ok like to go right to the primary issue raised in my brief which is whether or not the district court relied correctly on the inevitable discovery doctrine to allow the introduction of the heroin at at the trial tried counseling you know you and i did not try this case as the court is aware the heroin was discovered in a cylinder with black tape on it in my client's suitcase which was located in the shrunk of the car that was being driven and it was there was being driven by someone else and it was in fact owned by the driver one of the officers performed what amounted to what the court ultimately found was an unconstitutional search discovered the heroin there was another then yes i think he was there and i think the first thing that was found was the heroin and then when he discovered the two the other officer this was officer drummond is the officer who discovered the tube in the suit case officer brown was that was the officer with the canine unit he directed officer drummond to restore the two to the suitcase he then asked the officer driving to place the suitcase on the roadside officer brown then ran the dog over the suitcase and the dog alerted to the heroin based upon those facts the district court concluded that the tube of heroin would have been discovered inevitably and could therefore be allowed regardless of the fact that officer drummond search activity was blatantly unconstitutional this court has helped primarily  specifically and in the vast place the readiest case that among other things the decision to utilize the inevitable discovery doctrine has to be based upon historical facts capable of ready verification and not speculation is in terms of historical facts was it his historical fact that the driver gave consent for the on the bill to be searched the driver gave consent for the car to be searched but the court also found that mr kerry and sort of the officer cannot of reasonably concluded them to carry on soto consented to a search of his suitcase car in terms of inevitable discovery if the search consensual search of the car resulted in the discovery of cocaine under the seat would it not be logical to conclude that that would trigger for other inquiry and for the say it's logical to conclude but i would submit that it's somewhat speculative at the district court felt that once the officers found the cocaine under the seat they would have searched the thought standard operating procedure was nothing gets taken to the impound lot and then they they break that thing down into a million pieces and look for as much as they can find that's not not not what they do that's not what happened in this case i understand that what we're about in the abstract about independent discovery is not the case that when an officer finds a kilo of cocaine under the seat of a car that the car gets towed to a police lot and then in in their own sweet time they go through every inch of that car or you arguing that they then stand by the roadside and they bring in all the people they break the car down on the side of the highway you know i can i understand i understand your honest question this was done by officers in south carolina maybe this is how they do possibility but i don't think that i think to some extent it's still somewhat speculative to assume as the district court did that the officers would have followed procedure would have availed themselves of every opportunity to search this car right then and there and they would have  testified that usually they do things in a different order usually they run the dog around the entire car here they talk a man later and it's obvious that the reason they used the dog was because they knew they had a problem with the heroin right but if brown and curry was a real car but here officer brown i think what officer ground it really calls his credibility into question he moves that for us to decide because it does look like the this record believe brown i would question that finding by the district court officer brown knew that there was a that the heroin was the product that the sky every of the heroin came from blatantly unconstitutional search he knew there was a problem here he took things completely out of sequence he adopted his own procedure as your honor just stated you never heard of this thing called the law gets lined up you know we had a problem he was trying to salvage the heroin and he you know you're probably poison the well they poison the well with the illegal search and it's pretty easy to find something you already know is there exactly and they get all the things out of a charade right but but we did guzman give consent to search the interior of the car before or after the illegal search let's assume it was illegal my recollection for the sukkah my recollection is that she gave my recollection of the record is that she gave the search before so why why do we even get into the the luggage let's assume that we agree with you that that was just blatantly unconstitutional illegal don't you have to persuade us that either her consent was invalid or her consent would not have led to the cocaine being found under the sea or the car would not have been subjected to an inventory search after the q is found under the seat don't you have to disabuse us of one of those three things in order to win i think it's pretty clear that the car wouldn't have been subject to an inventory search because the officers thoroughly searched it right then and there on the roadside they weren't interested in following procedure they were interested in doing what they did and the suitcase i think it's pretty clear was my client's suitcase remember the officer remove the suitcases from the trunk held them up who owns which won my client