serving his sentence with the release date of september two thousand and seventeen so this appeal presents suppression and sentencing issues and with the court's permission i intend to focus this morning on suppression in particular the question whether office or a bar search of mr diaz can be justified as incident to a custodial arrest it cannot the fourth amendment does not permit a search incident to arrest whereas here but for the search there was to be no arrest since  intended only to issue him a citation she determined to arrest him only after finding the firearm in his pocket and only because she found the car and she arrested him if i could just follow one question she wrestled him on the open comparable she arrested him for criminal possession of a weapon up special the weapon correct and subsequently at the station house issued him a citation for the open container i see ok so the question is actually answer might be difficult and mean as we as we see that the question of the inquiry is whether at the time of the search and arrest had been made was in the process of being made or was to be made as a matter of fact and judge from unfactual fine it's isn't the situation evolving in other words yes her intent was just to issue a citation but then something happened which caused her to be concerned i mean why couldn't things change asked the situation evolved of course police citizen encounters evolve as they progress but again at the relevant time at the time of the search and that's what the supreme court's preceden since terry and including robinson have instructed is the relevant time the moment of time right before the search right before the search she noticed something and gave her concern she noticed him rearranging his waistband she noticed him being has an intern giving i d doing something with the jacket and so that caused her to have some greater concern what me why isn't it reasonable in a circumstance where the two officers are in the stairwell with three guys in a confined space it's fraught with risk was it unreasonable for her to then decide to frisk you two responses to that your honor first as a matter of fact judge firm and found the following that mr diaz complied with all of officer high bars instructions he rose from the stairs at her request he moved to the wall at her request and when she asked him for identification he reached in the place where anyone would look to produce it his pocket judge firman expressly declined to credit officer abers testimony that diaz refused to provide i did identification and the government has not contested plausible argument certainly that knows governs this case and therefore this can't be a surgeon to arrest but to go to a judge chin's point why isn't this a terry stop on the basis of suspicion reasonable reasons are that it was quite clear in the district court that this was not a permissible terry frisk so to repeat might my answer was yes because the only facts that could give rise so obviously a terry frisk requires reasonable suspicion that m diaz was armed and presently dangerous everything he did in the stairwell used the suspicion to leave that he was that that that there could have been criminal activity for no your honor that a terry stop is justified on the ground of reasonable suspicion to believe there's criminal activity the further intrusion of a terry frisk required reasonable suspicion that he was armed in particular and so judge firmest was correct to swiftly reject that argument because everything that mr diaz the officers characterization what charge firman found was that mr diaz moved to the was instructed as all of the men in the stairwell did the and the only part of the officer's testimony t declined to credit was that diaz refused to give his id that's right which is something she said i guess on redirect but but he doesn't you know reject the earlier testimony  to the fondling in the jacket that's in response to officer i r s requests that he produce identification and again your honor is correct that the portion of officer i bar is testimony judge from in declined to credit was that he refused to produce id and so in the context of that finding when the court concludes that diaz reached into his pocket the necessary implication is that he was doing it from a natural raising of providing id as to the finding that officer a bar felt unsafe of course terry police officer would have done in the circumstance to the inquiry that's appropriate in answering if we accept the premise that knows requires a custody or arrest to invoke the incident search doctrine in answering the subsidiary question whether an arrest was occurring or about to occur we undertake with this court and he said was an objective inquiry we consider the nature of the offense as to which probable cause existed significant difference in that in oles the officer had already written the citation you know the words the deed was done and the solution had been made whereas here and also in the ricard the officer had not yet written the summons had decided perhaps to do so now but again it's the evolving situation that concerns me so i would say two things in response that first i think the principle that we draw from knowles is that where there is no custodial arrest and no custodial arrest is to be made a search cannot be justified as incident to arrest because it's responsive to neither of the chiming rationales but out secondly say this if that's case is now seen you know seems to indicate that we're probable cause which absent decision to arrest is not enough to have a problem also is that the