give permission to the police to search his bag stated differently the question is whether or not the driver of an automobile can give consent to search the bags and this piece of her passing you're right brooke that goes  if you prevail in this appeal doesn't expose him to a a much higher center the case goes back down and he wind on the subject i guess you want to have the suppression motion rel you win on that excuse me if you lose if you would on that well your client probably walks or if you lose on that though isn't it possible that your client could get a a much higher sentence than he already got it is if there is no case the whole case is based upon what if police officer three grams of powder cocaine bard so you don't want to new suppression hearing you want us to reverse the legal conclusion the suppression hearing have lost motions to suppress and of then chosen to plead guilty and inevitably there's a conditional guilty plea in cases like this where people come to us and say we think the suppression motion was wrongly adjudicated those are always cases involving conditional guilty pleas and i'm that i've seen you enough in court to know that you've done many of those yourself have your are so why should we make some sort of strange exception to the general rule that if you want to plead guilty you have to entry conditional guilty plea rather than an unconditional guilty plea i mean it is as your court  especially when we do these criminal cases for the district court of a lot of moving parts a lot of balls in the air water give and take discussion between all the parties involved  taken months before the allegedly in big you his comments they wouldn't so the comments wouldn't have affected the your client's decision to take the plea that's true except alive throughout all the process and that to enter of the can unconditional plea didn't think to change because the waiver had already occurred before that point that's what i'm suggesting when he comes out but i'm suggesting the answer to your question is because the waiver had already occurred months before when he knowingly took the plea what if and it could have been but and again look at the right question becomes does does that commentary by the district judge somehow i walk the waiver or the unconditional guilty plea right that's that seems to be the essence of your argument that you know that when he shows up for sentencing it's an unconditional guilty plea but those comments from the judge which maybe were a mistake of law right or the we don't know exactly would referring to he could have been referring to the appeal of the the sentence your client had a right to appeal that the sentence for procedural or substantive on reasonable is correct well you know there was no waiver of that appellate right generally was there right i mean i agree with that except we redirect again all this comes not back to mine when your record is you know i mean you don't remember all the time to read a transcript hard and you know we did a sentencing hearing at the da would variance of about fifty percent and then the judge who i know there's issues that you want to use referring to what i just raise beginning i think that makes a lot of sense but what a challenge you on this or break is let's let's assume that the district judge made a mistake of law in suggesting to your client that after an unconditional guilty plea and sentence he had the opportunity to review litigate the suppression denial if the judge made that mistake of law why shouldn't we just say quoth in my humble opinion i think i want it until the very and and that's what a clear how could everyone expect an appeal and know that there's an appeal when the law is quite clear that an unconditional guilty you know so what i guess what i'm getting at is if if the judge made a mistake of law here in suggesting that the suppression issue was still alive on appeal in spite of the case law that we just talked about the other way risk of depriving your client of the benefit of his bargain but here it looks like your client get the benefit of the bargain he as you said the way the case was litigated it's you didn't excellent job for your client you got a a strong downward variance and he entered an unconditional guilty plea and so it seemed like everyone got both sides got the benefit of the bargain and then the judge made a statement that was just wrong under the the it's not going to be permissible we're not going to permit the driver of an automobile to consent to the search of the passenger's personal bags period it's an important issue certainly but if if  we enforce the waiver consistent with the case law and if we don't find that the district judges comments sort of unlocks that waiver then all of those facts are immaterial right i mean number of years ago before this court an issue there were a lot of different a lot of different issues and the one of the issue that i was not asked to brief and a government that didn't agree with never raised during oral argument was the deciding factor of the case so you know was that one of those did it go against you was it one of those affirm on any grounds you know that's one of the things that some would against or surprised by or you know the we were good it's much harder to be appellate as you know because if you're an appellate and you don't make all your arguments then you get hit with a forfeiture a waiver but if you're the belly and you don't make the winning this issue in the andersen case that presidentially back in the trunk well i mean you did but you want to change a rule i can remember one rule for the nonpresidential pinions you don't even breathe the name of the kid committed the crime of possession with intent to deliver cocaine and as a result of that his conviction grafts on his admissions not in evidence if it was it that i got the feeling that this was sort of like  go it played guilty with the reservation to preserve the th amendment claim on appeal and everyone understood it the judge certainly had it at its mind and it's not something that was expressed it probably was regarded the best traditions of the legal profession but it was understood by everyone in the city the court room saluting the prosecutor well i would disagree with that your honor i think st of all it was it seems to have been on the judge's mind perhaps  sentencing so it could be the basket the judge had in mind it's not entirely clear but even if that is what the judge had in mind in october at sentencing it doesn't tell us to judge porter's point what was in mind at the police hearing in may five months earlier and that's when this was was was relinquished and that's really why it's not technically a waiver and i think it goes to judge harmon's point from the last case luckily jurisdiction sometimes used inaccurately or imprecisely this isn't technically a wa something you have to know and the supreme court said that many times going back to nine hundred and seventy three in tal at the supreme court said if this was a waiver would be waived because it wasn't told to him at the police hearing but it's a natural consequence of the plea because the conviction rests on the admissions not on evidence so even if you are right on the merits his conviction stands because of his admissions independent of that does that make it a four which are it could be a forfeiture some cases of call that a fo waiver is necessary with respect to each potential defense will link which by a plea of guilty waiver in that sense is not required and that's what we have here eat