intrusion on to mr richmond's property for the purpose of gathering information or evidence to discover more than what could have been observed by merely looking under the supreme court's property based analysis in jones and hardiness that is a search under the fourth amendment and the district court err by holding otherwise under jones and hardiness three things combined to make the officers action a search first there was a constitutionally protected area because a car is in effect that is protected by the  amendment there was an unlicensed physical intrusion by the government that is to trespass on to that constitutionally protected property and third there was an information gathering purpose because the officers left the tire to discover some information about what might hide the in both cardenas and jones the supreme court stated the property be trust based on the rule of the fourth amendment very succinctly when it said when the government obtain information by physically intruding on persons houses papers or effects a search within the original meaning of the fourth amendment has occurred and what both jones and heartiness say the original meaning of the fourth amendment was was based in property and based in trespass and here the officers with another person's possession obviously that is why the officer did in this case when he physically intruded on this rich man's property but also point the court towards smith vs staffy which is a case out of the eastern district of louisiana where judge africa held that the swapping of the exteriors or handle of an s u v was a search under the jones property based analysis because it was a trespass to tattle for the purpose of gathering day the supreme court keeps saying in the fourth amendment about reasonableness at the end of the day and it just seems if you look at what's reasonable touching attire for a few seconds seems so less invasive then things the police are allowed to do all the time like dogs sniff and things like that so just what if the ultimate standard is reasonableness i think that's why that the government's final argument is just even if it is a search it's reasonable here even under a  search and reasonable and her very long line of precedent regarding what officers can do automobiles it's already an exception to the fourth amendment that officers can search around that would be a would simply with probable cause and without getting a warrant  already an exception it should be strictly limited and there's no justification for extending it even if we think this is so much less and they said that opening the car door and scrounging around for whatever private materials might be enough inside a car certainly officers could not do that without sure i agree but isn't this much less invasive than that perhaps from the perspective of privacy rights but i think what's important is remember that this is a property base case and jones and heartiness both said that privacy rights are irrelevant when you're talking about the property based analysis and the court the supreme court has a long line of president drawing a very strict boundary between looking and touching i think drawing the line at a physical inspection at any kind of touching for the purpose of gathering information is visual inspection and the supreme court has reiterated that principle just as recently as this term in collins versus virginia which was the case about the motorcycle on the curtilage where the court and besides a couple of times but the opinion in and bean the panel was divided on several issues but i think all agreed that a physically invasive inspection is uniquely intrusive and i would  without sucking up point to a particular line and judge graves's dissent in that case where he said the supreme court has repeatedly found this little invasions that exceed the limits of the scope of the government president president constitute a fourth amendment search citing beyond constitute a search so there's a long line of precedent holding that physically invasive inspections are more intrusive than visual inspections and support drawing the line of interested miss at touching what cases can you cite where a car has been drilled to be a professional effect so the supreme court said that very clearly in jones itself said that a car's in effect and i believe i'm sure there is are a long line of cases i could give you but certainly privacy in cars but again what we're talking about here is property rights and a property based test for a fourth amendment search which is it to privacy rights are irrelevant to that analysis what concerned me was the fact that the officer had noted that tar was wofully that it perhaps presented a safety concern so to the extent that you have a law enforcement officer looking at something in plain view that he is determined constitutes a potential safety hazard why wasn't he within his rights as a law enforcement officer to check to see if the car was actually safer operation well i think one thing that's very important to keep in mind on that point is that the officer testifies that he had both concerns he had potentially safety concern but he also had a crime detection concern and when the supreme court has allowed officers to do searches or to do other invasive actions on the basis of safety they've said officer needs to solely be motivated by safety for example a car is disable the driver is incapacitated and perhaps officers are moving a car on the side of the road to remove that hazard then they may like doing into a search of something like that the best only because they are that action is totally divorced from crime detection  is the one that says the opposite actions were totally divorced from the investigation or detection of crime and that's what makes their actions in those cases permissible because it was not a crime detection purpose here the officer testified that he had both concerns and i don't think he needs to to search without permission to assuage whatever safety concerns he might have you could simply have asked about her tires at that point you could have asked there's something wrong it looks like there may be something wrong with your tires are you aware of that have you had that checked out do you mind if i take a look would you like me to take a look i mean there's something quite ironic about saying perhaps the officer could search my property for my own good without my permission safety of the driver in this case the safety of mrs richmond but for the safety of others who may be traveling on the roadway if that was part of his concern that wouldn't be sufficient that would not be sufficient if he's also motivated by potentially detecting crime which he testifies that he was also on the on the question of the safety concern i would also point to the record the record does not really support that that was his concern after this he allows miss richmond to drive about ten miles to the dealership have the tires removed