that she was arrested for serious drug charges including a felony without probable cause to turn on the question of whether she made an illegal left turn what the supreme court obviously decided and then the case i think that reflects our theory of this case best and which is actually the closest factually to what happened here is the court me versus oklahoma case which is  question and the and i can say more about that but what we're suggesting is that courtney versus oklahoma actually did decide precisely this case and they did so a few days after the verdict in this case so the district court had no access to courtney versus oklahoma i know but but the court was struggling i think the court initially thought that the idea that failing to make a safe left turn would prevent someone from having a decision on their wrong for us for drug crimes was what counter intuitive to say the  issued and factually that happened here that you can't use the hypothetical possibility that somebody might have been able to arrest somebody for a traffic infraction even though that arrest would violate state law and there was no intention to do it and it didn't happen we agree with your theory let's have the citation been issued already in this case before the arrest was made well  i have two points that actually our position is that it had been issued in the sense that the citation was completed the officer testified at trial that the citation had been completed it had been explained to miss that you can't i mean what the what the argument was in rodriguez and what justice thomas dissent basically said is look at atwater and all these other cases you can he could have arrested the person and so the search incident should be upheld you don't need any additional probable cause and what the court is saying as it had said previously unknown is versus iowa was saying that no you can't do that if you give us somebody a citation school unanimous opinion with very small concurrence and he says we conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the constitution and while states are free to regulate such arrests however they desire state restrictions alter the fourth amendment for tough but but in virginia versus more the the the officer actually did arrest the person then the question there was the argument there was because the virginia law the search incident afterwards which led to the drugs should be wiped out so they were dealing with an actual arrest not a hypothetical arrest what what what what what the the problem i think and  arrested somebody for a particular offense for which there wasn't any probable cause that what the court should do is look to see whether there was probable cause for other offenses those other senses and that would pack were more serious offenses felony  person and person ation of an officer there also offenses that the officers actually were considering on the scene they weren't just hypothetical they actually were considered and they decided to arrest them for something different and was a definite pact and the ninth circuit had had a rule that said you don't look at those other offenses if they're not closely related doesn't pictures now that that's not an appropriate role we should you should take a look at the situation if they could have arrested him for the misdemeanor fact when they sent the remit back they sent it back on the to the on the cell and here in the midst of minutes to decide if there was probable cause to justify the arrest they didn't say was justified this or that had to be dealt with they did not even talk about the traffic infraction and there's no case that we're aware of that says that you can justify an arrest for cocaine possession and being under the influence because an officer then pursuant to that arrest of conducted a search of your client and found the cocaine a lawyer under virginia versus a police officer under virginia versus more would have been able to proceed to arrest your client  traffic violation has been dealt with the more either probable cause is required and it had to be independent and therefore the traffic violation should have not been included in jury instruction number eighteen because a i'm sorry  and the history that deals with is a long history of being able to arrest for misdemeanors or felony fabulously and virginia versus more deals with a misdemeanor  how do you get around that like welsh i mean that's only if you i mean it's only if you reject the idea that that that doesn't beg doesn't pack doesn't allow you to hypothesize any traffic violation to given a citation she had with all the traffic violation which is exactly what happened in court me and where neither the guy was given a citation for driving on the shoulder of a highway at one thirty in the morning and he was again no warning and then the  officer continued to question him and decided to arrest him for having a firearm with the prior felony and what would you disagree with the statement that your client was  saying that the opposite making up no it's a hypothetical arrest in other words what you're saying is you can justify anything even even even arrest without probable cause for murder  by saying well you know they could have arrested her for the first crack in the windshield so we don't get to that question of serious governmental abuse we don't get to the get to the idea did she plant this cocaine are we don't get to the idea that she actually had four people in the back and in her report only put one and therefore was able to have a better chance for probable cause and her to say you don't get some of this then the jury's never asked said the jury's asked did she make a wrong and there's no case that says that you can hypothesize what would have been an unlawful arrest that didn't actually happen to justify not letting this jury decide whether this officer who arrested her without probable cause there's no case that justifies that and at warner had she rested i agree we would have had to deal with the problem that you're not a racist but what courtney basically signal when you make a left turn is clearly an arrestable offense but it just happens that in this case there was a more serious offense for which she could have been arrested namely the possession of narcotics that probable cause later falls by the wayside doesn't the fact that the officer could have arrested her for failing to turn a signal at that point support the lawfulness of the rest i think i think that would be a different question if california defined that they weren't talking about minor traffic violations when they were making these decisions and they might make them differently it was they really focused on that there would be only with misdemeanors they were dealing with misdemeanors for which there could be jel time  and not not hypothesizing it and it doesn't pack the rationale for saying that you should look to the other offenses is that it's not you don't want to impose on the officer