good morning and may it please the court i'm elizabeth newman representing miss weaver your honour's belton creates an exception to the warrant requirement not an entitlement and it creates an exception because the police sometimes have to make split second decisions during an arrest but there was no split second decision making in this case with respect to the search of ms reversed car and i would submit that in light of justice scalia's concurrence and thornton courts perhaps should be applying belton somewhat less loosely than they have done in the past your honour's i respect that sergeant his night one of three officers present in order to conduct this search what he was doing though was assembling his team i think that's a fair way to characterize it and i would submit that a search incident arrest is not an assemble the team sort of concept it's a deliberate act it has connotations almost of leisure and leisure alina's and so team assembly is really the antithesis of the kind of split second decision making that makes the search contemporaneous with an arrest sergeant had nights actions here created an intermission a frozen period of ten to fifteen minutes between the arrest of mr heron and the search of miss weaver's car belton began of course in an effort to provide a bright line workable rule for police in the field and it hasn't really turned out to be that way and so i'd like to discuss the court's latest iterat really to articulate but it appears to be two factor double balancing test the two factors being the circumstances of the arrest and the reason for the delay and the double balancing being the balancing between the relationship of those two factors and the reasonableness of the delay given the circumstances of the arrest your honour's the circumstances of the arrest here were very straightforward there was nothing unusual that about the arrest of mr heron that that would have required this long frozen there's a static period that preceded the search of the  car and so i would submit that in that respect this case is very similar to the vaizey case in which there was also a fairly long period that wasn't quite so static  between the arrest of the defendant and the search of the car now when they see of course the period was somewhat longer but on the other hand the police were doing something relatively productive they were asking the defendant for consent to search they were asking him what on earth is in that bottle of pills that we can't really see that's on the floor of your car they were asking him to for information about his employment status so that they could verify his identity and his his workplace but here as is clear from the record sergeant his night was standing on the curb doing nothing and waiting as everybody else was so there was no split second decision making here at all there was nothing really happening except that everyone was simply frozen in time i believe the government argued in its brief that they see was justified as an inventory search rather than as a search incident to arrest but i would submit that that's not how the government tried to characterize the search or argue that it was legitimate when it came before this court on appeal and when it came up on appeal the government sought to justify it precisely as a search incident to arrest and the court disagreed of course saying that the search had not followed closely on the heels of the arrest or as the maclaughlin court later put it it wasn't one of a series of events closely connected in time to the arrest and here we have the same situation there was nothing following closely on the heels of mr heron's arrest except everybody sitting for a fair period of time waiting for the third backup officer to arrive there was nothing you know as a continuous series of events except in the very broad sense that everything that ever happens in the world can be considered to be a series of events this was a kind of glass jar intermission a break a freeze in the series of events the connection between the arrest of mr heron who of course by this time scuse me has been taken from the car searched handcuffed locked not only in a police car but in the locked cage of the back of a police car between all of that and then the search of mis at no point i would also like to emphasize at no point where the police concerned that mr heron was a danger to them as they were as the police were perhaps in the turner case or the hudson case where it was necessary to bundle the course had offered no resistance whatsoever and had been completely cooperative was locked in the back of the car and asked for miss weaver the police don't appear really to have cared much who she was they don't appear to have searched her and they  a freeze in the flow of events that lasted a substantial period of time there was no productive police conduct between the arrest and the ultimate search and for those reasons your hono may please the court federal a junior for the government most of the delay and in this case resulted from the call for backup that officer haig night made me the certainly reasonable for the officer to want back up there before he searched the car  there was the defendant and the juvenile who were outside of the car by the curb mr heron was arrested and in the squad car and it was the officers practice he testified to have a couple of officers there to watch him search the car because he would be looking for things inside the car and not able to see around him and also to have another officer there to watch the occupants of the car who were at that point taken out and i don't think the defense really disputes that it's the former occupants of the vehicle and another officer to watch him search the car as the supreme court has pointed out these arrests which you asians are by nature a volatile is quite a bit of uncertainty and i think officers just want to have as many eyes as they can  watching both the occupants of the car and the officers who are actually searching the car what is the point of having someone to watch the officer search the car your honor the safety  honor i don't i don't know that officer hig knight directly addressed that question in this testimony but i think the notion is that the officer who searching the car is underneath the dashboard he's looking in the seats he's not really looking around him and so it's a i think watch and watch