thing about this and the government says we're not relying on rick it's a routine search we we don't need reasonable suspicion sort of from the district court seems to go on and make some findings on reasonable suspicion and it's not just but it's a drug dog it's  pressed the court on it it clarified that it wasn't making that determination certainly this court you consider an alternative perhaps remand for hearings but our position is that that was waived by the government of this record didn't rely on it and that's the way the case co routine distinction but there were there were two other points that need to be noted first when it rejected the the myleene of the framework it was concerned by complex balancing test and the use of factors such as potential for fear and a potential for danger and fear of especially destructive utterly without you still know and i think that i think that extracted is problematic and i think that this court has the opportunity to clarify what that means and should look back at what the concerns were for the supreme court in florida which was unintentional unintentional destruction of dog scratching the paint off of the office floor suggest well go if you don't like it goes through and get the money for your tire excusing this floor suggests if the alternative is the government will pay for your destroyed free and you made some later date in the future reimbursed after you go through significant trouble before the event if damage to a vehicle were to occur the motorist might be entitled to recovery thirty one u s c thirty seven twenty three no different impasses even worse exploratory drilling may require some minimal cosmetic repair where it's cutting into the sidewall the spare tire is a sensibly going to require a whole new tire you don't plug a cut into a animal barks most was a drilling case into a paperweight coming from thailand i remember correctly harvest his field was even post molina terrorism and the reason why the result was still the same that the search was routine because so destructive as to be particularly offensive they lose the damage that government can damage property as part of a border search and there's a particular reason for that in florence mcconnell when i get all that case in the court below just record the court of appeals the record established there were three thousand vehicle property search cases a year at the border approximate twenty five percent involved asking cases in these cases it is simply not the that the government sees the car at the border and in the front seat and in the back seat you have open marijuana and open cocaine and over here all the drugs are hidden and because there are hidden the government has to be able to open up the container in order to search to see what there is right now but let's let's take the example of separating the tire from the ram and i think it's classic nondestructive routine search i grant you that destroying the tire seems to be an open question is it your position that you and i know they would not choose to do this but the missiles of the border could cut open and destroy every single spare tire that came through the border without any and with only monetary georgia this is a hypothetical that i would use a lot of the vehicle if the truck is locked the defendant doesn't have a key to it we can bust open the truck to see what's in it if somebody is coming across the border with piano a very common occurrence a close container we can drill a small hole in the plane yard to see what is there now what we can't do is if we want to search the truck and the person says your is the  say we just don't like you we don't want to use your keys so we want to bust open the trunk then you have an issue of unnecessary wholly unnecessary damaged different issue or if we say we don't want to just bust open the truck but we want to get a giant vehicles but the reason is that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person dignity and privacy interest of the person being searched simply do not carry over to vehicle complex balancing test a routine search of a vehicle as opposed to a more intrusive search of a person have no place in border searches of vehicles so they run to the other end of the line and they say that there's something that's so destructive or particularly offensive in a property searches that it might  unnecessary for what you want to search against the giants if it's narrowly paler to the objectives and as well and yes you can damage or destroy i've you can damage yes and that's why you have a difference between busting open the the right now i mean i we don't know that i mean if they if we put a so you're not if you are going to hear that the tire was usable after you kind of know the tire was cut open the tire was damaged i don't know if it was a tube of higher or not or to the tire it's probably the case that the spare tire in this case was no longer usable and i don't want to quibble on on that and if the government didn't find drugs in this case in the panel wants to and stablish a rule that if we search without cost then there's the there is a difference or seems to be a difference that well or at least that's an open question i don't think it's an open question i meant to our circuit it was an open question thelma way to terrorism but the more court issue is what is the search if a vehicle comes across on the tire when everybody seems to know you can take a tire off a program to go does that every four seconds seems to me that if it's reasonably tailored to what you're after you just take the tire song a minute your scale of it the difference is i think this we're talking about the car itself which is a valuable commodity and it is in its entirety if you're talking about yeah let's say it's a lo box ok now yes we could take a screwdriver in just pry it open or you could get two or three inspectors pull them off what they're doing elsewhere and probably find screws somewhere if you disassemble i mean you seem to be arguing i don't mean to disagree with you but you seem to be arguing that you need a reasonable approach to a maybe i'm misinterpreting you saying well we just we take a less intrusive approach we can't we can't destroy the trunk or the suitcase we can we can pry open the lock and you can take a giant saw but you can do something else i just in this particular context i don't understand the difference in your arguments and i may be missing it but i'm saying well we can cut it open but  aren't required to take it off absent just on a random basis you know i hear you saying every time a car drives into a border inspection place somebody can walk up for no reason at all with a knife and just cut open square tires and you're saying yes i'm rob the commissioner of customs decides i'm going to quit everybody with a box cutter and we're going to cut open everybody spirit how we don't care whether there's reasonable suspicion or anything like that we're just going to cut open all the spare tires and use in this perfectly all right what i'm saying is it's far as the admissibility of evidence in a criminal case the evidence is not suppressed and last heard of supreme court the particularly off sensitive or so destructive manner of the search that is all that's left over in a few minutes we're told is particularly offensive as does really informed by whether it was necessary under the circumstances and giant saw it isn't an a bomb is it knowledge kind of stuff but why doesn't a box cutter fall into the same situation could take the tire off the room which is now starting to beat a dead horse but well i think which which runners are getting into is what has been rejected by the ninth circuit which is this this sliding scale of cars or sliding scale of damage in other words we shouldn't have it where if you use a print pick needle to go into the tire with a very very small hole or a small cutting which is very well might have been all that we had in this particular case that that different then you know we didn't blow the tile up the rim it's still fine we don't know how much this cost it could be a ten dollar item that is a spare now it might be a different situation if yours stopping somebody in the middle of the desert and you use this night and you pop the tire on a vehicle that that would be running at that place and say sorry we're going to leave you in the middle of a desert and you don't want to get to drive the car because you know we cut your only tire there but a spare in this particular context that would have been better could they have i don't know if they couldn't if they had the equipment to pick it off the ram that they've got that kind of material or not i don't know how to do the inspectors for relative to how many kids in they had or in the time that's not remaining let me ask you another question do you accept the defendant's presentation of this case is one involving no reasonable suspicion because he was blocking attacking the dog in the bus or device we just should cite three reasons find result suspicious and tampa points out today quite properly because well i said wait a minute i need i want a chance to to attack that and therefore if you're holding x if you're holding it's routine i we don't need to get into it if you're if you're relying i would never try to go back on a representation that was made in district court but what i'd like to close with is that it wasn't randomly done but the government has three thousand of these cases a year defense counsel and i would if i were his counsel to they bring voluminous discovery motions wanting all the background information on these dogs on the density meter is how they work and they want us to be pretty producing week after week in thousands of cas