week we're hoping that the two of us can behave well to convince her that visiting occasionally with an appellate court is a good thing i'm going to be on my best  in the limited time that is available to you to get straight to the heart of your argument oh please don't treat the red light as aspirational when it shows it's time to wrap it up of course if you're answering a question from the court you need to to finish your answer and you'll be on our time and it may be that will have additional questions we want to ask you that will be on our time  were around him he stopped them both for their safety they foster they were coming back from a twenty four hour wal mart back and they were walking back to their hole to heal and their heart in the hole to be or were both just a few feet away from where they had been stopped the law was able to get their identification he never believed they were dangerous and although he only suspected them of just walking down the street he handcuffed them and then he locked them in the the description you provided just a moment ago he would have had probable cause to make an arrest for that offense rather than there were bags here where the officer had reasonable suspicion or probable cause to believe that they were black in the incident to a rift for several reasons after officer duvall stopped them he hands of them he locked them in the back of the patrol car but he testified that he didn't arrest them also was no legal basis for him t v and in the back of that patrol car well whatever he thought subject that well it is not really the question is is it the determination of whether the obvious or could have done  an object of determination and then if he had probable cause to make an arrest i don't understand why he couldn't have done everything you just described we don't even have to go into what he was thinking subject show he would have been entitled to did and under the law made you are considering whether somebody was search incident to a wrist or whether this is a terrorist out the court doesn't get into the office of subjective belief right i agree with that firearm the problem with this is that for such incident to a wrist there actually has to be an actual arrest and that wasn't the case here this is a pretty poor is that the authority to search incident to wrist arises at the moment of the actual a wrist and not merely when there are grounds for wrist so in this case officer do bar only had grounds for wrist also the rationales for search which is out of the supreme court and i think the reason why the ok old a wrist after the fact is because the facts are very different here so in the supreme court case in rawlings you have a person who immediately confesses to possessing drugs and then he then right after the officer searches that person finds a knife in money in their pocket in the ne mediately arist them so all of those actions happen very contemporaneously but that wasn't the case with mr johnson's case he gets locked in the back of the patrol car the officer takes his backpack he searches the backpack he says he from someone who is stopped by police confesses to a crime and then there's a search any media form of the wrist right after that so i think our case is different where you have someone who is search first and then immediately  that's the government's position now when he was under yes and i appreciate the question because you have to read the transcript a number of times and put that jigsaw puzzle together the record is very clear that right at the same defendant and in the same time asking for consent to search the backpack and after that placed him in the police car the record is crystal clear on that and to gun in the backpack and was able to the term that that was an illegal stolen firearm so it was one of these typical police situations that unfolds where the officer comes up on a scene and doesn't know exactly what's going to happen certainly he witnessed a disorderly conduct violation to address just priors a question that we knew that judge steele traveled down on his suppression order he could have also talked about the terry stop wrong alternatively but he chose to talk about the search incident to an arrest and that was certainly enough for this court to a farm but the officer was also responding to this suspicious persons call about burglaries going on about five or six blocks north on the other side of  just like to know the big picture it's about i was asking our usa a number of questions about things that weren't even on the record that i was curious about with this case but i will say this and i do think it's part to that point is that there's nothing in the record to indicate that the officers concerned about the burglary the car burglaries up at the nursing home wherever a late i think he just was distracted by what he what he confronted you know with the defendant there on the scene in the middle of the night so so that's the sequence judge martin on that and it is absolutely true that judge steele as a matter of law could find that there was authority to search authority to where the defendant was not actually under arrest but was subject to the search incident to arrest analysis and that was leo and lester so their own cases support that notion and also i'd like to respond to one point that the officer never believed that these two folks were dangerous there's nothing in the record to support that in fact it supports the contrary the police officer testified that he was concerned for his safety and for their safety that's why he handcuffe i understand my view our position would be that the officer believe that that was very threatening he was alone well even if it doesn't support that but the point you were trying to make earlier was there was no nothing to support the notion that he did not consider them dangerous and that is that is correct your honor and i think the record you know on the flip side would support affirmatively that it was but nothing to the contrary but was the other  into their argument about the terry stop but that's not how judge deal traveled in this case search as a matter of fact he had already been handcuffed and he says well you know do you mind if i search you before you go in the back of my patrol car because people leave stuff back there and mr johnson said no i did not he takes the backpack and the robbery and in that case the officers allow mr lester to wait outside of the police car without being handcuffed and it's not until mr lester becomes agitated and he starts to fight the officers authority to conduct a search and shouldn't to arrest the officer could have searched the backpack if he had the authority to search incident to a risk he could have done a full search because the search the backpack as part of the search as part of a search and to return because the rationales for search incident to a wrist are that you are searching to disarm the person before taking them into custody and you're trying to the authority arrived at the moment of actual arista not merely when you have grounds for the arrest ok the thing that i would add your honor is that the problem with this case is that anytime a person is stopped regardless of the