question is what the take within the suspicion was required for the police come up to the car and talk to the ok none whatsoever ok so it's after the police came up to the car or to your view gun that was recovered from the search that followed that initial seizure well i'm not sure that answers your question if he had some personal property and this person really tree is a team from the person who is complaining about the seizure i believe that some other party would have thought of that which is what we have here i'm sorry for interrupting i believe that they were the same party another and the third party but a direct challenge to a search when when a seizure is a shoe and a search and consents are downstream from that search that issue is not usually brought up because the truth poisonous tree analysis is not about privacy it's about stopping the government from doing legal action it's about deterrence for the future it's so the way courts said addressed the privacy issue the reason why it's a sham privacy issue was was it think the important distinction is the fact that whether or not it was found on the person who's playing i'm not so sure that analysis works who are talking about a third party giving you see an item being found in a place where issue and right i would i would be happy to file a supplemental brief addressing this this particular issue i think it is addressed by by the cases that that i've cited in the press to case ashley deals with with a similar type of  procedural posture that we have here namely a claim that it's in effect assistance of counsel to not have filed a motion to suppress because the evidence shows the motion would have been granted there's a body of case law that says wait a minute with a motion to suppress as a profile one of the problems is we frequently don't have the record  if a motion to suppress his file that is you're arguing in a motion to suppress should have been filed based upon testimony that was presented essentially by the state to establish the guilt that would be presented if the parties were put on notice and fully litigated it why don't we say who we are declining to address this matter and saying that officers on exactly what happened the low by blow out all that so henderson talks about this issue and so where as there the trial record is well developed this issue is proper on track and at the same time the court did that for the first time raise the standard for this type of argument from a problem probable to succeed to meritorious so i think the slippery slope argument i think there's not there's little danger from timely professional thing for you to do and to probe for the credibility of both as an institution for good for you thank you but the issue is really one for us rich we deal with a lot why didn't france council follow motions for us to skip so i've given you at least a couple scenarios where i think the record might show that he talked to people was convinced that he wasn't going to succeed or have and the other thing is again the prosecutor might have asked questions different play of these officers approach of a different fashion if he's put what i notice that there was going to be a motion to suppress filed to suppress where then all this evidence would be presented i was surprised by this as well your honor when i started this case i soon the remedy would be reversible and the first district did that in marshall and twenty times  please the court counsel it's hard not to slip into the analysis of the denial of a motion suppress in this case because we do have to remember it is ineffective assistance of counsel for that matter we have to look at the record we have the record that we have as justice siteman already put out many of my bullet points questions would be asked differently in a motion to suppress he different witnesses would be called and we can't assume that the evidence is absent from this record would benefit defendant who are they i think i forgot to mention this are also missing findings of fact by the trailer for court we don't have the saying who it believes and what it believes about what happened leading up to the seizure of the perp clearly would be better as a collateral attack that being said we do need to analyze it with the record that we do have from an ineffective assistance of counsel perspective why do we give to do just to show that if any motion with this record the argument is ineffective assistance or you should have said don't do it facts what would be usually are normally questioned at a motion to suppress hearing that are in this record can be automatically assumed to benefit defendant here he points to people versus didn't argue the record was insufficient or for this purpose until the supreme court level they didn't argue that all public court level of course work at the appellate work first level here now so the state is not changing positions midstream like in henderson also anderson was unique in the fact that that defense counsel was given tremendously weigh in asking questions that would be similar to what was asked in a motion to suppress hearing here that just wasn't the case facts of the trial right now i understand and i understand your attempted to address it based upon what you have in front of you but it's a different question and if we're going to ever conceived in this record somehow or here being from where you say by the way this peculiar facts of this case number one and number two the state having conceded the matter we're going to decide on the merits right both and both of those points are are not just in this case ok the the questions asked by counsel here and frequently relied