district judge is legal conclusion plying the cormier factors in this case should be reversed because it was not supported by the judge's own factual findings primarily the judge found that deputy palmer his testimony credible and but none of deputy palmer's testimony supports any of the five factors that this court has used in the past or any factors i can think of well but the main factor here is that he asked or was not found and then and according to palmer he said ok search whatever you want he didn't say it was finished and if you believe palmer and not and not clear then he still had permission to search for the sweatshirt no no because the search for the sweatshirt had started completed and then completed because it was a man and one version because it was found about another  he noticed there was so many things in the room he started asking mr kilgore about what do you want to do with yours stuff do you want to me just take it and search and that's how he asks can i search it on page one sixteen that's a search there's other conversation but that's a request for a search and there is no spontaneous this isn't the spontaneous request spontaneous request of the officer to go search something that doesn't the request to search it because at that point they're discussing whether to leave it there or to take it and then they because he says i'm not putting this in my car if if i had if the if if there's anything here i've got to go through it isn't isn't that what was happening at that point that is the language of the requests that it's phrased in a serpentine way that it's not saying i can i search your stuff so that i can take it but i don't think that wording makes any difference but it doesn't make a difference because he doesn't have to let him search it he can leave it there he even if he thinks that leaving it there would mean he never gets it back that might be a choice someone might make so that they don't find drugs or a gun and get prosecution based on that but it's not clear that he will it's clear he's never told you can refuse consent and what will happen as a result of this what he says he knew he could leave it at the hotel and his family could come get it he says he says he knew that if it was left at the hotel but there's never any discussion of whether the search is going to go ahead anyway well i love the officer i thought the idea was the officer said what judge hard on just said i have to search it if i'm going to put it in my car or if it's going to go into the jail that's right but the officer doesn't say that if you don't consent it's going to be turned over to the hotel and it's going to stay here it's didn't the officer tell him that if you don't consent it's going to stay here and go to lost and found for thirty days and then be thrown away and then so that would be an option even if you know i think your client didn't even believe that because he thought his family could come get it but if he thought it would get thrown away it seems like getting thrown away is an option other than searching when when you know you've got drugs and a gun that would be an option and if that but it doesn't get around the fact that that's still an indirect request for consent to search the bags in a butt and then him and a minute these circumstances are sufficiently unique that it doesn't seem very useful to apply these five factors mechanically to it doesn't i mean they're just really ah well they're they're all good but they're the type of factors are likely to well t be frank they'll make a lot of sense in their own regard but they certainly don't make a lot of sense as applied here and if they don't cover the circumstance then maybe additional factors should be presented but the government's presented factors that the objects there and they would be you know picked up a family or confiscated after thirty days that seem to become an understanding right that that was the nature of the discussion right and but the government's arguing that it's the officers subjective intent not to search that gets this out of court me and i don't i don't see that that would but what if we i mean that's your reading of their argument but we don't have to agree with their argument necessarily to affirm right what if we just think this is out of cormier because it's because it all started when the defendant asked them to start searching things that could be a new factor that if a defendant starts the conversation about items but that's that's very unbounded and doesn't lead to any clear solution because he's asking for a certain specific item and then but it's a bigger item then i mean if you're looking for a sweatshirt you can open a lot of things right to try to find one it's possible but the discussion here starts with very specific locations and then the officer turns it around toward a broader search and he's maybe he wants to look for more things to find it or maybe commerce and i don't care search whatever you want said right that's that's the game and we have to assume that the judge believes that yes so and that was in response to that you have to if we're going to take the stuff with you we have to search he said find search how is that eight anything but consent comes immediately after the doors  officers out immediately after and so after he asked him to search for a sweatshirt and he did i mean that's the i factor here so continuation of that search rather th n or looking for rather than being directly after the invasion so to speak it's that could be perhaps one factor but it's still one factor against all the other factors but going back to whether they factors even apply arthur so many differences here in this case first of all they're already had the arrest warrant it's not like they're going in because of some other exigent circumstance or they have a arrest warrant for this guy they're know that he's going to be under arrest they put him they sit him down in a chair they put the