is outside the boundaries of this court's previous cases the closest case is the are not this case which also involves the removal of one of the interior panels of the vehicle but in that case the removal was gentle and the panel was capable of being placed back into the vehicle without any sort of diminishing in the safety provided by the particular panel here however it's clear from the record that there was actually a destructive search that the panel was in fact damaged leaving exposed an area the interior of the vehicle that was never intended by the manufacturer of the imposed and no doubt caused to diminish and in the safety of the vehicle in terms of its operation in fact in currently cars market them serve the car companies market their vehicles as being more safe because they've got  side airbags and whatnot but now we have a situation where the padded portion of the interior panel of the vehicle is removed making the safety less of the offering less take the protection to the passengers in this case in the rear specifically maybe i don't get my way it wasn't specifically made it wasn't made period and you were asked a couple of times anything else you'd like to add no you're on our brief radically set forth the issues i mean on both sides that's correct there are over and who did this just in johnson i mean it wasn't raised the the argument was raised was that this was a destructive search that violated the fourth amendment that's what we're here to argue today so i think that the argument was raised but  was never a specific statement that there's no fighting is to safety but really i think that's the government's problem because the government bears the burden to demonstrate that this search complied with the fourth amendment well that's an open question to the left that's really the issue  address the burden issue if this were a case it didn't involve destruction then i think that there is an argument he made that the burden should the honest because flores montana is a case that doesn't involve instant destruction and said that that search was reasonable but flora's month doesn't for instance there's no requirement of a warrants to conduct a terry stop but we would all agree that the government there is the burden to demonstrate that a terry stop is justified even though there's no warrant requirement at all this is the same situation this is just this search is not presumptively viable under floors matan zero and because it's not the government as the party that chose to undertake the search and for whatever reason chose to undertake it with destructive means there's no explanation in the record as to why that had to be the case but they're the party that that's very is the burden to demonstrate that that is a reasonable search out of these facts but what about bearing the burden of showing that there is damage to the vehicle and ordinarily when you study these things in law school they talk about the burdens like this are ordinarily placed on the person in a position to carry the burden and because it's your client's car i mean isn't doesn't follow that your client or defendants in these circumstances are in the best position to at least come for on this part of the whole thing well  in the show there's damage i mean how does the government know what condition the car was in before it actually pulled up to the to the stop well compared to your client well they certainly know what condition the cars in before they began to destroy it and in this case they knew what the condition was quarter panels and really i think that this is a case where the burden of production no matter who bears it it's not because there's a stipulation here that there's damage to the car and there's a concession on the part of the government at page seventy three of the export of records that there would have to have been some photograph just to illustrate the damage below but that was the only additional piece of evidence that was offered but the bottom line is the judge here never made a finding is to safety and i think safety concerns in operational concerns are separate here the engine could be completely intact but  chose not to and also chose not to demonstrate reasonable suspicion even though it said in forty five of the xserve record that he could do that so i don't think this you get in there by the apple if we went on the burden of proof issue the courts just reversed thank you in certain destructive searches at the border the burden on showing that the search affects safety for the operation the vehicle rests on the defendant and we would note that in the florist montana decision at one fifty four to one fifty five the supreme court looked to the defendant to produce evidence that the destruction of that the taking apart of the gas tank affected the safety or operation of the vehicle so in the supreme court the supreme court itself most of the defendant the question of when you're going to do damage to your whose burden is it to show that what you've done here is with the car and there's no no real authority by the just the general nature of it that it's an interior panel of the vehicle now i believe that the court agreed with that and i would note that in the opening brief by the defend it he stated on page fifteen of his me think that of course the concept came from the defense in this reply brief on the seat belt that wasn't raised at the hearing it was raised in the opening brief the first time that any allegation about a frame seat don't came  removed that's what we stepped to during the hearing there was no allegation raised by the defense during that the motion hearing that in any way the seat belt was involved and that is the issue that  search then the government responded to that but the the statement made by the defendants on the excerpts of record page seventy three is that not quote i think that the premier's that this was a search that i prying what the government all the government agreed to was that what the defendant was placing before the core was a picture of the vehicle and at a later date with the panel from look at no point that the government ever state that it was conceding or agreeing that there was any damage to the vehicle created by the search because in essence what the argument that flowed out of that was was there had to have been this is the i don't believe the defense challenge is that there had been some damage to the panel and the government will concede that with the government and jack if we have firm because we found reasonable suspicion presented here and we did not present reasonable suspicion that would be correct but we again we believe looking at forest one time on the other cases that the burden rests on the defendant to demonstrate either safety or operational impediments that reply brief that ari was raised for the first time a reply brief but it's based upon a photograph that was actually admitting that the record doesn't substantiate anything about the seat belt one way or another in terms of safety or operability i would agree that it is not of the photograph in my view depicts a frayed seat belt and you know it shows that the area where the seat belt is more is exposed but i can't tell you from looking at this photograph how it got frayed for the before could have been fra thin my view they have the burden of proof and so it was up to them to explain it another thing i'd like to point out about the search is that in terms of the ability of the defendant to come forward with evidence to the defense don't get to see the searches the stipulation this case does reflect that mr cortez was handcuffed and taken to a secondary inspection office so there's no ability on the part of the defense or the defendant actually to view what's happening in the search and to get him to convey that in court so i think that also counsels in favor of placing the burden on the on the government and then finally with respect to the reasonable suspicion that the government did very clearly disavow it they said they had something and they never presented it they declined to produce the dog discovery so i think that that argument