police issue be the case i took down now i mean this is with with knows this is relatively new at least our situation is this has to be dealt with but but again the that the idea of the officers acted on reasonably as judge chin's pointed out in the stairwell with three individuals who admitted they were violating the law and and then one of them behaves in a way that makes the officer stream here uncomfortable why would that be the officers not uncomfortable because he's got to decide a pom the officers are uncomfortable because it's a dangerous situation it seems to me a search is proper circumstance so again we don't dispute that terry exists to protect the officer who feels unsafe in an evolving citizen encounter we respectfully insist the judge firman was quite right and again my my friend my very capable friend mr allen has not missed this argument on appeal he hasn't renewed it because the only fact that can be called from that constellation of facts the judge firman found that even arguably suggestive that mr diaz possessed a weapon in particular which is the legal standard is the touching of the waistband and judge from inside it wants to touch one wants to get a gun off a man reaches enormous respect and that's where guns are and when one wants to retrieve an again mr diaz has not disobeyed anything the officer has ordered him to do no one in the stairwell has disobeyed anything the officer has ordered him to do the officer has said move get up from the stairs and move to the walk everyone gets up from the stairs and move to the wall everyone complies everyone puts down their drinks the officer says let's see some idea mr diaz reaches to his pocket or waist area to produce id in response to the officers instruction and again judge firman does not credit that he refused to provide id and so the necessary implication of those findings is the diaz is reaching for id thank you we'll hear from  sons and where there's a direct testimony from the officer that she never intended to do in arrest you can't really make an argument that this is inside incident to an arrest and the probable cause must exist before the search second there must be an actual arrest and third that actual rest must be contemporaneous with the search  sighted in the sense that i mean if you have if you have a probable cause to arrest and you but you've decided not to do that but then you've conduct is not sufficient right there has to be an arrest yes there has to be an arrest but no case is said that the intent or the rationale for that arrest has to be one offense or the other and it would be inconsistent with the supreme court's cases saying that an officer can until the gun was found but there was probable cause for an arrest on the basis of new york something tain or violent and a direct intent not to do that that's my problem if there was if there if she did say i wasn't sure what i was going to arrest or not that's a different not supposed to be told her intent is irrelevant under every fourth name and jurisprudence and doctrine is eroding irrelevant it doesn't matter whether she initially thought that he had violated a murder statute that's the reason you're tennis somewhat to be perfectly frank a fiction is a rapidly evolving circumstances and intent can change from second to second well my problem also is that if you're intending if officers hundred eight and there have been no statistics or evidence that has been cited that there was an epidemic of searches that occurred in that interim period second officers don't have an incentive to conduct searches for a law enforcement officer to make an arrest takes a lot of resources and it takes a lot of time and so officers will not want to conduct a search incident to rest knowing that if they do so they will have to spend the next six hours of their life taking someone to the stadium separate process effect an arrest afterwards and again we're assuming that there's no terry basis for the search that would be a violation of the fourth moment because again the search incident to arrest doctrine requires an actual arrest now the defense in their brief belittles the argument that there's so that's a violation of what i mean you know if they don't find anything then they if they don't find anything and there's no nobody knows anything and that's the end of there's if they do find something then they would make an arrest and  that arrest would be contemporaneous and then your rationale would be fine that's correct but if they don't find anything your honor there would be civil liability for a violation of the fourth amendment and utah versus treif which is a very recent supreme court case there the defense argued in that case that this would allow dragnets searches were officers could stop someone see if there was an open war and if so everything would be ok from there on out and the supreme court rejected that argument saying that quote such wanton conduct would expose police to civil liability so while the defense belittles that argument has been expressly doctored by the supreme court in other cases in addition the argument that there will be an incentive for additional searches  to the extent that the rule in read is not adopted here is wrong for the further reason that it would just create counter incentive for more arrests if if an officer  knows that if they make clear that they intend to arrest the individual the incentive will then be from the outset i'm going to say arresting you for this company ten or violation or for this minor arrest and as a result you'll have more intrusion and individuals liberty because