rebuttal but we will see how that goes i recognize that the court has heard for arguments before mine and that this is made for a long morning but with that in mind i think this court can resolve this case with a straightforward application of birth time in this court's opinion and sanders and find that the obion policy or the oklahoma bureau of narcotics policy which is in the appendix of pages ninety six through one hundred is deficient for failing to provide standardized procedures for im pounding the vehicle then this court can apply common sense in opperman and sanders and find that the community care taking function did not apply at that point this court must reverse the district court's decision we've asserted for arguments and i don't anticipate getting to them all but i think it's worth setting them out st we contend that the obion policy was deficient nd we contend that the community care taking function did not apply rd we contend th empowerment was a pretext for a warrantless investigation and th we argue that the inevitable discovery rule didn't apply turning to our st argument we established in the district court that the obion operated without a i really think this starts with sanders which puts part time and over men into context in this circuit so it's how the circuit has addressed both oprah men and birth time and  court's decision and i don't think the district court really relies on the community care taking exception it really says that it finds that the policies sufficient and that's that's really the crux and core of the district court's decision so i think number one that's not what the district court relied on is the st thing that nd thing is to go to a permit and i think we can look to oprah men and i would again say that would happen in the context of the sanders case two thousand and fifteen case out of th but let's just get to the nuts and bolts of an application of wealth for men and i think it becomes fairly simple here oprah man says basically that empowerment is allowed if a vehicle poses some sort of immediate threat or threat to the vehicles around it or it poses a threat to the traffic the it's impeding traffic when we look at the facts in this case there is nothing more than a theoretical threat to this to to the traffic around it it's no greater than say a concrete post charts before you before you look at the facts here and look at overman you had a car parked in a legal parking space that was over parked that that was sufficient to justify impoundment that was pretty minimal effect on one traffic and safety there was no imminent threat of danger in that case well is it is a threat to the convenience people would have to look further to get a parking space if there's one that's occupied too long i would go to i would explain that the way this court has handled this through sanders is to say that there must be some risk or there must be some traffic impediment and when we look at it well but sanders sanders focused on a vehicle in a parking lot of the store that was parked in the in the private parking lot right yes that's a different factual situation anything it said about other circumstances  men and yes it occurred in the context of what i think it was a goodwill parking lot of private parking lot but this court was reconciling what burton said and what oprah mints and i think it set out the standard that the district testified if they needed to move the car for safety purposes they could have done so yet they chose not to that's at page two hundred and seventy three they kneeled next to the car with no problem they were unconcerned about the black s u v that the judge charts and at the time that you know next to the car you got several patrol cars i'd be awfully surprised if there weren't lights flashing to warn motors like time of day was it was it in the morning it was in the morning yes and so you're on ages testified designed specifically for cars to pull over stop safely and that's exactly what happened here they testified the obion ages testified that the car was parked safely on the side of the road they plowed past a black v that they testified they had no concerns about the safety was parked in a very similar manner if they'd had concerns about the safety of that car they would have called the oklahoma highway patrol you can see that and he said they te to my argument about birth time and that is that you know you need a standardized procedure to decide whether or not to impound the car so you don't just go and impound a car so the policy here is that under any of these circumstances it would be legal to impound a car and they list them out in the policy but the policy the obion policy gives no direction on how the individual o b an agent should exercise their discretion on whether or not just to tow the car so certainly in this instance they had the authority to tow the car both under opperman under oklahoma law and under o b and policy but they weren't required to the policy that they may do it it's permissive they're permitted to tow this car now the question then becomes how do they decide whether to tow this car or whether to tow another one judge seymour's question of it are they're being arrested it's being left over night could be a factor that goes into that but as the courts in this circuit and the supreme court have said there needs to be some discretion set out for the for the individual agent to make the decision whether or not impound the car and here the problem is not so much that they had the lawful authority to impound the car certainly they had the lawful in authority to impound this car that's the ottoman argument they certainly had the authority to impound this car the question is is when they get to the discretion to the point where they're trying to decide whether or not to impound the car what guides that decision and of all that is permissive it says you can do that and i but there's no discretion no explanation for how to do it and i think we go ahead i'll tell