we get started i'm authorized to let you know that judge sheppard can't be with us today but he plans to fully participate in all of the cases that are being a bird today and plans to review the oral arguments proceedings once the court and counsel jason tuchman from the federal found our office in north and south dakota for the hour and stephen emery we are asking this court to reverse the district court's decision and to do not mr emery's motion to suppress based on a legal search will crack huge in the custody of us the united states postal service and its contents the st issue we breathed in the one that i as is very factual but and printing and roberta whiting in her testimony that she didn't open the package or that she didn't open and toy car box inside the package and the extrinsic evidence i want to focus on  contemporaneously recorded reports of two law enforcement officers not one but two governments exhibit thirty eight government exhibit twenty seven government exhibit thirty is is a report written by captain crow eagle recorded recorded that day or the next day and in that he writes that the toy car box fell out of the box the package meaning the box outside not the toy car was inside he writes that she removed the toy car from inside the toy car box package and that is when the toy car falls out with a methamphetamine that is a very different story than the one roberta whiting gave indicating that it just fell out when she opened it indicates that there is a box and side of the box and that can be seen in the pit and that she this conflicting evidence isn't simply testimony and it isn't simply two people came in and said two different things which is kind of how the district court framed up we have contemporaneously recorded reports impro cubic was an officer was on a video recorder saying there's a reason for a stop and then he testified later for a different reason and the the the explanation was that it was a misstatement and that ultimately failed and i think you know during the examination the government tried to extract from agent crowe eagle that you know his his testimony that she removed the package from the box was misstatements  writing two different reporting two different conversations with the same witness right at the time of the of then both of them indicate that she thought she thought of the pack the box inside the package which is makes it really implausible and leaves me with a definite feeling that the judge got this wrong or they could just be sloppy police reports right i think yeah i think there is there's cases where there could have be sloppy police work so i think that is an issue here you saw some of that where there you know a thing happened on the th of the a and yesterday today but with respect to those facts written and government signet twenty seven those are those are asserted facts that had to come from somewhere and very clearly described a toy car box that would loose or falling out and then a toy car box that was opened and then the package and the the toy car come rolling out of the toy car box after it was removed from the toy box that is a just a different  story and and we would be meeting the government more than half way to suggest that he recorded it wrong or made an error certainly he didn't testify they recorded d it wrong they never explain away why their fundamental and consistency with the record and roberta whiting's testimony we just know that they're moving on if i may to the nd set of issues  we're also even assuming you credit roberta waiting testimony this methamphetamine bag you found on the floor there are still two distinct searches that are illegal under two separate independen the post office get the property interest and then you as a common carrier and it's common law common carriers as the author has the right for a few things that were dangerous were used to to to carry contraband correctly is they have they have a duty to inspect the common carrier if they see something wrong kind of like a jacobson sort of analysis and i think the key distinction i think is this  a clearly erroneous fact i know you the eminently disagree with that as to the different word finding the white bag falls out of the out of the box and at that point don't say isn't it sort of like when you have it in the st place you're like oh my goodness there's illegal drugs in contraband maybe it was a chance to see if this is illegal drugs and contraband so that we can take care of this sort of like the if your client going to say hey i have maps in this box and the common carrier says no well we're not going to take that we're going to refuse that topic you know especially with respect to the field test they consume a quarter of my client's property and regardless so that's a very minimal value or no value that field tests required them to consume a property interest my client and that is a trust the chattel may not be one that was worth a whole lot maybe a smaller value too but when we talk about a trust when we talk that's how i'd answer questions that there is there is still a trust there if they would have refused it at the time i mean it still would have been returned back to  m and and had they wanted if they had refused at that time at the initial time had they known it was they wouldn't have been able to given the contents field tested he still has a possess box and moved the box to a back room and rd that she suspected that the bag of white crystal like substance contained drugs and so she called the police at th suppression hearing judge marino magistrate judge marino found her testimony to be credible and it was consistent with the testimony of this bishop who was the postmaster here at the post office in not credible it was also d consistent with the confession of the defendant and the trafficking materials that were later found in the house your honor nd the senate did not have an expectation of see there was not a search because there was no longer a legitimate property interest and law enforcement or the post office were not obliged to just ignore what they suspected to be contraband  substance in the court that the expectation of privacy lost once a private search occurs counsel and i think that i think it may be a little dangerous to place too much weight on jacobson because  but he says he thinks that jacobson would have come out differently under our property based theory of the th amendment i don't agree with that your honor law enforcement observed what he already believed true and on that note your honor it was a foregone conclusion that the bag contained the field test just confirms what they already knew to be substance even without fail killed so the inevitable discovery rules out the fly i think it was the testimony of officer and him and the ass force officer that they would have found the defendant who was just a short distance away a pickup truck he was arrested there was more drug material found in plain view of the instructor in the observations at the post office and in the truck resulted in the search of his home which found the traffic in the cheerios new mexico where this package had arrived from he would have gone to jail it would have been interviewed he would have been fast all of that would have happened whether there was a field test or not violate your honor the exclusionary point made by mister elmore there was some discrepancy in whether she put items back in the box on page thirty three of the transcript there was a question where to place those items back and i think it was pretty clear she plays the ba that the home search what happened the statements were pathans and and this on you know and everything after that but the key the key point and if we get to a point where there is an illegal search stablish and there should have been a warrant negative inevitability of getting a warrant for the mess is if somebody actually thought warrant for the mess and you know if you if you keep that interpretation and say well there certainly we're going probable cause will then you turn the war requirements into probable cause and certainly if the court finds that the there was a warrant necessary for the men then the method cell is is certainly within the and i think it's where it comes from where only the supreme court can overrule d past opinions and so once you get back to the one you get back to private public distinction which i know is an issue in this case but now we're just focusing on the field thing why doesn't jacobson control on that issue didn't have a proper property system for them it would not properly interest i'm confusing the terms but if they didn't have a reasonable expectation of privacy there is no holding that he had a property interest whether he did or didn't have a property and so that that is a reversing a holding that is applying a separate doctrine that you mention it was lost to us for fifty years or or whatever the term was but  rule is designed to deter police misconduct and here you have police looking at probably years of training based on a nine hundred and eighty four supreme court case that's not been overturned basically doing exactly what the court proved and things may have changed in washington d c in the supreme court but certainly not in trouble officer training school or state police academies why should we apply an exclusionary rule even if you're correct in the law ye matter how slight it is clear from that holding that consuming even a slight amount of property of the it would never beth was required for for the field test is also clear from that holding so i