custodial rest will follow and finally this is this is somewhat of a move forward and you point where there's a the rest is is a possibility you know it's an open question and  that goes back to our original discussion about whether or not the fact that there was no intent to rest here matters and and you know i catch your point but but here if she had issued the summons you're saying if you leave open the question of whether there's going to be an arrest then that's that's a basis for for a search if it is as long as you you intend to review the arrest as closely contemporaneous it so part of the same thing and i can see not wanting to parse you know every second of what happens during that during a text that exchange but but my concern here is is when there's no intent to to arrest whatsoever  they reached that question i mean i expect it was yes and it was one of the questions presented so it seems fairly likely that it will be reached my time is up it but if i could just make one final point before i leave and  that is that the reading of knows that the defense requests here is a new one it is one has been adopted by the new york court of appeals and read but that would be flatly contradictory with multiple other courts of appeals in state courts and so the request of the defense is making is for this court to establish a split with other federal courts and that is a serious request that should be taken seriously by the scorn and i would just finally direct the court to the d c circuits recent opinion and united states versus power forty three thank you your honor let me address the terry frisk first so in addition to the facts discussed in my opening presentation this court should consider that this is not a high crime area this search did not occur late at night there was no resisting of any of her instructions she did not testify the mr diaz made a distinctive gripping motion there were no unusual surrounding circumstances and i can provide to this court citations of several district court decisions holding that a touch of a waistband happy to put them in the letter of the court prefers but united states versus mcrae two thousand and eight wanted to put him on a lot of i will be happy to do that your honor yes how much time to need to  if the court just well i suppose that i can prepare a letter containing these citations promptly if the court is inclined to decide the case on the ground of reasonable suspicion i want to take a week to submit something on on this issue  you can go beyond the science and then the government can have a week to respond thank you your honor so turning then to your honor's question about the relevance of the issuance of a citation i would say that their response is exactly what judge walker has identified if if that really is the distinction then the officers only mistake in nose was issuing a citation first if the officer had simply searched first she could have done exactly what judge walker proposes arrest if she finds contraband and continue with her plan to issue a citation if she doesn't and in that situation the government has not presented a realistic prospect of any deterrent against officers doing just that finally i want to worry about the other she doesn't make the russian goes the search engine makes the rest so i would i would direct this court's attention to heath and also reiterate our position that the question is an objective one whether an arrest was to occur at the time of the challenge search i want to sense that question is irreducibly subjective in that it depends on what an officer decides to do but he says that the inquiry remains objective and one of the inputs is the officers testimony the officers testimony will not necessarily be dispositive but it's deserving of careful consideration and so we're not asking this court to do anything this court hasn't already required a district court to do in a closely related context i want to make one more brief point  on the knolls issue which is this the government has not endeavored to link its proposed rule to either of the chairman justifications the government has not said that a search was necessary to protect officer safety and that's because it's the danger to officer safety that arises from custodial arrest in particular that justifies an incident search the government has not attempted to link its proposed rule to the need for evidence preservation because again it is the fact of custodial arrest that motivates a suspect to destroy evidence where neither rationale is implicated the government is asking for a mere entitlement and gant says it is anathema to the fourth amendment to do so i see him well over time but if i may say one word about the sentencing issue judge zack which is this i would encourage the court to decide the sentencing issue for two reasons one the court may not reach the commentary issue the solicitor general urged the court to decide r activity first if the court does so it will not reach the commentary question and second as i indicated judge sack yesterday as a serving a sentence that we believe today is unlawful he has served about twenty months  top of his correct guideline range was twenty one months and so if we are right as the first seventh and eighth circuits have all concluded that mr diaz will suffer irreparable injury as he continues to serve an unlawful sentence well this court awaits a decision that limit it to the issue varies terry frisk and let's limit it to five single space pages yes thank you for the opportunity to go on and on the rest of the calendars on submission including the motions accordingly