baggie of powder cocaine during the course of a motor vehicle stop in stamford connecticut between four hundred and fifteen and five o'clock in the afternoon on april st two thousand and sixteen the cope of the bag of cocaine was seized from mr peters person after the officer searched mr peters on a public street reached into his pants below as waist line without gloves in between his skin and his underwear and in between his butt cheeks to retrieve but the officer believed to be drugs that they were looking for the search yielded a wad of tissue with the cocaine inside mr peters was not resisting arrest at the time of the search and he was surrounded by at least five different officers and  ston at the time the officer shoved his hands into his pants to pull the item out from between his butt cheeks the two issues on appeal are the following the st is whether that sexually intrusive search even if justified by probable cause or as a search incident to arrest was broader than necessary without a warrant and went too far that is whether it was carried out in an unreasonable manner at that time and place in violation of the th amendment or whether it was the government claims a permissible nine reachin search just to be quit if you're just be clear mr st you're not really arguing there needs to be a warrant you're arguing that the search itself was justified by probable cause or at least where you're assuming that for present purposes it's only and could have been done without a warrant but as a search incident to a restaurant or a bill search or something you're just saying this doing it here was wrong it could have been done in some other location yes your honor i think the warrantless nature of the search shifts the burden to the government to show that it was reasonable if we had a warran then it may be a different story so the warrant and the lack of a warrant i think puts a burden on the government here but you're correct your honor that i think when you look at the cases and the facts of this case what's most troubling is that not that they searched him but the manner in which they searched him and how they did it and where they did it and without a public terry the record tell us anything about whether there were any nearby pedestrians or anyone else observing the police action so i think there is nothing in the record and i think judge bolden cited that fact but i think there is evidence in the record that it was and and the record does establish that disappeared on a street where there were residences and the search itself in addition to being next to that motor lodge that was on one side of the street there were houses on the other side of history so i don't know if anybody was in the window nobody was close in proximity to where the search occurred that's true the only people that were close to mr peters as he was searched where the officers and the canines so the officers are surrounding mr peters and the one who reaches into his pants is behind him and is reaching into his pants from the rear is that correct i think the testimony is that the officers the other officers who were present were standing back by about three to five feet and that mr peters was placed on the hood of the car and was not surrounded by the other opposite but mr officer phillips who was the officer did a search then approached him and was closest to him ok but standing behind him and is reaching in from the rear that's failure on you know and in one of the cases that you cite with approval you say well that would this a different case than here because they took the person to the parking lot of the police station to do the search is that right yes you know and i guess i'm just trying to figure out how  different this street is from that parking lot in terms of degree of privacy in that case he wasn't taken inside and searched a close question terms of you know the location but the parking lot next case was at the precinct and it was it had squad cars and only police personnel and it was surrounded by chain link fence h or the well there was a fence a fence separated the street where this took place from the motel and the testimony is it's interesting that there's apparently a picture in the record that shows the  chain link fence and the witness said but at the time that that doesn't show what it looked like at the time of the search at which time it was covered by vegetation just like you described the fence in the parking lot case  well there is that testimony around of the testimony is also that that parts of the fence it was you could see through but it's true that the picture that was being testified about did not have the exact particular search happened would be similar to being inside a police department parking lot behind a chain link fence with barbed wire and vegetation this was on a public street and there were houses within you know feet of where the search occurred i don't you're correct there is no testimony of but estrin or or group of people standing and watching or even though this was right off one of the main east main street in stamford which is one of the busiest streets you take a left and you end up on home court where the search occurred there isn't any testimony of you know people gathering around to watch this that's true if i had that fact i think the argument would be even stronger but i don't think that the absence of that fact means that the officers acted reasonably to respond to your your adversaries point that there was some safety or destruction of evidence concern that that made it reasonable to proceed on the street now as opposed to to a more private location yes rather the district court actually cited to this i think in his opinion the way it was characterized in judge bolton's opinion was that officer philips was the one who conducted the search of mr peters in the manner that we criticize ad is that he thought that it was possible that he could push the drugs into his rectum or do something to destroy the evidence just ball than the way he characterized he said that officer phillips assumption that peters could dispose of the drugs or do was not on reasonable i think that it's it was not well supported by the record here because there was no testimony that mr peters surrounded by those officers and the dog and standing next to officer phillips was trying