good morning your honor is matt campbell on behalf of michael paynter i will be attempting to reserve three minutes for rebuttal and i would like to turn away from second degree assault and initially and to discuss our motion to suppress  the district court erroneously denied the motion to suppress we do agree the discourse correctly found that arizona began did not justify the search nor was the search authorized as a probable cause vehicle search instead the district court relied century on three cases united states versus brown united states versus one hundred nine thousand one hundred seventy nine dollars in u s currency and primarily i think on new york b class and  for several reasons we believe that the district court was incorrect in relying on those cases as an initial matter the district court largely ignored the supreme court's decision in united states versus jones and in united states versus jones the supreme court had essentially overturned the search warrant excuse me had overturned a g p s tracking device that had been placed on a vehicle without a search warrant and the primary issue in the united states versus jones essentially under katz the only issue was whether there was a reasonable expectation of privacy in the location of the vehicle and essentially argued there was no such reasonable expectation of privacy in location and therefore  in jones well i think you know i was on a case that was similar to jones here in this circuit and we didn't ever think about trespass nobody argued that first time we had a trespass argument was in jones and justice scalia but why is it whether you name a trespasser whether you name it the other which would be privacy if you will why does that change what the district court did in brown or in currency or in class well i think the difference is call it a trespasser you don't ok under either definition if you look at class they wanted paperwork it was relevant what they had to have it was something that was any more than just filling out the normal forms and class  relevant in class the issue was whether the officer could look at the vin number and or stand in and if we read class carefully it goes through a fair amount of detail into the regulations that require that  number be visible from the outside of the vehicle and that's the thing up in the dashboard area correct your honor and also in the door correct on older models it was in it was primarily in the door and subsequently i believe in one thousand nine hundred sixty nine they changed it to be up on the dash but the issue was that that is man in class it was mandated that the vin number be in a certain location it's mandated what the size of the vin number must be and it's mandated that it must be visible to somebody standing on the outside of the car at the left hand side the driver side and the supreme court in class specifically said we analogize the vin number to the equivalent of the outside of the vehicle not two items such as the trunk or the glove compartment that's specifically i'm paraphrasing but that's specifically referenced in class that have been number is distinct from the trunk or the glove compartment so what we have here is admittedly and we're under genova review i'm not challenging the facts we have an officer who went up to the car to enter the glove compartment so underclass even if we accept that class is the only thing that matters class distinguished it's holding that you can look at a vin number from a glove compartment but in this case it was an officer who had mandatory it will regulation that they had to fill out this paperwork the defendant was handcuffed and had a medical problem and the club compartment was open it wasn't visible as the officer simply went to the glove compartment to do what he mandatorily had to do but i think that the problem that we have there is under that rationale an officer could search any and all parts of an automobile under the guise of trying to find a registration there would be no limiting principle to that the limiting principle in class was built on the idea that a vin number is required to be displayed in required to be visible from the outside the vehicle if there's nothing in class that says one can search through a glove compartment or one can search through the trunk quite to the contrary it distinguishes those areas well they did able to just get this on the vin number because class would have seemed to have said what it had to say in some part but i again i'm trying to say to myself can i suggest in this particular instance that based on the the facts as set out by the district court that somehow this officer violated the fourth amendment by simply looking in an open glove compartment to get a mandatory collision report when the the person who had the automobile was handcuffed and had medical  problems i think clearly the issue i think clearly the answer is the officer cannot do that while the officer is nice too i find it says that well it would be a radical departure to say that if an officer is required to do a certain task that that officer is then authorized to conduct what is otherwise a warrantless and impermissible search just after that argument so i can weigh that well i think i think class stands for that itself or you think that's what classes class itself says a vin number is like the outside of a car not like a glove compartment about brown that was the gov compartment but there was a difference in the glove compartment situation there there the driver of the car refused to produce the registration information or gave evasive answers as to who is the brown as to the ownership of the car and the refusal to produce the registration to the medical condition under which peter was operating so that the officer can reasonably believe that he can't get the registration information from the driver and i for has to look at it because the invasion the intrusion in this case peter is very slight he moves the balloon that comes out the restraint to one side which is very similar to moving the papers in class but again