i know you know the past but if i can just indulge you for one moment it was the evening of march twenty second two thousand and one it was dark out at night there had been negotiations and a moran after the drug attempt had been aborted six officers swooped in to make an arrest three more were doing a surveillance my client then was seen at that moment he had not been seen in the area before he hadn't been see loitering working he wasn't seen bringing a car into the area at all so there had been nothing in advance no no advance notice that my client would would be there and there's no testimony in the lower my client is is arrested there's some issue about whether he was detained or arrested my position is that my client was arrested he was basically thrown to the ground there was some indication that my client might have wa judge issued in ruling on the search of the rental car which contained approximately seventy three point seven grams of crack cocaine that were packaged in various smaller automobiles are you know inherently movable inherently mobile there's a lesser protection to automobiles and judge issue relied on a whole battery of automobile search cases starting from carol versus us so excited chambers versus direct suspicion that links a particular car with a particular individual i mean if you go back i if you go back to those old prohibition search cases that the carroll brothers case and you go through chambers versus through california versus carney those cases have a direct link in california versus carney for example there were teenagers that were apparently being approached to go into a trailer a vehicle that was used as a home to for marijuana in exchange for sex acts officers had the teenagers under surveillance and under observation and they had an interview with one of them about getting marijuana so they went in and did the  record says that there was not another car in that specific location which was in an alley location well when you look at the facts there had been a drug transaction that had been aborted the drug transaction was former in to take money and to purchase the kilograms of cocaine but there wasn't any suspicion that there was going to there were going to be drugs in the impression first is how much distance how much what distance physical distance between the aborted drug transaction in the vehicle the aborted drug transaction was in the alley but there isn't testimony in  records or maybe in the actual in the trial from the alley to the street from the alley the street i don't know what the actual distance is of what could be in our records just before this court we don't have testimony as to how many feet it was from the actual aborted drug transaction to where the location of these bags are it was not i mean it might have been a distance it would be within the size of this courtroom one of the bags containing the weapon the back contained a weapon and judges she did not make any ruling about the weapon we don't know whether that was an oversight or not as to whether he that the judge coming to his factual findings didn't specifically mention the  providing probable cause but i know that that we can measure probable cause by what was in the minds of the officers so so the officers apparently did find a gun that was in the bag but does that was was that was the bag the government's justification for looking in the bag is that that was a search incident to the arrest of mr moran and incident to the arrest of mr ford the government has never maintained that they have probable cause to arrest mr bush before they looked in the bags and then looked in the car so the government was that once they found the gun in the bag which was leaning against the car it was not leaning up against the car the four bags were positioned in front of the car there's no testimony there's no evidence they were leaning against how far away with with an approximate within ten feet once the weapon was found in the big wooden michigan versus long authorize a protective s of the vehicle well in in michigan versus long we had a car that was driving erratically at a high rate of speed the car swerved and in the ditch we had a defendant who was under the influence of alcohol or drugs opened the  car opened up the car door and then officers followed and saw a hunting knife on the floorboard and then shined a flashlight in the interior and saw a leather pouch containing marijuana in michigan versus long we had a driver who was actually in a vehicle driving it erratic plea and opens it up and the officer see a hunting knife and so because there was a probable cause to believe that the individual had been violating the law then there was a probable cause to go search the car and because there was a hunting knife ound that led to an issue of officer safety so i would say that michigan versus follows in that long line of traditional authority in which we have a link between some wrong driving something where somebody is speeding or there's a particular right suspicion about somebody who was operating a vehicle who may have committed a crime and we have a nexus between the vehicle the operator and some sort of contraband now we don't necessarily the government made an issue in my brief about how the government officers to search your car don't necessarily have to know what is what exactly has to be in a car i agree with that but in this case there was no specific suspicion that linked darwin bush with that car and just merely the fact that there is found a pistol a thirty eight thirty eight handgun that is found in a bag outside the car that gun was not linked with started thinking about it that's quite all right you are attempting to answer the questions counsel haven't really i may have the united states i was just trial counsel i'm very familiar with this case and our brief page eleven we talk about the the factual basis somewhat and