client the first issue is whether the base was closed or not because of the base is not considered close legally in the military exception to the fourth amendment does not apply at all and i think what's critical in this case is the threat level day the threat level was and the threat level of this while there were random inspection of motor vehicles and there was one hundred percent might be checked civilians were allowed on base all they had to do was have a proper id and have a sponsor however under threat level charlie or delta that's the first time when civilians are not allowed on face when it doesn't matter whether you have an i d it doesn't matter whether you're sponsored you have either work on base be a combination of both for example there is one case where i think it was andrews air force base where the president comes in goes in the vice president normally comes and goes and the course says because of that unique circumstance of that base that they determine it to be close you also have barbed wire fences and so forth we had a case out of this court where the person was already on the base the base was not considered to be close but then they tried to get on to a particular portion of the base where the ammunition dump was and the even if this is a closed case the second issue is that my client impliedly consent to the search and this is a rather unique case in that respect unlike other cases where you can drive up to the base and you become aware you're driving up to the base and you become aware  signs that you can don't have to come to the base and you can turn around as you are may know when you get off the highway you're going to when you get on the highway each one and you're going towards the airport to the airport exit is the exit that goes to take them and pearl harbor and all exit and only when you're within three hundred yards of the guard is there a sign that says personnel will be subject to search you were already on the military base the testimony was that you're on that base half a mile from the guard shack there's also testimony that once you take that exit off the highway there is no turning around there's no exits there's no wait you're going to avoid getting to the guard sh which talks about people being subject to storage personnel and he gets to that and there's no one you can turn around until you go through the centuries and then you can turn around after if that's the first time you have the right to turn around and the i pull over so we he hasn't gone past the guard shack yet the guard comes up and because what he claimed to be indications of on driving he ordered from out of the car at the time he ordered him out of the car my client said and this is in the probable cause we're saying military section here does not apply we're not saying probable cause doesn't apply we're saying the military exception doesn't apply if you get a probable cause then the guard you can and the question  whether there was probable cause to do what the guardian we're not suggesting the guard can say oh i can't do anything make a u turn we're saying you know this is shares for the military exception to whether there was probable cause and we submit that there was no probable cause under the  statute for what the guard get in this case when he searched my client and that's because there wasn't enough sufficient evidence at the time he had ordered my side of the car and handcuffed him for the search of occurred to him arrested him for drunk driving one of of the car there's no evidence that he was staggering falling or anything in fact the evidence that grew out of the initial glassy eyes and slurred speech which we have no idea whether what you know many conditions can bring that upon a defense and that's why there wasn't evidence that the guy was actually impaired not that it wasn't right that he was you know he doesn't have to be driving he doesn't have contested that question is the probably cost he was under the influence know that you're subject to search after that we're not really talking about who owns the property so much is frankly going to the airport half of the airport or part of the airport is on the air force base some of the runways are so  on the basis of the smell of alcohol class and the way he behaved he then said i want to make a u turn before he was told he was going to be searched and before he was handcuffed so you can look at the transcript on  twenty and page eighteen of the hour eighteen of the transcript reached twenty of the excerpts of record and finally the issue about being smashed in intoxicated and that was the trial testimony we're asking the court to ignore the court's just of course finding on that for this reason  the first two under oath written statements that this specialist made on the day in question and two days later he never ever said that my client was smashed or highly intoxicated ever six months later after having served a church duty in iraq having come back having met with the prosecutor twice and being told by the prosecutor of the things he did wrong during the stop he testified for the first time on his testimony that my client was smashed and intoxicated