may please the court my name is brant owen and i represent mr terry aka the district court should have suppressed evidence found in mr walker to vehicle for two reasons st the court improperly applied marks by adopting what amounts to a categor violating kansas is plain wrong because deputy daly lacked reasonable suspicion for the stop the evidence should be suppressed the stockers st momentary touch wasn't enough and the nd brief occurred with the officer just tell me understand an officer can't cause a lane deviation and is that the rule that you're arguing for no your honor we're not arguing that an officer while i guess i'm not one hundred percent understand your question under marks the officer needed a reasonable suspicion that a laying violation had occurred and the momentary drift that occurred the nd time occurred with deputy daly speeding up behind mr walker as i just assumed that the rate and that's what i'm trying to figure out what we're told is that play that the deputy actually may cost i use the word cause sorry by torts background caused momentary lane whatever deviation and therefore that just can't count i mean that's that's what i'm trying to pin you down  on nothing that categorical because i think marks and shocks of that sort of categorical prochoice of these situations is incorrect but instead that the officer could not have had a reasonable suspicion because of his driving i don't think you have to conclude that he caused the lane violation to conclude that he could not have had reasonable suspicion under marks isn't there a finding from the district court that the officer did not believe that he contributed to the nd lane change there is a finding from the district that the officer testified that he though he told mr awkward that he knew he had drifted over center because he was coming up on a very quick the officer didn't believe that and he was trying to control the stop but i don't believe there is a district court fighting that explicitly says that the officer did not believe the of the district court describes both exchanges describes his talking to mr awkward and described what he believed but you're saying that doesn't count as  fine it was a descriptive statement of what he believes yes your honor i believe the district court's finding both describes that the officer told mr walker that the reason he suspected m drifted to the center line was because of his driving and the dish recorded describe that the officer said that he didn't believe that but was instead just trying to maintain control over the traffic stop and he said that in the context of the officer said and context the testimony at the hearing right yes shown ok and did the court find that the officer was credible not in every instance the disher court didn't find for instance the officer is credible when they said that they smell marijuana in the vehicle that we are objecting to here is that the district court categorically didn't consider the fact that didn't properly consider the fact that deputy daly was speeding at twenty five miles an hour over the speed limit without if there were obstacles or something that prevented you from maintaining your line you could not i mean i'm not going to take the time right now to go back and look at it but isn't that something to the that the what's at play there yes shot ok well i would then there's alternately got a big determination as to whether that nd lane change was something that could have been avoided in out of that are going to be a number of facts from which you make that determination if it is undisputed that he did make the lane change then really you're on the back foot of explaining why it would not have been practicable for you to maintain the lane and if the officer if the officer testifies well you know i don't believe that that would have stopped him from maintaining the lane and what is there to suggest to the contrary we're considering the facts in li most favorable to the suppression you know determination right that's true and so there's going to be some basis to say was clearly erroneous to say that when he drifted out of that lane he could not have stayed in his lane your honor under mar a respectfully i think that impermissibly shifts the burden to mr walker to prove that he could have stayed in the lane when in fact marks and sharks that to have reasonable suspicion the officer had to have an understanding as to why it was not practicable for parker to stay in the lane and for the st momentary touch that he did it was four blocks away and offered no testimony as to why or why not it might have been practical in then in that context and he testified at the hearing that he understood that that st lane change could st touch of the center and could not have given him a reasonable suspicion of a violation even engages emergency lights but instead sped up without engaging as lights to twenty five miles an hour over the speed limit in violation of kansas law and department policy and while he's at a sixty three miles an hour then mr walker briefly touch the center like this in about the deputy is it i mean we're not here indicting the deputy we're talking about whether there could have been reasonable suspicion to believe he could have avoided the right and it's one violation right so what we we're not going to divide the two if the officer is looking at an individual knows that there's one there's one deviation ok from the lane why couldn't he use that wasn't evidence and testimony as to whether or not it was reasonably practicable to stay in the lane the cancer supreme court instructed that the evidence should be suppressed and so it that's the error that we're complaining of here which is the court improperly credited the st lane in order to find reasonable suspicion even though mark's and requires more i like unless or for that i'd like to turn to the plain view issue and the search so even if the officers had reasonable suspicion to stop mr walker the district court erred in allowing the warrantless search of mr walker's vehicle parked on his girlfriend's private driveway mr barker had pulled into his girlfriend's driveway he got out of his car all the officers ordered to stand next to the officers car and he was eventually arrested still standing next to the officers car without warrant the officers then illegally search mr market's vehicle in a way that they define as a plain view search there is no such thing as a plain view search and the officers did not that did not meet the plainview exception circular starkers vehicle because they were not lawfully in a position to view the incriminating evidence when they