identify the blue suit case as his suit case and he never and it was as the district court found the record did not bear out the fact that my client gave permission he gave consent to search his suitcase even if it was located in the trunk of the car and that was why the to take into consideration the fact that there was this money in the apartment neatly wrapped as well as the fact that the two occupants had diverse explanations as to how they met what they were the district court could take those things into account as some want to trouble some but the fact of the matter is there's nothing illegal about possessing money but would it not be an historical it would be a historical fact but i think what vasquez darius is getting at is you have to look at the entire record and primarily what the district court has to rely on here is the credibility of the officers and i think the credibility of the officers between drummond's testimony which the district court clearly discredited at least on the consent issue and then what brown did in terms of introducing the dog and trying to salvage the search i think the officers credibility here was highly questionable i  think you know drama in the district court just completely discredited the district court could not believe in any way shape or form that there was any consent to do the search what grounded quite frankly with the dog can only be described the slick but  camera feeling to well that also you know it's very interesting that you're on a brings that up they both consented but there was no record of the consent on the camera why because the consent happened to be within the twenty to twenty five minute gap on the tape reconvene it's the district court found that wasn't problematic i was quite honestly surprised by that but well do we we have to be somewhat differential of that factual finding don't we i understand that you have to be deferential that is absolutely correct but i would ask the court to consider that not only was this twenty to twenty five minute gap there was testimony about the fact that the sound quality on the tape was poor therefore it was impossible to hear the entire conversation between the parties one of the ultimately discovered was missing as your honor will recall the tape that was played at the suppression hearing was really a composite made of three other tapes and one of the tapes that open that lee was copied into that single take that was played at the hearing  went missing some time after the suppression hearing but before the trial and that fact wasn't revealed i think until the trial there are a lot of issues surrounding the tapes it's not just that twenty to twenty five minute gap i understand the court is relying on it but if you're looking for historical facts capable of ready verification and and not speculation i don't think you're going to find that in these tapes the tapes i think create a lot of problems and the district court really to my mind and i would respectfully submit with all of that with all due respect the judge the mandal really didn't question the tapes to the extent that they should have been question and there were other issues as well the reports that were prepared by the officers when there was in testimony concerning their reports the reports were apparently incomplete the officers also has a right to his concerns i'm sorry they did that it's right that the consent issue was not mentioned in the reports and the consent issue is really central to what happened here if you're going to put something in a we've all heard the testimony of the officers only put the essential parts of what happened in their reports we've all heard that a thousand times but one of the most essential things that happened here on the road side was the fact that they consented to the car to the search of the car yet that did not make it into the reports there's also the fact that the officers both testified that they couldn't recall key elements what happened in their exchange with article is mine or my client so the officers testimony was subject to question on many many levels there's the problematic nature of the canine search all the way around i don't see how the court could rely on inevitable discovery on this record to allow the heroin would normally have been it's not with respect to the dog i'd like to press the argument that i pressed my brief and i didn't cite or quote this particular statement from my supplemental appendix but let me read it here because i think this cinches it and this has to do with their search of the vehicle that was already underway searching pursuant to guzman's consent right and the fact that they would have found the cocaine pursuant to that lawful consent which wasn't challenged below and it was mildly challenged on appeal and this is what bro he was asked by cross examination by trial counsel when you opened up the trunk or when they open the trunk and held the suitcase of you had no reason to suspect that there was anything in that suitcase and he says no we were just searching the whole vehicle and it's contents that's what sergeant says so that certainly supports and i think we are under clear that hurts you because of guzman doesn't have the right to consent to the search of the client's suitcase now in the world is the fact that they're going to engage in illegal search the on the scope of the consent lead to inhabitable discovery now because what what he's saying there we were just searching the whole vehicle and it's contents so it's not as if they were only going to search i guess or the cocaine exactly so once so once you credit and judge samantha made this finding right and we're under a clearly erroneous standard review here once we so the