good morning my name is jesse katz my represent mr perry men and the issue in this case is did a law enforcement violate the fourth amendment when law enforcement entered mr perry man's car without a perelman was handcuffed and in custody under arrest for driving with a suspended license and at the same time his passenger anthony was in handcuffs removed from the car and on the sidewalk and in this particular case the district court relied on testimony from the officers that they at some point we're going to allow mr perry minin anthony back to the car and once they decided to release them the district court found that because of their future intent to eventually release these two gentlemen back to the car this was no longer a  case this is more of a michigan versus long and the court relied on long they were court relied on this unpublished six circuit opinion united states versus lori and the court also relied on  to understand why long does not apply and does not support the search we need to understand why long was decided in the first place and we can answer that question when we look at justice o'connor's opinion at the very end at the very end of the opinion justice o'connor in the long opinion focus is really on three things the vulnerability of the officers whether or not the suspects are under arrest and the quick decision making but the officers must make if someone is not under arrest in which he said specifically was we stress that a terry inv police investigation at close range when the officer remains particularly vulnerable in part because a full custodial arrest has not been affected in the officers must make a quick decision as to how to protect himself under those circumstances a protective sweep would be appropriate we don't have that in our case because in our case police had the entire situation under control perry i'm in my client was under arrest in handcuffs far removed from the from the vehicle in custody in a vehicle by the officers own admission they arrested him they searched him incident to arrest down the weapons and move them into the into the back of the patrol car same thing with m with anthony the passenger the police testified that they removed anthony from the vehicle the court made a finding the district court made a finding that he had been placed in handcuffs before the search the police for ystem they found the weapons remove him from the vehicle so at that time your honor the police not only have police complete control but there was no particular vulnerability at that point they can make decisions at their leisure the circumstances do not require quick decision making like would long required and therefore because there was no emergency long does not protect the particular search and this is distinguishable from laurie where the driver in lorry was not in handcuffs and when you're not in handcuffs then you have that situation where the suspect would defend in iraq and can get access to the car immediately turning to the gas concurrence where i submit that concurrence helps us justice scalia focused on the no arrest situation where the defendant quote will be allowed to return and why that helps us here is because when we look at the testimony of the officers who testified that at the time of the search they didn't make the decision they had not made the decision to allow mr pearman or his as safety concerns and mom no it's not because it would be spent actually testified in this is at the excerpts of twenty six we didn't know at the time whether we were going to let anthony or antonio back into the vehicle so they intended to release mr perelman they intended to release anthony and stepping back for a second they didn't have to necessarily release my client because he was under arrest they wanted to they could have taken him to jail but the fact that they intended to release the two because of the circumstances they didn't necessarily have to allow either back to the car and in fact when we look at the gas concurrence we're just a school media makes a finding that inevitably these guys are going to be allowed back to the car or the suspect will be allowed a lo d back of the car that simply did not exist here because the officers if they're really concerned about danger for example had several options they could have call for backup if they could since the car was parked in a transit zone and had to be removed regardless they could have released them after the car had been removed they could have allowed mr perelman to call the tow company at his own expense to have the car removed to his residence which was nearby after all he was driving home from work there were other factors other options that the officers had instead of allowing these guys back to the car and that's was distinguishable from the griffin case the judge that the district court also realized because in the district  sorry in the griffin case inevitably it was a foregone conclusion that the defendant would be allowed back to the car because the defendant had not been arrested for any particular crime so for example here let's say hypothetically m had not been suspended in the third degree he was stopped for tinted windows driving up particularly loud looking vehicle in a bad neighborhood the police could certainly sighted him and then it would have been a foregone conclusion that he would have inevitably returned back to the car howdy not been suspended but because he was suspended in the third degree there was nothing that required the police to allow these gentlemen back to the car they testified that they didn't really know if they to allow them back to the car and because of that it was improper against long contrary to long for the police to go into the car and do this protective sweep without a warrant counsel did the do the officers ever car and let's say hypothetically speaking let's say my client did have a possessory interest one it say maybe his paycheck from the car he certainly could have the officers because they were not particularly vulnerable not to make quick decisions they could have asked for his consent for the limited purpose to go maybe into the glove box to get a paycheck and then to mr perelman say you know what on second thought i don't want you near the car the officers didn't have to allow him back into the car they could have released him after the car had been removed because someone is suspended in the third degree where the vehicle is subject to impound doesn't necessarily need but the field goal is going to be impounded the state supreme court requires the officers to consider reasonable alternatives and i'd just gone over some of these reasonable alternatives for example of allow my client to call a tow company to have the car removed to his residence and that would have been a reasonable target if to do it in and the fact that the police made the decision to go into the car to do the sweep because they were going to impound shows that they never intended to explore reasonable alternatives because had they done it with that was their intent there would have been no need for them to go into the car right away so if the court finds that inevitable discovery does not apply then of course everything gets suppressed if the court finds inevitable discovery does apply reversal is still required because you cannot suppress a confession and mr