this case i guess would you call the mike up so i'm just are you sure you hear him speak up thank you i think that in this case we have two problems whether or not that was a valid consent and number two whether or not the officers were entitled seizure and discovery of the a nine millimeter was was proper right and so in this particular case you're on there is absolutely not one word of testimony about how the nine millimeter where it was at the excerpt of record thirty four the court reverts to the trespassing arrest and then he said we took the one bag that had the guns in it and scale and we placed that into evidence and the court says ok in the bag was taken from the car pursuant to the consent research that's a thirty four then and comes back and the court is talking at your i thirty nine and i'm not so sure about count one apparently that gun may not have been in plain view and he says it appears to me they have the lawful right to take that into custody at that point along with the defendant that's what he sa bag was secured it was opened and was only after it was open that the defendant withdrew his consent at that point the gun which was the subject of count two was in plain view that's what i could find in the record about the nine millimeter i think i think that's accurate your honor i don't think there is any other testimony i mean in fact there was no description of where the nine millimeter came from what bag or not we don't have any clue at that that we have to focus on it in terms of whether or not the government can see step to cure i'm without a violation of the fourth amendment is whether or not it was obvious to him at the time it was contraband and it couldn't be because number one there no provision in the data for carrying a firearm in a vehicle and unlike some other states and number two he did not have any information that time mr hale was up or hit with a person and was not allowed to have that weapon but what mean if they can even take the bag to begin with i mean they can inspect certain things but unless they have probable cause on the fourth minute they're not entitled to seize that particular effect i mean they can find it on the street they can see it they still require the we can talk about the fact that whether or not there was any consent and again according to the factors that this court analyzes and looks at on the totality of circumstances none were present this was a verbal consent there were no written forms in this particular case and the two officers that allegedly got this parable consent were not produced by the government as witnesses we had a third party the detective that was evidently there doing  judge found that what's consent and apparently once consent is given then you can't withdraw to consider even assuming there was any consent at all because the detective when the bag was removed one of the officers it and put it on the ground or on the back to be handled and i would assume that was the purpose of that was sort of a dog to come and see if they got a canine dog down there the dog alerted on nothing it wasn't until later that the another officer had already looked in there and seeing nothing or at least he opening for the dog to sniff and didn't notice anything it was until subsequent to the room revocation of the consent that he actually said he saw the  just miscount but i mean just to make this money i guess i'm making a little overly complicated because it really doesn't matter in this case because we have no evidence whatsoever about the nine millimeter which is the count but but he didn't give i mean he it's hard for him to say all all of this in the regular users consent was given by the so the guy but that's that in a verbal situation doesn't give us any of the surrounding factors that are part of the government's burden of proof search after the trial court that more or less conceded that there was consent and then try to ride the horse that consent was withdrawn before the officer saw anything officer consume check was the only o to search rather than consume check saying that archer yanker got permission to search consent to search in his presence defense never really contested that what they said was that the permission was withdrawn and the facts are in the record that the defendant did withdraw his consent at some point so what's there and if assuming we skip over that just for purposes of argument counsel makes the point that with respect to the nine millimeter there's virtually no evidence with respect to it and how it came in lawfully to the possession of the leader of the government and that's the crime of conviction that's an interesting issue because there is no mention of the nine millimeter except in count one of the indictment and then a plea and i suppose retrospective play should have been to count two rather than count one and then we maybe wouldn't be going down this road containers in are they then allowed to rummage through the bag without getting a warrant the bag and there's no probable cause on the bang as far as doing a search on the scene correct but if they're arresting the individual later much as it's a record reflects no one knew the defendant was he gave a false name of jude johnson so that when the police ran him it came back clean so he's lying to the police about his identity and now he's trying to bootstrap on the fact that since they didn't know who he is they couldn't arrest him or it was a misdemeanor arrest or what are the facts are that there was a citizen's arrest made the officers actually queue to get arrest and sometimes the gun was found science award and i think the officers acting in good faith at that point based upon representations of what appears to be an honest citizen i guess i'm i'm really not that familiar with warrant is that what there was was my understanding the way i read the record that the manager of the motel actually signed a complaint form