found it in we're below if you challenge the search of the vehicle along the lines you're doing now argument not credible but still reach the issue that the argument that i'm making here so we didn't articulate the argument in the exact same way but the district court did find that the officers were lawfully in position and so it is ever leave you with the responsibility of making an argument i mean you have a motion to suppress which i'm looking at where i don't see anything in there talking about the search of the vehicle and did you so i'm not talking about what the district court did i'm talking about what you did i mean what your what your  the vehicle was on private property but the district court expressly found reached this issue on in its opinion a volume one thousand one hundred and seventy seven by concluding that deputy da had lawful right to access the vehicle and under united states v hernandez rodriguez by susanto raising the issue we are allowed to object to it here and it's particularly appropriate in this context because below mr orcutt objected that the officers could not smell marijuana and the below regarding whether the officers were in a proper place to perform a plain view in a thing i'm sorry i misspoke if that's what i said we can see i was conceding the specific legal point i just made why don't we start with the preservation issue mr brown thank you will there are twenty two issues that are not preserved and i'll start with the last one that the court discussed with my colleague and that is what the issue whether the officers were lawful driveway the this issue is not preserved the defendant did not make this argument below the defended says that that because the district court sue a sponte raised resolve the issue that he is able to now reply to that issue we think that that argument of their presence that goes to show that he perceived the issue and relinquished the argument when he said the st and for a moment you're lucky here so there's a waiver of that issue or at least an argument for a waiver vanishing remind me what page was that on that issue below and in fact it was not a search we argue it was not that he didn't raise it so it's way that argument is waved as well the so those of the waiver arguments now i'd like to go just important to note that the nd breach is actually on video we can see that so we don't need to speculate it shows that the defendant was able to maintain a sling that there was nothing in the lane he could have physically stayed in the lane so there was one lane breach that fully complie and provides a reasonable suspicion for the stop this court has report to linger teaches in the past i don't think the court is has found that one is enough but we have two here we cite four cases that this court has found that the court has a long line of cases that two is enough and that's what the officer thought two is enough because he's a well trained officer and he was familiar with apparently the requirement that there be two lane breaches what about the officer running on the mr rocker and commotion caused in a case called show up and the defendant's argument was that cause so much commotion that it caused him to breach is less the court made a factual finding that the defendant doesn't really discuss that the commotion was not enough to cause one breach and i give the record cites on page twenty two of my brief also keep in mind that very stop that the court just referred to is on video so we can see what kind of commotion there was there's no ambiguity  violation of the statute but whether it's a cessna be sufficient to cause reasonable suspicion to think there was a violation of course very well aware of that and reasonable suspicion standard is considerably less than a preponderance of the evidence so there doesn't have to be any two a violation the officers mistake was reasonable and that means there wasn't a th amendment violation that straight have occasion of the high noon case rd given other alternative ground for the stop we argued this in the district court that the officer had reasonable believe that the defendant was driving while impaired so irrespective of the statutory violation the officer had a reasonable basis to stop the defendant we give twelve thousand three hundred and forty five cases for cases that stand for the proposition that  swerves one or two swerves can support the idea or reasonable suspicion to stop based on driving while impaired well if he didn't have reasonable suspicion i mean i know you can argue an alternative as you've done but if you didn't have reasonable suspicion it whether the i know that but i mean if you're swerving and there is no obstacle and you don't have reasonable suspicion to believe that it was practicable to stay in the lane that it was then why would you have reasonable suspicion to believe that any swerving had anything to do with reasonable suspicion that somebody compared those are two different things i understand that you're on or off the top of my head i can't tell you that but i can tell you that this court has has found that driving while reasonable suspicion of driving breach it's hard to see how the objective predicate would be there to satisfy a driving while impaired i'm not saying you can't make alternative arguments i'm not saying you can't ever freestone i mean free standing driving while impaired i'm just saying logically the objective predicate would seem to be the same swear swerving out of your lying run while there's no impediment yes the object to predicate would be the same so the same set of facts can provide independent bases for  and twenty two way and driving while impaired i didn't mean to misunderstand the court i hope i've made myself not like we're fine thank you now i'd like to move to issue issue two whether the deputy is deliberate manner of looking into the interior the vehicle from the outside was an unwanted search the defendant raises this claim for the st time on appeal therefore he has  that he has raised all records one hundred and fifty seven dollars he's not that argument is not raised he never says that the officers looking in the vehicle from the outside to the inside walking around it several times is a search in fact it is not a search if you had argued that the district court we would have made a very vigorous argument that it's not a search the supreme court precedent is on our side texas b brown says that a defendant very clearly it's not even controversial defendant has no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passers by or diligent officers that resolves the claim no expectation of privacy the in the