it please the court my name is kimberly l brown here on behalf of the appellant mr graham and i'm going to discuss today whether mr graham's motion to suppress evidence found during the warrantless search of his car should have been granted and i will mainly focus on the justification found by the district court with with exit exit i think it's important to remember that there's there's a rule in the rule is that warrantless searches are per se unreasonable and while there are exceptions to that rule that are well documented in supreme court and circuit court law the rule must still apply and just because a car is movable doesn't give the police unfettered access to the car to search it without a warrant cases that are well outlined in our brief provide certain guidelines for when an exit to see exist and one of the circumstances were exiting just existent see exists is when there's a compelling law enforcement reason for searching the car without a warrant the reason must be objective objective lee reasonable such as a concern for the safety of the police or the public but if there is a safety concern articulated it must be a legitimate concern and in addition to having that all those reasons that must fit a warrantless search of a car there's also a concern with whether it's feasible to obtain a warrant and in this case based on the facts i don't believe there was an objective lee reasonable or legitimate justification for this warrantless search and that's because he was an away from the card crowd s you may recall from the testimony of the officers of the suppression hearing this crowd someone in that crowd had made a nine one one call the officers arrived their first concern was with mr graham who was parked in the road while the officer is running a search on mr i guess a record based on mr graham's license he's walking up to the yard checking with these two different groups of people it took him six minutes total to talk to do a license check on him talk to these two different groups of people verify why the nine one one call was made and get back to focusing his attention on mr graham so out of all of that time i would say it probably took two or three minutes but certainly less than a total of six minutes for the officer to talk to these people one of whom made a nine one one call and realized they want to danger at all there was nothing on really going on there was no problem there no criminal activity and he was i believe officer testified i refocused my attention on mr graham so there was no concern at all with these people and there was certainly nothing in the testimony nothing in the record that showed anyone in the yard anyone at this house ever approached mr grant's car approached him came up and asked the officer is whether there was a problem what was going on and tried to get near the car tried to get near the officers nothing like that was shown in the record so there's nothing to believe that this crowd was unruly or a danger to the police whatsoever the furthermore i believe some of the facts that are outside of the actual danger are safety to the public and police that were not present is the fact that the police could secure the car so this goes to whether or not it would be practicable fluor of the police to secure a warrant to search the car once they found out a weaponless and it when the officer drove up and mr graham was parked in the street he said mr graham cranked up this car and was going to drive off but he told him to stop an officer approached mr graham and talked to him there for the cars with the car the keys were left in the car ignition or they were on mr graham when he was arrested and search so they certainly had the means to secure that car while they obtained a warrant furthermore there was no one in the passenger seat no one with smith with mr graham and there's no evidence that anyone in the crowd knew mr graham offered to take control of that car which was illegally parked in the street so the officers were going to have to do something to secure that car tow it move it get it out of the road because it certainly couldn't stay parked in the road obstructing traffic so there were all sorts of mechanisms that the police would have to take to move that car and secure it therefore there's no reason that it couldn't have been secured while the officers obtained a warrant it furthermore i think this case is a lot like the coolidge case which i cited in the brief because and why there was no exit didn't see in coolidge first of all there was no inconvenience to the officers to secure that car based on the officers testimony at the suppression hearing one officer stayed with mr graham he was already handcuffed there's some question about exactly when he was put in the back of the police car but certainly he was put in the back of the police car at some point after his arrest and he was secured by a single officer in handcuffs watching him for officer safety while officer lauder went and searched the car so there is no reason that instead of searching the car officer allowed or couldn't have use understand the concerns about slow walking in definite detention but it can't be the case well it can't be the test that in retrospect it could have been done differently but i don't think it's just in retrospect i think the ideal you know that's what we're doing i mean we're looking at it there are a lot of people in it although one finally someone in the crowd last up they haven't called nine one one but it does sound it but it still a fluid context and we are having to bring to it monday a monday morning quarterbacking well if it could have been the case that one person could have done this and one person could have done that but that is that the test  is not an analysis or construct an afghan fit to kill only helpful i understand and i do understand that the law enforcement is given certainly way because they are in a fluid and potentially dangerous situation i should  objective fully have been done differently i guess would be a formulation that i find a little more palatable well i think and i don't think that the i or my intent was not in the brief to indicate that we should be looking back retroactively on this and deciding well they could have done this or they could have given you that that's the formulation it could have been and i'm not i understand it that your argument i'm just saying from my perspective  in a jeff and objective assessment of why you should have been done