march th explorer and they were in uniform they talked they pulled in behind gracious and had their emergency lights on their computer shack so no outstanding warrants it showed that twenty years ago he had a possession says stop right there now davis a black man knows where you are always just got his gun on you and he says stop right there that's not a quote but whatever it language he used he stopped he said you come back here and he turned around he came back and his hand was the book bag or backpack that he had taken with him out of the car he came back to where all was for breakfast and told him to c and he goes to check the thing that could be a danger to the police and the danger to the police is whether or not the cause or is it has this part in breaking gage doors in part he checks that that's ok he comes back you want us to rule out the gant case yes yes yes plus a little bit if you're on a place what happens is how limited it is that holding in terms of is it just it did say it was unique to vehicles or what what does it what does it hold and how is it relevant to you here on this book i'll say how it's relevant the supreme court said that courts have been going too far and allowing searches incident to on arrests under ballots and they said that's not consistent with what we want and they talked about chadwick and they had the some years after dan gantt was i think in eight and riley was in fourteen the court talked about the surface into a ross trilogy of cases because that was the issue and reilly and when they were talking and in a related case a poor both nine hundred and eighty four from this court the police have the items but they had been before the police had them on the defendant so the theory was if you arrest secure and secured and we've been reaching distance of the compartment at a time of the search so the question is do we extend this to close objects like this book bag and because it did not specifically opposed to a compartment and do we is our inquiry then as to whether it should be in an in unsecured passenger within reaching distance of it and then that leads us to the next question if we do say ok he is secured and and as you said he's down in handcuffs we know that we're down and he in these got a gun on him then the question is is this a search and says the to the rest exception for this warrant requirement and here's a situation the theory behind all certain students to an arrest is one of the things is officer safety so in chadwick when the police took control of the luggage they had it and the defendant did in this case where an officer richardson took control d of the bag he put it at the place where he chose to have it and it can't be said that he put it in a place that made it dangerous to himself because no reasonable officer is going to manufacture a dangerous circumstance for themselves and he did so he put it where he thought it was safe and that was  but we know that he had put where he chose that's undisputed because he had the man a gun point and he told him where to put it so if you've got someone a gun point you tell him put it down right there it's not reasonable to think that officer is going to place it when he can place it anywhere he wants some place to put it right and they put it down he told them where to put it down when he came out of the m and he had his gun on him he said drop the bag and he had dropped the bag and he said yeah you go over there and lay down face down and then he handcuffed him it's like in chadwick once the officers had the bag it was under their control there was no reason not to get a warrant once all was from british and had the bag so there was no reason not to go on it it has to be looked at and commonsense terms said officer can assume that an officer made a decision to make something unsafe for himself it was like police can create actions and circumstances and then say ah ha we've traded accident circumstances so we have an accident start from stance that justifies they can't do that and there has to be a reasonable belief now there's no reason to believe there's a weapon in the bag and there's a reason because there's no weapon to do with anything as a traffic stop there's no reason to believe that there's evidence of reckless driving evidence of speeding us or fleeing in the bag because that's driving behavior so under those circumstances you have to look at the practical realities of it an officer can't manufacture  situation where he says i have an ass's and circumstance for my safety which is what a search incident to arrest is all about if you look at the decision i you roger yes my p c thank your honor good morning ma'am please the court i'm joshua rogers and i represent the united states and the case here is pretty straightforward it's about a you maintain control of his backpack during the arrest black letter law in the circuit says that this is current's lawful arrest alone authorizes search of a person area or container and we look at geography and temporality so it's hard to get all right you're getting ready to tell me about how we maintain control yes your honor so in a geography what we look at is immediate control in to mr miller because the officers did testify that the book bag was within mr davis mr davis waistband however mr davis was also on his stomach in  defendant or in this case or a criminal managed to break out of hand trucks and kill them so it's not as if because the handcuffs are on it's the end of the inquiry it's looking at the geography of it it's right