i think the argument would go that in class we have a situation where essentially the court is saying the officer is lawfully at the position that he is in when he observes the vin number it's sort of a plain view type of analysis and what we have here is somebody who of the search what about the other case cited by the district court was the hundred one thousand dollars in currency in which the court basically said where you're looking or you needing to validate registration you can do that on something less than probable cause or validate ownership so where does that figure in well i think i think factually the currency case is of limited value since the search it issued there is really putting a key into a lock to complete his obligations under the mandatory tropic reporting why did he have to do that why didn't he get why didn't he ask mr painter to produce the registration first the record is silent on that but i believe the can be i mean if that's what happened in brown the ask brown and he gave the base of answers and he did but shouldn't the rule be that if you can procure the registration you don't intrude into the car why think  but he wasn't asked about whether the government could intrude into his car as counsel says the record is sound in there but i think under these facts brown the currency case and class still allow that minimal int officer who it disable card in middle of the road just been a traffic accident reached into the window moved aside and expanded airbag and they know that that's basically a different way of saying if you have an open glove compartment it's open season well it's it's actually large it's plainview largely in that instance but it was a plain view here but yeah move the airbag that'll be a whole new definition of plane i mean you drones jones is a much is an intrusion into a vehicle there's no traffic issue there it's completely different than what you don't get why don't you tell me what is the holding in this case if we were to rule in favor of the government the holding this case is this is analogous to brown this is a very minimal intrusion that is lawful for the officer to do because the officer is executing his requirements under state law and mandatory requirements to complete if you have excitation so as long as the officer needs to verify ownership laws the officer he's verified ownership in it which is state law under state law you don't have to ask the person without asking you could even without asking every time you go to the glove compartment well and in fact in this case that's certainly permissible you have a handcuff to fan it experiencing a medical issue who just committed the crime the officers presence getting too close to  that case is i sit there you kind of go through what you know so as i sit and listen to how the supreme court in washington state analyzes its second degree assault statute uses that term means they were hung up on they use the term means therefore the defense essentially says we when is it is it not much like the federal statute eighteen u s c one thirteen one thirteen says here's an assault and here's a different ways in the punished for assault and there's eight or nine different provisions if the washington state supreme court i believe the way they analyze that case if they were looking at that federal statute they would cause call of those separate provisions of assault means here's a different means of committing federal assault this court would not there's a different jury instruction for every subsection of those a different elements simply because the washing state supreme court would look at a statute and use different terminology does not mean that the defense wins your argument seems pretty good but i would have ask and i'm glad my colleague did ask it seems to me if i look at the jury instructions the washington supreme court very easily could have taken the second alternative in those jury instructions had these are alternative crimes under the same heading they didn't what i would that it was absolutely the same it was different means for the same statute which cuts definitely against your argument it does to some extent i mean because they've got a chance to do what you want to argue if they just take two but they haven't had to look at it through this prism this prism of matheson johnson and what i would say in these tuition washing cases i'm having a tough time understanding how in the devil they would ever get three if they take your argument as to two and i mean they pass to your argument definitely fits in the second there's no question it doesn't fit in the third well that's what i  careful and it says repeatedly at the sentencing that this is a sentence i am bound by this or i'm going to follow the eleven c one c recommendation and in a sentence he within the guidelines range and he did and the sentence is not the law anyway the defendant is sentenced within the political guideline sentencing range and because the court erred in determining what the base offense level was mr painter was not sentenced within the political guideline range this is the government's drafted plea agreement  is to be interpreted liberally in favor of mr painter therefore it was not the a political guideline sentencing range that he was sentenced within therefore there is no waiver had this said within the guidelines range as determined by the court then the waiver might very well hold but because as a political guideline range it simply is not barred by the appeal waiver i appreciate your argument you have a good washington case particularly argument that goes along with your argument the question of the wording that we should look to the wording of the waiver correct and the wording of the waiver clearly states that in order for the waiver to apply mr painter must be sentence with pleasurable guideline sentencing range and this is not the a political guideline sentencing range in fact the a political guidelines they have your argument in mind then thank you very much case just argued of united states versus painter is