and that's true for two primary reasons in order to show that the evidence from mr jones this car would have inevitably been discovered the government had to prove two things by  know on speculative effort evidence st it had to show that the asserted inevitable factor sergeant bachman went to the circle k for reasons that were unconnected to the illegal search that he was your honor's that the district court made no finding on the nd of those questions the district court didn't address whether mr jones would still have been at the circle k that's probably because you didn't make that argument and the district court right i think that's incorrect your honor i think  district court it was repeatedly argued by mr jones that the search was unreasonably prolonged and that it should have ended after the pat down search that produced no evidence of wrongdoing but was that connected to the idea that there was not inevitable discovery because he wouldn't still be in there i thought well i think it was your honor i think it may not have been phrased in the exact same way that i phrased it on appeal perhaps but mr jones clearly argued below that the government had not shown inevitable discovery and that the search should have ended after the pat down and twenty three mr jones is actions and demeanor during deputy peters's encounter with him did not rise to the level of establishing reasonable suspicion let alone probable cause her determination should have ended her encounter with mr jones and then on the next page two hundred and fifty eight line three deputy peters did not find anything after completing the pat down search thank you and i should not have gone any further this was even before the government raised and habitable discovery and its opposition to the motion to suppress argue nine different things about why he could have been detained you know the idea that he was he he was under the influence of something she could have done a breathalyzer test is that he didn't do those things and so i guess my question is what's the standard of review here as far as what the government has to show do they have to show that this was a possibility she could have done it or that she did do it or you know i want it to show the end of the government has to show more than a that illegal search he still could have questioned the occupants of the vi he was standing right there he could have questioned them and found out the same information that they were in the country illegally that he discovered by reaching into the van but the course said that's not good enough it was equally plausible that he would and he wouldn't have taken the action that's not sufficient the government has to show through non speculative evidence on a preponderance of the evidence that this would have happened the government would have done this i'd also like in order to satisfy that standard that basically to have to have done it no i don't rector i don't i don't think that's good that's a you know i don't think it's that high of a burden i think that officer peters maybe would have had to testify that you know if i hadn't done the search i was still intending to i'm checked further into his name or i would have you know because i thought he was under the influence i would have done a breathalyser and she didn't say any of those things in fact she said the opposite she said she never asked him about a handicap placard she it was clear it's clear from the record not only that she did not only i guess is what i'm saying  absence of evidence that she would have taken these actions there's affirmative evidence that she had no intention of taking the actions that the government now says she could have because of what she said correct because of what she testified to at the motion to suppress hearing if  you would we send this back for vacated that what you like here are is i don't i think that that's an option for your honour's to do but i think that actually there is not really a reason to do that here the of whether the search was prolonged it was presented below the government had a hearing below it presented a declaration from bac and peters and had an opportunity to present those witnesses it presented peters she was questions about questions about they had he kept records she said i didn't ask him she testified to her inquiry into his name i asked his name he gave me a name she had it in their computer i think the record actually establishes that she was not intending to take these other actions i also think it's somewhat telling that the government below said no hearing with needed in its opposition to the motion to suppress it said no hearings needed it asserted inevitable discovery on the other awful about me that made no claim that peters intended to take any other action that would have produced this information how much time to place between when you think the surgeon officer peter should have let your client go and twenty eight there is a notation about a gun neg gun return i don't know exactly what this means because there wasn't any information put into the record below about it by the government but it certainly suggests your honour's that there was some was unaware that a gun had been found that's all we have we have no statement from the government as to whether bachmann knew or didn't know about the search we have an absence of evidence but but the two just fashion trees mention suggesting that he must have known that there was a gun and therefore the search had already occurred you don't i want to i'm not saying he must've known i'm saying the government had a burden to show that he didn't know and not only does the evidence not show that think the evidence from the government if anything what we do have suggests or indicates that he may have known it suggests that he did know of this whereas and even if we had no evidence either way that would be insufficient but i'm saying that what evidence we do have points against the inevitable step or doctoring certainly the government has not met its burden and certainly i think the district court was in clear error in finding that the evidence had met that burden given this under rule twelve i think that case does apply here the arguments that defense counsel is making about the inevitable discovery doctrine were not arguments that were raised to love the defendant in response to the government's argument about the inevitable discovery doctrine below argued only that deputy peters did not know about the fact that the defendant was on parole at the time she conducted the search that had nothing to  arguments the defendant is making on appeal are an entirely new theory that should be deemed waived under guerrero there's even a matter that it's a defense related i mean it's a few steps away from the normal thing of just the suppression theory right and i thought about that your honor but in fact every time the defense makes a suppression motion it