office of the federal public defender appearing today on behalf of the defendant appellant ernest ruff and this court should reverse the district court's decision denying ruffins motion to suppress evidence obtained through a per se unreasonable search of his property because no well defined exception to the warrant requirement was present when the bag was searched at the scene of his arrest and defense of the unlawful search for the government in both the in the tor search exception but the record does not support exact location here when the district court credited the testimony of government witnesses it also credited the officers claiming that it's a single story surge was initiated at the scene of bruce and the rest that was completed at the station therefore the officers were required to act under the procedures offered geared toward eliminating officer discretion when conducting such a search the district court i was concerned that the search at the scene was pretext for a general rummaging through the property to discover the gun that rappin told the complainant he had in his bag but then kind of just get over to what happened at the station which the allow when the government says one inventory search was conducted then the procedures have to apply to all the conduct and birds the procedures custody and then they failed to follow any other procedure at the scene and therefore nothing was documented except for the concert and that they discovered  your honor st because they don't have legitimate custody of the bad under their own procedures because they're not allowed to impound property that's not carried by the person that is taken into respect to the the overall search can you tell me what what the officers police officers should for their state police or she should have done with the bag that was identif weapon and therefore they had to apply for a warrant in order to search that bag to discover whether her whether that was true  the entire context of the stop is it's an ongoing criminal investigation and that's what they're engaged in there's nothing here about there's nothing present at the scene that involves evidence of kerry taking  inventory we're documenting property they respond they talk to her they get a statement they search her apartment they see the evidence of the so all she talks to them about the  property after they don't find anything in the apartment then they go and search the bag they find that they find the debt in the bag and then everything stop so because they were engaged in a criminal investigation they had to apply for a warrant in order to search the bag said that they were conducting an inventory however they didn't documents anything that they were doing at the scene and they acted completely outside the scope of their establishment standardize procedures which is not allowed under any of the controlling cases well the procedures are there for them to follow which is evidence of acting in good faith and because they didn't do any of that proceed so i think that the court by glossing over what happened at the scene i mean this is the government's burden and the government attempted to meet its burden with the evidence which included testimony that it's a single course of conduct that is occurring in fact if that's the case and they're claiming it's an input story they are required under law to follow their own procedures which they didn't do in school they discovered the evidence so only at the scene they only scrutinize suspicious items or contraband at the scene and everything else they paid no attention to so they can't say that they're in the full in a process of an inventory that they start at you know almost five o'clock at the scene and is completed at the station at six thirty if that's the case which is what they're saying then they're they have to follow their procedures the entire time and not just when they want to and by deciding when they were going to follow them or they're for assaulting his girlfriend initial the p p in her apartment shortly before upton's arrest the st officer on the scene officer conklin saw a rock and close to the bag which was sitting on a sidewalk in the apartment complex leading to a covered stairwell as shown in the pictures peek he lived on the nd floor of the apartment unit before the police searched the suitcase back peachy told the officers at the blog the bag belonged to russ and there was no no one else near the bag and there was no one else present to take custody of the bag for rotten police that's news the bag was dropped and personal property and the circumstances indicated that just before his arrest it carried the the show play an error because rough and never raised the claim below the perspicacious bag was not a proper subject of the inventory search there is no claim below that the bag was not a object of the search because it wasn't physically tarried at the time of the arrest the sole argument below was that there was a problem with the manner in which the search was conducted and that the premise of that argument is that the bag was a quote inventory search and he began that at the scene he took in a national look at the pack and in the background you have to can't just ignore the fact i think that as as wrapping wants to do  testimony i didn't want to start laying out our possessions on the spot on the sidewalk especially given the weather conditions and the time so he looked at the another compartment of the bag as soon as he found the gun which was wrapped and entangled in a blanket is it that back up and his supervising officers that continue the search the inventory search at the barracks in a more controlled environment and the judge made a finding that was done given the fading light and the weather and for those reasons so the bag the inventory search was initiated at the scene but completed at the barracks at the at the package if there is going to inventory and if it's silent on this i think it bears emphasis that there was no there's nothing flatly contradictory about what they did here this is how they interpreted the policy given the circumstances that were presented to them and i think it also bears emphasis on the contacts that they were looking at a bag in the middle of an apartment complex in fading light having to wear gloves because  conducted is is really the police and the institution have greater discretion in how they do that now this was an inventory search so it has to be done only for the for the or actually done primarily for the pot the purposes of safeguarding valuable protecting members and civilians from from potential dangers and to record the contents of the property to protect against claims of fast so that w govern you know what the police were doing and again these are a unique set of circumstances where they see a bag but it didn't last very just you know it's moments before they arrived on the on the  ground and in the middle of the kind of an apartment complex this was an inventory search and it was done for those reasons giving the exposure of the bag to weather and the potential that it may contain a dangerous item says you can take an initial look at the bag to determine you know whether it's safe to proceed it doesn't you know that it's doesn't say that but it doesn't prohibit that and i think given the  how he's decided the case primarily i think on appeal we also argued that there's another line of cases and it's the johnson case in which is again excited with approval and chadwick by the supreme court where sidewalk not because not looking for evidence of guilt but looking for looking to confirm as had been suggested that they were dangerous weapons in the bag regardless of whether there's no evidence that they knew that ben was a felon there is no testimony to that that said i think if you take the knowledge it they had was that there was there was likely or there was a good possibility  gun in the bag i think this court has said numerous times that inventory searched the fact that there may be an expectation of discovering criminal evidence does not necessarily invalidate an inventor as far as the consecutive vs concurrent issue again because this is going back to rescan and saying you know other additional arguments could be made in a reset a thing about the consecutive a concurrent nature of the sentence which will have to be that then i think it's a load that it would be inevitable that they would they would do an inventory or that they they had a right to know what they're about to transport and the the taking custody of the back derives from the fact that they could draw a reasonable they st saw him very close to the bag a few feet and they could draw a reasonable inference that he had carried the bag the spot where it was on the sidewalk and the fact that he had moved up to forty feet away from it by the time they arrested him doesn't make it any less the bag that he was in possession of and had been carrying very shortly before that's right here and i think we would urge the court not to to so narrowly construed the language of the policy to make it a requirement that the police that that the police can only inventory an item physically being carried at the exact moment of the arrest i think given the circumstances it was reasonable for the police to interpret the policy to allow them to search the bag that he had just put down in a public place was our argument below that this was not an inventory search conducted pursuant to the new york city police procedures and in those procedures it says that police can only impound by a person who has been taken into custody and again later it says don't plunge hands into items carried by the person so being close to a bag does not equal that in the problem with making a reasonable inference is that you're asking the officer on the street to exercise discretion outside the scope of what his procedures that and that's exactly why  so well defined because the court did not want officers willy nilly dealing with property and you can see how that can happen because the government is here asking the court to read into the procedures that they're allowed to do a preliminary examination and nothing here was a preliminary examination closely testified that he that he plunged his hand into the bag that he didn't want to keep track of all the stuff that was there he as i argued i don't think that we can even get there because you can't inevitably discover what you already discovered is one search but how can charge of the search be against procedures and the nd part of the search be pursuant to procedure is in the nd part constitute the inevitable the inevitable discovery it's sort of letting them off the hook by violating their procedures and then once they got what they wanted then they follow them and i think it's like deliberate conduct here because if you just look at how they documented the general one hundred and sixteen which by the way they were required to do at the scene and they didn't so we don't even know really what was in the property because once they started documenting they had already searched it and closed that pacified he said i don't remember anything about what happened at the scene i didn't and he was required to go there just acting arbitrarily with russians property that is not allowed by by the th amendment or the exception and therefore is under reasonable