differently is something that might provide useful guidance going forward well i actually don't think that it's a retroactive second guessing of what the police did because when they testified at the suppression hearing neither one of the officers ever said they were worried about the crowd they said oh there's a gun and we need to sic i referring specifically to the fact that you said while it was a fairly short period of time it was about six minutes and while officers doing something with the keys they should they could have been doing something else that was what i was referring to i only refer to the keys because it in my mind since there is this requirement that it be for your not feasible that you get a warrant i mean if if someone if you if mr graham had a couple passengers in his car if the crowd had come and surrounded the car when he was when the officers were questioning mr graham that would make it more reasonable that the officers felt like they had to act immediately none of the testimony showed that these officers were worried about the crowd there was no indication that anyone knew the gun was in the car or would make a move toward the car and so i say that they had the opportunity to secure it because i think that's the only reason it would be feasible to obtain a warrant if you could secure this weapon if this existence see is based on the safety of the public and officers of any problem johnson you suggest in these  but the real essence of the argument is that given the circumstances warrantless searches seize resume to be wrong one is there's nothing in the records which otherwise just that they testified to nothing except the fact though he had a gun and we had to go secure it for the safety of us in the public but there was nothing else that showed there was a danger to the police officers given that mr gray on the only person in the car was handcuffed and in the back of a police car and given that the crowd was of no concern whatsoever to the police because even though they may have someone there made a nine one one call it only took them a few minutes to dispel with any concern with were people with the crowd still intact were there people still move milling around there were people up in the yard and he was on hit the car was on the street right but i mean did the crowd the crowd have been in the yard they were they were there in the you know their right but even during the testimony the officers never articulated that they had concern with that crowd that was never a reason given at the suppression hearing as to why they believe this education see existed i want to make sure dy did not they did not and the judge with you the automobile exception the district court agreed that because because of the testimony of the officer that he didn't know at the time that the gun was retrieved from the car that mr graham had a prior felony conviction that he couldn't there was no probable cause to believe that gun was contraband so i think that the court declined to decide whether it was a search a valid search incident to arrest although i think that's the weakest of the government's argument that because mr graham was secured and if not put in the back of the police car the time he was certainly handcuffed and on his way to the back of the police car at the time the search was conducted and the only other alternative for the search and since it didn't to arrest is if it was reasonable to believe that there would be evidence of the crime of arrest found in that car and as the record shows what mr graham was ultimately arrested for was a warrant that was two years old for destruction of property so there's new legitimate argument that there would be crime there would be evidence of a two year old crime in his car at that time so that is those are the two other exceptions that i addressed in the brief i did not address the inevitable discovery and the other the community circumstance that you discussed because those were not race at the district  as well as which i think is an important point is that it has to do with the cars mobility and i think it to give each case in the coolidge case distinguish when a car is actually on the open road and when it's parked in someone's resi e so that makes a difference and i think that it's also a question of when an exit jency exist if it's easier if it's likely the card for the car to be moved or for someone to access it or whether it's not and i think all of those factors would w mr graham favor but in some i would say it's hard to imagine under what circumstances that oborne it would be required to search a car especially when a gun is found if it what if it's not practica practical in the circumstances for the officers to obtain a warrant the rule would become that an assertion by the officer that he or his or the public was in danger and there's a gun involved and it's in this car that it would just become the rule that the warrant isn't required in these circumstances i believe i've addressed everything that i had prepared unless there are questions i'll concede the rest of my time which is only thirty seconds  exceptions to the one requirement the exigency circumstances exception as well as the automobile exception both of which provided the officers in this case independent grounds on which to conduct a limited search of mr gra exigent circumstances specifically within the firearm context a course of hell that objects objective only reasonable under the fore circuit when there is a real concern that for the safety of the officers present ward the public at large or to further still that requirement to suggest that law enforcement officers have a right to secure firearms had a circumstance where you had toothache and the people they'd been dispatched to the scene based upon a nine one one an up call whereby the operator informs officer read that it sounded like there were just orderly individuals in the background the hearing was was certainly that the vehicle was parked in the middle of the street close to the house where the officers were just passion one of the cory and one of the factions of individuals was closer to the street the other faction was alone does not establish exigent circumstances here or the office had much more than that and i do disagree with appellants characterization and that the officers had no concern that any fear about the crowd had subsided at that would like as far as this record shows they were out there talking to each other in two