handcuffs on him or whatever and meanwhile he says i know i'm going to jail please look for a switch right by then there's no gone's the guys are in a different room and he starts searching for the subs watching not only does he search for the sweatshirt and then he gives the combination to a locked because they can't find the sweatshirt anywhere else he has a lock to case and he gives the combination  obviously cooperating with the officers and giving the combination and then at some point later on which is when he's saying talking about whether or not he's going to take the items with him he gives the cuddler gives the combination to the safe i mean he is totally in tune with the officer taking these things how is how do these factors even apply in this case because it's a request for a search for cases a the factors apply when someone asked for consent to search you know he's not searching for because because he thinks a crime has been committed the crimes already been committed he's that's why the guy's under arrest he's searching because the guy wants him to is supreme court precedent that as search conducted pursuant to a valid consent is constitutionally permissible i think listening to everything that happened before that we might have known that i'm sorry and i'm just questioning if i said before about not our you know you don't have to argue yeah but perhaps ok nothing more your honor and simply what i would say then in that case is that this is  matter of fact finding on behalf of the district court judge this is a matter of whether or not there was clear error there is a difference between what the detective palmer says and what  defendant says this is a totality of the circumstances standard yes there is a five factor test but every decision that applies this says that it should not be applied in a mechanical way that the five factors are merely guideposts this works in both directions if there were some other factor that went against the government to i don't think the government would say that we can't consider that factor it's a  circumstances and the the elephant in the room in this case as the court has pointed out is simply that mr kessler offered his consent there was no overbearing oh wasn't think consent just to look for the sweater no well it at first it was i suppose but then at a certain point as the court has pointed out mr taylor says search whatever you want and so you look at the all of the other cases that consider these types of questions and whether there's an overbearing of will whether there is coercive language to the contrary here you have police officers that appear to be nice police officers going out of their way but they weren't very nice to begin with they've they barged into his room forcibly they did and i'd show them and they all had gods they weren't so nice well they became nice we'll say and this is certainly after by the way that there were some factors leading the police officers to believe that they had good reason to do all i'm not saying that i'm just saying that to characterize them and this is all as a man you know pleasant conversation between friends and it wasn't perhaps not between friends but it was entirely appropriate and it is a model for police officers actually to to accommodate reasonably what the defendant happens to be asking for at that suggested that mr kessler in his state was a logical person so i could go into more detail unless your owners have further questions i would submit what does it do to you does it make a difference as opponent says that the officer made that request for the search at the point that he was talking about taking the things to the station does it make a difference that the officer made the request he said can i sear stuff i mean it's in response to the can textual question of whether or what was going to happen to the stuff so where i think it would make a difference is if it entered into the territory of an interrogation or further investigation and there's no other evidence of that this is simply in the context of whether or not this stuff is going to stay here or it's going to go away so was there a question with regard to that yes in interrogation about after he finds the drugs and then goes out in the hallway and comes back and buys is that his rights and by then they're talking about a gun is that a different level there well at that point there's certainly a slightly different justification in that the question at that point is hey is there anything dangerous that we need to worry about in these banks which in this context is also a perfectly permissible question and we're not talking about an interrogation it is not we know you're a bad guy show was whatever it is that they're looking for it is simply do we have to worry about anything in this it seems and a minimum harmless because he said there was a done that and the fact that mr kessler says that that conversation never actually happened he denies that he was told them either w have nothing more thank you thank you thank you you know i have a minute fourteen seconds out that i think as to the discussion of the last the statement about gun being in the bag that if that first problem with that is the judge never made any findings that officer how person was telling the truth officer palmer's the one but officer however since the one who said he asked do you have any needles and at the time he said that if officer house and had already been briefed   whether he had anything and he said he had a gun so the search was almost irrelevant at that point he said he had a gun where your honor actually officer however since testimony that the court relied on the court didn't rely on officer how this testimony or this response to questioning at that point the district judges findings not very clear as to which statement he's talking but he does say the officers observations i'm not sure what the district judge meant by those observations ok thank you very much