orders and the records are clear on this the officer at the hearing testified that you could just pull it apart very private off the private open the boot with his hands previously there had been a small slit no thicker than that a quarter could fit through but they could you could see plastic but nothing else inside there any he used that to remove the bottom of the boot and indeed the p s r which was adopted by the district court characterizes that as separating loose that is a destructive search and it is unreasonable for the police to believe that was within the scope of consent to the court make any factual findings about whether the food had been destroyed in his i've seen where their that the judge was to imagine judges or is quite clear that that's what the consent authorized and from there he moved on to citing the standard from amanda know that consent is not authorized destructive searches and then to justify the search of the boot the court relied opening of and sealed containers and that's clear so the only reason the judge had to consider playing you as you raise is because the judge must have found that the bullets were in fact destroyed and therefore consent to not authorize the police officer's actions with those boo i don't understand how playing he would allow you to destroy that and that's that was my response on that your honor so i thought maybe i misunderstood what i read because i thought the plainview had a reference to the fact that one when he open the bag there was a smell of something which the officer said was an odor which was typically imagine a different something that used to mask drugs but i also thought there was evidence that upon examination of the book and that is keel was included in consent and so those factors which are referring to judged to be clear the masking agent the noticing of the slit and being able to observe plastic inside the boot and then finally the texture i'm not arguing that any of that was an authorized by the consent all those factors give rise to probable cause that there was either evidence or a drug story that wouldn't give once you've observed all that you wouldn't have the right to just read the correct that have to wait for the that's certainly justifiable cause to get the warrant because of the odor in the sled and the little bit of plastic but you can't at that time you self help and just rip the bird is that your argument i know this is just in the government's brief that mr gonzales passably have sent to this the record belies that your honor he the officer is quite clear he can ask a question there is no opportunity do that as with anyone else he could have revoked his consent to search any time he did because it's clear that there was nothing contentious threatening or anything else going on in that bus station mr gonzalez were standing passably or guard away while the officer had the back up on a trash can but there has been no destroy them which is to say then that if it were just inside the book and you just turn the boat upside down and the drugs can falling out that would have been out there that would have been part of the consent it would have consented to that destructive search precedent that's what you're relying correct and the only other factor was accidently which is also said i think it makes no sense in the circumstances that his need to make the johnson case is very distinguishable when there there's another bus station clear there was no as attempt by him to escape and by the time it's on again the video is spine of ways a little hard to tell but reading the transcript it looks like that by the time they actually opened the booth the second officer had circled back and so he actually had two warrant but they didn't they skipped over that and that's why you're on a you're going better hold inevitable discovery is going dependence or something doesn't help in this case because there's nothing else going on this is just the police usurping the function of the magistrate this is there is no there's no excuse for that and so that found within that bag now mr gallagher likes to describe what happened below as a destructive search but there is nothing in the record the show that what happened here is me was a destructive search you ri plastic in he was able to because it was not a hard sole shoe he was able to manipulate the soul and he could feel it there were sam like in there he was able to adjust the hole one to see that there was a class again and large the hole and then he enlarged a little bit  yars that is not ripping the sole off the shoe can you make a hole in a louis vuitton handbag so that it did bigger than the hole that's already there as is that it allowed to do i mean that i would think that you would not be allowed to rip not it's the person's property it seems like that's a elitist view of whether you have worth in their rights doesn't it well that the magistrate judge also found that the hole to which we're talking about was put in place by the defendant by  the improper resealing or it became open during his travels from at some point in time either from california or there in laredo that that split was already preexisting split but enlarging it is what the destruction it's there but this this court has defined destruction as rendering something useless or actually destroying and there is nothing in this record the shows that what happened here was at the booth was destroyed beyond useless and this case is more kin to removing the lid off of a of a baby powder or the mountain dew case where all the officer did when at the point in time which we're now talking about is why didn't the little bit to rubber soul and their the so we're talking about a hole in the sole we're