martially no excuse me marshall in a williamson mr williams and was arrested at a car wash in mena arkansas officer myers of the mena police department hold in a car wash to serve an outstanding warrant for his arrest and mr williamson was getting out of his pickup truck at the time as officer myers was putting williams in into the back of his police cruiser sergeant richardson from the media please pardon arrived at the scene opened up the driver's door of williamson's truck and began to search  he he quickly found a nine millimeter pistol tucked between the truck's console in the driver's seat and mr williams was charged with unlawful possession of that handgun because he was subject to a domestic restraining order at the time  richardson began the search as he said because the media police department had a policy of towing every vehicle or towing a vehicle every time they arrested its driver with very few exceptions mr williams and move to suppress the  pistol arguing that the decision to impound his truck was not made in accordance in accordance with the written tilling policy of the mena police department officer myers and sergeant richardson testified their department had an unwritten policy that they would like i said that they would t every time it made a traffic stop and arrested its driver this unwritten policy according to mr williams and contradicts the written policy that applied in this case which provides that when a vehicle is abandoned on private property the property on his owner is responsible for telling the vehicle the policy the police department will not assist in calling a wrecker will not perform an inventory search of the vehicle and judgment as you were saying earlier this is the case in which the the government  argued in the court concluded that that written policy was incomplete while it did provide the written policy did provide for what to do and for example a d w i or do you why arrest it did not specify practice is it's acceptable but this court is also made clear in united states versus roland that law enforcement's written policy may not be quote eroded by unwritten practice that the court in roland was looking for some case somewhere or it basically said we have not found any case that allows for a written policy to be eroded by an written so i think that that's that's the real issue here is that when there is a written policy it governs and if the written policy is found to apply to the situation the written policy governs over any unwritten and i think that makes i think that makes plenty of plenty of sense the it for example and roland the government's argument that a police department's unwritten practice only documenting significant property that was located in the search of a vehicle during an inventory report should be should be found a control over its written policy that said it should record all property in the vehicle so it in this case we've got an example of a vehicle that is being abandoned according to our position it's being abandoned on private property and there's there's no dispute that the car wash was private property the and really the issue is the meaning of abandon the district court found well this property hasn't been abandoned because they they arrested him while he was getting out of it and it's not it's not being abandoned for that reason and you know in response to that i would port i would point to the  a roach decision the united states versus approach of this court's decision there where were the court referred to the situation of a vehicle being abandoned of door two vehicles being abandoned in a gas station parking lot because arrest so it's clear that the term abandoned can apply in this situation and we believe that it did it did apply this vehicle was abandoned on private property it was going to be left unattended i think that's something that happens in these types of qualify as abandoned under the statute and what i would point to is that in that in the mena police department telling policy they do reference that statute in one subsection and they refer i believe that's it's it's subsection a three and they refer to the definition of public way that is found at that it at that statute i would say that indicates that when the mena police department the chief of police or whoever in act of this written policy when they wanted to  refer to a definition in the arkansas statutes they knew how to do it and they did it in another section referring to a public way but there's nothing in the department policy that defines abandoned or unintended vehicles so i don't think especially because another section does refer to a specific definition the fact that the section that we're looking at subsection eight doesn't refer to doesn't purport to to define that that term  in accordance with arkansas law or otherwise i think we're just left with you just we're looking at what the plain meaning of the word is and i guess my question then is if you were even you turn to our case law that defines a ban and i'm not sure that this is in arkansas it would be an arkansas stat why is that line of reasoning wrong well well again i did i just think that when you're looking at plain meaning you just look at how it's used and if the court for example is using it in that sense in in the case i believe that's you know it indicates that it could be more expansive than than what is included in the statutes and honestly i would say that when you look at the at the policy as a whole i think there are other places where it's if you had to if you had to hew to the strict statutory definition of these terms it the policy it wouldn't necessarily make sense and certain things when it talks about you know private owners being able to to abandoned vehicles will the private owner i don't think they're going to assume that it has to be left with left there for thirty days without any indication of the owner's intent to return so that's i think that's i would respond that him and i want to move on to make another e every time you have an arrest of a driver for that to be the default position it simply when you have that kind of a policy it disconnects that the policy is disconnected from the community caretaking concerns that justify police being able to impound vehicles in the st place there was no consideration of whether there was any danger to this vehicle mr let's make that that you make that argument to the district court your honor i i  don't i don't recall that that specific argument was was raised in the in the motion to suppress i don't believe it was specifically set forth but we did i mean we just talked about it  this kind of unwritten policy goes too far it is essentially allowing for an institutionalized excuse for general rummaging the fact that the police department say well we're just going to we're going to search your vehicle anytime policy and i'm written policy and i just want to ask about it my recollection and i hope i have the right case is that