question is is there any evidence in the record to support the finding number one that there was a valid consent and that's about what they were what their procedure would require them to do in that situation they found some cocaine in the car and that situation what do do they well at the time i don't know that there is testimony about w will her because we have in the record what they did and that's the best evidence no that you saying the best evidence of what they did of never discover is what they did in this case so what they did in this case and i think it does but if it transcends the fourth amendment well that's ok because it gets into the inevitable discovery will because that's what they did i think there are i may have let me say restate it in other words the question is once they found the cocaine what they had can you continue searching the car and inevitably have discovered the heroin and if so would that have been lawful and the answer to both of those questions is yes because we know when they searched the suitcase first they didn't stop there and say that  drugs in the car what they do have to find the drugs is no testimony about and found in the car which really surprised me because it seems like this is a slam dunk is an inventory search well there's nothing on the record about you know to it you know there is and that was raised after the evidence closed and i think just the mantle said you know i don't want you to submit an affidavit at this point regarding what the image or procedures are i agree that's one way and that's one sure way but but but testimony about how searches are done would go way beyond the preponderance standard required for to prove an ample discovery that's belt and suspenders and how do that then what is the testimony about how that not how these guys in their search but the testimony about how searches are conducted as a matter of course what  you don't want to see me get  you had let's assume there was an unlawful search and most might have a serious argument is premised on the fact there's an unlawful search well that's what the just a court found that's why we're here but that doesn't mean it somehow makes you never will discover a conclusion more or less probable you still have to the next step is to determine whether you buy the disc exclusionary rule and here write about that means that wherever there is an illegal search that is very very thorough that whatever is uncovered will come in under the circuit case in my brief and i didn't i should have blown it out a little more and but i'll do it here right that's almost on all fours and the only difference in that case is that the illegally search bag is in the interior of the car as opposed to in the trunk but in that case the officers get consent from the driver not from the passenger right so they say the officer goes in and there's one there he such as enter the car and he goes right to the not sack that's on the passenger seat which i think has some identification in a showing that it belongs to the passenger not to the person who got the consent and he opens that bag and what does he find he finds a methamphetamine a scale and an illegal and a handgun he then continues his search and on the console he sees pipes are right there for smoking meth or cry forget what it was but the conclusion of the eight eighth circuit there affirming the district court was that even though the initial illegal search there was an initial illegal search of the backpack because the officer should have known he did not have consent to go into that bag inevitably would have discovered it was in that bad because once he saw the paraphernalia on the console he would have continued searching ensure the car he had probable cause at that point and under the automobile exception had the right to go into every single close container in the car and in the and they still found that this the contraband and the gun in the knapsack and i believe would have been discovered and how do they know that the officer would have searched that back because after he starts the bag he continued searching the interior of the car so in our case we know if point your argument i guess is once they find one piece of incriminating evidence they don't stop they that's when they really go to town and they right because they have probable cause at that point you have no more concern about but we have no evidence of that being standard operating procedure here you're lying upon the fact that once they found something they continue to look for more that's correct and i mean the video the videotape which i haven't seen it and i apologize for that i didn't i didn't  look at it or in connection preparing my brain for it it's clearly shows a very thorough search going on not just while they're looking through the bags and but even after they find the cocaine without consent though to search the agree i agree everything would go out the window but because she gave her consent first you know it's almost in the fact that she gave her consent first but then they didn't find the cocaine till after they found the heroin though right that's correct and of an odd sequence of events i don't know if it is let's let's look at this way they may have gone to the easiest thing to search and what they consider the less intrusive they don't have to start taking things apart i think you know other than the easiest less intrusive plainly well i don't know that's my only unconstitutional i mean i know i know they testified that they believe that they had his consent i think it would be a different case if they believe her consent was sufficient to allow them to search his baca that that may be unconstitutional but it wouldn't be plainly and reasonable