on the scene it's a judgment about which of these three crimes he's going to arrest for right it turns out that one of them there's no probable cause and there might be on the other two that's vastly different from saying that you should think about anything your honors may please the court my name is james geraldine i'm the attorney for deputy felix on this matter unless the council panel has some specific questions they like me to respond to there were a few items that i wanted to address  matter that atwater more involved misdemeanors and these are very minor infection under california law it doesn't your honor and i appreciate the question i believe what atwater and more are addressing are the facts that in determining whether or not there's been a fourth amendment violation the federal courts are looking at this on a national scope they are not descending down into the intricacies of state law and while state law does define the elements of the offense to determine probable cause the one aspect of state law that the courts consistently refuse to look at the supreme court in particular is what potential penalty may be imposed for that violation of state law and thus it's irrelevant whether the penalty whether the potential is for a fine or whether it's for confinement the sole issue addressed is whether or not there's probable cause to detain or to arrest and that's what we have here on each of the distinction really between whether somebody was actually arrested in other words if you arrest someone probable cause or if you arrest someone in violation of state law that violation of state law for fourth amendment purposes is enough is not going to lead to a finding that you violated the fourth amendment but here there was no arrest the person for the officer had decided  arrest the plaintiff in this case and how can you i don't i don't know of any case that says you just hypothecate the possibility that he might have arrested somebody and that hypothetical possibility is enough to insulate  the officer from any subsequent fourth amendment challenge what cases that i understand what you're saying your honor and i will concede that there is no case that addresses this specific situation either at the supreme court level or  in this circuit but what i think is instructive in looking at more which renders it i think very different from this situation and more i think that there is is even more concern about the result there because the fact is there was in effect and over detention an arrest and then the subsequent discovery of additional evidence which supported a more serious charge and that's not the situation that we have here i think one thing it's very important to note  plaintiffs did attempt to present a claim for over detention related to the traffic stop arguing that in fact it had terminated in that anything that happened after presentation of the citation was going to be constitutionally impermissible and they can that was put in their contention their memorandum of contentions of fact and law and we've provided that to the court and in our supplemental exerts of record at page eight fifteen the district court rejected that contention and plaintiffs were not permitted to argue and over detention so that's not at issue here in this case in other words really worried about over detention their claim is we want to be able to make a pitch to the jury that this was a set up drug the drugs were planted and we want to be able to get to the jury that that was a false arrest morrows you know the person could have put the person if you find that there was a violation in the left hand turn running the stop sign if you find that the person could have arrested  although they didn't and the fact that they could have arrested or eliminates any opportunity you have to argue to the jury that the arrest for the drug possession violated the fourth amendment i don't see any supreme court case or any ninth circuit which says that a hypothetical possibility arresting somebody when no arrest actually occurred is enough to give the officer that kind of constitutional insulation i understand what you're saying your honor i think what's helpful here is to look at one other jury instruction that is that issue in the case although it's not been raised as a basis for the appeal and that's the instruction on malicious prosecution and if we look at the jury verdict and we look at the evidence submitted in the record and we make conclusions about what the jury must have decided in addressing the claim for malicious prosecution we come to the conclusion that it's more probable than not that the jury did not believe that any evidence had been fabricated and the specific elements on the malicious prosecution instruction that i'm referring to are elements three which addresses whether or not any reasonable person could have believed that there had been a violation for a narcotics infraction and and then also item four which refers to the equal protection claim whether or not there was a motivation based on mystery on his race and if we look at the evidence that's been submitted with respect to all of these factors factors one two five and six it's undisputed that the jury would have to have found for miss already on those facts because they were in effect conceded the only things that were truly an issue were three and four on the issue of equal protection the only direct evidence that was offered in relation to that came from miss oriana and these were comments to the effect of that deputy felix had made a racially motivated statement with respect to the race of  different suspect whom she referred to as a pie isa this is miss auriol honest testimony and also further evidence that was offered by ms soriano that deputy felix's conduct was that it was a not just that it was confrontational that it was improper that there were several inappropriate references to her being a tweaker in other words which i won't repeat in this court so the only the only way that this jury could have found that there was no malicious prosecution it could not have believed that deputy felix planted that evidence the jury had to come to that conclusion and i think that really separates this case and kind of defines it from the concerns that might otherwise exist before this court  and as i was saying that how do we know that that was the jury's conclusion versus reliance on the jury instruction that says essentially even if you find that there was no possible cause for the drug offense you could still arrest or if the officer had probable cause for these infractions in other words the jury couldn't accept that the planting evidence the area could throw that out and the sumed that the officer basically  wasn't the case because your honor the in addition to the six elements that are laid out on the malicious prosecution instruction their specific language telling the jury that if it finds that that deputy felix manufactured or fabricated evidence