back by the natural congo it's a natural consequence of the unconditional guilty plea right why people do conditional guilty pleas because they know that the natural consequence of the unconditional guilty plea is that the the dispute about the suppression issue becomes a dead letter once there's an unconditional plea exactly and that goes you're onto your point about the benefit of the bargain earlier the the conditional guilty plea is going to come with conditions and what can be argued about sentencing that's our colleague remit and our district has conditions about what can be done in sentencing he got a great bargain  punished but i think if there's a limit somebody could argue might have been able to challenge the career offender guidelines now the district accepted the career offender guidelines and then granted a substantial variance but he had the opportunity to object to the career center guidelines because it's not in the record at the tail end of the sentencing hearing and they go off the record the judge asked again else he didn't object but i don't think necessarily it was in his head that this was going to be appealable i do think you know there's case consequence would still follow from young conditional plea correct correct and you know the sacristy in case there's the davis case that we cited upon it of the in our brief those cases deal with some circumstantial evidence from around the time of the pl that says the plea was conditional davis has this argument that that the a resident sent a draft of the conditional guilty plea agreement they knew it wasn't signed the court was always going to think about it and consider it and hear it but we don't have anything like that here  f anything and i would submit this is another way of saying are you saying that really the court has no role in the guilty plea other than making a decision whether to accept a guilty plea or not one not sure that i would go that far but i think the court has to accept a conditional plea as well if the district if the government and the defendant agree on one but i think you know sapper steen there was a plea agreement and this court said that you can create ambiguity in that plea agreement by something you just report said at the plea hearing as jeff porter has pointed out but but what he says that sentencing looks sort of a modification of the plea agreement by the courts comments or actions call yes but we don't have anything like that here we don't have a written agreement you want you want to have a bright line rule that says that whatever district judge does or says that sentencing can't undo the deal the bargain that was struck between the defendant and the governor yes and i think you know we didn't cite in our briefs and i apologize we hit on it while we're prepping for argument and i'm not sure we need a bright line rule i think we can say at martinez n p l in two thousand and five with these facts open plea nothing said about preservation of appeal at the plea colloquy and at sentencing the district court mentioned appellate rights seem to be talking about the suppression district judge is really on the fence in the parties continue to argue jointly that the police should be accepted and then the district judge says well ok i'll be lent but the only reason i'm doing this and i'm expecting this please because i'm curious to hear what the rd circuit has to say about the suppression motion so i think if the district court said that at the time of accepting the police then we don't have a fact issue of whether it's conditional or not and there was definitely something to look at all right what if same facts but at sentencing the district court says i'm really torn about what sentence to impose but the sentence that i'm choosing is if he didn't want to go the court could set out for him what he should do the poor could say open up the guilty plea make it conditional open it up say to the defendant mr defendant did you enter this guilty plea knowingly knowing that you will waive your right to dispositive issues because you don't want to run it back but the district court can do that if it wants to and it can push the parties and can try to get that kind of agreement but to just have a passing statement like we have here are certainly not enough and even that kind statement does not make it a conditional the defendant's guilt still rests in this goes back to tolerate in the s the guilt still rests on the admissions and not on evidence and so the evidence is irrelevant if a court reaches the merits which which we would ask the court obviously it's the court's discretion we've asked the court to do to bring clearly agree that if if we don't reach the merits then it would be sort of it would be unnecessary to said andersen case going back to district courts credibility determination this case is a clear appeal this report made its credibility determinations based on observing the witnesses and the internal consistency of their testimony if found that the officers testimon internally consistent if found in mr porter's was not and it directly observed the drivers reaction to her grand jury testimony to be told to hold back and it found specifically that it was to hold the bag so he could avoid the consequences because he's on supervised release and he knows it has cocaine hit and that's enough to establish that the search is about that there was actual or at least apparent order to consent and that the consent by the driver includes the duffel bag in the backseat within her reaching distance that's unlocked he told her to hold and when he doesn't object or say anything and similarly that there's no reasonable expectation of privacy that would allow him to object to the search of that bag when it's pursuant to her and so big part of that is assumption of the risk to be all came in this court frasier in the supreme court and studio is an authority case kane is a reasonable expectation of privacy case but the analysis is pretty much the same when you make someone else a joint user when you give them joint access and control over your personal property you assume the risk that they're going to consent to someone else looking at it and that someone else includes police and putting it in the backseat of a car is more than sufficient for andersen and all the other cases cited in the brief and especially the out of circuit cases navarro case from the th circuit the guy was leaning on the back in the backseat and the th circuit held that there was at least a pair of and the bag was within the scope of the search and that's what we would submit happen here and i think it was an interesting question you know there's bird and bust isn't what happens when we change the facts but i think you know who is not a cab driver sometimes leave their stuff in the back and that's going to be an interesting issue to litigate and to flesh out the facts and create a record for this court when it comes up but we don't have that here we have three friends in a car she testified she's giving him a ride as a the supreme court said when you do that you're giving consent to search containers because drugs are reasonably in containers and i think that's the issue you know mr brink asked for a bright line passed the test is reasonable and so it's going to depend on the facts it's not going to with his own words again saying i understand there is an issue you want to appeal you have that right and i think we you look at the the mindset of the defendant a defendant appellant in a case like  carroll appreciate the arguments the court will