is the government's burden to prove in career zero that there was reasonable suspicion for the stop and then any other case that there was probable cause to searches here so i don't think that should change the calculus really what i think are rare as motivated by is the notion that these sorts of factual disputes need to be litigated below if the defendant wants to prevail in showing clear error on appeal and i think that's also consistent here with the terms of the defendant's conditional plea agreement that agreement specifically preserve the right for him to appeal from the adverse determination of his motion not from a non existent determination based on a claim he never raised so i do think it's appropriate to apply that same standard but even if not the standard would be did that just report clearly error as defends counsel pointed out the standard is in determining that the gun and evidently would have been discovered let me ask you the counsel is it fair to say from the government's perspective that but f what you have probable cause i know there were a lot of things that they could have done something about based upon what had occurred what i'm sure peter saw at that point what was the probable cause the government had without bachmann being involved to search the car so i think it goes exactly to the nine factors that your honor was mentioning during defense counsel's argument the primary factor i would say number one nonetheless was that there was a monkey mask that would cover someone's entire face on the passenger seat of the car the deputy peters observed before she even opened before anyone opened the door that combined with a lot of other factors so this is a search that happens in the middle of the night it's four twenty one a outside of convenience store the deputy peters knows to have been targeted by thefts and robberies in the past the car that defendant is in has a covered over vin number that you can't see because of the tape the defendant gives the name of glen jones that turns out is actually not his name but she doesn't know that at the time but what she does know is that she searches the name glenn jones and finds that when jones has had a robbery arrest in the past and i'm just say every time i i'm familiar with the nine factors what i'm concerned about here is it doesn't seem like officer peters did anything about those arguably maybe there was some basis for example that he seemed like you said he was on meth but he thought he was a little unsteady and so on she could have certainly given him a breathalyzer test or something like that she could have done a lot but she did so my question is does the the fact that there are these nine possible bases for her order to establish probable cause under the automobile exception which really just requires a fair probability that evidence of a crime will be found in the vehicle based on her observations and her thought that or observations and experience and thought based on those that he was probably on drugs it would be reasonable for her to search the car for drugs it would be reasonable for her to search the car for a potential evidence of something that might be used to commit a robbery when he's outside the convenience store in the handicaps face right by the entrance and then find an objective question whether or not she had that in her head it's absolutely an objective question and that is the parties were actually asked by the district are allowed to brief devon pack a switch says that it is not a subjective standard of what the officer had in her had but instead what a reasonable officer in those circumstances would have thought was a fair probability that there might be evidence of a crime in the car and objectively what do you think your best crime is for what there was probable cause of here i would say the st would be a stolen vehicle actually because you see it covered over vin number she looks up the license plate and finds that it is not registered to glenn jones and then she sees this person who is has a gang tattoo on his face and a monkey mask on the seat of the car he doesn't produce an identification in response to her quest when you combine those i think the most obvious crime from those circumstances would be a stolen vehicle but i do think contraband or any evidence of a drug crime is also there was a fair probability of that under these circumstances how do you deal with one less fear crime is a drug crime so one less decided thirty years ago i think is this was an a case in which there was evidence of a passenger who had apparently or believed to be on drugs and this court held that there wasn't that were traveling together based on one passenger's potential use of drugs i don't think that is the same facts i think this is not a random stop somewhere on the highway this is a nine hundred and eleven call from the store clerk that results in deputy peter is doing good police work actually she looked she knocked on the door she did not draw her gun she asked this defendant questions and based on her experience she observed enough to establish that this was something there was a fair probability that she would find drugs in this car does the district judges disagreement with her about his manner of speaking undermine that conclusion i think  that would be i would not obviously now advocate that his supposed rapid speech were part of the analysis and in fact it does cut against the probable cause analysis for the drug crime but the district court didn't the fact that he admitted to having used drugs recently two to three days ago when she testified in her experience tends to mean usually two to three hours ago because the defendant won't want to actually tell the truth the district court did not dispute her testimony that she actually knew that this was an area where drug crimes had been committed and she had been called to this circle k based on both robberies in the past and drug crimes and the district court did not dispute the twitching and fidgeting movements that she testified about  definitely add up to probable cause the court has no further questions i actually think i do have one more question just so i'm so let's put aside probable cause for a nd and also put aside guerrero for a nd so if she can make the argument that inevitable discovery is properly before us then what is your best argument for inevitable discovery so at this stage the question would be did the district court clearly erin finding that would have responded to the scene and didn't know at the time that she had already or was in the process of conducting a search and this report did make that as a finding that you are five it specifically said in its order at the point he decided to head to the circle k he had not been notified the peters had conducted a search of defendant's vehicle and found a gun so the question is is that clear error and the best argument i would advance but i think