if for argument is united states versus city of like what municipal code did not authorize the impoundment in this case that should be dispositive as preferably construed the code sets the boundaries of the police departments authority to end the code contains specific grants of limited adopted it's whether it constrains the discretion of the police officer so is it i mean if we have a written police policy that says  you can identify the owner of the vehicle you're encouraged to imperil doesn't that adequately cabin the discretion of the police officer so we don't have to worry about using only question was whether or not these particular officers subjectively intended to use this as a pretext none of those factors would matter for any it's not a factual question it's a legal question for the court about whether or not the circumstances were justified under community care from our case actually and that i thought in sanders the officers were able to identify the true owner of the hacker and media like yes that is true i think beverly sanders owned that car and there was never any question about that but i don't think that's a dispositive difference between the two cases the feds well one this is a motel parking lot that literally the purpose of the motel parking lot is for people to park overnight so this concern about leaving the car is really overblown expression he compared to sanders where it was a good well parking lot no one expects to leave their car in a retail establishments parking lot of the night nd there's no reason for the officers to think that the owner whoever that might be turned out to be much of an a z i would prefer for that vehicle to be impounded over being left in a motel parking lot impairment is expensive it's inconvenient you have to pay the fees to get the car out presumably most people will at least the officers would certainly shouldn't assume that the under would prefer impoundment over needing the but they didn't know who the owner was added and mean they did it it wasn't like they could rely on this to then ac is permission because they didn't know he was the owner how does that i am identity they had a phone number for and it wasn't like he was to he had just disappeared this just in these you had been arrested on a traffic violation he was going to get out very quickly and presumably be in a position to clarify his ownership so this is really nothing like the the case which the government sites on this ownership point where they had no idea who the car belonged to they had no idea who mister kornegay was and he was being arrested on a felony a question then that in our sanders cases and all of these in regards to the possibility of pretest but there is a pretext here you're probably going to win but my concern is that in this case one of the main things and looking ultimately at the th amendment was the trial court bullied the officers and they acted reasonable and there are  that it is true that the underlying concern behind the sanders case is of a waiting pretext but sanders sets out a two part test that this court has to apply to evaluate whether this besides it's not just a question of saying will the district judge believe the cop so end  story you have to decide whether or not there were there were lawful procedures examined the officer's discretion and whether the standards factors whether whether the overall impairment was justified by a community care taking right now so that's that's our argument is that you know there were no lawful procedures in place we agree and to judge the queue to get at your initial point you know we agree that you know these procedures the police department procedure standing alone did offer enough like cabin ing of the discourse discretion for that purpose they do still have to be lawful that's how we really borrow it consider this hypothetical for example say the code had said police you cannot impound no impound and the police wrote out an i policy though impoundment pursuant to that policy is going to be upheld because acting attribute they're acting beyond their power this case is really no different that's a more extreme example but it's the same problem police acting unlawfully in the th amendment is concerned well under understand as that's a legitimate concern only if there's no reason to think to be it will be retreat they had every reason to think this vehicle would be retrieved because they knew the registered owner was they knew that mister than a zero was and they knew he'd been arrested on as minor of an offens cop so that he would be in a position to clarify as understood by the car so you know what sanders says is that high crime area is often a source of pretext this is common sense but it also flows from the idea that empowerment is expens crime areas you're basically just punishing people who live there because it's an people lose their cars because they're impounded it's hard to get and they have to pick up work they have to pay to get their part out so this is this is that animating concern and centers for why look you can only rely on high crime area if you really think the vehicle might just be left there forever and that's not the case here that limitation is important just basically to protect people who within a day so i think in that context the or at least implicitly that if the vehicle if the code did not authorize the police to do it or if they i'm sorry i don't want to put words in the government's now if the police did not have a lawful authority to do it the impound it was and institutional they have not this argument that your question suggested that well as long as it happened discretion we don't care whether or not it was lawful so you know to the extent that that's a concern that court had i mean there i don't see that in the government's brief and maybe miss money will see that differently  precluded the impound here to the extent that was raised i agree that entitle ten the factual circumstances set out in the us support code permitting a private property impound and those facts don't apply here at that point but i don't agree with councils i suppose broader assertion that the muni code is the last the last gasp the breast the last word on whether or not the empowerment was lawful and i do want to note that private or public property so this court shouldn't read into that a limitation that isn't there and i also would i think it was just me q you pointed out that under for the moment law the concern isn't necessarily as o stated the permit question is not whether the particular action in that case was a search was authorized by state law but whether it was and is not your opponent is correct you didn't argue this and i don't can you point me where in your brief you've raised the argument that that it doesn't matter if the police department policy had the force of law so i think that i talked about how is i know that i talked about how the fact that sanders and burkean talk about standardized criteria which need not be on and i think that is what i think that's true in this case you know that's and i also want to push back on opposing counsel's reading of a bar and i don't think that it should be read to conclude that in order for officers to impound a car the criteria must be the force of law st of all that would be contrary to burkean which talks about standardized criteria or a framework in that way but also in borrow was looking at a law it was looking at a wyoming statute as well as holdings from the u s supreme court i don't recall any mention of some sort of police policy in the bara so i think that that's a sort of a misnomer out there that there has to be some sort of indication in law for that to be the chase here i also would push back on opposing counsel argument that the provision ten point six six one nine be that's in the municipal code should be read as some indication that the municipal code title ten and only title ten sets forth any six one nine a the condition of above what we're talking about here talks about circumstance certain circumstances on public property where impoundments are possible nd subsections has but this is not to say we're limiting any other ten and i think that the negative implication of that at most is that but ten point six six one night a could limit outside of title ten i think that's the most combat if you read from that negative implication oh the