he'll represent present to infuse each and independent grounds for reversal of mr bernanke diction the st issue was his there that his arrest on the incorrect suspicion that he was smoking marijuana was not supported by probable cause and the nd issue is that the search of a backpack without a warrant was not a valid inventory bertha just the lack of probable cause for his arrest the district court based its probable cause determination and for fact that mr bin you know held a hand rolled cigarette butt between his thumb and forefinger which officers were believed meant that it was marijuana that he threw the butt down as the offices approached on the street on the sidewalk and that officers do or believe that he smelled a slight odor of marijuana in the air and for that mr bin you know used the word joint to describe the hand rolled cigarette when he spoke to the police the significance of need to to provide his identification to the officers well it if it was before it would be for the refusal to provide identification was not  and nor were the initial words that he spoke the police did not turn on the body cam until they were putting him in handcuffs every recording after that the recordings of all of the views of the word joint wearing conjunction with him saying it was a ham joint  and not not we so it's not absolutely clear exactly when he st used the word joint but i it looks like from all the evidence and even from the testimony in fact of the court factual findings it's noted that the he used the word joint and denied that it was that it was weed and said that it was a hand joint and indian have so you know exactly what occurred when i it wasn't all all captured but his use of that word in conjunction with the use of the word hemp joint officer seward testified that he participated in worth a two hundred marijuana enforcement actions most of which was far as we could tell were successful don't we aren't we we give him some deference to his identification of characteristics  taking what was known to the officer as a whole was there a reasonable grounds to suspect that a crime was being committed and i don't see it as particularly helpful to  piece of an overall picture and treat each case separately well at the same time your honor you do have to break each back down and see if it makes sense for example hi use of the word joint is only relevant as the government acknowledges it can be taken taken as an admission that it was marijuana but you see use that word at the same time if he was denying it was marijuana and we have his way of holding it in the fact that he dropped it and that exact enough then any experienced officer can arrest anyone smoking a hand rolled cigarette on the street take them into the station in violation of new york conducted a valid inventory search even though they had those standard practice for documenting and the searches are designed and the exception to the th amendment requirement is designed also to just identify dangerous items as opposed to cataloging every particular item that might be found pursuant to an inventory search so i think that the exception is somewhat misnamed and we've upheld the validity of inventory searches before were written in the tories have been pretty do you take issue with that understanding or do you think that a tree search is always valid without a written product also that search with the with an automobile rd and that was conducted according to standard i criteria for the automobile search and in the case of personal property there is no standardized criteria at all that the  the patrol as it has such permits found leaves it up to the officer's discretion personal property may be searched there may be an inventory search so there's no standard i print here ia and in this case and  at that inventory search it was done as an inventory search listing things here the testimony was they made no record of it they had no intention of documenting or recording the content contents of the backpack recorded a as a bunch of evidence it's a general search not an inventory search upholding a search like this where the testimony was clear that there was no no no recording  into the exception otherwise anybody can be searched with with with with no justification but no warrant if they got a warrant they could have searched the backpack or they could have if they were doing us a real inventory search and other words just keeping track of what they found but here there was none of that in fact the district court thought that the case stretched undoubtedly stretched the inventory search exception closer to its breaking point ok good morning your honor can everyone hear me ok yes i can this is this is a bench trial or for the government your honors and may it please the court of the two issues presented in this appeal i'd like to die a the probable cause issue following the same order as the appellant and i on the palm will cause point i'd like to start with your question judge carney that that you asked the appellant about the timing the chronology of exactly what mr big man said to the officers and by the way i am used to pronouncing it helps him as a big man because i believe that is how he pronounces his own name so that's how happy  i think that's really critical because it speaks to when the probable cause crystallized and it is not correct as opposing counsel said that it's unclear when the ship happens or that he immediately started distinguishing it or that when he was saying joining clip he was denying that it was read in the same press if i could refer your honor's attention to pages ninety nine to one hundred of the appendix in this case officers here it's testimony is very clear that when he  approached mr big men their st interaction he said it's a joint it's a clip he did not deny it was we he did not say that it was him it was only later when the interaction with the police became more confrontational