there are two arguments so we can assume he didn't know that there was a search but what about whether they would even still all be there so the defendant is now pointing to a potential eight minute gap in time i think that under these circumstances where it was one defendant who had been asleep for two hours to a defendant who exhibited signs of drug use three a defendant who failed to produce a license for had and who was parked illegally all of those circumstances would mean that an officer and deputy peter's physician would not say doctor so it makes perfect sense to believe in these circumstances he would have been there eight minutes later so so basically you want us to assume that under the circumstances bruce would not have let him go and that's the reason he would be there when blocking the road i think that's a fair inference under these circumstances he was in the process of still conducting a check she was investigating whether there was a potential crime here it is certainly a reasonable plausible conclusion that shows the district court didn't clearly air and i under that senate of course that disappoint since it was not logical implausible or unsupported by  have that were reasonable under the circumstances given the evidence which to that point is that the government's very i would say that's the government's argument i actually would argue that even if she had been searching the car but he didn't know that she was searching the car so that wasn't the reason he responded that even the vehicle search itself is part of the circumstances that could be talc elated in determining whether he would have gotten there in time because really the question is is his arrival at all tainted by the fact that she was searching so if he didn't now that she was searching that she would be a perfectly plausible and permissible basis to believe that she the car and the driver would have still been no but i'm going to a little different direction i'm trying to figure out what did she do during those eight minutes what could she have been if she hadn't been searching the vehicle she could have continued to question the defendant she was questioning him she could have asked him to produce a license and say you can't actually drive away she could have told him if you want to drive this car away within the next eight minutes you're going to have to have someone come to the circle in the middle of the night because really under california law she would not have said to someone without a license you're free to go ok thank you thank you very much counsel your honors i want to just address for a minute the phrases that the government's just using could have what she could have done it's a fair inference it's an assumption it's a reasonable possible conclusion these are not sufficient these are just possibilities look at there has to be more there has to be a non speculative selling counsel for the government as i understand them seems to suggest that given all of the things that are listed in the nine factors that  there's no way that she would have departed but it also says they also seem to suggest that there was enough probable cause that she could have searched the vehicle whether or not bachmann was there therefore we wouldn't be dealing inevitable discovery doctrine would we here are i actually i think the nine factors are not being presented here as reasons why she could have arrested him i think i think nine factors the government's putting forth are the government's arguments for why her search according to the government was supported by have been enough to permit peters to search the car whether or not back then right yes yes but i want to focus the inquiry for your honesty in that question is not whether there was probable cause that he committed a crime or probable cause to arrest him specifically it was was there probable cause to believe evidence would be located in the car which is a different distinct inquiry the rogers to as you mentioned the drug aspect in that was i gather his point well i think that i think that there was not sufficient cause to think there was evidence of drug use in the car i want to say even if there was evidence that mr jones was on the end under the influence of drugs which actually there wasn't here even if there were that wouldn't be tantamount to probable cause to think that evidence of drug use would be inside of the car that's a different question if he had been arrested on proper probable cause look at the car been searched if he had been arrested on probable cause yes the car could have been searched but once again i think now we're going into a realm of speculation about what peters would or wouldn't have done there was no maybe i misunderstood your answer to judge smith but were you saying your it's not a st nd like maybe you were just not disputing that there was probable cause to arrest him oh no i'm just using that there was probable cause to arrest him but that isn't what happened she didn't arrest him she simply searched his car so what i'm saying is if it were true that there were sufficient probable cause to support what she actually did which was not arrested which was searched the car then that would be lawful but as we argue in the briefs i don't think that there was an declaration and testimony was unreliable and i think that taints her entire statement of what happened and what transpired she said she saw again tattoos on his face there was no foundation for that there was no explanation of why she thought it was a game tattoo or her or her training in identifying tattoos at all her other statements about what transpired the district court found those to be unreliable but the there's the mask and the covered vin number and the guy is not the drug registered owner all these things why is that not enough to suggest the car was stolen and should be searched to suggest a stolen car well i think we have to look at even assuming there was evidence that there was a stolen car which i disagree actually that the monkey mask would relate to whether the car was stolen or not but assuming there was evidence that  stolen that wouldn't in itself be enough there has to be a showing that probable cause that evidence of that crime of us to one car would be located in the vehicle in roger's this car talked about this court talked about that distinction he said definitely there's probable cause to think that the driver of this car maybe pandering the passenger who's much younger than he is they seem to be providing false i d s they're in an area that's known for prostitution this is all you know there's probable cause to think that there's a crime happening but there was not probable cause to think th evidence of that crime would be found inside of the car and so that's what we're really dealing with here a very different set of explosions all right thank you very much counselor on both counsel for your argument we appreciate it