stay if you know for fear that items may be lost or stolen or fear that there may be a dangerous item in the car doesn't apply with a thing for right to mean what we're concerned with is a scenario where the police are involved in creating a situation where there is a tow and then as part of the towing process there is either a claim of lost or stolen items or there's a situation where the car contains a dangerous item which could present a hazard to the tow truck driver or to the trooper or to some other member of the public so in the scenario of the friend in the car who can drive it from the scene we just don't confront the same constellation of opperman factors and it's just a different community caretaking balance entirely in that situation the district courts of suppression should be affirmed because the district court correctly concluded that the community caretaking function was not served by the actions of the government in this case mr lowell let me let me ask the literal parameters of that policy i think the answer is that the policy regarding the need to tow vehicles from the tot highway  other reported cases in nearly all of the reported cases there are legitimate government governmental interests that are served by decision to either impound and subsequently search the  vehicle in ordinary cases the usual case the defendant is arrested and the vehicle is not left in the custody of a rd party the defendant is not in a position to safeguard his own property  tow is already there no i i think and must the vehicle is in police custody there's some reason to think that the police might be liable we missing but the tow company is acting at behest of the police here that's true but there's a post suppose when he picked up the car he announced you know i have five thousand dollars in the backseat of that car it's missing and if a jury believed him when the tow company and when the police be liable for five thousand dollars because they couldn't prove it wasn't in the car well i think in the st instance that would be  companies problem and not the problem of the state police but certainly that that sort of danger to the police is sufficiently attenuated that it is not a strong compelling government interest of the nature just of the support an the scenario you offer a provides the police no protection at all from even even if mr rivera had aleck did to accompany the tow truck to the garage he might then simply have have wham he might not have had the money to pay for the toll or whatever circumstances and we might have had the same circum circumstance there is that possibility certainly the tow company would not be directed to remove any property certainly if the state police placed the vehicle in the custody of the company they're not doing so with the authorization for the tour company to remove any of the property so in this case as you rightly pointed out the defendant did not there is no evidence on the record th when he if the massachusetts state police trooper who has informed him he needs to sit on the side of the guardrail then tells him that he has the option to ride the tow he didn't well i suppose it's a question of how far the silence can be taken but on a fundamental level what we have here is a search that is different than the inventory searches in the vast majority of cases and the district court looked at that and correctly concluded that they were not served by the actions of the government to give question yourself back on the record yes donald lockhart again for the government i'd like to follow up on a point that judge so you made let's just assume hypothetically that the record makes clear that in fact mr rivera was going to ride with a tow truck even under that scenario the opperman factors still apply because there is still going to be not just a risk that of dangerous items in the car but a risk that items could be lost or stolen or that mr rivera would claim that that was the case and i'll give you three scenarios in which the loss or theft could play out the tow truck driver arrives mr rivera gets in the passenger seat of the truck meanwhile the tow truck guy is winching the car up on to the ramp he needs to put the car in neutral to do that and it goes into the car sees the watch on the seat puts it in his pocket that's scenario number one of where the fact that rivera is with the tow truck is not going to demonstrably change the risk of that the other scenario is they arrive at the tow truck yard mr rivera gets out of the tow truck he says i want to use the men's room again the tow truck driver is left along with the truck the rd scenario is the one that judge cell yolu did to rivera says you know i don't have the money right now to pay for the  come back tomorrow with my cousin who can drive the car will pay you at that time so the car is left at the lot over overnight a colorado versus burke time makes clear that this fact or stolen items rationale applies not just to claims that may be directed later on at the police but also claims that may be directed later on at the police deputized towing company  so that's our response to the defense suggestion and the district court suggestion that somehow the courtesy extended to mr rivera that he could potentially ride with a tow truck if he's able to chose  somehow alters the you know this if the court has no further questions will rest on our brief