to destroy the evidence at that time on cross examination that they had complete control and nothing prevented them from removing him to a more secluded and private location and in fact he testified rather brazenly that they didn't even consider doing that and so  i don't think that this record suggests at the time that they did or that officer phillips put his hands into mr peters underwear that there was a likelihood at that point that something was going to happen to these to these  drugs and if that's the case you're never going to have people bringing people back to the police station or to a more private unsupported area there just because the officers if they believe the drugs or they're going to do what's necessary to get them notwithstanding that it cases have a point to get out and in the cases that we have cited and even the ones the government has cited in response the officers at least in those cases wore gloves in some instances they tried to those judge lynch pointed out move them to a more quiet or secluded area that was more respectful of the arrestee nothing like that happened here and for that reason we believe it was an unreasonable search under the bell the will will push factors rule and so it there does seem to be some tension between the archer formulation of the standard and the way in which we had at least briefed it i would only add that we did point out in our br and the law is very clear that a jury cannot speculate they have to have a reliable enough basis to make an inference and in this case the inference was that these fourteen grams of drugs were possessed with an intent to distribute  those inferences are somewhat speculative then it would still be appropriate for the court to grant rule thirty three dollars motions thank you mr frost we'll hear from the government requesting included language the fourteen grams of cocaine then there was a police surveillance of that drug transaction and then the officer who actually accepted the saw observed the defendant apparently trying to hide something and after that the drug sniffing with both limited in scope and manner it was unquestionably very great there was no visual inspection there was no one move all of clothing there was no public exposure of the defendant private areas and the other officers who were on the scene mere feet small amount for redistribution and didn't the government's expert to acknowledge that somebody who had a fair amount of money might use this amount in a week or something like that expert indicated that in his experience and this experience was quite extensive he had spent twenty years with the t s a and he had frequently served as an undercover and he said in his experience that street level dealers typically buy between three point five grams that eight and call anyone can one and then but then there was also a significant amount of discretion from mr peters on specific law enforcement after you know the particular unmarked cars that were used the particular the conversation sounds an awful lot like somebody reporting back to his boss for someone higher up than the distribution of shame about what the risk for to him that didn't sound like a user co would he wasn't asking for a fix so the combination of that call that one of the drugs and then there were a number of other pieces of evidence and a very specific exchange when his supplier is suggesting as you say  y that could have been one of the people you were going to supply to or distribute to you doesn't say that explicitly but that's one way of reading and mr peters response is i didn't even have nothing waiting for me like nothing and it was then that he said i was just doing that to be ahead of the game so your interpretation of that is ahead of the game means he was referring to he wanted a supply for distribution that he had not yet set up that's exactly right frost thank you roger let me just press two points st with respect to the the fenceline and the motel i just don't want the court to be left with the impression that that we're talking about you know vacant lot with you know a beat up old fence and it's pretty private the reason why there was a focus on that fence is because right beyond it is a motel with balconies that look down  street and i think that there was an effort just to indicate that the sightlines we don't know how good they were or how poor they were based on that there was a fence with some vegetation but that was the focus of the fence on the other side of that fence is a street with houses so it's not as though we're in some very secluded area where this search is taking place so i just wanted to clarify that secondly with respect to you know the fact that this search and government council as they did in their in their brief has argued that this was less intrusive and less invasive than if he had been brought back to the police station and asked to submit to a strip search there are aspects of what happened here that can feel much more violent event than a strip search or a quarter or a partial strip search back at the around down in your underwear on a public street i think is highly intrusive and even judge bolden remarked that it was intrusive i think his issue was it was brief and that's true that part of the search was brief but he was highly interested and i guess one last point if i have time is simply that the calls they were in big us and the conversations yes you could read them as a street level dealer reporting back to his his boss like lynch mentioned but it if you read those transcripts of those calls it could be a a user reporting back to their suppliers so that they can you know make curry favor with them or keep them happy everybody who lose on a phone call talking to the supplier doesn't need to be a complete unintelligible drug addict if somebody has purchased the drugs and uses the phone to call back and indicate that they had been  pinched and that that is the focus of the call they're not going to tell them all the other concerns that they had at the time these were sort of the open ended sort of guesswork that i think we were asking the jury to engage in and given the ambiguity in the car we don't think that that carries the government's burden beyond a reasonable doubt thank you thank you mr frost thank you thank you both very well argued on both sides very helpful