you what will what we criticize is when there's no discretion allow  so that the officers have to do it even if there's another person maybe the registered owner is a passenger in the car and says look i can drive and all you have to season is that when you want something that gives no discretion no i think that i think that there should be discretion and i think that the place that we go to to find this discretion really is to chief justice rehnquist's majority opinion number time and really to footnote seven of it which doesn't get nearly as much attention as the rest of the opinion and the chief judge at that point is discussing in describing the boulder county impound policy in response to the dissenters and what he what judge wh judge rink was just saying is look there are factors that what he calls circumscribes the discretion of the individual officers and what the and i'm trying to get your question but those factors are things such as risk of vandalism these are written policies for the boulder county police risk of vandalism and whether the arrestee consents to locking and leaving the car those are the types of factors that chief justice rehnquist and presumably the majority of the supreme court was saying should be in the policy to guide the discretion of whether or not to take the car so if it's not an up or been case you're saying no i think even if it is an off from a case certainly in other men they have the discretion that's contrary over many cases the very cases and now we have a different sort of case well i think what is what sander says is that there are clear cases where the car has to be towed that is a case where say a car gets in a rock in the middle of the intersection and has to be taken out there or has been or it's unlawfully are to do well or it's a danger right to others or you don't you can't ignore the facts and not permit that really tells us something about what the supreme court had in mind or you have it or you have any case where there wasn't a pretext issue where cars stopped on a highway and  there's no one left to to take the car away no i can't identify i don't know a case where that came out but again what i'm trying to direct the court back to and what my argument really turns on is that is that number one if they're going to they have the discretion to tow the car if they're going to tow the car they've got to have a policy to do it when we look at the facts here this is not a clear opperman case this car doesn't pose a clear threat to anybody it's parked on the side of the road in what all the evidence says was safely it is not then the government wants to talk about the horn case the horn case is different they pull off to the side of the road and then they pull in it an twenty back into the road that was a clear opperman case right where where the cars coming from behind couldn't see the reflectors presumably here this cars parked parallel in a safe spot and all the evidence to stablish is that that is an appropriate and proper spot and if it wasn't the obion agents had every authority and every opportunity to move it everyone felt comfortable with it there for over an hour so it is not in my mind a clear opperman case i think we can look at opperman but opperman really should apply to cases where things are much clearer and accident in the middle of the road a case like war and where there pointed back again and you can't see it coming from behind this is a lawfully part stop  on the side of the road does that mean you know well judge murphy i think there are two parts to that number one it it it would it certainly could make a difference that certainly i don't think it fits into opperman clearly but it is bar yes twenty thousand dollars pieces of art but he made that after and if i may finish the question i see i'm out of time but he made that he made that claim after the decision to search his car it already occurred so he's in the back of the car police car screaming while they're searching his car in a state before did that ever find their d mistake was amiss no i don't think so i think by that point they'd found the money they they were going on a search i don't you mr snyder thank you roger please the court my name is thomas reiter i'm an assistant u s attorney appearing on behalf of the united states in this case pick up on a few things that my fence counsel argued  i think the court is exactly correct that this is an opening case and if the court concludes that opening up lies there's no need to really go any further on the issue of the impoundment i disagree about the contention that the district court did not make a finding that this was a open case and looked at page twenty one of the record page three of the district court's opinion that the sense i'm going to quote part of it says the court finds the agents were justified in concluding that the car needed to be impounded as a potential safety hazard if left on the side of the highway so she did specifically make a finding that this was in fact an open case now there's a couple factual things i want to address that were argued by counsel the st is the idea that agent harper testified this car was in a safe place on page two summary of the record the question that was actually asked was and i'll just quote this briefly is that where you pulled over even with your tires on the unimproved shoulder is a safe place correct answer it was a safe place for my stuff yes so the actual answer agent hartsburg a was not that this was somehow a safe place for all purposes but that this was a safe place for him to conduct the traffic enforcement action he was planning which again is a court noted involved multiple police cars with lights flashing in the middle of the day so it being a safe place for that particular purpose does not mean that he had somehow concluded that that was a safe place to leave the car overnight i think importantly the facts here are even more compelling certainly than they were no permission you had a a a plate a big vehicle