that mr bittman started saying it's not weed it's an indian cigarette it's an indian hemp joint and by that point the probable cause had already crystallized and as the case law that the government side and city changed its policy from arresting people for marijuana offenses on the street smoking marijuana on the street present all to merely writing them a summons and letting them go in most circumstances however as the record reflects in this case there are certain exceptions to that general practice one of them is when the person on the street refuses to provide identification and here officer stuart testified credi that mr big men refused to provide identification to the officers on the street which is the main reason why they arrested him in accordance with and y p the policy as it existed at the time and in fact later at the precinct it is on the officers body cam footage mr big man producing his identification for the st time it's clear that it's the st time that they're getting his name and it's his address  also on the probable cause point your honor i also wanted to address opposing counsel general argument about the older marijuana being in the air and and how this was generalized and not specific to and that's not actually the case officer seward also testified that yes there were other people around but he observed those other people and he did not see any of them smoking anything so he sees someone smoking something he sees no one else smoking anything and he smells a faint odor of marijuana in the air it was reasonable for officer seward to believe that the smell was associated with mr big man and it was therefore proper for him to take that fact among others into account and determining whether there was probable cause in the interest of time your honor i wanted to address the inventory search exception issue next and again i want to start with being presented here by the appellant is foreclosed by lopez the facts underlying lopez were fairly similar to those presented here there was a combined suppression hearing and bench trial where two police officers testified there would be a police officers who had conducted and been pressed search of the defendant's automobile where a firearm drugs and drug contraband had been found one of the officers testified that she produced a written inventory of all items found during an inventory search the nd officer testified that she produced a written and then tori only of items of value but that nd officer further testified as follows and i'm quoting some cops don't make any list at all some cops may list everything it is not written anywhere that we have to make any type of list do you know why entrap from just a minute i mean this is just exception is called an inventory exception and the trade search exception which suggests that one is making an infant tory and that one of the primary purposes is you know to make sure that nothing goes missing and that the police department isn't accused of taking things that they should've taken and also to let the measure of regularity to the search so that it can be very clear that this is not just a general rummaging around search of the kind that  is cassidy was comparing this to be coherent there was no standard practice or what we could tell i mean that was kind of up to the individual officer and they're just looking through not making a list of anything why why document that said be searched x on you know why date and you know here is are the categories of things we found yesterday your point is very well taken and to start with your point about the comes i think from the seminal supreme court case on that point which is south dakota the opperman back in one thousand nine hundred and seventy six that's one of the most wholesome explanations of the inventory search exception and there the supreme court is using the supreme court is using it to mean a search where the police look at and find all of the items that are are with the individual whose property is being searched they're not using it in reference to a specific written list but putting nomenclature aside to your point more broadly about you know if they're not ever producing a written list how could this be aligned with the justification that underlie to prevent is selective discretion in terms of whether an inventory search happens what they're trying to avoid is a situation where say with mr big and say there was no established routine that there was in this case that every single time an arre comes into the precinct then is put in a cell that that person's property is searched they're trying to avoid a situation where police officers bring someone like mr big man to the precinct and they say you know what we think that this individual probably has evidence of crime in his property so we're going to search it and we're going to call it inventory search so that we don't have to worry about the th amendment to our requirements we're going to say it's an inventory search and find the evidence of crime and then use that to prosecute  parker is not exactly what happened here no it's not your honor it is the opposite of what the market why not why not well your honor because there was no discretion for the officers as to whether to conduct an inventory search of mr big men's property officer seward and officer lavater both credibly testified that every single time and arrested is brought to the precinct and put in the sell their property is searched for so into the inventory search exception they have no discretion in that regard it's always how they operate so regardless of whether they thought it was likely that mr bigness property would or would not insane crime evidence they still would have searched his property and that's exactly addressing the concern that the supreme court and the nd circuit have discussed in the relevant case law  whether or not a specific written list is created in some circumstances