next to him he only has  on and the officers in a situation mark where he's trying to frisk him at the same time so your point is that this individual was not secure at the time and i want to make sure we have the facts then he was handcuffed way the defendants are going is going it wasn't peaceful this is a six minute window that starts with ten it windows and the next thing it's him on the ground with this guy six minutes after barreling through the defendant through these two homes in his vehicle so i think that the way he's casting it as this sort of the you know it's peaceful everything is calm now he just got him on the ground this is a serious situation in part the bag itself speaks volumes the defendant has nearly locked up in the back of the car the police car there was no getting to the contraband in that case so well if we apply again it's only helpful in fact if we look at all the cases that have been cited there are all helpful to this one handcuffed face down potentially with a gun on him is not secure and even if he has a gun it would seem to me you say he couldn't read host it why would you unsecure a person would you not consider that an individual has a gun pointed at all let me ask is that secure is that sufficient to to amount to a secured situation individuals handcuffed face down in an open feel ok so we're not dealing with a house situation where you've got people all around you can go alert on this gun on him is that secure i would say that it is not i would say that based on lack letter of the law and that is simply that we secured in that situation doesn't doesn't seem to follow well the thing is i think we said well does get replies turns upon a th amendment it's a cornucopia of cases that deal with all these finer points in the courts a look at it is because we have to as we began to go through that cornucopia of cases we like to begin to define to make the law a little clearer in terms of switches so we don't get into these fake areas and here we have an opportunity to decide does gant apply in the four circuit as it is in several other circuits that's the only question i'm asking and if and if you does that gives us an analysis if you say no then we fall outside of ninety eight this court have actually narrowed down a discussion in terms of that applies in the senate it's coming together in terms of the law so no i wouldn't apply again in a vacuum but i would apply it in light of the body of substantially contained terms of rania's as you could get with the arrest davis was being arrested as this happened so when you have a situation where the geography as it is with a not wing span and it's happening while and it's there while i'm getting an arrest it's difficult to see how that doesn't satisfy turns and then when we read that in the context of all the other circuits including therapy it's difficult to imagine how that d doesn't actually fall within the range of something that would be a media control that substantially contemporaneous mr rogers the problem you have is that in serbia the person was milling around correct correct and we all know what milling around is he was walking around this it i mean sort of beyond your stomach with your hands behind you and jump up and jump up before person with a gun standing over you could shoot you or do whatever i mean it's i mean you could i suppose you could say he could kick the person or something like that but the bank that if there's any unsecured in the under the in security would be in his body being able to roll or something like that but to get to the day before that officer could get pristine the person and he turns to look and see if there's a weapon seems like the most reasonable thing he could do in that moment and not consider like ok maybe i'll just take a look in the bag and see and then off and cuff him i mean he's in a situation where you have someone who none at all i mean for example if you really believe that the bag was a problem you stand over him you could take and i think that's what mr miller will represent to you could have picked the bag up and pushed him further away from him drove but now he's captured now he's he's subdue and i can understand why you say he's not secured and then you argue that but there's no exigency just take it down and get a warrant for and go in and all you want and the court is has to look at which is the geography in the temporality of what's happening when we look at those facts i mean yes there's an alternate theory but that does of how it could have gone but that doesn't necessarily mean those passing commonsense result handcuffs not working like they see part of the confusion here is kant is a united states supreme court cases and so when you go beyond that you've got to can't holding and you told me gantt applies to searches beyond a vehicle if that's so then the gantt applies here to the book pick you don't go to the pre game cases that a circuit court case is sure you can find all  kind of analysis you began analyze the vehicle in the context of whether the individual was secured and had the ability not ability to reach us the wingspan stuff you get into a confusion when you want to try to well supreme court said this but there are some circuit courses say this other ways you can do geographical and temporarily with it that's confusing because the supreme court didn't use those cases  they did not use a geographical and a and a temper argument with regard to the big ok so that's why i asked and it seems to me the st decision we've got to make do