in this case in the obviously there are a number of fourth and fifth amendment issues that we have reached in this case and in reviewing this case for the argument today it struck me that if the fourth and the fifth amendment draws the boundaries between  know law enforcement in this particular case is an example where it which police officers stepped over one boundary after another after another with mr lincoln from initial confrontation to  seizure without reasonable suspicion to the frisk to going through his pockets and pulling out the small canister to ask him questions without miranda to serve in his truck without a warrant to arrest him based solely on the fact that upon our arrival at the domestic disturbance call the officers discovered him engaged in a misdemeanor act i guess that would be the most just missed by letting the air out of his girlfriend's where he wasn't arrested for that you know was actually his fearful and and i think yes he explained to the officers and this was verified that he was fighting it here out of the tires of his girlfriend cannot drive his vehicle the reasonable suspicion that it could have been a some kind of a city or state misdemeanor and malicious but you know there was no investigation that in fact mr lincoln had explained an explanation to the police that assist vehicle and it's not a crime in his driveway of his vehicle to let the air out of the tires now that would be true but of course the question of what the least with regard to a terry type stuff or reasonable suspicion at that point the police don't have to accept his statement effect and they clearly did catch him in the act of letting the air out of the tires yes but i think what's important in this particular case to look at and this i think is a classic terry stop type of confrontation  one of the things i may may disagree in the government's brief far as what information the officers have been reviewing the the information that was provided from nine eleven dispatcher to the police officers they knew three things about mr lincoln that he had had an argument to school that he was left in a blue chevy pickup truck and he was quote a drug dealer that's the information they had  answered no and that there was that she was a reliable informant they knew nothing about her so with that information in the police officers my it's our position that for them to stop mr lincoln in his own driveway suspicion that he was involved in criminal activity when he saw him with just this information that his girlfriend called and said he was a drug dealer that that's not an reasonable for reasonable suspicion in a response or mind if he was involved in criminal activity when he stopped and be on that they didn't have any reason to believe he was armed and dangerous in order to conduct a pat down search and you know i think it's important to to know that this happened almost immediately on  confrontation when they approached him that hath that only wanted him to come to the officer and did a pat down search day actually i had to stand behind his back to hel letting the air out of the fire when you agree that in the glass shattering case the officers would certainly have reasonable suspicion kerry well i think that interview that would give them a view would be more reasonable i think the fact that in this particular case letting air out of the tires and in the information the officers had when they asked him about that he explained that you know it was his vehicle and he gave an explanation that was not a criminal activity and there was nothing you know to sort of hamster reasonable suspicion it negated the fact that he you know mr lincoln was not trying to flee he was not trying to you know you know for of movements there was nothing to suggest that  you know there was any kind of crime activity going on why don't you move on let's look at the suv for the sake of argument that they were at least appropriately conducting a terry i field contact with let's move on to the path of search and thirty five millimeter and then i think that that pat down search violates minister versus dickerson for example with the fact that if they are and if the officers did have a reason to pat down for a weapon like the weapon that they found on terry this is a small plastic canister that the officers pulled out and i think it's obvious from the record that they were looking for drugs at that point that this was not a a few at home and however this isn't just a single film and sure so you know i think the officers explanation of that could have been explosives and i think that that goes beyond the reasonable missed that's required here so noxious object in there that i need to be worried about i can recall a case that also the cases seem to recognize that the officers assuming that we don't find that he was in custody that the officers are  sort of general on the scene question in particular if they're related officers if you have any knives or weapons on you anything that might hurt but i think that they did ask that question and that's when he indicated it was his girlfriend's stash and that's when they proceeded to open a canister it'll be and the question is appropriate and the answer is an admission now all reasonable suspicion has morphed to probable cause probable cause to arrest for the possession of narcotics if he says my girlfriend stashed should district court did then the defense conviction can be upheld because all of the evidence against him was lawfully admissible the first question is whether or not the initial approach to the defendant to ask him what he was doing a little the night crouched down the ability of an officer to sure that an unknown object which might be a weapon can be in respect of further once he removed it from the pocket and he knew it was not a weapon as i can see that  cylinder but i think that the the logical and probably accurate sanction is that that's when you want to know what was in it because he had it was faced with someone who had been accused of being a drug dealer crack cocaine is routinely transport then after being told that he was going to be both in search of what was going to be abstained volunteered the fact that there was a gun and additional drugs in a black hole in the back of his truck the district court found those volunteer statements that they were not  in response to interrogation and therefore the miranda was not violated think this court had a mixed law my fact question and other words we have to find first that the factual determination was clearly erroneous and then and why the better only as factual information that the legal determination of the judge questions but i think that is obvious that these officers had just the only information they had nothing about violence or weapons and information that he might be a drug dealer they were looking for drugs when they had that canister when they went in the mr like it's fact that they were looking progress and the problem with this case is that if this folding allows the asters to do this and this under the circumstances it really diminishes terry which has been the law of this land for for decades and i think in these circumstances it as part of their carry interrogation that is the wrong word but terry questioning to say am i going to find something in here that might be harmful i think that's is a scary interrogation i think it is the proper term i think that that goes beyond the the rational cherry is to for police officer protection and for safety of officers and search for weapons i think he would be the only one in the courtroom was concerned about officers getting aids from being  is not unheard of now i know and it's i mean there's a real serious problem for officers on the street and there's a lot of potential risk in any kind of situation with law enforcement i think everybody recognizes that but i think that there has to be reasonable parameters but isn't this one of those areas where the supreme court tells us time and again you know this is the classic you know you judges can take months to decide what an officer who is concerned at one o'clock in the morning for his safety has to make a split second decision by dealing with somebody who might pose a potential danger to me or for others or not you know i think this is a case where police officers i've recently had a report of a direct dealer and they were going to go