where there is evidence of crime found versus when there is not doesn't actually dead at the justification underlying the inventory search exception in the way that this overarching policy mandating a search does so you think about officer safety one of the primary justifications there's really no difference that the officer safety whether a specific written list is created in all circumstances in terms of protecting the police from future claims of loss or theft as middle east they are the police would be better protected if there is a detailed written list produced in every single instance but it's not the case that the police aren't protected after all if a written list is not produced in some circumstances you still have the process of the officers going through all of the property those officers would then be available to make a written statement or testify in any proceeding about a claim of lost or stolen property so later been returned to him and then he filed a claim and said you know what there was a gold bar in my back and you stole my gold bar and now you owe me all this money for the school of art if the search had not been conducted at all the police would really have no way of responding to that claim other than suggesting that it was implausible but if there is an inventory search that conducted of the backpack regardless of whether there is a written list you still have one in this case two officers who could testify or make a written statement no we look through the entire backpack you saw every item that was in the backpack and there was no gold bar in there so even if there is not a written list produced in every instance as this court said in lopez that does not undermine or relate in any way to the justice deficient that underpin the inventory search exception i bottom it's about the selective discretion of the officers in deciding whether the search is necessary whether to conduct the search in the st instance that's what the supreme court has been talking about all the way back to auburn men and well that's what this court talked about in lopez what this court more recently talked about in williams it's not exactly right that the requirements the basic requirement of an inventory documentation and standardized criteria what makes it in the inventory rd and rain in the police from job rummaging through property in the large cassidy what do you rely on for the proposition that there must be a written and good tory in order for the inventory search to be introduced i rely address the argument that they had to be written in detroit and said that there was one there they said there was one of the case yes a written inventory is required there was a written inventory and lopez it wasn't done with the specificity about an a written inventory nothing required there is no case it says that there's no requirement to document it at all to document the search there are cases that say the documentation with the fish and where it was  argued to be insufficient but there is this this would go far beyond that to say that knowing no documentation is required and if the police that's set out to conduct what they call an inventory search with nothing no in hand  all let me ask you a question so if they have a document label inventory search they cannot backpack and it says branch of contents no gun no gold  a only some some no valuables and personal personal papers or something that could be enough but that's that's not what we have here what we have here is i don't know it wasn't even part of our our drills to write it down we don't we only wrote it found contraband and so they just what they're doing is they're slapping the label of an inventory search onto it without without it being a really big for research it's really just that they think that they can just search anything and they can just call it an inventory search and you know the lack of consistency st of all i also happen to get get that addressed this there was no testimony whatsoever that they had no discretion there was no testimony that they had no discretion they said that it was very normal practice to search the property of anybody put in a cell but there was absolutely no testimony that they couldn't decide not to if they wanted to in fact the police guide allowed them to decide on a case by case basis but even if even if it was it was true that the four hundred and forty three thing they always without fail search somebody who was put in a cell searched all their their backpack their purse whatever they had that's not consistent across the city that's not consistent that's not the kind of consistency that's required that's not a police policy that would be one precinct in the south bronx deciding that where they're precinct is located they can just run through every with property where it's maybe on the upper east side they wouldn't do that and that's not the standardized criteria that's required that is just allowing the police to do what they want and i'd just like to say one point about the continuing violation of new york law that happen  here it's technically not relevant to the th amendment issue but it is relevant to the big picture of what what goes on but the reality is if this kind of their arrest and search is uphe they arrested a man who was smoking a legal substance on the sidewalk on the boat last mission from a marijuana against new york law against the new york rules that they're not supposed to bring any son had recorded the rest as they say as the reason for me being brought to the station was that he had a record of petty offenses not that he didn't exist and i do he even staged the photograph at the cell later with the id in the backpack and admitted that he had set that up and that's not really where they found the idea that ms tippett you know just put that out of the pocket so you know there's a lot of bad stuff in the record here about what about violations of new york