government's position again is that the standardized criteria of standards was met in this case the officers followed a policy here it sufficiently challenge their discretion and that policy was not limited to just private or public property i that this empowerment satisfy is the police department policy are you conceding that there is nothing in the municipal code that would authorize this impound so i agree that under title ten of you know civil code the factual circumstances here don't satisfy those requirements and i agree that for seven for one of the police department policy provided that but i also will note i'm happy to file a twenty j letter on this but need a civil code it doesn't argue that or doesn't set out that the police officers could not create such impoundment a for each in fact under title two of the municipal code you know the police officers it's their duty to protect or prevent crime detecting arrest offenders and protect the rights and persons and property so i don't think it's even fair to say that the police department policy is so sanders i don't disagree that sanders articulate that this is a factor but that sanders articulate how an impound can still be constitutional if it's on public or private property or if it's on private property i don't think that means the fact that this was on private property should be dispositive as to whether or not this and it was constitutional or not oh i don't mean you should we should we weigh that factor more heavily if you have private property versus public i don't think so your honor i don't think there's any indication in sanders as to how these to weigh these factors and to the extent that there is this sort of longstanding longstanding impoundment authority it does talk about public property votes and opper teams but sort of the concern in those cases is safety so i don't think that sanders necessarily speaks to a circumstance where the car is on public property but it's not  you would have to agree that that weighs in favor of the defendant don't you i'm not so sara lee sure that i do agree again because standards sets out how private property and comments can work but i do agree that the district court seem to perhaps think that this way in favor of the defendants though it it didn't assign much weight to it but i think that stepping back it's important when weighing the factors to remember what the factors are trying to get at what they all pertain to and that is whether or not there was pretextual community care taking function in the scenario the absence of viable alternatives really speaks that pretext and that's why i think it should be weighted the most heavily under  officers were not able to get ahold of the register on or l c i don't recall any testimony at the suppression hearing and i think i pointed this out in my brief where else he said i never received a call but in any event the district court found that such a call occurred and officers were not able to reach l c so that's one problem if the officers were to leave the car in the lot else he may not know the nd prong is the fact that even if defendant bonded out of jail quickly which is  those characterizations if the defendant had bonded out and taken the car else he would certainly never know where the car was located so i think the officers made the best choice under the facts available to met at the time and enormously in any th amendment analysis the key question is reasonable ness of course and i think the facts here colored the fact that the officers choice here to impound until the car was reasonable and  i think the facts certainly bear that out that the only option was leaving the car in the motel parking lot but it just wasn't a good option under these particular facts well i think that the court a good case is really helpful in that scenario again it's on private property but it really underscores how the lack of prudent alternatives can sort of bought tide officer stands to do anything but impound the car and just not to step back too far but i will also point out that given the standardized criteria in this case the officers would have been in contravention of their policy likely had they not impounded the car in this case again because those policies talked about how impounding here was encouraged when kornegay if they had no reason to believe that the driver would return quickly because of the severity of the crime here it is a sitting on the motel parking lot before he can return well i think that also you can't forget and put aside the fact that the defendant or the officers here still didn't know who owned the car so as i mentioned if l c was fact the registered owner and the defendant did as was logical in this case found out quickly if he came back and took the car else he would certainly never know where the car was so i that's why i say your honor i think that that is a factual difference but it's not charges but again the fact here and that that a friend that the officers did not know who owned the car made it so that even if the defendant came back quickly that could create even more problems for about law enforcement respect so briefly i'd like to go through the other factors quickly but again i think this factor the absence of viable alternatives to empowerment is really the crux of the nd problem here again we talk about public or private property sanders doesn't explain how to waive these factors to the extent that it weighs in favor of the defendant i don't think that it some ounce the fact that the absence of viable alternatives exists that motel owners were not consulted in this case but as the district court observed even if the motel owner owners had been consulted they would not be able to clarify for the officers who owns the car and that was the sheet of officers in town that decision here was the unknown ownership of the  car the vehicle wasn't implicated in a crime and so i think that that could perhaps weigh in favor of the defendant but it doesn't outweigh the absence of alternatives here and one of the owner drivers consented to the impound of course the officers did not know who about communication not so that their police department policy required them to call multiple times i'm not going to say that maybe they shouldn't have called multiple times but i don't think that the failure to do so made their actions on reasonable and i think that it was the community there was testimony about how that communication center was involved in this and that they were able to reach out see that one time they call him so again i think on balance that both of the standers criteria are met in this case the reasonableness of the impoundment and the telling is supported by the facts as they were elicited at the suppression hearing and unless i can answer any further questions from the court i'd encourage this court to affirm the district court suppression  i have just a couple points i'd like to make in about oh the st is is that in relation to this whether d the government made this argument in their brief about you know it doesn't matter if it's lawful so long as it happens discretion if you look at it they cite this page twenty three if you look at what they're saying there on page twenty three in context what there's things actually something very different it's that if if empowerment was allowed by the code then it doesn't matter if the policy is it has the force of law or not so it's not that it can contradict the code and it doesn't matter it's that assuming it complies with the code it doesn't matter that actually carries the force of law and of course agree with that there's nothing that requires the police department procedures to carry the force of law what is required however is that they in fact be lawful and that is a separate point that was not made in the second in this citation for the st time at oral arg chapter two you know i am not really prepared to respond to that because we didn't that wasn't in the government's brief but it doesn't sound like it really adds anything it sounds like it was just a generalized duty to protect property and doesn't say anything about empowerment in particular anyway and if i could just make one more point i obviously do think the facts matter i just think this is a legal question would you deny you you apply the legal standard to the facts but in the end this is a legal question for the court unless the