peterson's backpack but reversed the order denying the suppression motion on the grounds of the government has failed to prove inevitable discovery so the question of inevitable discovery the government bears the burden of proving that verification and the court took it took the court the district court three evidentiary hearings to decide the suppression issue and it's also important keep in mind by the way is that the inevitable discovery assessment is based on the circumstances that preceded the search counsel correct me if i misunderstand but i i thought the first two hearings primarily focused on the reason were for which your client was arrested in the first place and did not focus on his conduct in breaking away a couple of times and kicking in the window of the police car if i understood it correctly the court essentially agreed with you that the inevitable discovery rule would not apply in connection with the backpack based on the original arrest but rather that the officer later testified that had they not had this initial  basis for going forward he would have put into it would have charged him basically with all of the things that he did in the police car the damage to be cause the running way on sort of thing and that that would have not been subject to the bail issue that you raised and they would have indeed discovered this when they inventoried the backpack do i misunderstand something in part you do and let's walk through these three hearings because you're correct in the sense that the first hearing focused on the circumstances arrest as well as the search of the backpack and at that first hearing the government's inevitable discovery argument relied on mr peterson was inevitably going to be booked into custody for the outstanding warrants but they offer no they offered no policy or evidence to show that mr peterson's backpack was going to be actually inventory because the jail has a policy of refusing back some so the judge asked us all to come back for a second hearing and at the second hearing that's when they go produced introduced the policies regarding searching the backpacks and inventory the backpacks but at that point it became clear that it was not inevitable that mr peterson would be booked into custody for the warrants based on that r c w just help me understand i if i didn't think correctly the government is not even arguing on appeal that the inevitable discovery would have applied in connection with the arrest for the original misdemeanors or whatever it was but rather on this second point and if that's correct we probably don't even need to argue about the other you went on that or your client was not told he had a chance for bail if you've had a chance for bail there would have been no inevitable discovery so that's kind of a done deal the question is after that and the officer testified the court believed him for the finding of the firearm but for the warrants mr peterson inevitably was going to be booked on resisting arrest so what the judge did is said hey wait a minute we don't have any of that stuff that looks like there's no one ever ability that mr peterson is going to be booked for the warrants come deputy back into court so he can testify about what he would have done with respect to the resisting arrest basically spoonfed the government this idea that wait a minute in retrospect in hindsight we could have arrested mr peterson on the warrants so we have the third hearing but the testimony from the deputy is still ambiguous and unclear about whether that inevitably would have happened so let's go through the big us as to whether he would in fact have charged your client w resisting arrest he said he absolutely would have but that doesn't matter for inevitable discovery for purposes of searching the backpack right inventory booking requires an inevitable booking concert so he would have been booked on the charges whether he would have been booked into custody that's another matter right but he definitely would have been charged and that requires a booking process you get your for the prince taking your photo taken that kind of stuff right that happens at the jail and i read the king county policy as saying when the jail the sheriff's office policy when the jail won't take the stuff because they don't they won't store the backpack and the like that the items will be inspected before the booking process even commences so why wouldn't that mean that had he been testimony in the key transcripts that i would ask the panel to focus on would be at s e r ninety five ninety six s e r one zero four and one zero five because that's where this occurs so the first question that the prosecutor asked about the resisting arrest was by way of a leading question whether the deputy could have booked mr peterson on the resisting arrest and the answer was yes but that's a could have answered you know you know quite well later on redirect he was asked maybe a better question and he said absolutely i would have there's no ambiguity as to whether he would fact would have booked your client on the resisting charges if we look at the testimony clearly it's absolutely would have gone to the booking proce but keep in mind what he had just testified to he had just testified previously in that same hearing that mr peterson was going to go nowhere he had over one hundred thousand dollars in warrants so in the officers mind mr peterson of course was going to absolutely go booking procedure because he had over one hundred thousand dollars in warning that of the deputies being asked about what would you have done with respect to these new charges not not the warrants that were already outstanding but rather what offense the your client committed right in the officers present what he's being asked about isn't and there's no answer so if we go to s c r one hundred five the question is this and he would have been booked on those charges no answer he might not have been charged right away but he would have gone through the booking procedure absolutely and