him conduct a search your honor i think that the idea that there is there is uncertainty i mean i suppose that there could be something in the car that the officer who searching doesn't notice or you know perhaps somebody  the car and i think that it's just a belt and suspenders approach you have one person who's looking at the former occupants and then you have the other person or the other officer i should say who's watching the actual search take place and i think it's just to have the entire specific concern that there might be a weapon that could be seized or or that evidence would be reachable by the defendant the officer if the search is valid inside the arrest is valid and the search is roughly contain contemporaneous with the arrest as is permitted to go into the car and look for the weapons or contraband as a general matter but again just the way that the court is has formulated the test because it's prophylactic a d this court has repeatedly recognized as recently as the o c for a decision that the concerns underlying the rule not is officer safety and the possibility that the occupant will destroy evidence those concerns don't actually have to obtain in any particular case in order for the officer to to search the car briefly just returning to roughly contemporaneous point it's important to note that the actions that were undertaken by the officer in this case  directly related to the search that is to say they were they were in preparation for the search where this officer hignett do he first asked the defendant for consent and why does he do that he testified he thought it would be better to have her cooperation she wasn't the person under arrest and she was the driver of the car so it made sense to ask her for permission what's the next thing he does he calls for backup and the government submit that cements of that was a reasonable thing to do and both of those actions are really aimed at the search that's incident to arrest and i believe that the bridge on the one hand the arrest and on the other hand the search and so it's appropriate to treat all of those events as a continuous sequence of actions drug warrant the officer saw a bottle of pills inside the car and asked the defendant about the pills and it was at that point that the defendant gave the officers information about his employer and why you have the pills and gave the officers  the contact information for his employer that interrogation was not directly aimed at the search and it was not preparation for the search in any way and that action is properly treated therefore it's kind of an intervening event it really does break up the flow of of actions from the arrest to the search in that respect the case is critically different from the facts here with the officers doing is really preparing for the search and simply waiting for the backup to arrive beyond reasonable to treat a search as being incident to an arrest and they see as a good illustration of of a kind of situation where you really cannot treat the searchers incident to rest but that's not the situation we have here you know the officer knew that he was going to search that car and believe that he had authorization under belton to do so it's just the kind of situation that belton contemplates where the officer having arrested the occupant of the vehicle  understands that he can search it and the only thing he sought to do was to search that car safely and to get the permission of the driver who i'm sure the officer believe was the vehicle owner although i don't think  and smith it's important to note also that in smith the court noted that a search may take place well after an arrest if the events are a continuous sequence of events honor i'd like to take issue with a couple of points that the government has just made first that the incidents in the vaizey case were not really related to the search that the intervening events were not really as the government put it preparation for the search or really related to this search and i don't think that that's exactly the case i think that the events in that case can be characterized as related to this search to the extent that the events in this case can be characterized as related to the search for example in each case the the police officers asked for consent to search the car that was a prominent aspect  that he really was a drug trafficker the reason they were asking about the contents of that bottle of vitamin supplements was that they suspected they might have i would conjecture additional information that he might supply to them if he confessed that it was actually crack cocaine in their will then they would have all the more reason to go in and search the car also as to whether the search here was reasonable i think it's undisputed that officer haig knight knew from the very beginning that this is his protocol to have three people three officers present when he conducts a search he testified that that was this was his  his protocol his typical procedure and he could have called for backup at any time it's not as though he was alone in dealing with this situation to begin with he had deputy farwell with him almost from the very start he didn't even approach the car in this case until deputy far well had arrived in his patrol car and finally your honor it's true that belton exists in order to give the police the flexibility they need in what can be a volatile situation of split second timing and ad hoc decision making under of in a volatile situation in the field but when you look at the static quality of the excuse me the old currenc in this case you can see i would submit that there is nothing here that that matches up to any of those criteria there was nothing volatile officer had not testified that he didn't consider anyone in in this case to be any sort of a threat to him there was no split second timing there was no ad hoc decision making everyone was just sitting frozen if he wanted to search the car at the end of that  period then he should have been required to seek a warrant if you could make out a probable cause to get inside that car because felton's an exception for events for searches that are incident to an arrest and it is they shouldn't it's not a general entitlement that the police get to get to use any time they arrest someone under no matter what circumstances and no matter how long after the actual arrest the search takes place