will hear from you when you're ready the district court determined the firearm was found in plain view the only question on appeal is whether the court clearly erred when to determine that sergeant a found the gun in plain view during a moment's rest the district court clearly erred in finding sergeant alice's testimony credible because the testimony was internally inconsistent incoherent implausible or contradicted by objective evidence first sergeant alex claimed that he saw the shotgun while he was arresting ohman yet he did not mention it to any of the other officers in the room that's impossible because omen was an individual who was wanted for a violent assault the previous night he had fractured somebody's facial bones he was in a state of  a from parole one of the officers testified that he appeared to be high when they came upon him he had made threats of self harm that he would kill himself before returning to prison and the watertown police department knew him very well based on the prior twelve hour  standoff that they had with this gentleman so it is just implausible that if there was a firearm in the room that sergeant alice would have kept that secret and not have pointed that out to the other officers that were present now remind me what did he say about that he about whether or not he pointed out that there was a firearm but if you say about that you say it's implausible that yeah i wouldn't have told the other only heard from one of them and detective can and that was at the state's freshened hearing and he said that sergeant alice never pointed that out i mean you say that first of all there's no evidence that he didn't pointed out to the second  here we don't typically make credibility finding spare yeah this is review for clear air and we believe that the testimony was so internally inconsistent and impossible that that that is that we meet that brain for clear air  alice i mean i think it becomes really hard to take down a credibility finding a stretch carlton might be suggesting when you have two separate offers officers saying i saw it in plain view which is really what this case is all about and how do we get around that your view is a totally the timeline and the chronology it is a timeline i will state that they did find that detective angles as testimony was inconsistent so at the state hearing he said that he didn't find he didn't see that he wasn't in the room for the arrest and then at the it we did have probation officer county johnson who comes into the bedroom after all mine was removed and she's coming there to look for evidence of contraband that ohman was living there and so she searched around and she didn't see weapon in plain view either  a parting this gets a timeline issue and angles was entering in the room then angles being the first one to see the weapon is a problem and that's what angles documented in his report following the incident and is a problem because it would have again it's a timeline meant outside the law full window of time for the plain view exception apply and one other inconsistency between sergeant alice's testimony in the state and the federal hearing is that he stated at the state hearing that he walked mr ohman out of the doors on it and i was right it was a bag of some sort or duffel bag was in the fact that was on the floor but it was a higher shelf the pictures that entered into exhibit aren't don't the court counsel my name is jennifer ma'am and i'm mrs united states attorney with the district of south dakota and i'm here today to ask the court to affirm the conviction as you can really high and ultimately we agree with the district court's determination that ms hines gave consent to law enforcement to search her trailer for mr ohman and that during that search officer saw in plain view the firearm in question in this case located in a closet in a back bedroom defense has conceded today that ms ohman did consent to a search of her residence for mr ohman and we are alternately then discussing the issue of whether or not law enforcement did see that firearm in question in plain view in the back bedroom defense today is asking this court to do what it is how many times over that it does not do often which is to reverse a lower court credibility finding of a witness from the it's circuit has held time and time again that the trier of fact is really the best place to determine whether or not a witness was credible during their house to money and that those determinations are virtually unassailable on appeal and here we have two on hers and officers who testified to seeing this farm in plain view that would be sergeant alice and detective  about the time when the fact that angles testified differently and so we already kind of have a problem with this testimony i would point the court to page ninety four of the transcript in the motion hearing where detective angle stated that he did  that firearm in plain view in the closet at the time that mr allman was being arrested so that was not after an arrest that was not a subsequent entry it was during that arrest but i thought the district court to the credits that the district court did not specifically rule regarding mr ingle or detective ingles finding it did footnote that but did not say specifically they did say that they discredited the finding noted that there was some inconsistency between what he testified to at the state court hearing regarding mr ohman versus what was testified to regarding the conduct of ms hines in the motions hearing before the matters for what's going on right and i just meant you're saying we should defer to the district court on this but the dischord didn't rely on ingle's and didn't find you say you didn't find him not credible we certainly didn't find it credible i agree that the district court did rely certainly more heavily on sergeant alice's testimony than it did on that of detective angles however i believe that detective angles testimony does serve to corroborate what sergeant alex did testify to which is that in that back bedroom in plain view during the time of the arrest that shotgun was readily visible to law enforcement in that room so your argument is just because the district court found angles incredible or not credible i guess i the better way of saying it on one issue doesn't mean that there's a broad credibility finder finding that ins up destroying all of this testimony that is correct your honor when you look at the total record and why i think that that the footnote gets dropped is because of that state court hearing transcript and when we're looking at the state court hearing transcript they're really not examining the same issues that we are examining at the magistrate's court level and that was a state court suppression hearing transcript regarding mr  ohman i am not aware whether or not he was charged with possession of a firearm in state court i believe that that was ultimately related to the drug paraphernalia also located in that room you know but the important thing isn't whether ingle saw the gun it's when he saw the arise and that's where it was my own yes that is in the subsequent search that is correct your honor either so it was where ls say that it was it was going to be yes that is correct i would also note that  alice did not mention this to other law enforcement officers doesn't mean that he didn't see it that in and of itself does not lend itself to a lack of credibility as to his finding he was not question at all regarding an observation of the firearm during the state court proceeding which is why there is for the first time his mention of the firearm in front of the magistrate court on the run up questions posited to him by either the prosecution or th by the district court and we are asking that the conviction as to ms hines be affirmed by this court what about inevitable discovery to the officers testify at all about what they would have done there was some limited testimony about getting a search warrant harris what was the testimony very very scant that if we couldn't have gotten in through with consent we would applied for a search warrant so ultimately i think inevitable discovery does not win the day for us because we do not have an independent live in about a line of investigation going at the same time we have those cases and say that and for us that was a concession to how whether that's a good law day whether that's correct but i guess that is the press yes and following that precedent lead us to not brief on that issue that is a place where we do disagree with  the district court's determination ultimately and if there are no other questions i thank you for your time thank you for your argument you we do feel that we we meet the clear air standard i know it's a difficult standard to meet but again we can mean it it's not impossible to meet it we have to show that it's internally inconsistent incoherent implausible or contradicted by objective evidence in for the reasons that i stated in the opening sergeant testimony we believe meet that burden especially with the impossibility of not stating for safety reasons given the the violent nature of mr omen why he would keep that a secret that there's a fire in the room and not notify any anybody else that there is one right ask about angles very quickly and it actually was something i was thing about judge sheppard asked opposing counsel about this the chaconne was found exactly where according to engels where alice said it was there's no allegation that the shotgun was moved and i understand the point it's when he saw the gun but is that actually true because if engels later went into the room and saw it in the exact same place and there's no allegation it was moved then doesn't that corroborate ellis at least to some degree and i understand there's other problems with testimony which we've already discussed so my question is i guess is this that kind of that's going to help the prosecution here i don't believe so and the reason being is because when detective angles could easily just when sergeant  did or did not return back to the residence again which was an inconsistency between the same federal hearings detective ingle sacre been seizing the weapon at that point and said hey this is for taking photos of this this is where it is inside and i was going to learn that information at that point  a report afterwards arjen else never did but that detective engels did and he stated that he was the first one who saw a shotgun in the report and report in the record i don't believe it so you're quoting from a transcript thank you for your argument the case is submitted in the court will file an opinion in due course counsel may be excused thank you both