they said that ninety six percent of the officers at ninety six percent of the time or ninety seven percent of the time this is what we do  and you know except out things like you go into wal mart and you're away from the vehicle so therefore there's no need to tow it at that point is that really a policy or is that the practice and maybe it settled in our case a lot but when i say we do this ninety five percent of the time in my cameras that doesn't mean there's a policy it's just what we do most of the time so i guess that's my question well st of all the instance where someone would go i think the custod rest of someone with a car is more narrow initially or than what you were saying and based on their testimony because the instance of someone going into wal mart and being arrested the fact that they have a vehicle in the parking lot that doesn't fall under mean as it's when an actual traffic stop is made and there's a custodial arrest they did testify both officers that it was a less than five percent variance from that but they had instances where they could the morris case talked about the police department having a policy a resting spartan may have been pending and searching after a christo deal the rest of the driver and this court seemed to take no issue with that at that point i think what's really important is that media had a standard policy that they they followed  which based on the case law is equally important they did in they did describe instances where another person could be in the pool or that could take the corner and they would allow that to happen but generally speaking they built it was important that they not leave the vehicle to be dealt with by someone else and that they protected the occupants valuables or property which may be in the car the reason why i'm asking the question is i am troubled i'm not troubled about our cases where we say there's an unwritten policy and there's no written policy i'm a little more trouble by our cases to be quite honest with you and i think  out one where we try to scale it back where we say the unwritten policy supplements a written policy and why isn't it in the written policy and so when then the testimony comes back and says well ninety seven were given the benefit nine thousand seven hundred and ninety percent of the time this is what we do i'm a little skeptical that that's a policy but i understand your position i think that the testimony of the officers described a lot of other times where they did not  don't know is how many times that occurs how many of the arrests that they make involve the custodial arrest of the driver versus a driver being cited out so i think there's some missing information if we were going to say it's something that they do all the time because we really don't know how many times this applies to a risk made by the mena police department the custodial portion of it is the missing bit of  damage that are untrue and protection of the police from danger and the court can look at the totality of the circumstances and determine whether that is reasonable  even if the police fail to adhere to a standardized process the search can nonetheless be reasonable provided it's not a pretext for an investigatory search and i think that that's very important in this case because  heard the testimony of officer myers and sergeant richardson regarding the police department's policy and procedure on impounding and towing and their decision to to search that be here both of them indicated they were not expecting to find any contraband any evidence of a crime in particular not a firearm that morning so they had no invest and vesta tory purpose in the decision to impound and search that vehicle and the record is is there's no indication in the record otherwise i know that mr williamson made that argument in his brief that there was some sort of pretextual reason for the search but that's just not borne out for the testimony of the officers and certainly not in the credibility finding of the court in that matter i also think your honor that the the question is regarding the arkansas statute and it tended be it was an abandonment the issue of whether or not the unwritten policy followed by mena p d conflicts with the written is very important because i would submit that paragraph a which deals with abandoned vehicles is more guidelines or what the police department to do should a business owner contact them instead of there's a car left on my parking lot what should i do with it it's not about making at custodial arrest and removing a driver and based on police action leaving of being equal and and attended or abandoned if you were in a business parking lot it's nonsensical to say that section eight applies to instances after a traffic stop and histo deal rest is may because if that's the case then the police department regardless of whether they pull someone over be at the wal mart parking lot or in front of a car could then with no recourse just leave leave cars everywhere blocking businesses in and push it on our own to the owner of the business to say it's your responsibility to move it and that would definitely with the police's requirement and their caretaking duties it would shut down businesses it would provide no safe keeping of the defendant property do you think as well the the definition of abandonment is equally important the statute referenced within the policies the written policies of the mena lease department it's ended in attended reference within the arkansas statute and there's a difference between the two and i think the points made by this court in argument this morning about the plain common sense definition of abandonment is important the roche a case with the missouri statute which had a specific definition of it the arkansas statute is different and if with wires for of the indictment that you have son not only is it an attendant but you must exercise some intention to not combat it and that was just not the case that that morning there's no evidence whatsoever that testimony from mr williams and as it were anyone else that he intended to leave his vehicle there at the car wash after his arrest or not and that so i think that's very come get it could quote put a case in jeopardy during cross examination officer myers acknowledge that part of the reason for wanting to tow the vehicle every time they made an arrest was to make sure they make every case they can so there is a clear  sharee investigative motive even to the to the the unwritten practice that they that they had and again i think that's that's really important here is that when you have that kind of a practice we said we're going to tell it every time that's  default it is it's an excuse for them being able to rummage around in the vehicle every time they make an arrest and i see my time's expired so unless there are any other questions we would just ask that the court reverse the district court's order denying the motion of suppress to see any