that may have been mistaken but i think that and we'd be we might be in good faith territory looks like the court relied upon the fact that the person who gave the consent was the renter of the backpack was illegal the a circuit found that her consent did not extend to the back and therefore the search of the backpack had been illegal and that's why they have to reach you have a little scary conclusion here the driver of the car is the one who has the right to consent and there's no challenge my adversaries brief relate to that to the finding that pursuant to that consent they would have found the cocaine there's been no assertion that because they found heroin first they look harder for the cocaine than they would have otherwise  argument basically is in terms of inevitable discovery it's what the last says as parameters as to what could be done legally as opposed to what happened here in this case on the record because the record is happened there were two ways to make an inevitable discovery finding here either the one that said you find pursuant to her consent you find the cocaine you then have probable cause to search the entire vehicle you search everything you'd search the suitcase anywhere you find the heroin that's one way i think would judge the mental dead and i think the other way would be if you held up the bags and said whose are these and mr secretary and sort of clean the suitcase and they said well maybe search it and he said no then you have testimony in the record that they would have gotten the dog and performed the snuff and i can quote you that testimony to corporal drummond testified that if either one had objected to the can the scope of the search or at any time had said i don't want you to search i would have ceased sergeant brown to run the canine that's a page one hundred eight of my panix so i think you have two different ways of getting to the inevitable discovery conclusion just a mental merge them and i think that that was unnecessary but the fact that they ran the dog afterwards shows you that the dog would have alerted and the only reason they didn't i think you could argue is because they believe they had consent to search and were searching pursuant to that consent and they found contraband they ran the dog afterwards not only confront from authority but they stay testified record the court said the body would have been inevitably found in the same condition that was found after the defendant responded to the christian speech but what i'm trying to search for this record what on this r now doesn't help you in the test when he was exactly the reverse that what they did he was not the normal procedure right but the testimony that i quoted from sergeant brown was at the time the suitcase was removed they were searching the entire car and it contents so in other words he's telling you as a matter of fact at that time and that's a finding that no one's challenge that at the time that they're searching the suitcase are not just searching suitcase they're searching the whole car and why are they searching the whole car just because a good  consent exactly makes a perfectly lawful there's no amp and our user so they get goes once consent to search the car and you've got testimony that says we're searching the whole car and they're not smart enough or they're too an ethical to realize that they can't open a close container in the car absent probable cause they said they don't they certainly don't recognize that her consent extends to his his suitcase ok but it even if they had if they had recognized that and asked the question and he had the point i guess i guess the point boils down to it correct me if i misunderstand your position but as i understand your argument you're saying that the officer testified we were searching the whole car once we got consent and it's it would be strange to conclude the people who are intending to search a whole car before they know there's any incriminating evidence are going to side not to search the whole car after they find a kilo of cocaine under the seat exactly and we know that because when they found out what that argument was you could that shows that they would have continued searching once they found contraband we know they considered searching once they found heroin so if they found the cocaine first we know they would have continued searching and found the heroin it works in both directions of my argument but i just i'm sure sure  question of the belief and that would be if this court found that the inevitable discovery rule was misapplied as to the heroin but there was consent to search and accepted legally the cocaine was found what's the definition in terms of harmless error beyond a reasonable doubt as to this court a pining that the her one would have the cocaine would have to fall as well because presumably this whole case was structured around as far as a parent concern in this defendant constructive possession and assuming that it wasn't given that that's a very difficult process concept process anyway  could this quickly beyond reasonable doubt that the conviction of this defendant for heroin and cocaine wasn't affected by the the heroine well i don't know that his th prosecution theory was that it was constructed with actual possession because it was in his luggage he deny that's that the heroin but i'm talking michael caine if we had one goes right he was found guilty according to the jury verdict sheet as to bolt a is only the only thing that's left is a cocaine right now the question has to be did the admission of the heroin so taint the jury of consideration of count three and count one because he's the defendant is asking for a remedy in both that there would have to be a new trial  