to execute the citizens arrest ok complaint then they can arrest based on that they may have the discretion to cite or asked but i don't think the rest is illegal once a citizen has signed a complaint that yasser is acting in good faith assuming they made at least some preliminary good faith already out of the car the defendant's going to be arrested the car's apparently in a place where the owner could have it removed what are the officers to do when they see a handgun near they've got a duty if they're resting someone to safeguard the individual's property they've got  they're going to safeguard to go ahead and inventory in this particular case they took the bag because the gun was in it they apparently eventually found a nine millimeter in there well don't do with the record that sort of now gets into speculation from discovery of the very unsure if he was lawfully arrested and there but then be an end to a search or whatever he had with him i think it inevitable discovery eventually comes down the road that if they're arresting individual and hauling him off but it's going to depend and once again records devoid of what happened about whether they're taking the car into custody along with everything else with with which they have a duty to inventory as far as inevitable discoveries part of the search it was serval days before they really found out who he was by that time we've already been released on local charges and they were out hunting for me again that's why i jumped to the assumption that the nine millimeter came out of the bag because they still had it never ends but he was thing has to be a mediately apparent now when you're arresting somebody for trespassing unless there's a statute in mattered i'm not aware of this trespassing while armed that's that's not various no what should they have done with the bag back in the trunk where he took it from and then that was what i wanted and then do what with the car well they could leave the car there unless they didn't impound the car and we're now even getting further in to speculation ultimate discovery inventory searches none of that happened the mean really i mean the thing is is that we're down here now talking about you know and level discovery and but the thing is it's not in plain view if it's not immediately incriminating and you don't think it's relevant to the potential drug dealing there was no drugs there was no drug deals iridology judge i mean the dog came he didn't find any drugs there's nothing on mr hale whatsoever there's nothing in the car there was no drugs given to the proprietor there back some statement about the fact i mean they're trying to clean it up now but that's not i mean that's what happens at that particular place in reno but i don't believe that that was linked to this particular person and even if it was the discussion plus the drugs or the dog dispelled that all  purposes we will hear argument on papen berg which is coming up then humphrey and then we will take the court will take a  he only considered her limitations from a strictly intellectual point of view that she still had the capacity to perform simple elemental tasks on a consistent and reliable basis document the not consider  chronic headaches from the inflammation dr slaven the neurologist said that her symptoms were subjective some memory loss here again he did not consider the chronic headaches so at the close of the i submitted to the judge judge rejected both of those consults reports on the grounds that are not supported by the us but specifically he said the doctor of mcdonald's psychological system did not indicate any functional limitations or when they may have occurred as to doctor for who would also be treating doctor i gather had been he he was one that repaired the damage after i signed surgery he didn't do the sinus surgery after and there was the him with into the brain here he's the one that basically repaired the damage and try to follow her condition but he was treating really a long rather than based on the medical evidence here that it still stands that the judge said that's a different point it could've always been said that she's always been stable to she's never been disabled no one really knows when the onset date of disability began here one of the things it's a little unclear to me i mean the focus you're making the focus on the chronic sinusitis is one of your two errors and i as i went through the whole g s review of the evidence and the second hearing focusing on something through the effect of the headaches it's a little unclear to me how the headaches play into that if somebody says i got such a severe headache i can't work whether it affects my memory or not i've got these severe splitting headaches  have had the same question should give some good she says she alleged disability due to headaches and a limited short term memory memory so that that's what he says that page three of his opinion and then the only thing i can infer that but don't they have to show what kind of a job that is i see that there are a lot of people apparently employed as much water in the not for just was curious if you know where they do this sorting of that's a job where you can sit down and stand whenever you feel like it accords with occasional expert testimony and you don't have to have a good short term memory like who just came by or whether you watching to their to in the record that you're saying show the effect on her performance will mean that the government is arguing that sure she had the headaches but they were there all along and she's been able to function so what's new yes but you just didn't make a determination disability didn't offer any piston whether she could or could not work he didn't say what her functional limitations were i mean he just basically thought that her condition had been stabilized and there's nothing for him to do as a surgeon and then he was just out of the picture i