may please the court kristen they are on behalf of appellant thomas frank i'll try to reserve two minutes for a bottle and i'll watch my time i'd like to focus on the suppression issue today if that's acceptable to the court and specifically two issues first that the impound of the car was not authorized because they knew the car was not stolen when it was impounded and second that the court should decline to address the government's new issues new suppression issues raised because they've been waived and they're not supported by this record so turning first to the impound the officer spoke to the registered owner of this honda before they impounded the car that's in the sworn affidavit of the officer at the record at one forty one that means that there was absolutely no ground to impound this car under any of the government's theories under the community caretaking theory it's not there's no risk of the car being stolen again as the officer said because it was never s the first place sarah west was present she was lawfully given permission by the registered owner to have the car she was present she could take possession of the car either go get it registered were organized when they stopped the car to but that's not a ground to impound under the standardized metro written policy officers testify generally they always do that but that's not what the policy says the policy says that one of the grounds the government tries to say authorize authorizes impound is that if any other statute code ordinance authorizes impound the officers could impound of that policy but that a car is cold plated the statute makes it illegal to cold put a car doesn't authorize impound of the car so for instance i cited a case in the reply brief where a california statute independent of a written police policy said you can impound under certain procedures that's not what we have here and that's what it it wasn't the right plate but that is an independent inquiry from whether they could impound the car and what would have been different in the record had the government raise the automobile exception or search incident to arrest  the record look any different yes it would your honor especially first for the search incident to arrest the scope of the search that was an inquiry that was just never undertaken before because there is no reason to the government never raised s incident to arrest that's a that's a much more limited basis to search a car that both parties have identified has spatial temporal proximity requirements and the actual search needs to be limited to right basis for and that's a legal argument but factually  any of the places of the car where you would find in dish of ownership such as the glove box or the console so and that's what the record at forty three so the government the government cements that the record here supports it's theory but there's findings against search that there was an automobile exception justified the search here i think that's is about as expressed a finding of waiver as can be found in a district court record below the cut barnhart explicitly declined to go into the automobile exception because the government wasn't pursuing it so that's waiver and and furthermore oh and i would say submit that the scott case cited in the reply brief of page fourteen submits that the way the government should have gone about it is at the possession of stolen vehicle and that seems to be the government's main contention because the government is focusing on just facts that i think support probably cause but the totality is what must be considered and we have mr franco being extremely compliant telling them precisely where to go in the wal mart to find the registered owner they don't have to believe him but they can do what officers do investigate go into the wal mart find sarah west ask her about the car they're not allowed to ignore facts and only focus on things they think support probable cause the cars what were th to do there if they stop the vehicle and he says it belongs to the lady who is inside or they have to wait till the lady comes out or go into walmart find her before they can look through the r but then there's testimony or in the record that indicates he was also looking for paperwork related to ownership and then found the gun so is that not true that's not true and they are at page forty three states there was no testimony that that officer who searched the car actually looked in the glove box he said he mentioned something as he was walking to the car like let me see if there's some paperwork here but then when he actually testify and that's on the body cam and when he actually testified there he said no i was just looking around for things and the body can doesn't capture him looking at any looking for any paperwork in fact he goes into a tiny crown royal bag that contained the bullets so that's not a place where you would find him to shave ownership registration paperwork or maybe a license plates that had been switched out so they it's the government is relying on these theories to get into the car but it doesn't offer even if they're allowed to get in the car it doesn't authorize the type of search that occurred here the record doesn't support the search the scope of the search it was just a general investigative search and that's not a law thank you thank you  good morning your honor is may please the court josh handle for the united states officer hagar's search of the cold plated vehicle was justified under the each of three recognized exceptions to the warrant requirement first as a search incident to a valid arrest where there is reasonable suspicion that the vehicle contains of events of the crime of arrest second under the automobile exception where there is probable cause that evidence of some crime is contained in the vehicle and third through the inevitable discovery of the contents of the vehicle during the mandatory police inventory that would occur after the cold plated vehicle was ultimately impounded now after the first two exceptions those were not argued below that true yes that's correct i is not necessarily how i would have approached this issue if i had i know that it was our position below and remains our position here that inevitable discovery forecloses the fourth amendment challenge because because the very least provision provision to of the policy which says whenever a vehicle is part of evidence it's undisputed that cold plating a vehicle is a crime it's an arrestable offense under nevada law a cold plated vehicle is quite obviously evidence of the crime of cold plating of vehicles so i don't see how under the plain text of the policy at the very least provision to wouldn't authorize what again the officers developed into a and harassed as officers develop probable cause our submission to this court is that there was probable cause the minute that officer the minute