that's my four has had you not found a gun that day would you have or firm charges for the misdemeanor crimes of of of obstructing or resisting arrest absolutely been on the top he says and he would have been booked on those charges he might not have been charged right away but he would have gone through the booking procedure absolutely so what's  don't see what's ambiguous about that with him being us is that he never mentioned anything or doesn't answer anything with respect to booking on the charges he would have referred the charges he absolutely would have preferred charges but nothing about booking on those charges and in fact your hon if we go back to what he testified earlier he said that of course we wouldn't book on those charges because they're misdemeanors in other words the in hindsight looking back i wish it way where did he say that ok so if you go to  work on the charges because they were misdemeanors yes i remember that ok so s c r ninety six fine ok and if we go to the question that prosecutor asked in this case you didn't book him mr peterson on obstructing or resisting why is that because those are misdemeanor offenses they never had any intention at all at any point was at the beginning and as my colleague suggested it the when they first went in there they went on the more complete more serious charge because of all these claims against him but when that didn't provide what they needed they went back and said yeah we would've booked him is there something wrong with that there is because that does not rely on historical facts that doesn't rely on demonstrated facts for example this would be a totally different case if the police reports that were admitted as exhibits and the super form that was also admitted as an exhibit charge resisting arrest because that would have shown the state of mind  he's being asked in that context is hey you booked him on this felony gun charge right why didn't you also bookham on the misdemeanor obstructing and resisting charges and he says well when we got mixed charges more serious felony in the midst of minors we just charged on the phone and that's all he's saying so when you're asked in hindsight what you would have done in the past if you have to do it all over again that's the problem with finding basing that testimony on the saying that if we didn't have the felony charge and all we had were the misdemeanor charges we wouldn't have booked him at all that's not what he's saying in that passage you just referred to he's saying that what he's being asked is that you booked him on the felony gun charge why did you do that and why didn't you also book him on the misdemeanor charges because you know obviously you saw him resisting and obstructing and he says we got the two kinds of charges we bo more serious felony charge that's not that's not saying what you're claiming that's all i'm pointing out ok and i think if we're going to rely on that then what we're doing is then we are relying on speculative conjecture things and so does your argument boil down to that no reasonable judge could have accepted deputy blog me as testimony that he absolutely would have booked peterson unobstructed in resisting arrest had he not discovered the handgun absolutely because that notion was fed into deputy after he had two opportunities to explain that after the a story of facts in the record the eggs limits show that there was never any intention to book mr peterson on resisting that there was never any established facts to corroborate that and what we have here is some simply say in hindsight you know because there's probable cause to arrest him for resisting arrest come to think of it yeah i would have booked him on that but that's not what he's saying so so you would you're asking us to do is review the transcripts and find that the judge was wrong  his facts finding that they would have gone had booked him had on the resisting or obstructing resisting arrest charges two points answer that question number one is i believe that the judge mis understood the testimony because we read the testimony as i read it absolutely refer to absolutely going through the booking process not absolutely booking mr peterson on resisting arrest number two if we are to believe that the judge interpreted that testimony as obsolete go into the booking process it relies on conjecture it relies on specular testimony that's not permit it for purposes of the never able to cover analysis under next and lank and then finally since i'm pretty much out of time are out of that ok let me ask my colleagues are either of you have any additional questions so you are out of town appellants argument regarding inevitable discovery depends on his position that the detective was not telling the truth when he testified the district court found that testimony credible and that finding is do substantial deference the court did not commit clear air when it found the government showed by preponderance of evidence that the an ethical discovery doctrine applied though the government does maintain that the search that occurred was a lawful search of mr peterson's person it's not necessary to reach that issue because the an audible discovery doctrine applies in the city in this situation how do we know that even if he had been charged with obstructing and resisting how do we know that the backpack  both the jail and the sheriff's office came in and testified that if someone was brought in to have been booked what would have happened is that there the backpack would have gone to the sheriff's office in the sheriff's office would have searched it as part of their normal booking procedure and the district court credited that testimony but only if the person is actually booked into custody in other words because that's you know that's the question that arose on the warrant issues that maybe and he had a declaration from someone saying no i would have posted what was it one hundred thousand dollars one hundred thirty five thousand dollars you know that day you know