separate groups there's no situation well let you call people stand in the situation but just where you do have what you do any concern about the two different groups as of sided is is inconsistent the record certainly inconsistent with judge harwell specific finding that the that the that the that the officers are still in the process of securing the scene that officers who were responding to and i want an up call that information that there was possibly disorderly conduct in the back in the background and that that those two officers were outnumbered by the number of individuals who were  gave the officers the accident circumstances sort of they were worse than a crowd in close proximity like we had here and so i'd submit that here is much more persuasive in light of the groups of individuals in close proximity of the park is there but the only information in the record is the representation from the prosecutor below that the vehicle was not actually impounded and you know dockers and whatever and say well you know they're all there playing croquet so i need to go get that gun but no evidence that they had anything to do is nothing about this crowd at all and there's nothing about that would indicate they were the thing other than the fact that somebody said it is unequivocal undisputed there was some question but is now gone and there's no need for you in a police officer was satisfied with that so satisfied that with all those people around him he quickly went back to a traffic stop is that there were people there people in there were there were people there and he left and he left that situation and he was satisfied with the call finished then now when one call correct i don't believe that's where i would draw think about the i believe judge pointed with respect to the web case there was testimony or information suggesting that they knew that the defendant had been firing a don't think web supports the proposition that interval with respect as there's no circumstances is specifically tied to some sort of concrete knowledge of other individuals knowing of the firearm and that goes back to a point raised by judge duncan to a poet's council is that this was two officers who were heavily who were outnumbered by virtue of the individuals who were at the scene they were making what decisions they knew of evidence of any quick decision here that is like people in this situation of this stop other than the fact that there are numbers of people more than police officers present because you have a specific nine one one call tied to this location based twenty to servants the also read actually simulators testimony below was that he was concerned about safety that was his justification and motivation for going into the vehicle to try well found that testimony to be credible credible and it's at this point view unlike mr with the government in light of the fact that the people exception is broader so it's the government's position that based upon observing the two open containers that the officers would be authorized pursuant to the on would be exception to conduct a search of the vehicle and that would supply an independent reid's testimony was inconsistent with respect to whether or not officer reed knew the defendant was a felon prior to the defendant's arrest that is that's the that's not the rule for the automobile exception so it's the government's position that that was served as an alternative basis for which the court to affirm the district court's denial of the suppression hearing below whereas now for the questions we ask that you know from that  thank you your honor i just want to address a few points raised by the government  first of all the government quoted some testimony from mr lauer officer lauer louder about that he feared for his safety because of the present but basically that the quote from deputy lauder amounts to nothing more than him saying raised there is a case which i'm sorry i cannot remember the name of it then usually says send it back to the district court if it has been addressed at all but you can consider the facts i guess i'm trying to distinguish these facts because the quote on page forty nine where the government is saying that this shows the ongoing concern with the crowd i don't think it shows that at all because i'd like to read the quote what deputy reid said was i waited for deputy louder for safety reasons and this was after he had approached the crowd it was within a minute when i got that information that he was on scene went over there and got mr graham out of the vehicle and went ahead and detained him waiting on confirmation from myrtle beach for the warrant so that quote that the government relied so heavily on shows that deputy reid's concern for safety had nothing to do with the crowd it had to do with mr graham that was his only concern and it seems to me i think judge gregory adequately addressed this but i just wanted to say it seems to me that this entire time that the officers were on the stand at the suppression hearing testifying about what justified then making this warrantless search to get the gun out of the car if they were concerned about this crowd they would have testified something would have come up about this concern about the crash and i think that's assuming things that the officers didn't testify to this was not their state of mind at the time they were retrieving this gun it wasn't their state of mind because they showed is they didn't articulate if you can see he didn't articulated and it seems to me that that gives the whole surrounding settings for whether or not there was see whether or not that officers were concerned with the people at the time and that's why they constructed this warrantless search they would have gone ahead and done that and i don't one last thing i wanted to say on judge floyd ask about the web case unless i completely misquoted it in my brief which i don't believe i did that case is absolutely distinguishable from this case because there was a man in a tavern parking lot pointing a gun at people he ran and put that gun in the trunk of his car and left the keys in the trunk of the car so therefore there was a crowd out in the parking lot anyone could have gone use those keys to open the trunk think of the keys in this case and how it's distinguishable because the car could have been secured so that a warrant could have been accepted after all that is the rule that a search should be conducted with a warrant when at all possible thank