not talking about an entire sole being ripped off the boot to you do you agree with the posting counsel that you bear the burden on this did not get a bigger hole in it as a result of the officers conduct the fact that there is no evidence in the record to show that the boot was destroyed it is an entrance and in favor of the government to show that it was not destroyed within the mind of the officer i mean why did the court need to go through all these other analyses to justify the destruction i mean to to give reasons why it would be ok if the court could just say it wasn't a story this is of the arguments  judge that was a consent plus there are not the defendant in that case consented to the search of the boot and the court held that destruction in that particular case was reasonable because there had been consent in that case but the united states is not going that that was not a destructive search and we were like a man lying on the soup and says sorry did they rip the lining of the sutent says no the mountain dew bottles are found within their unit in the suitcase and you can close them back but if you to to go into the shu without getting a warrant in this particular case says that there would be exigency when they could help the hold the suspect because of either certainly reasonable suspicion but probably probable cause like to point the score back to the magistrates judge opinion which held that the officers actions in here were the lisa truth of means in this situation especially tendered sorry is that the standard do we look to see whether the officers actions are the least intrusive means or do we look to see whether the officer complies with the fourth amendment law which says you have to hold someone for reasonable suspicion when you get a warrant or your are given are just  drugs and there was a least intrusive means rather than holding him for warrants or holding him for the canine dogs to calm has the supreme court ever held that you do the least intrusive means and so you don't have to get a warrant to is within context of the action sees the situation that it was he was going to get on a bus to houston and this was the opportunity for the officers to come to you know figure out that there was drugs in the food for an ounce but again the united states won't is not going to prove this was a destructive search there was nothing in the record to show as mr gallagher claimed that the us the whole of the soul had been ripped off the food or the were concerned about him missing the book correct which is the same thing that occurred in the johnson case from the one nine hundred ninety eight from this court i thought in johnson case they didn't have a reason to hold the person at that point we'll then your honor that's a stronger case for us here because we have reasons to hold him though that's he wouldn't be getting on the bus the johnson in johnson they didn't have a reason to keep the person back i don't think today whereas here they had lots of reasons that so there's no exigent circumstance you know our star is actually just circumstance of the fact that he was on in line ready to board a bus and the fact that the stop probable cause here to go into the boot was very strong that the smell of the boot his answers to where he was going where is coming from the sweating the fact that you could see a plastic in the soul the fact that the sole  then the johnson case i don't think anyone's disputing that the had reason to get a warrant or think opposing counsel agrees with you that they had enough that they could have a lot to alternative means in the sense that he was in line to get on a bus and i mean that's the johnson case has held that the recent departure eminent departure is a recognized exigent circumstance for a search under the circuit's case law can you win if there's destruction and there isn't exigent circumstance can you win any other way just assuming argument  but again the united states the cases cited in its brief hold that removing a litter or those type of things which do not render a container useless or destroy a container is not a destructive certain in this particular case probable cause that there was drugs found within that closed container how does this apply in common contexts where you know in these automobile transportation of drugs kind of cases canyon rip the headliner of the seat to see if there is when she starts milling in the boot a preexisting slip if there's a preexisting slip in the car seat can you repeat it more the officers can stick their fingers in that hole to see what's going on and if there is minimal damage done and there is a case cited in the united the court to reject that case there is not the court's reason was not based on probable cause plus consent but district court sorry corder appeals decision which said they don't even reach consent they just said probable cause allowed them to destroy the candles at issue in that case and they did that based on all the real exception cases where the scope of warrantless searches is broader but importantly on the deal exception to searches of personal property is unwarranted both in the presence of this court and supreme court destruction and no further so the court in that case i think that mr tanner did not consider whether or not the bottles had been destroyed by their opening they may have been but then they were frankly using the wrong framework when they didn't have the benefit of humanity back then it was decided about a half year before  m so that the usefulness of that case isn't great either but the blues here were destroyed that means consent was not authorized to the police officers exceeded the scope of consent and as i think i discussed in my initial