instantaneously but if credited right wouldn't that suggest that even if he had been booked on the resisting and obstructing charges which i suspect don't have a bailiff hundred something seventy five hundred for that testimony but the testimony was that he would have been booked and he would have been there and he would have gone through here the next day so he would have been held for some period of time until he go through his hearing and then there was testimony that the belmont or the amount that probably would have been out seventy five hundred dollars even if he was ok let's let's assume that the bill was something less than one hundred thousand dollars so if he is there at the station they're booking him on this misdemeanor obstructing charge could he just say look i i've got someone who's going to be here in five minutes with ten thousand dollars in cash so i don't know because the bail that had been set yet so he would have been taken into custody and telly had his hearing and then the bill would have been set and then at that point if he could post his bail he  south and yes the like a bail schedule where the people can just look and say ok this charge seventy five hundred i don't so there would have been a need to go for a hearing the next day i'm not sure there is something in their assessment the record that there would have been a hearing i don't know exactly where it is in the does i think that washington robbery is different the statute just different because of the way washington state supreme court has interpreted and applied it in those other cases in nevada it's one thing to look at the plain language of the t without anything else underneath it and find that there are some that's what isn't that what we do in the taylor analysis except that in this case it's to look to see if there's a reasonable probability that the alternative like that there would actually be a case for based on fear of property alone and in this if you just in these other cases like nevada you just have this plain tex and there's a dearth of case law actually forcing about way and this court has said well ok but the text is enough in washington's case talking about a case in which obviously the only type of fear at issue was a bodily harm so you need a case it seems to me in the in the face of text the text of a statute this plane you need a case from the washington supreme court saying notwithstanding the fact that our legislature has authorized a robbery charge based on fear of property alone that's not and in reality what the crime really requires and it's that it always requires no matter what fear you know putting someone if you're bodily harm and that case most property alone is sufficient for a robbery charge so in the face of that seems to me you as the government if you want to say the statute means something else you can have a case that says basically we're going to override the plain language of the statute and say it always requires fear of bodily harm and that  right isn't that fatal to yours that you lation i don't think so because under taylor analysis you you look at apples and apples and in this case you have a virtually identical statute to one that we said doesn't make it well in this case but we're divisible you've got a different issue we don't have that here question is it is it generically as if it at least says it doesn't what am i missing if you only look at the  place but but that's what we have and you know it might be possible to think of something that would qualify under that other that other languages it's not probable that's the position i mean i think you're right that when it's all over as allows you to resort to the reasonable probability or whatever that standard is but that's only when the statutes ambiguous right then we look at it we said is it could seems like it could cover that maybe it doesn't we were sort of case law but when you have a statute that's this clear that's what i'm saying i think you need more than just well we couldn't find any cases in which that kind of charge had been lodged because it obviously is authorized i would say right on its face that there's a reasonable probability that that a prosecutor if that set of facts arose they could certainly charge you with that the fact that maybe they don't on a regular basis is neither here nor there it seems to me that's why i say i think that case that you gave us would need to go much further and say we know that the statute says fear of harm to properties enough but that really isn't because we're going to get at this contra you know  given what that says which deals with very dangerous situations or encodes creates a substantial risk of harm to the deputies and that fit what actually happened here so the language serious bodily injury because the officers who were transporting him were on the inside lane of the interstate and had to cross over multiple lanes of high traffic on the interstate find a spot to stop the car without being struck the whole time he's fighting and trying to get out the back window then they have to get out of the car and interstate open the door restrain him hold him a taser point until they get to the jail so the district court found that that was enough that having that being in that situation of having to navigate the busy traffic on the interstate with somebody out of control they report that the driver board back to the original question how is any of this when he's already under arrest how does that come down to being in the course free up the back window while still driving down the busy freeway that's in the report so i mean he he it's true that he was ink he was in the patrol car he'd been taken into custody but he was still trying to escape from custody and he was under arrest at the time he was but he was trying to flee from officers and was trying to break out of the patrol car and in doing so created a substantial risk of harm to the officers the question right thank you your argument we appreciate the case just argue to submit