the search was within minutes i don't think anywhere in the records it's ever been in precisely detail but within minutes of the abo drug transaction the police come onto the lot of think just to get a little bit of physical proximity get a physical description of the scene might be helpful there's a large lot it's fenced in the court can think of is a very large parking lot in the middle of the parking lot are two buildings that sit side by side in other words a lot of faces north the buildings face north the in between those buildings so there's an east west alley that's where these people work roughly maybe half a block maybe half a city block from the street to where the alley is the alley say twenty feet wide in the back of this general large lot unpaved there are many many cars parked many twenty in the front page of fewer cars there's a car wash there there was a bus depot that was open they were very few cars there's most three feet from the car it was very clear from the record let me address what i think this is a shoe in this case what the facts are the police had a lot of suspicion against mr moran against mr ford counsel is generally correct that mr bush wasn't involved until the officers come in after the border transaction and they see three men in this freeze where alley taken down at gunpoint mr ford runs south through the alley over the fence gets caught in the lot across the street the officers check in and it's in the in the excerpt of record detective telos declaration that they check trouble he filed a declaration saying it's my gun my money for it's got nothing to do with my discussions with the informant in one best a loaded thirty eight caliber revolver and another back is about seventy eight hundred dollars packs on top of a lot of papers and plastics that if you open the back it looks like the whole back filled with money which corroborates what the cia had been reporting they're showing him a bag of money there's a back for money there's more money within i would say minutes within half an hour at the very most they they look in the back spray for they see what's in there they're going to search the car the men have been detained then they search the car and they find the crack cocaine in the car and there's no dispute that it's mr bush's crack cocaine it's his car that he and his girlfriend went how was that determined well mr bush's fingerprint on the crack cocaine was very helpful that he has some control yes the object had not seen mr bush or the car ride they knew nothing about mr bush until he's there what i would suggest the court is whether it's mr bush's car  is not what's at issue here i think what's only at issue here is did the police have the right to search that car at that time once they've got the right to search that car then they you know then the chips fall where they may and i  counsel argument that there is a legal requirement that there be direct evidence pointing to a particular car a particular person is wrong and it would have the effect of giving more protection to a than to a home this court's authority is very clear that once the government establishes that a drug dealer lives in a particular location the government can search that location because it's likely that evidence will be there the government's position in this case is that under the circumstances of this incident these three men in the alley close to this only car there close in time to the aborted drug transaction reasonable cause to believe that that car was somehow involved in the drug transaction and would have would be likely to have evidence of the drug transaction another gun more money who knows that's what gave the government the right to search their car i've looked in my research i couldn't find a case exactly on point i cited c c circuit case where the officer saw a guy peeling crack cocaine he had driven up in a particular car they arrested him and they could search his car the court also touched on another argument that we raised in our brief that a protective search of this car for a laugh that under these circumstances was certainly justified it's dark it's kind of a deserted area of this dark lot there's a gun involved somebody else can come in and retrieve a gun that wiping the car that's why the governor had the right to search his car what time of the night was it it's ok thank you for giving that minute back for rebuttal i think the time was a little bit earlier around between seven thirty and eight but there's no dispute that it was it was march it was dark out pocket and then detective tello went and looked in the car and used the key to open up the car and found in the car cell phones in the consul and underneath the cell phones found what he bush's car if you follow his chronology seems to take place before it's another detective who searches in the bags and finds the gun in the bag and the and th and the money in the bag so i believe that the government has tried to bootstrap this by doing an illegal search of mr bush based on a an arrest without probable cause and then searching the car and then later the search on the basis of the bags that were looked in by another detective and so i would submit that there was not probable cause to arrest her bush and therefore then search the car and that simply the proximity of the bags to the car did not create probable cause to search the car any more than it's an individual simply next to or hanging out with people who have committed crimes and gives a right make a finding that that occurred that's for it in my reading of the judicial findings the judge does not say that the inspection of the bags preceded the search the court says that the inspection contents of the  to list in chronological order the sequence of what occurred and tell us report he does not describe inspecting the bags before he rym thank you first i'd like to object to counsel for mr bush