parties after the hearing it's not a key issue i just thought that marty related to something and i'm sorry for the procedural confusion the search of mr struck was unconstitutional because that search other words he did not have to be arrested for urinating in public the officer had the discretion under the statute to do so or to cite him the officer chose to arrest them instant incident to that arrest they searched his car but the search that harken have no relationship to the crime for which he was arrested therefore it is my contention that that search is unconstitutional invest factual scenarios cases very much like the supreme court dealt with  iowa where the supreme court basically said that there can be no search incident to citation exception to the fourth amendment to allow a search of a person's then obtained well that is precisely what occurred here no further evidence of excessive speed was going to be found either on the person of the offender or in the passion or compartment of the car that is exactly the situation here  and in this area and you have a client who is situated like orton arrested as part of a cart or put in a car handcuffed i take it and unable to get any weapon that was in his car his of the story and finally there's an interesting fellow philosophical issue that you're raising in your question comment there are instances where a question is open under under a presidential case and that's called upon you to do something about it and i have i believe this case presents that question to you horton leaves open the question of what the fourth amendment should mean when a person is arrested for something and they search the car having nothing to do with what he's arrested for that is what justice scalia is applying for the court to do now presumably the supreme court will someday touch upon this but the question is open to you to actually deal with the situation and i do not think you would be violating any exercised control in other words he came out of the store opened the car door stuck something in the front seat and before he got in was when he was detained by the police but that would be a separate crime i'm sorry with that would not be the crime  oh no that is correct but but in other words he did control the car it was it was there was no dispute that he had something trolled this was the car that he was with what connection to the car with the crime for which he was arrested other than the fact that well as justice scalia wrote thorton i would therefore limit at belton searches referring to dalton versus new york to cases where it is reasonable to leave believe evidence relevant to the crime of arrest might be found in the vehicle and quote when he's protesting s but i believe that there has to be some constitutional mornings and just briefly it's based on the first clause of the fourth amendment not the worst ones are fine you've reserved some time we'll hear from the government after time of his arrest and that gun was recovered by the officer less than two minutes after the defendant had been removed from the area of the vehicle handcuffed and placed in a troll car under these circumstances the district court's decision well i think if you're looking for it that's the time limitation you can find that time limitation in the case law the this circuit has called in the offline that if the defendant was removed from the area that's been searched five minutes prior to search that's fine that's still roughly contemporaneous with the arrest and therefore a lawful search incident to arrest however in the case the case the s c why the ninth circuit held that thirty to forty five minutes after the defendant has been removed that gives us some leeway at our level to develop that in this case as you know i believe it gives the court leeway i believe that if this court were to adopt the concurrence position that it would be adopting a position that is question of how they could ever possibly find any evidence relevant to the crime for which the defendant is arrested he was arrested for public urination the offense occurred approximately four pm in the afternoon in the parking lot of a grocery store in a public place arguably the officer could have found some substance in the truck that was potentially explain the defendant's decision to urinate in public rather than going to a restroom that substance couldn't then drugs it could have been alcohol but i think our i think inquiry is not whether the officer is actually likely to find a weapon or whether the officer is actually likely to find destructible evidence that's not what matters the search isn't justified based on the was that possibility yeah i can see that now but i but i think that when you look at the theory behind these existing decisions that what the courts are looking at and it's actually what  the dissenting opinion in the last one i believe points out is that the state of the lot today is that you do not look to why the search occurs you don't look to whether they're actually going to find evidence relevant to the crime you don't look to whether they're actually likely to find weapons and you don't look to whether the actual the officer has a subjective fear of a threat from this person all that matters is that it is the search of the area within the defendant's immediate control at the time of his arrest that occurs roughly not only an exception to the warrant requirement but also is a reasonable search under the fourth amendment of course all the court also recognizes envelopment that although sometimes allowing a search of the entire passenger compartment and all of the containers in  it will allow searches of containers that can hold neither a weapon nor an item nor evidence of the criminal conduct for which the defendant is arrested the search still is a reasonable intrusion under the fourth amendment so i do disagree that scalia's approach and indeed i think that there is a majority of the court that would go with him on that kind of to sum up i would only quote again what justice truth i judge trial in this court wrote in his concurrence maclaughlin with justice