and open without apparently any concern for her safety or his safety following behind her or any other drivers on the road so i think on this record i understand the court's concern with the safety issue but i think th don't actually read that piece is saying i think the plurality does say perhaps there is no search but i think what the actual holding of a case is that there was a probable cause so that simply would not be answering the question here because if there was probabl automobile exception would allow the search of the car but it says both and i agree it also says that i don't know how to figure out which is which is the holding but it does say both but i believe i mean certainly the moment for narrow ruling would be that there was probable cause and at the most i think that case is somewhat ambiguous about exactly what the court is saying and one of the things that it does say is that in any event there was probable cause which would have permitted the search precedent at the time that the search occurs and then a change in the law after that point invalidates the search then the officer can reasonably rely on the binding precedent at the time of the search but here the search was unlawful at the time that it occurred analysis of those cases and instead primarily applies the privacy rights analysis of cats which both jones and hardiness say is just irrelevant to the property based analysis so we need no court this was not the controlling law on the question of physically intruding on to property for the purpose of gathering information and that same case back to my earlier question they also state one generally does not have a reasonable expectation of privacy with respect to items that are in plain view of the law enforcement officer such as the exterior of the vehicle and in this case the officer stated when he walked up to the vehicle he'd noticed that the bolts on the wheel looked like they had been removed repeatedly and then that's when he decided to tap the tire so if the thinking is that again this is a item that's in plain view on a public roadway why is it a expectational prophecy subs subject to the fourth amendment protection that you've been or you so i have a couple of responses to that and my first response is again that's talking about the expectation of privacy whereas what we're talking about here is property rights and jones it don't even have to ask about property rights because privacy rights so we're dealing with a property based analysis of the fourth amendment that sufficient you don't also have to have a privacy interest and it jones also says that cases about plain view are really of no relevance when what we're talking about is doing something more than just looking so what takes us out of the plain view cases is the fact that the agent did more of the officer did more and physically intruded on the property so having some kind of a hunch that there could be something going on the tires which is what he testified he had at that point he says perhaps there was something going on there maybe an issue with the tires that does not give him license to search that is what wants but what he can't do is physically intrude or touch it with an information gathering purpose without probable cause here he did not have probable cause  there's about a minute perhaps interaction between the officer and his richmond before the tire slap in the district court the government didn't argue that he had probable cause prior to the tire slab the additional court didn't find that the agent the officer didn't testify that he had probable cause and said what the court found is that the result of the tire slap contributed to the officers reasonable suspicion to continue to detain mr richmond after the end of the traffic stop which is a far lesser standard than probable the united states and i mean these male sure the troopers talking of the vehicles tire was not a search in violation of the fourth amendment their truck came into a checkpoint stop and a and b it contained a fifty five gallon propane tank in the back there were scratches on it the officers spoke with the driver they looked at the tank and the officer pulled out a knife and he tapped the propane tank this court held that although the agent's tapping of the side tank may have been a concert may have constituted technical trespass the tappan did not constitute a meaningful invasion of his property rights and so that case says there was no reasonable expectation of privacy and that ruling i think is still good last would be no reasonable expectation of privacy in this tire but that's not what the defense is arguing they're saying jones says there's now two avenues to a fourth amendment search that something's a search one is reasonable expectation of privacy and mooney's says no that doesn't that's not this case but then jones says there's now a property based rights we've all and then we had cats which extended them so essentially where the fourth amendment was confined to things that now covered an expectation of privacy so as jones acknowledges and number of the other cases acknowledge we now have an enhanced fourth amendment were always present and the court addressed it and you know it's not for yes they did say that he did not have a reasonable expectation of privacy but they did address the fact that it might have been a technical trespass the tapi did not constitute a meaningful invasion of his property rights so they did address both of them there and as you pointed out in the beginning the crux of the fourth amendment is whether or not it's reasonable so the court here said even if there was a technical tr pass in this situation with the minor invasion if it was an invasion it was entirely reasonable under the fourth amendment and there was no reasonable expectation of privacy nor did any minor invasion of his property rights constitute a search under the fourth amendment expectation of privacy and that's what i read the moonies court to say they couldn't do that because they say yeah it is a trespass but that alone is not enough you have to show what society would think is reasonable and what you know who cares about your interest in this but i think you also have to look at the things that we are considering when we talk about searching obviously we have a higher expectation of privacy in our home in the curtilage but we also kind of question what to do with the facts and i agree that the vehicle is in effect  and what interests do you have in that and what the fourth amendment tolerates in terms of a search or an invasion whether into the reasonable expectation of property right or reason like to take your privacy or and or property rights and i hear i touching in the context of a traffic stop on a public road it wasn't private property it wasn't curtilage it wasn't in a home the officer pulled over the mr richmond because there were issues with her tires and she crossed over the fog line all of this is reasonable