we apply gant in a situation  is yes we apply again we don't go in and to the supreme court's opinion in gantt temporal in geo graphical things from current which is i think it's for circuit case of other cases we stick with the supreme court but if you say no it doesn't apply necessary because it is not vague that was a vehicle a case then we'll stop then we're back in a geo graphical so that's why i asked which are which direction are you going in with that because i don't think you can pull up every case this ever dealt with searches from the circuits and it to a supreme court case this dealt with a situation that would fit here if you say that supreme court case a positive side the vehicle screens but we are dealing with a full circuit of a force th amendment type search here the supreme court in this recent case again and so what reason makes this pronouncement in terms of hir you've got a vehicle and here an individual the question of the inquiry is can he get to these this other area to be hip cool is the secured and is it in reach the question i as well if that applies to  you got this backpack is a backpack you know sort of like a vehicle data and does the same inquiry apply is it security in within reach if gann applies we don't need as you say a be merged with other cases that actually looked at can tell me a case details you that a supreme court case own point that deals with a search must be applied to other circuit cases i mean didn't we decline to i thought we declined to do it maybe me i mean double check but i thought we decline yeah this court in serbia declined to decide whether the supreme court ganja applied to objects like backpacks they didn't they didn't reach but assuming that it would so today i'm asking what if we don't want to decline kind sometimes a court just doesn't want to deal with finished well we might want to deal with that so and you say we should apply it outside so you've given us an answer but once you've given us the answer now you want us well what is that  like the little saying you want deck a can you want to be able to eat it to go with some other stuff there so i think i'm not sure if follows that way it seems to me if you're going to go again and get is going to inform decision by determining whether this individual was secured which you want to get he's not it which i thought was again you that was consistent with it but then you would go geographical and temporal pause from current which is pretty good and  my answer to the question is i'm not going to say that it must apply but it can apply and be examined in the terms of other circuit court cases i don't think that's that's that's fair that's a fair statement but let me let me just put it this way what you need to deal with is that if they when you see it can apply if we see it does apply why do you go there that's the question i thought you were exactly right it can't it could go either way we can say no yes but i'm giving you the scenario what if we say it does apply if it does apply then we would be successful in this and that instance as well because in that case you have a clearly different scenario you have a defendant back of a police car so in this case we could definitely distinguish we don't have somebody who has at this point absolutely locked down this is not somebody who is completely secure i do understand you judge that you disagree but based on what we believe the law to be is that he is not completely secure unless that's a lot clearer to me now now you're saying what you're saying is again applies but he was not secure and the question is can if we did say yes he was secure because he had a gun on him because he was on his stomach because it was an couple of back you know sometimes it's low you know sometimes facts lead to good clues that we can disagree as to what looks like a secure to me so that's that's a good point for the to leave on that i think you've clarified me at least in terms of your position on it and i think that's consistent with saying gant can apply but you say no it doesn't apply because he wasn't secure the district court did not make that finding because this was not an argument that the defendant made he made this argument for the st time on appeal the arguments he made at the district court were that he and the stop was paragraph at the bottom the court says once the officer officer conduct such an arrest search and it's a dent to the arrest including a search of the person and any containers or other materials such as a backpack within his immediate control fall within the exceptions to the warrant requirement of the th amendment and so i would say that the cry to the court did and didn't conclude that the backpack was within his immediate control nor did the court court concluded that he was not secure even in what you just read and i don't see it on j one hundred and fifty one but i'm sure it's somewhere that he read it i understand that the court said with the law was or what the court is recording the law to be but in terms of our review of what the court i owned i'm just i just don't see that the court they owned that anything from that i'm forecasting anything on this just but i do want to go to the answer if we were to find that the search of the backpack was unlawful what would be the evidence that would give probable cause for the search of the vehicle probable cause to believe that a contraband or evidence of crime was located in the vehicle what what evidence are you relying on for that now you got the st part of the