which was then presented to the prosecutor in support of the criminal charges that that that would support a finding that there was no reasonable basis and that's included within the text of that instruction so you're saying  that the error that the district court made with regard to the instruction on false arrest was rendered harmless by the fact that if you look at the most prosecution we can only the conclusion that they wouldn't have found an adequate if we found that we would still have to even if we found that there was a structural error we would still have to affirm because the verdict in the malicious prosecution which showed they were not going to be persuaded on the merits of the that is correct your honor and we are not conceding that there was instructional error and we believe that more is very clear and i think as i was stating before this is driven by a very wide ranging policy concerns with how the fourth amendment is going to be applied across fifty different states within this nation and for that reason the supreme court has declined to descend into determining whether or not the penalty at issue is going to drive a determination of probable cause want to beat a dead horse but the supreme court has drawn a line pretty clearly about the arrest has to have happened if the officer makes an incorrect arrest under state law that arrest is not going to be invalidated of fourth amendment when there is an arrest there was no arrest here for me that's a bright line difference between war and the fact that we have in this case i think i don't know that i would agree with th term arrest i think the more appropriate term would be the detention whether or not the detention was proper and in here there's been no argument that the detention was improper the sole question that's been presented is whether or not deputy felix could have made a decision under state law to confine for that violation or not but what moore tells us is that whether or not deputy felix could have done that whether or not she could have made the decision to confine it doesn't matter the simple decision is whether or not the elements of the offense itself were present and there's no dispute here that they are that's not what the appellant's are arguing they're not telling us that you never could have found that there was a violation of any of these vehicle code provisions under california law for such and such reason they've not said that at all they've sold he said the fact that there was that you could not arrest based on that violation under california law that that controls and i think as you yourself knowledge your honor in in more that arrest it was in violation of state law you're there could not have been made but could not have been made well it was it was made and that was the key that was the key distinction there was an actual arrest for the infraction which was improper under state law and justice scalia said for purposes of the fourth amendment we don't we just regard the state law but here there was no arrest there was no arrest the person ended up going to jail for four days based upon what they said was a false arrest or the drug charges or the infraction was over and the opposite are decided not to arrest for that affection and that's that us and i'm sorry rationale of atwater in virginia versus more the focus is is on whether or not an offense has been committed under the law not whether or not it can be in the r offense not whether or not under the law of the state there has been in the finance committee the whether or not there was probable cause in the offices mind to believe that in the sense you want to that's how i've understood the cases and that's how i've tried to frame my argument and i believe that's been the county's position from day one and i think is as you folks said no to we we get some very peculiar results if we adopt the position that the appellant's are advancing under the under the reading of the law that the appellants have taken a deputy felix any deputy would be far more motivated to arrest on the basis of an infraction or for an instance which under state law doesn't permit arrest soley to protect themselves from a subsequent fourth amendment claim as we have here and one other thing that i would like to note that the federal courts concerns when they're considering the fourth amendment which i think you've been established in the supreme court's precedents that does not deprive persons such as appellant from a remedy under state law which doesn't concern itself with is prudence a simple common law claim for false arrest so we're not talking about a situation where we're going to have a rash of situations where persons who believe that they have been wrongfully confined or arrested pursuant to state law are left with no remedy that's not what is being confronted that's not what this court is being confronted with today what we're really being confronted with are the implications and the consequences upon national forth  immature prudence if we adopt the appellant's position so you're saying that they could have a separate count for a common law false arrest which they didn't have in this complaint that's correct your own you are unless the panel has any further questions to me i don't know that there's any more i want to address i appreciate very much your time thank fuck you get one minute for me try to be quickly on the malicious prosecution the fact that there was an element of equal protection has made our best argument for why the jury can't be found to have decided the way he said they could have decided that she planned drugs but that there was no racial motivation based on that element alone and therefore you can decide on that basis on this last point what's interesting and it goes together with this hype hypothesizing traffic violations if they had actually arrested her she could have sued this officer for that arrest under state law and this officer would have been disciplined for violating state law but she didn't she did what she's supposed to do so there is no state law claim there's no remedy at all the way they want you hypothesize a traffic violation for which you couldn't do it lawfully and therefore there's no remedy understandable because they didn't violate state law that they abided by state law and yet that prevents us from getting a jury to decide influence count and we never get a jury to decide that because the expansion of devon pack is so great that it that it just means that anybody can hypothesize any minor  violation and it wipes out any chance to get accountability for police officers for more serious offenses and we will just met a few really in the cases closely their rationale there's no policy justification for that was out and that's what those cases say it's not what the policies are that they talk about at the supreme court level or any other level and courtney does in the tenth circuit and i would suggest that that is the rationale tha