all of this is proper as he was there he noticed the bolts of it stripped there are multiple but it can be it can be a search and still be reasonable i mean that's what i take the last argument in your brief to be saying even if it's a search in the towel or you're describing it's reasonable but that's different than saying it's not a search yes i think that there are two arguments or one it's not a search even if it was a search it is entirely reasonable and i think again going back to  the knife on to the propane tank to consider the structural integrity of it is similar to the tapping of these higher here when the officer walked back from speaking with mr richmond in the vehicle i think it's on all four points here in make coming out of the supreme court recently that addressed more of the property rights rather than the reasonable expectation of privacy but i think also in terms of if we want to flip all the way back to the good faith exception i think that there are factual distinctions between those cases and what happened here that would lead a reserve officer to believe that medium up or was still appropriate and we could still follow that and beyond it was the search of luggage and jones it was the attachment of a g p s to a vehicle for an extended period of time and hard genes that was dog on a curtilage of a of a home these are all very distinct from a traffic stop where the purpose was to enforce stop the defendant for a traffic violation pursue safety  and then as this is as this is going on there as a issues that arise that he needs to address those are you referring to him perhaps developing probable cause during the stop absolutely on or in the probable coast constituted what from or what if it were to did arise from just be stripping of the boat that he noticed or the wobbling of the tar what exactly gave him probable cause to move to a search so you have an eight year officer who has extensive experience in this area and just in general the stop occurred on a main corridor that had was known for criminal activity the tires were shaky wobbly and balanced the driver drove over the line multiple times and the third brake light wasn't working when he stopped her and spoke to her she was extreme interest she blurted out that she was from arizona she couldn't make eye contact with him her hands were shaking as she passed over her her information he testified that her mouth had some white coating on it looked like she was nervous and that she was concealing something and indication of deception he called it and then the bolts of the tire had been stripped as if they'd been taken off numerous times so all of those things together that lead probable cause that there was contraband in the vehicle if the officer truly believe that why didn't he just ask for consent to search that ultimately he did he has to continue the traffic stop she got out of vehicle they went to the back and they smoke and on his way so if you watch the video he actually went into the passenger side and saw that her cross that way and as he watched that way as he walked up to the front of the above that's when he noticed the stripped it was on the way back that he tapped the tire and then continued to the back where she met him before he asked for consent correct yes your honor so that's my point if he believed he had probable cause of criminal activity why didn't he ask for consent before he tapped the tar which was it not it wasn't her it wasn't stop stopping the car pursuant to probable cause that criminal activity was a current heap as you stated from the record the car went over the fog line the tar was  traffic stop he didn't make a stop persona to probable cause of criminal activity absolutely your honor so to the extent that he was extending this traffic stop to a search why didn't he ask for consent if he developed probable cause during this traffic stop ultimately he did but when he pulled when he pulled ms richmond over it was because she had chronic over the fog line multiple times because of the issues with the tires so she he pulls her over and he goes up they speak he asks for her registration license and whatnot and ask her to get out of the car so they can go to the back during that time he develops probable cause simply because he develops probable cause does not mean that he needs ask for consent immediately he continued the stop he spoke with her in the back he subsequently around her information found out that the vehicle had just traveled back over the border a few hours prior contradiction to her statements there were other there were other points the conversation to the led him to believe that th yes well your final argument we've talked about a little bit which is that assuming it's a search i read you to be saying it's reasonable that he touched the tire even if there was just reasonable suspicion and not probable cause and i do think there's a lot of common sense that i mean like i say you know just on reasonable suspicion the police can keep someone on the side of the road for thirty minutes waiting for a drug dog to arrive this seems far less invasive than that but i just can't think of another area where reasonable suspicion it's enough for a terry stop like that but it's i don't know if there is another area but i think it's because this is such a unique factual situation when you're on a public highway in an automobile this isn't a house this isn't the curtilage this isn't your bag of luggage where we all recognize you put things and if you want to keep hidden from other people there seems to be a tension there with you contain things with your personal belongings there are a number of other factors here that just make a tapping of a tire one not a search but even if it was a search entirely reasonable  context of a public road traffic stop on a tire which is exposed to public view and that we don't typically recognize a reasonable expectation of privacy but you do you need at least reasonable suspicion or you can just tap a tire on a traffic stop with with no basis it's whether or not there was a reasonable suspicion probable cause for the search to the extent that he had some concerns about safety and traffic in the tire being wobbly all of which he said he noticed and he testified to have at the suppression here to stay talks about that arguably that equals probable cause or reasonable suspicion to conduct this but they're going to counter that is that he needs to be solely motivated by safety concerns and that if he has mixed motives the search is an unlawful search what do you say t so it meant that i don't have a case directly on point for that but i would submit that that's not reasonable and i don't think that's ever going to required by this court the cases that were cited are about community caretaking provisions this was community care taking to a certain extent but it wasn't completely divorced of a traffic stop she crossed over the fog line she had wildly tires and he