on and defendant in definitive briefs are so called beignets of the report gunshot record or whether they told or asked defendant to step out of the car course those issues are going to be as fleshed out as the word emotion suppressed still from an ineffective assistance standpoint just because those facts are absent doesn't automatically mean that they would benefit depended on motions of press defense counsel presume to know how to do their job as just a statement pointed out maybe he read maybe he interviewed these these potential witnesses maybe he talked to defended himself and said he consented to the to the ad now there's there's just no way to set the precedent that any absolute facts automatically benefit definitively be hard to overcome that on any appeal where some defense counsel fails to file a motion to suppress almost anything could be ineffective assistance of counsel that case that defendant mentioned earlier as for that the causal connection between diane brown's consent and  pat down it's easy to easy to show that there causal connection is strained at best and there's nothing in the record to suggest that even if the defendant in the other passenger were taken out of the car there's nothing to suggest that the  wasn't going to consent the to do a search anyway we can assume again we can't assume that she would just because those facts are in the record there's no evidence of any demanding tones there's no evidence of elevated language seem like a cordial conversation between band brown and other police officers at the time she was more than happy to allow them to search at least from the whole record it seemed like she was more than happy to allow them to search the vehicle said of course there's no guns and beer it was  it would be hard to establish the fruit of the poisonous tree even if emotions press was granted for the illegal search even assuming it's illegal it's hard to establish a causal connection between dianne brown's consent here and the very minimally intrusive which it was and over the close pat down searches within and outside of the car as to the legality of the search itself again we have to remember this it's hard not to go into motion to suppress analysis here but of course the touchstone of the fourth amendment is reasonable missed here and the facts are this officer was dispatched to hear for gunshots were reported just minutes before this in the alley next to the street he sees three people the records unclear and if he sees anybody else so apparently these are the only three out it was one fifteen in the morning so that makes sense goes through the alley doesn't seeing one there comes back and these people that were standing on the on this curb by this s u v are now inside the s u v he approaches the vehicle as people vs woods says just the sight of me and of course the police is allowed to approach a person seated in a parked vehicle and ask questions without it being a seizure so at that point this is clearly a consensual encounter on the way he sees the defendant lean forward lean forward further in his opinion as a police officer under those circumstances he felt the defendant might have been concealing a  that point that's a reasonable suspicion to have based on that doing the balancing test of the fourth amendment which is legitimate government purposes first of the intrusion here we have a minim closed at down search versus the possibility of bullets flying through this neighborhood bullets hurting the police officer that's there who obviously for due diligence needs to further investigate the only people he's seen near a gunshot report and even the other people in the in the car if the so the legitimate purpose of any kind of minimal intrusion clearly outweighs it if we're doing the fourth amendment balancing test here so what does that matter for this case only that it shows the likelihood that a motion to suppress would have been denied anyway based on the record we have here of course of post conviction petition with affidavits from diane brown or defended himself or the attorney or something like l like that might flesh out this matter further but we have the record that we have and based on that there just can't be an ineffective assistance of counsel claim but about what is reasonable expectation of privacy i'm being that the gun was not found on a different person it was found in the car anyway i would really have to go into this announces about you know the cause of the illegal seizure of defendant sort of compelled her to give consent and that's how screwed the boys in the street but that's the way i replied in my brief b of course with defendant out of the car i would be hard how he would have a reasonable expectation of privacy i'm going underneath the seat in the bar anyway he was not the driver and it apparently is there he was that it was not his anyway to come thing like that ye s there seems to be not very much expectation of privacy with a gun in that situation i think it was a drug dealer that he knew so that that very first faces an example of the opposite of that point i don't believe wong sun had a reason why they should expectation of privacy in that place are you sure standing or privacy only relates to be a national search or seizure that is challenge once we get into the exclusionary rule issue what downstream of that is illegality has to be kept out as the turns to the states bad action and if we adopted  a privacy based approach to that downstream actually we have very weird results where things become in even though the state had acted badly things come into evidence because the defendant has privacy here but not over there here but