interior portion of the car that could be seen from the outside because there's no expectation of privacy there's not an infringement on the th amendment interest therefore there is no search council can i just stop you there though in terms of i mean there's a suggestion here i think that this they'd be they peered multiple times they they looked and looked and looked and looked and it does seem that you know normally it's like in your typical case you see in the st time and here they be paired multiple times than in different positions than i'm wondering what you do with that what you do with it is this there's two responses number one it's not a search go so it doesn't matter how many times they peer he  doesn't have an expectation of privacy in the interior portion of the car that could have been seen from the outside on the st nd rd th th or th times because he didn't have an expectation of privacy in the interior portion that could be seen from the outside into texas be brown is not searched they could have done that twenty times wouldn't made it in india difference my nd response is this and i think the court may find this more persuasive but the district court found that the officers saw the firearm in the vehicle in that that was also lawfully seen under the plane you doctrine and that was seen on the nd trip to the car not the six the nd so there it looks like there were sixty six dollars trips and the officer saw that on the nd so here we have a nd trip he saw the firearm that was seized in plain view and that should satisfy the number of troops issue well to use to go back to judge i point about the number of troops why is it that easy to dismiss the notion that just because texas we the well we're talking about here you know what's the point i'm making there's all there's a limiting principle on rules of law and why wouldn't this be one well your honor we have we have i'm not sure i can really speak to the courts what this court is asking without without reading that case and showing why it's distinguishable i would suspect that in that case there may be an expectation of privacy at issue and here there's not the question i guess the argument and i won't pursue it was yes i don't even have the case in front of me but the argument is and that that in certain situations it is clear you don't have an expectation of privacy in the example in that case was you know as we all travel and put luggage in upper upper containers there is no expect a reasonable expectation of privacy anyway that people will not move your luggage around that is the but the court has held that that is different than law enforcement taking your luggage manipulating it in trying to buy it stopped and that was a limiting principle on the idea that you don't have an expectation of privacy all i'm saying is so categorically saying well there's no expectations of privacy should be what's in somebody's car doesn't mean there is a limiting principle on it does it yes it does we think it does ok and we go with texas be brown the language is crystal clear we don't think we can get around it we're to follow that's our response and your response argument for the st time going to feel its way we can't get to it he doesn't show that he has an expectation of privacy as a social guest under this court's precedents he was not a social guess he doesn't make any single argument that is that he was a social cust could you tack on thirty seconds for him you don't have to take it which you haven't and if you want to thank you donna i'd like to start st with texas b brown and the categorical rule that my colleague just  advocated for i think that's incorrect i think the court's precedent in coolidge and collins makes clear that an automobile isn't a talisman the th amendment doesn't just disappear because it's not an appeal and one way to think about this issue think if instead of  anonyma bill the officers had walked up on the private property and shine their light into a bush to find incriminating evidence and that circumstances walking around it would have been obvious that that is not allowed under the th amendment there is no reason under the case law to adopt a different approach or simply because it's a vehicle it would have been obvious when it would not been allowed will because it would have been curtilage is that what you're saying you said bush right yes sure i just meant any object that's off into private property in the curtilage ok yes i was assuming that the bush was in the courage but you could take any example firewood something stacked up with have to walk around in china and in texas be brown the officer was lawfully in position to see the drugs that he found and you're saying they could see the gun it was my understanding was in plain view and they saw the gun they only saw the gun in plain view because they left where they were by their vehicle where mr walker was and walked under private property to look into the vehicle he had pulled in to a private driveway and so at that point it changed it's not like  an automobile stop or on like texas we brought more the officers are standing next to the car because they pulled them over right there here he had pulled parked in the private property and the officer instructed mr walker he said come over here  so i just then your objection though is is not to the number of times he peered into the car but rather they shouldn't have been where they were when they peered is that correct that's correct  so really it just boils down to whether they were properly on the on the property at the time that that is that is your single argument it is not a multiple a multiple pairing argument no and i think  what's way in the world is that supposed to have been our resolution of this issue i mean we're not bound by it it's not you don't give us any prevailing authority on that point i mean beyond the fact that you've got to deal with a serious problem that your client doesn't have a right to object to briefly on the seizure the emphasis has been on the weather conditions and that there was an anything in the road but the air that were objecting to is the very one that counsel didn't want to discuss which is that officer was speeding behind mr rocket twenty five miles an hour and the court held that it did not affect it's a terminations and that's that the objection we have to the court's reasoning it did not affect its determination  finding in its it was a non issue because it because the core improperly separated the weather and road conditions from the most obvious reason that mr walker might have drifted to the center line the same on my time thank you counsel