perelman by the way confess to all of top of the gun so there was so even if the inevitable discovery exception applies if there is a fourth amendment violation refers is still required to give you a little bit of time  against long describes effectively a terry stop of a car and that's what this was if you look at mr perry man's testimony he said his testimony was that the handcuffing of anthony happened simultaneously to the protective sweep of the car and michigan comes along teaches that when officers are in a quickly developing situation in which they're looking at suspicion they have reasons to believe that the particular suspects are dangerous and that's a critical distinction from can't they can do a protective sweep of a car for their own safety and makes clear that that's true so long as they have two things one reasonable belief that the suspects are dangerous and two that they will have access to car the car at some point in the encounter and here we know that anthony would have had access to the car at the end of this encounter how do we know that i mean they were the police are in a position to internally control the situation that th presumably said you can't go back into the car but what they said is that in our normal practice when we have arrested someone on a suspended license and we're going to impound their car we give them an opportunity to go back into the car and that's so their thinking is we're can't in the sense that is where their tongue their testimony is all about what they wanted to do in fact that didn't happen they did things contrary to what they intended to do in terms up some future intent of letting someone go back in there you know letting some of them back into the car that would create a danger to them and they didn't have to do that and they didn't do it instead with your suggestion that they didn't do what they said they were going to do but for i want to explain i don't think they'd first of all they weren't they didn't the proper procedures for impounding the car you agree with that then you're washington i  intended to let him drive the car away i'm not suggesting that the record shows that they did release anthony from the scene michigan against long does not swallow going up because there are two important critical distinctions that won't apply in every case the first is there has to be a reasonable belief of dangerousness if the officer say that i reasonable doubt believe this guy was dangerous so i searched the car and i was going to let him go if they don't have suspicious just excuse me specific and articulable facts that show he was dangerous that's back your honor it is true that they could have ordered him not to go to the car but they had a reasonable suspicion that anthony was dangerous and therefore they did not have to rely on him not going back to the car that's the whole point of michigan it's law we're talking about the limited set of cases in which the officers have a reasonable basis for believing someone they've stopped in a car is dangerous and in those cases when there is a lead out so that the police can always say that why they stopped the car to begin the if they stopped a car for that reason they couldn't say that they had a reasonable basis for for saying that the driver was dangerous here they did have such a basis both of the drivers of the excuse me the driver and the passenger had recent felony convictions on their record the car was the gang colors of a gang that had committed a homicide against a rival game three weeks earlier within a stone's throw of this parking lot anthony had been drinking there was a knife in the car all of those things distinguish this from a case where the police stop a car because it has a broken headlight and then do a protective frisk and long does not swallow for that reason the officers also have to be able to credibly testify they were going to release him and there will be cases where reasonable dangerous suspicion develops after you stop a car because of a broken headlight but it's not credible that you're going to release it because the reasonable suspicion is some of fense for which there's no suggestion that under state law suspect would ever be released here it's quite common for suspects to released for driving on suspended license and setting that aside if you had a passenger who wasn't dangerous the fact that you were going to release that passenger in the situation might not be a basis to allow protective sweep of the car but here we have suspicion we have reasonable articulable facts as to both of the people in the car as to dangerous  that is why long does not swallow bant and long applies here now if you'd like me to address the impound the tiler case on which council has relied for the suggestion that improper impound procedures were followed here says that officers have to consider reasonable alternatives but the tire case involves a car that's been pulled over on the side of a highway this is a car in an active transit zone in the driveway for a park ride for buses at the end of rush hour on a friday and the reasonable alternative to having the passenger drive the car away is not available because the passenger has a suspended license and under that situation under washington law it would be reasonable to impound a car he says i could have called a private tow truck but that's not reasonable because it's no faster and it's probably slower because one assumes reasonably that a police be acted on more quickly than a private call for an impound so even if you believe that the gun was not properly found under michigan and sloan this car would have been impounded and inevitable discovery would protect the search of the gun and i want to address quickly why the statement would have come in to under the inevitable discovery rule and the fruits of the poisonous tree doctrine the normal case is you have physical evidence and then someone speaks when confronted without physical evidence later on the physical evidence is suppressed and the question is can the statements come in and you look at attenuation in this case the physical evidence still would come in and so there has to be some reason to believe that the way it was presented to him caused him to speak and he wouldn't have spoken he wouldn't have given a statement and here we know that's not true because he was mirandized and his motive which was to protect anthony stayed the same so this is really no basis for speculating that she wouldn't have spoken in this context and i think it actually is a good illustration of that principle and how you think about what would have happened and it's a case where it's the opposite situation the defendant gave a statement that the supreme court suppressed was an unlawful interrogation this is the christian burial speech case if we could just quickly return to a point we were talking about earlier obviously we're not in the business of second guessing p citizens but what's very remains very puzzling to me is that was under arrest could have remained under arrest and yet the police testimony is that despite the fact they could have kept him under arrest they were prepared to release him give him access to the vehicle when they believe he was a dangerous individual and might have access to some kind of weapon in the car w at it it's difficult to understand that sort of