with tennessee license plates that was being driven by a person who lived in tennessee by all he had an extradition warrant out of the state of montana for which he was being arrested there is no indication that anyone involved the agents had any reason to believe that mr t bo would ever be in a position to do anything with that car for some considerable period of time for all they knew he was going to montana to appear in criminal charges there so as the driver and so watch going to the car that car was going to be abandoned on the side of interstate forty and i think that's where horn comes in in that you know it almost seems like the the cordon horn it was just so blatantly self evident that a car parked on the side of the highway is a potential risk to public safety when they reach that conclusion it was almost like of course it is a risk to public safety there is nothing in the horn opinion that indicates that the angle of the car phone call to have a sheriff or local p d come out investigate that vehicle answer no i did not i don't know what i can't testify to anything about that vehicle because i don't know anything about it that was the actual testimony and not that he ha somehow observed it so i believe that it was safe and therefore that could have been somehow i think he used as as evidence that his decision to impound mr karr was pretext and on the pretext issue  the district court below her all the same evidence that was argued by the appellant in their brief and all the arguments that are presented here and nevertheless made it to the finding that i quoted earlier that that the officers were justified in concluding that that car was a public safety risk and needed to be impounded and implicit at least in that finding i think which is entitle to deference and clearer view is the finding that the proffered reasons and the credibility of the officers was accepted as true by the district court and they found that that proffered reason was justified otherwise that sherman ation that they were justified in telling it would make no sense so having concluded all that i don't think we even need to reach the standardized policy if we do need to reach the standard us policy under standers i think temporarily or was the only evidence is from the dashboard camera and what all you see is that as agent hartsburg is going to complete the nd stop as he's driving to catch up with mr t bo on the highway they pass a car that's parked on the side on the respect to the black s u v but more generally as he's going to make a nd stop there are cars yielding to the right as agent hartford passes on the left and then when the stop happens you can observe most of the traffic not all of it most of the traffic is passing at least a lane  away from the lane of traffic that would be right next to the stop and that is in accordance with oklahoma law i'm just standard driving practice to avoid again the clear hazard that was marked by the three police cars with a white  i think if there was some lingering question about whether impound it was was appropriate or frankly in response the allegation of the inventory took too long which is when it was meat i think it's relevant certainly those contacts want someone  indicates you know for example if the argument had been made that you need to impound it because you could have just left it there because the owner was ok certainly the presence of very valuable items in the car heightens the very need to do the inventory search in the st place one has contested if those facts developed that there was a peculiar need to protect mr tivo or the police from claims wasser damages items that at that magnitude i think it would have justified decision about at that point ok i can't recall  think and your honor if we do have to get in just briefly if we do have to get to the written policy of o p s as the core pointed out it's mystically calls out that impoundment for not investigatory reasons which is what this was is generally justified if supported by public safety concerns danger that are potential harm or vandalism if left unattended and when you read through the policy and or the specific circumscribed circumstances in which impound is authorized and in the one circumstance which is specifically out one i can't shake the feeling that this was written specifically with a chance circuit precedent mine those are the types of community care taking functions that sanders looks to find in a situation where the sort of automatic impoundment that's that's found oakman does not apply because there you have to have a standardized policy and some argument that community caretaking function supports and so the policy seems to be tailored directly to to match what has been permitted by the court and i think it's totally consistent with that the fact that it has some residual discretion within limited categories that for the agents to exercise does not make it so doesn't doesn't render it a loser e i guess  something of that magnitude gets in the car and i think the district court made this observation and in the ruling as well that it changes the circumstances a little bit as as opposed to sort of a standard roadside inventory where you would expect to find  sense but he's essentially relinquish his right to really make the argument because that when a very thorough search of some kind or image were rather was required to in light of his claims it's found money they found you know he'd made these allegations i think at that point the type of search that you're allowed to envision for inevitable discovery might have located the suitcase you know the giant suitcase filled with cocaine in the trunk of a car and certainly valuable art could have been concealed in that type of of something someone says when they're desperate to have someone not find the cocaine in the trunk of the car but i'm happy to address of the questions otherwise i would i'm happy to give back my remaining time and if it was no thank you very much counsel nicely