was justified in pulling her over i don't think that it is reasonable again to require officers when they are conducting a traffic stop to be solely motivated by one or the other we've never held that as far as i'm aware there's never been a holding that requires you to have one one purpose and in fact we look at whether it's objectively reasonable we don't look at the subjective intent of the officer when these things are being performed so i think that requiring that the officer was only considering safety requiring that he was only considering whether or not there was a crime being  is one i think impractical and to not what the fourth amendment intended or what this case the case on tense when analyzing what's for unfolding during a traffic stop and i guess the other thing which was pointed out is is if i  were inclined to conclude that he had reasonable suspicion based on his safety concerns then that argument gets seriously undermined by his decision to allow her to drive the car to the gro doesn't i don't think it seriously undermines that he did follow her and they were keeping track as they went and a reasonable speed to where it was they did unhook the tire and then they put it back on presumably they did a good job of doing that to secure any sort of safety reasons and i would presume that any officer wouldn't allow a person to drive in a car that was unsafe you're arguing about reasonable suspicion improper you say it's probable cause it if not it's at least reasonable suspicion that that's about crime at that point right did based on her answers in the the and the search that we're talking about would be the tapping of the tire before he asked for consent if that search was reasonable would it have been a reasonable for the officer to open the door of the car and look under the it's a search and your point is that it's reasonable the probable call us reasonable suspicion develops strictly from the fact of the way that she answered his questions and that the bolts on the wheel had been previously strip or removed if it was a search to tap the tire yes that was there i did the things that i listed before in terms of the condition of the truck the nervousness the stripper pole it's all of i mean try to address just a few a few things so we didn't want to return to this this technical trespass argument meanies does say something about a technical trespass i think it's going pretty far to say nice you know jones who said well now you just said that every technical trespass that leads to evidence gathering is assertion of the fourth amendment that can't possibly be the rule and what the majority said is well if it's a constitutionally protected area and an information gathering was not controlling at the time of the search and i do want to emphasize that you know in my view the government is asking for a couple of extraordinary things although doing it in a way that is very reasonably presented which is they are asking to search on less than probable cause and they're asking to search as a routine incident of a traffic stop he says search on less tomorrow less than probable she just going to a great deal of time telling me that there was probable cause certainly there is one alternative argument that there was probable cause that there reasonableness argument is that even if there was a search without probable cause you should still find it to be reasonable which is a request that those court approval start on less than probable cause those things i don't dispute and i don't think anyone could dispute that the officer had the ability to continue to investigate if he had safety concerns what i do dispute is that he did not have the ability to search without probable cause on the question of probable cause i do want to point the court again to the officers testimony because they do think it would be important that he actually had specific articulable facts that he believed gave him probable cause prior to the time when he spoke to tire what he says at record one thirty two is he thought there may be quote an issue with the tires and what he says at record two forty five is there may be quote something going on so he essentially testifies that he basically he had a  hunch he had some kind of suspicion he's not sure what's going on he's continuing to investigate i'm not on that in this appeal disputing that he could continue to investigate what i'm disputing is that he had probable cause at the point when he stopped the tire when all he had seen was wildly tires while she's driving and then some all stripped bolts on a ten year old car plus a minute of interaction with her where he asks her a few questions about where she's coming from and where she's from that's all occurred on this point i would actually urge the court to watch the video the court has not done so already to view exactly the interaction up to the point when he taps the tire and i did also want to point out that you know the government is making two i think entirely contradictory argument that both he had probable cause of criminal activity at the time he touched the tire and conversed lee that he didn't need probable cause because he was motivated by fifty concerns the government is of course entitle alternative arguments but i think just the inconsistency of those arguments lindh you know some believe that to me shows that neither argument has particular force on the particular facts of this case because the officer does testify that he had some suspicion of drugs he also thought there may be a safety issue with the tire i don't disagree that he could investigate that safety issue but i do disagree with is that he could conduct a search at the time that he tapped the tire on the back to good faith and i know there's a dispute about whether it's even an issue but and that's tricky but assuming it is your basic i mean it just seems to me you're really requiring you know there's a case from the early ninety's th touching a tank which i think everyone agrees is the same thing as touching a tire is ok and you're saying no the officers if they even know if that's been the law for years should know that you know it's just a school year transform the for the men men and that that has this impact on this case i mean this is really high level you know stuff that gets debated in the law schools now but you're saying an officer should be held to that sort of fourth amendment scholar level of knowledge yes and i don't think i'm saying that i think that's what the y reasonable reliance in the cases where this court the supreme court has applied this exception the search was clearly lawful at the time based on binding precedent and the change in the law after the search invalidated the search and that's just not what happened here where all of the cases that we're talking about predated the search and would have rendered the search unlawful at the time that it occurred there are no further questions they could go and will take this matter