answer is no because this jury knew right we can tell by the by the pattern of their verdict right where there was physical evidence right which was for count one which was a conspiracy to distribute cocaine and the cocaine that was found at this from the car that's his that's his on the scene recorded admission that he's the one who put the cocaine in there and he repeats that admission several times afterwards including in proffers with the v a either was is or he was protecting the girl and one of the other one of the other so obliterated the jury's ability to reason rationally that they would have voted guilty on count one not guilty on count two for which there were no drugs there's no tangible evidence only testimony and then guilty on count three where we have a special finding i ask you to affirm hand comes along behind the office with a shovel and sometimes get the feeling that if the prosecutor can't establish the record and try the case that we're then handed a shovel saying go on there and clean this up well there actually is testimony about procedure that i want to call to the court's attention it's not pages sixty two and sixty three of my pentax where officer brown who's the canine handler testifies this the what he difficulty does in these cases first he speaks with the occupants of the vehicle because he wants to  know basically he's addressing issues about the safety of his dog he wants to try and figure out based on answers to questions whether or not there's anything in the vehicle that might hurt his dog if he brings the dog up to the vehicle for a search because he has had some experiences were dogs have been injured by things that they discovered that were planted with the express purpose of hurting them and then he testifies that after he satisfied with those questions then he asked some additional questions about drugs if they have any drugs on them if there were any drugs in the vehicle and then only then he well let me read his words and once i'm satisfied with those questions i then retrieve the dog from the vehicle from my vehicle and then we usually walk up to the front of the suspect vehicle at which time she's given a command to begin to sniff for narcotics and we proceed around the vehicle after we go around the vehicle she either will alert or not alert and if she alerts she's rewarded and returned to the vehicle so we do know about procedure and what we know about procedure is that it wasn't followed here not only wasn't followed here but the exact opposite was done here and i think it's important for the court to bear that in m as it reviews this case with respect to the issue of harmless error i want to address that very briefly this verdict was a split verdict mr just let me go back to where you just said because that's an interesting point is that standard operating procedure for a consensus earch that sounds like s and p for a non consent search this is good if you have consent you don't need to take the dog go through the whole rigamarole taking the dog around the car and see if it alerts you have consent you just start searching again i don't know how the florence county sheriff's department in south carolina conducts itself this is what officer brown placed on the record at the suppression hearing he started and you can't tell us whether that relates to a consensus rich or not you know it's indeterminate it's and as far as i could tell yes sorry i'm sorry to interrupt but that's ok that's fine as far as harmless error goes i think the issue is if you take the heroin out of the case doesn't really make a difference there was a split verdict in this case my client was found guilty he was found guilty of two counts found not guilty of one count clearly the jury was troubled here the jury had a problem with with the evidence in this case and the fact that there was a split verdict suggest strongly that they did have some issues with what they heard and saw during the trial if you take the heroin out of this case you completely change the complection of the case you change the mix of evidence that goes to the jury and i thought the jury was specifically asked about cocaine and he said yes the cocaine s cocaine and heroin we don't know what the let's let's say the heroin is wrong when the jury said yes to cocaine how what what what do you have for us that the jury wouldn't have reached that conclusion based upon guzman's consent to search the vehicle in your client's admission that the cocaine was his i don't think we can really answer that because once you take the heroin out of the case the presentation of the case to the jury completely changes we don't know what that trial would have looked like so he was there we would have been there if the heroine's out of the case he doesn't admit that the in the case he does admit the cocaine says as your honor pointed out when my colleague was up here arguing you might have said that just to protect the girl and that's something we've all seen that have my sort of my stance is he did it to protect the girl the problem is that gets him convicted it gets him convicted but someone's getting convicted either him or the girl once they find the cocaine and he you know maybe he took the fall for her who knows we don't know but we don't you know he he owned up to the cocaine right with a in a case where the heroin would not have been presented to the jury it would have been presented you know that would have been a completely different case the manner in which a defense counsel would have presented his case to the jury had he won the suppression motion at least that's the heroin would have been very different and i don't know that we know what that case would have looked like i think that's speculative