sorenson which clancy yet is crystal clear in this regard that in order to justify a search incident to arrest the arresting officer must testify must provide evidence on the record that there was a fear a legitimate fear that the defendant could access points that need to be teached out there is certainly reason i think under the circumstances i'd be willing to admit that there is a reasonable belief that there may have been a gun involved and perhaps the gun was located in the jacket so you can take that if you would like is a bad place for purposes but it was within the proximity maybe it was even within reach so upsetting that the question isn't whether it was an arm's reach the hypothetical matter if the question is whether that ended as he was restrained at the time had access and that includes that he was  concerns that you have there something that you could get to we're going to it's it's a it is not a high standard that they have to meet officer and he that moment could handcuff first and then look at the the reach of the defendant and that they're in a confined space that is a small room just the two of them and that the officer has just put the cuffs on but there is it's  perfectly appropriate knowing that there's still a gun or believe there's still a gun someplace and that could be of concern what is what's unlawful under security about the officer reaching down immediately and generally rather you must but under the circumstances including restraints including other officers present that they depended not only was written the proximity of the dangers that but but could actually access it and that was what should your focus so heavily on the circumstances which information that he was carrying a gun and had it on his person i think you had a source of testimony from the officer took place and again if you taking that credit that there was a close proximity between the two officers and the jacket including when the arrest was made after the search occurred but i think the that bag as we had reason to believe the jacket was here but in his but but the point of light is that near proximity is not sufficient and second of all in both myers and shipped here especially you had testimony from the officers that they had a reasonable concern that the defendant yes you're ok so what difference does it make if the receipt of the statute is broader or narrow or something else we're looking at whether the distribution is broader or narrow or and for that we look at the been some statute either applies or it doesn't the arm clear criminal act that categorizes a serious drug offense is one that is punishable by a term of imprisonment and there's more and  of this substitute if provision was seventy eighty dash one thirteen re citizen statute is one fifteen but because that marijuana conviction was a subsequent conviction  why why would we approach it differently here and just take the government's position that well we could have applied and because it could have applied we're dealing with a more serious offense where i don't think the supreme court hel the burden of proof to show that the act and hence not a price the government ok and in order to show that it applies you have to prove that it's a serious drug offense right yes that the conviction was for a serious drug offense since the record here shows that that two thousand and six conviction was for marijuana distribution and it's conceded that that is not a serious drug respect to that marijuana conviction was whether the recent abysm statute in pennsylvania should be subject to a mattress else so when you say this is the first time you're talking about today still here in this cody i'm less sure but beyond something else and because we could charge him with something else you could assume that we would a church that was something else i mean the logic you're expressing is other things could have been charged so so go ahead and hit him with the more serious thing for example if there were a prior federal charges that of state one and had it been charged under eight forty one a one but it instead of charging the full amount they could have charged the you could reply and don't worry about whether it was actually is a matter of historical fact something that did apply and i apologize if i was unclear on that in your hypothetical we were talking about charges substance and charges that could have been filed that would have raised the statutory next right that is not what happened here he was charged with in a thirty distribution of marijuana that offense was a ten year offense because of the notice it is not and under state law my understanding is that even though the double penalty is available the judge does not have to impose it so by operation of  prosecution says anything or says nothing the recent statute is in place and with nobody saying anything the judge can say i see this is the second offense i'm going to give you the ten years i believe that is correct and offense and that marijuana conviction did fit fit the definition it does have to matter what's going on as they are right because if you had to do something as you do in the federal system to get in here it's penalty and there wasn't some record that the government actually gets the second call so in his mind he knows what has occurred prior and that call says lomax is in that apartment with a gun fusing tilley and that's what that officer walked into then when he walk pockets before turning around he drops the jacket i think that's another fair cause for alarm and it was lomax who knew exactly where that gun was in the jacket and even though he was cuffed it was within his arm reach as officer nor testified he simply bent down and picked it up it was in both within both of their reach so i think with all the circumstances there your honor it was a legitimate safety concern for that officer to reach down to if he did not say he did it was it was ten feet away but the officer doesn't owe me backups and then he knows that somebody had reported there was a guy in a quick check that jack i think having marks and not finding a gun on his person with the information that there was a gun i think he does have the ability to search that jacket if that were the case even though there was no way that will actually get the well  think every additional fact we have to that your honor is going to change the perspective so i can give you a firm answer but it but i can say with with fervent belief that this jacket gun it might do that i also think it is entirely possible that knowing exactly where that gun was and where he put the jacket down when he took it off having had both of his hands in those pockets before he took the jacket off changes the scenario considerably it what about the drugs in the other book well you are thinking when the officer went to check the jacket you can be sure that there's one only weapon i think it was reasonable for him to check the entire jacket to feel for the drugs i don't think the drugs are in play anymore in this case mr lomax pled to the felon in possession charge the drug the shorts you want to start with the point that this creates you know this is the first time we've heard the argument that there's a historical fact problem but i think that was the point of the the two thousand and six conviction cannot be considered a serious drug conviction because there's no record in this case that the research of the statute was actually applied or consider wa it doesn't binding on this court because of the same it's the same reason united states versus johnson that was a case in which this court assess whether a violent felony had been played and can you define it was convicted of it the question was whether it was reckless or intentional intent well being the one that would qualify as a rest issue i believe what you heard from mr clancy was a recognition that his standard is not a standard the only standard that applies in answer to your daughter's questions about when does the code get too far when there is no finding there had been no testimony regarding access and a legitimate reasonable concern over officer safety and that needs to appear in the record and that's what cases such as can't secure myers especially make clear that if there is not that testimony then it is distance was and how much access the defendant actually had which is really the standard here and i think if he were the police officer here and you heard him i would want to get somebody who has a gun and you come into this about it i certainly would but if i was worried about it also when i came into court to testify as to the base of that search knowing what the constitutional standard is i would testify and i would be asked about that specific issue were you concerned about his access that question so it's interesting i mean record must provide circumstances under which that reason you can assume that officer in that situation had a reasonable belief if you don't have the officer himself testify that he had reasonably there's really no reason to go even to the second step you can't  take it as a given that if you just arrested somebody the world is are they got a concern about a weapon and danger well the question then is it again that is always going to be the circumstance but then the question becomes what is the access officer supposed to say so i'm not worried that there's probably a gun right here in fact i'm not worried because probably a gun in this coat but since walk out of here where is here a concern that there are still safety issue and i have a responsibility as a peace officer and i mean that there or having good cause to believe that there's a gun any need a gun probably in a coat because it's not on mr lomax now that he's constitutionally forbidding without going to the court to pick it up and take the gun out well there's there's a couple responses one as a surgeon's new breast yes he is precluded from doing that because that is limited in terms of access and consent of the defendant has access to the area to shoot and in fact this was a specific argument that was raised in miers and rejected that is the officer argued that ok well even if it wasn't a valid start to an incident versus the defendant was waiting there what about the danger posed by that bag there's still people in here i'm worried about it should not be able to search it and that's exactly what the and the court said no that is not sufficient and that's a good that's actually if you look at the testimony on page forty eight of the appendix that's what the officer here testified to he didn't say anything about here over the defendant's access to the jacket he said i was worried about a jacket remaining in the home at that point and the answer to that is not to conduct a search incident or arrest but to either secure the premises and secure a warrant which could have been obtained at that time that was the appropriate course of action here especially after