that mr franco exited the vehicle to arrest him and i was operating it in a high crime area and i think that those also it in addition to the cold plating those go to probable cause that you have a case of possession of a stolen vehicle here we also have testimony  testimony that a small metal object resembling a shaved key fell from mr franco's lap as he exited the vehicle and as the government pointed out in our brief to this court possessing burglary tools such as shaved keys is likewise an arrestable offense under nevada law so i think that constellation of facts was more than sufficient to furnish probable cause that the officers had intercepted mr franco during the commission of a crime and in the minutes after they placed mr franco into custody the officers learned three additional relevant facts that further buttress their suspicion that this was a case of possession of a stolen vehicle first that the steering column of the vehicle was visibly damage in a manner that appeared consistent with vehicle theft second the while the vehicle had not yet been reported stolen it was also not registered to the person mr franco claimed was its owner and third that mr franco had ten prior felony convictions including for attempted possession of a stolen vehicle in two thousand and four transfer of stolen vehicles in two thousand and six and possession of a stolen vehicle in two thousand and seven a date so that when they looked in those ground rules about what it was yes your honor they knew all of that before the search is even initiated and at that point in the words of officer donovan everything about this situation resembles your basic stolen vehicle lineup one of the question i have is why should we consider these additional theories that were essentially waived and i understand not under your watch that is the but the record would be developed somewhat differently if you're arguing it against a different theory so why should we now want to appeal for the first time consider for example on the exemption reflects that the lawfulness of mr franco's arrest and the lawfulness of the ensuing search were extensively briefed to during the suppression proceedings mr franco's primary argument in his motion to suppress was that police lacked probable cause for his arrest and thus that the search incident that arrest was unlawful in response the government rebuffed did mr franco's argument that his arrest was unlawful and thus tainted the ensuing search by pointing to facts such as the shaved key the damage steering column and mr fran prior convictions that's the same basis underlying the search incident to arrest an automobile exception arguments here and now it's true as as your honor pointed out that the government focused most of its brief before the magistrate judge on the inventory exception and the inevitable discovery doctrine but as you have said a number of times parties are not limited to the precise arguments they made below so long as their arguments on appeal relate to claims previously raised in the litigation and the overarching claims here that there was probable cause to arrest mr franco and that officer hagar's resulting search of the vehicle was lawful are the same ones that were controverted between the parties than the district court and finally contrary to what mr franco asserted in his reply brief no one is asking this court to act as a fact finder in the first instance because the facts of the arrest and the search are not disputed and the existence of probable cause the reasonable likelihood of finding evidence in a vehicle and the interpretation of various sections of police department policy are all questions of law that this court is well equipped to reach even if there is no parallel conclusion of law below as the supreme court said in our now us vs united states quote questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed to novo because the search incident to arrest exception and the automobile exception are arguments relating to claims litigated below and because both are amply supported by the record they're absolutely available as grounds for affirm it's here and just briefly i to get back to the point at which the search was conducted because again we have all of these indices of a stolen vehicle we have mr franco's extensive criminal history which includes a number of offens dealing with stolen vehicles and importantly none of the facts underlying the officer's suspicions changed until sarah last exited the wal mart and approached the scene which didn't occur as my friend noted did not occur until minutes after officer hager had discovered the bullets and the firearm inside the vehicle so there was no fourth amendment violation here the district court correctly denied mr franco suppression motion i'm happy to address the trial testimony or registered to her father who lived in arizona but that she was driving it with his permission but still with cold police car that's correct your honor a must the court has further questions or us on my brief and you me thank you honor three crewcut points first as to the impound subsection two of the impound policy states that whenever a vehicle is part of evidence such as a homicide inside of a vehicle or when a vehicle is being used to transport narcotics that's the example that the that the policy written policy gives as to when a vehicle is quote part of evidence that's just not the case here the cold plating occurred on the outside of the vehicle it's a moving violation it is not evidence inside of the vehicle second the government doesn't as to the waiver issue the government doesn't cite to any case where this court has affirmed for any on a grounds that was waived below so while this court can affirm the suppression has discretion to i would add a firm on any basis part of by the record this court has never i've never found a case where this court has affirmed on a wave ground that's just the law of the school circuit is that we this court does not address waive issues and that would be the automobile expression big exception was waived as are recognized finally as the search instant to arrest doctrine the this court would have to make factual findings as to the scope of the search and i understand a lot of the suppression issues are mixed questions of fact and law is all over las vegas she could have paid for her own tow there torres case addressed metro's the las vegas metro policy before where there is a provision saying if the registered owner is around they can tow the car here we have we don't actually the register grex but they had spoken to him and there was no dispute at that point that he gave legal authorization for her to have that car so that's just a crucial fact here that doesn't allow the impound it was unlawful so thank your honour's thank you thank you both for argument this morning united states versus franco submitted