sequence of thinking and it creates a suggestion that they were trying to create a situation which would justify what otherwise not be justifiable even if you think that's true the same thing can be said as to anthony they had no basis to hold him so even if you think the fact that they had articulable facts that made them suspicious of his dangerous s is not enough to arrest him but is enough to do for us going i think that's actually not so uncommon under terry that the officers terry is about on the street judgments of developing facts and the police officers response to them and it's about reasonableness and remember the protective sweep of the car that happened here looking in one window looking out of the search under the seat seeing nothing coming to the other side looking into the window seen the barrel under a search this is a very limited search and terry says we look at that sort of developing you go back to the car is that's what creates the dangerous potential for dangerous or safety concerns which invokes  so what do you how do you respond to that that they didn't have to lift and then you go back to the car my response is twofold one they had to let him go and once they let him go he was out of their control and might have gone back to the car so you can ignore their testimony about what they plan to do we know and there's no debate in this case that they had to let him go and once he was gone sure you could imagine you know ordering them her way but again given that they had reasonable suspicion that he was dangerous they don't have to trust that he isn't going to reach for a weapon in the car to get your own inevitable discovery argument is based on  they were going to him the car and everything would have been downed anyway yes but it would have taken some amount of time to impound the car and i'm not aware of any authority that says they could have to invite him to go back to the car i agree with that but they couldn't have stopped him from going back to the car if he had once they released him lunch for it when he was sitting right next to the car when when he was  handcuffs the other answer i said i had two responses on the other answer is on page fifty seven of the record where perry minister justifying and he says and he was getting put in cuffs referring to anthony when they were putting the cuffs on him the court says yes and he says the guy at the other the other officer he had already he had already started searching the car so the corner sort of analyzing this is first they did this and then they did this and then they did this but in fact this was a fluid terry stop and one officer was doing one thing while the other was doing another thing so as anthony was being brought out of the car and being put into cuffs one officer was doing a protective sweep of the car because that's allowed into michigan to get phone and they're very clear that what they did was a frisk of a car and not a search meant in terms of the fluid situation that's not what the court's finding was because if we look at the court's order the court district court found that the officers had searched anthony's backpack they had first both gentleman and shortly there after after they had been handcuffed after both had been handcuffed bottom of page two shortly thereafter that's when the search began so we're not talking about a fluid situation regardless of what mr perelman testified to the court's finding was that there was a search of these two individuals the terry pat down search of their persons no weapons were found they were handcuffed removed from the from the vehicle then we have the search and that's what the court find found in terms of allowing anthony back to the car again long applies only when we're talking about quick decision making in a circumstances that require quick decision making and to answer the question about whether the cut the police how to allow anthony back to the car the intent to release is distinguishable from intending to release them to the car because they had already determined the police had already determined that mr that anthony was not armed that he had no belongings in the car he already brought his backpack out he had no possessory interest in addition to instructing him to walk in the opposite direction of the vehicle there was nothing that prevented the police from saying we will release you and that he would just hang tight until we get some back up here and then once back up arrives we should be any minute then you can go but there was nothing that required them to allow mr perelman or anthony back to the car because the record is clear neither them even expressed an interest in going back to the car no urgency and to answer your honor's question about why the car was stopped in the first place it was stopped because of t windows and again had there been no suspension of the license then the gryphon opinion would be a political because and even the dance concurrence because had there been no suspended license then it would be a foregone conclusion that ant that and antonio my client mr perelman would necessarily be allowed to go back to the car to remove it and that's when you get into those line of cases but because of the suspended license because the car had to be removed from the scene regardless of whether  going to be impounded had to be removed there was nothing that required the police to impound the vehicle or allow these gentlemen back to the car with respect to inevitable discovery when counsel says that it would be unreasonable to allow someone to that to say that they could have called someone else as a reason why alternative tyler says that that is completely reasonable in fact that's what the tiler decision is about you have a vehicle that had to be moved from the scene and instead of impounding or before impounding the police gave the driver the police a cell phone and made a call if you can find someone to remove the car within thirty minutes great if you can't then we're going to have to move it and the fact that the police in our case immediately go into the passenger compartment regardless of the extent of the search they are in the compartment they're looking around that's a search that's what the court found the court found that that was a search regardless of that the police never explored these reasonable alternatives that are listed in tyler let me ask you counsel about the search itself i didn't see anywhere in the record i may have missed it when the officer went to look in the car and found the firearm that he testifies  the firearm visible if it is the open the door or did he actually have to really kind of start digging and looking for it before it turned up well the testimony because i did the evidentiary hearing and i remember this and it's should be in the transcripts but the testimony was that he saw w appeared to be the butt of a gun as he opened the door and peeked inside it was on the driver's side so he had to actually physically get inside the car and that's what the court found because a court found that there was a search but the judge the district court found that it warrant so there was enough of an intrusion to create a fourth amendment concern here and so if the this court finds that that intrusion violates the fourth amendment then we get into the inevitable discovery and so on with respect to