question because i don't want to know that makes you uncover me to go there but i'm just minute ago you just bolted opposing counsel for not making an argument below you didn't make this argument below if you do this planet a letter that opposing counsel is correct was not an appropriate use of a  if we hold to that that would that would follow with just stack of said but the facts that would support a problem call probable cause to search this vehicle beyond a backpack and then the question in that case is  it reasonable to think evidence was in the vehicle and the answer to that would be yes without going through the entire six minute debacle the defendant showed many signs that there was something worth looking at in the car when he saw that there were there were convictions or there were drug convictions appeared that he was perhaps under supervision he was definitely on a watch list and he barreled through an area to get away from the officers and maintains this backpack let's assume they didn't look in there but he maintains his backpack that he won't let go of this point i would say and that point the officers it was reasonable to think that there was present relevant evidence in there and if there are no further questions i would just ask me because you know we've gone around and around but a i want you to answer that question and that is if we were to agree that a search of the backpack was unlawful is it not that the evidence of past drug activity and fleeing from a traffic scot stop and not enough to support probable cause to believe that there was trouble contraband in that car hereis if you're on a would or even reasonable suspicion think that the person has drugs on them at the time the possession of marijuana which was twenty one years old doesn't do that either so you're saying is th of the drugs not connected temporally anough to allow for probable cause to be found there is another factor with that prior charge it's not a conspiracy charge where he is part of group enters involved  dealing drugs over a period of time don't confuse me i don't want to go there with no it's not a confused spirit i just want to deal with these facts here that are on the table the past drug activity and your criticism of there is that is too low is a long time ago and old convictions of fleeing would be to same if you had some new ones with the fleeing that would give you probable cause more likely that you are going to take your two parts to your rep want to see a said to is the time for charge because a single individual in possession of drugs in a traffic stop twenty years ago doesn't mean that they were part of anything that would be ongoing now so it's unlikely charge and the age in combination don't give any reasonable d and so i guess out but you can move it to the next i think i got to you and so now he told our syringes and he's coming out i don't point i'm sorry i apologize i panicked i just panicked and he ran and there are people who jack rabbit for no reason you find drawn on him and there have been instances you know even with the cases in which he's standing outside hank up he can run back in the house that sounds like it's common to use a b but but they are there and he's was to go check the car because his st duty is officer safety the other thing is an officer registered who has a duty to officer safety to himself decide where the bag was going to be put and put it there and he had the  you know that someone who throws a bag can get a benefit but if you just it stand up for owing something just drop it beside it is a different result that can happen there's a difference here and the difference here is but that is true  and he turns around and he does exactly what he's told by the man who's got the gun loaded gun on him and he comes out and then when the man with a loaded gun says ok now drop the whole time he's running he's in this lot when he comes out with it if there is something in that bag he wants to access for safety you would most people would do it before the police get they have it and not wait to drop it on saturday try to reach for what that that doesn't seem to make any sense at all you're correct he didn't go into the back of their cases where they don't race if you're this august court where somebody is running and they pull a rules that will make the rule should make sense and make them maybe there's a common sense situation here but the court has got to see into this whole business of gannett we've gotten into the current cases of temporal and we're trying to look at all the factors thank you and that is d that the idea is safety if the idea is safety dan police don't create unsafe situations for themselves they don't manufacture exigent circumstances it is the law doesn't allow that and when at all russia sees another officer and they're going there to make sure everything's ok and they see things are safe and they do what their job requires them to do to keep the police safe in this case it was go back and check the car and they were status three officers there were two the whole principle behind all of this law is that there has to be a reason and fairness and that warrants all preferred and you have to look at what the police dead they did what their training taught them to do so that they were safe and they had no legitimate concern about the bag they had factual basis for it it's not fair or be running around loose destroying evidence and just doing what he feels like here's a man this immobile at gunpoint there and being three officers and the