cause to believe that an individual has committed even a very minor criminal offense in this presence he may without violating the fourth amendment arrest the offender and that's course the very same argument the government is making in this case but the panel judge whether in light of bingham's failure to cite in disgust at water we're bound to bring it up in this case and say a reasonable officer under that water interpretation wouldn't know the the court good morning my name is hartley west i mean assistant u s attorney here in san francisco and i represent the united states in this matter the question is whether the search was permitted incident to a lawful ar however none of the reasoning was based on the texas statute and of course it would have been very easy for the supreme court to say when it outlined its rule and its holding in out water to say as long as the state statute permits arrest however he did not do that in fact actually one of the supreme court cases that describes the search incident to arrest exception to the fourth amendment united states versus robinson equates lawfulness with probable cause in fact that court state based on probable cause is a reasonable intrusion under the fourth amendment that intrusion being lawful a search incident to the arrest requires no additional justification in that case the supreme court interpreted lawful as being based upon probable cause it is not a constitutional violation for a state officer to violate state procedural law and that's exactly what the california supreme court in mackay criminal offense that there was probable cause to believe occurred after that state law does not define the parameters of the fourth amendment in fact this is consistent with the post out water supreme court decision of arkansas  think court stated while a state is free as a matter of its own law to impose greater restrictions on police activity then those this court holds to be necessary upon federal constitutional standards it may not impose such greater restrictions as a matter of federal constitutional law when this court at water i know it's a problem though because it's posts that were what if you could write the opinion what would the paragraph about them say well i think being on as a qualified immunity case is required to look at the state of the law at the arrest the arrest occurred when moto was good law prior to out water in looking at the state of the law prior to arrest the court had to look at out at mota that was the case the controlled at the time sure if the court has looked at that but the extent of the discussion about water in those briefs therefore the diskette the extent to which we know it was before the panel considering the case with simply esti also parent that all that that we had no indication that the in addition i would point out that so far as i've been able to find every federal court that has interpreted that has commented on atwater at all has interpreted as not depending upon state law i have not found any should be different then it seems to me that that would have to be done and i thought if there's a supreme court decision following one circuit authority we don't need to go on kong to state that the three supreme arrest and the california supreme court and they applied at one or two that particular case so even though it may be in the context of the criminal retroactively issue there might be a question of