where asking that the court hold unconstitutional the warrantless search of miss naps purse purportedly incident two arrests for three mutually enforcing reasons the first is that by the time of the search the police had this situation totally under control and they weren't in the sort of chaotic situation that can justify a search incident to arrest second by the time of the search the purse was only in proximity to miss now because the police had chosen to put it there and they can't bootstrap themselves into an exception to the war war and third there was no realistic possibility at the time of the search that miss knapp could have gotten a weapon from a purse and used it against the officers to about her state about her statement  that's right so there's there's a couple of things about that the first is assuming that the police got that information legitimately what they could have done is lock the person in the truck and seek a warrant just like when you have probable cause for any other evidence you've got to get a warrant and the fact that they had probable cause doesn't excuse the failure to get a warrant because that would be of this rate the w the second problem with that is that the police only got that information because they claimed the authority to conduct a search before so they said you might as well tell us what's in this person's we're going to search it anyway and if you tell us what's in it we can work with that then she says well i have to say there's a gun in the purse and so there's a case from the fourth circuit called saphir which is faith that says if you claim the authority to search and then get information based on that incorrect claim of of authority you can't use the information that you've got to justify a search  but the bigger problem is just they needed a warrant they didn't so i want to focus today on this third point about the realistic possibility of her getting access to the weapon at the time of the at the weapon were deemed to be on her person with that really matter if it were deemed to be on a person it would not matter but and why why was why isn't this a case that it can be resolved because the weapon was on her person it has to be  a couple of things it would have to be on her person at the time of the search for one thing and the second container is not an aspect of the person i'm well two things were to get at the time of the search i ins if the search incident to the rest she was arrested there did the justification for that exception is that your expectation of privacy is diminished and that whatever justification is needed has already taken place by virtue of the s she was still arrested she was arrested at the time and at the time that person is sitting right there next to her in fact granted so at that point where she had a diminished expectation of privacy she's hugging the purse and so at why is that not in it up self sufficient to say that that person is quote i think the case all uses language like closely associated with the person or something like that why isn't that person closely associated with her person well  pocket that's the distinction is that it's in his pocket and what the court said is once you've started a legitimate person a legitimate search of the person's clothing you don't then have to stop because you find a container in the clothing you know if  part if this if if she had had a wallet would that would we be arguing about that if she'd had a wallet there wouldn't be an issue about the realistic possibility of her accessing no no no no that's not i'm sorry i wouldn't clear my question will we have any concern about whether that wallet was closely associated with her person such that the search of that wallet in the search of the contents of the wallet was a search of her person if the wallets in her clothing know well why should it matter women don't allow to women i'm not trying to be sexist you're a lot of women don't carry wallets and and those wallet or that purse is deemed to be closely associated with their person so here's the distinction the distinction is is the property so in extra intertwined with the person that you can't separate them from she felt it was when she grabbed it  it's not it's an objective standard of could the police remove it from her and you can't remove the person's clothes you can't remove a person's body so because of that you don't have to ask could they access it because you always have access to your clothes into your body but you don't always have access to property that is hand held that can be removed from the person and that's why the courts have all of the courts of appeals have said you apply chimo and gant to things like backpacks briefcases gym bags and i don't see how you can distinguish backpacks briefcases and gym bags from purses i don't see how you can distinguish a purse from the wallet i mean they're both serving the same function for that same individual it happens to be a pattern of use no difference in terms of how that individual use that item and the closeness with which at item is associated with that so you don't ask how the person uses that you ask you ask what the police can do to protect themselves you can't tell going to wrest these clothing off of them to prove if you're the police to protect yourself you can't take an arrest these body from him in order to protect yourself or you don't have to search the wallet to protect yourself i mean if you could have taken the wallet to your point you could have taken out that wall and said home i now i have the wallet i have it within my control and i will just put it aside and go to war that's the distinction this drawn in robinson that if in the wallet hypothetical there's no question that the officers can search and arrest each pocket to find the wallet and once you have begun this is what it says in rob once you've begun a legitimate search you don't have to stop just because you find a container that's too fine of a line but the quote it but here they didn't have any authority to even start the search so you can't rely on don't think that you can distinguish persons from backpacks and gym bags and all of those other things so i also think that that's why the search of the person doctrine doesn't apply  and it's also if you conclude that the search of the person doctrine doesn't apply it's completely unrealistic to think that she could have accessed this purse the facts of the case are that at the time of the search her hands were cuffed behind her back the person is zipped up three feet away from her and behind her she's guarded by multiple officers so she's got one officer who's right in front of or another officer between her and the purse so the law under gant is that you can only search incident to arrest if the arrestee is unsecured and has a realistic possibility of accessing her purse but here she was secured because she was under the officers control and there's no realistic possibility that with her hands cuffed behind her back she could overpower multiple officers somehow unzip a purse and get a weapon inside the purse and use it against the office and that's consistent with this court's decision in baka which i cited in my opening briefs in that case this court said you're not allowed to search a chest of drawers incident to arrest where the  was handcuffed behind his back that case applies to me which is the forerunner of again it's also consistent with the consensus among the court of appeals not only that containers like backpacks and purses  briefcases are subject to chima lingen but also that you can't assume that the arrestee is a houdini an acrobat or a superhero in deciding whether you can search incident to arrest the government also makes one further point that i'll go into they say that even if it's not a search of the person that the supreme court's decision again it should be limited to vehicles but again just applies in refines chim which was not a vehicle case and which governs searches incident to arrest generally and the government hasn't articulated any reason why we should distinguish vehicle passenger compartments from other containers and applying began outside the vehicle context would be consistent with bach and again with how all of the other courts of appeals have treated ga if there are further questions i'd like to reserve the remainder of my time may please the court counsel nicole roman for the government this kind of goes back to some very basic fundamentals about fourth amendment law in the context of search instant arrest so i want to start with the fundamental issue in this case that miss knapp was arrested when she decided to submit to the officers authority left the vehicle and t sure ok so at that point that she leaves the vehicle and the midst of the office with authority after he informs her hey i have an arrest warrant for you and she takes that vehicle she's been arrested at that submission of his authority and at that moment she has her purse on her the court's finding is that this was not a situation where the officer commanded that she take the person that he ma situation and it is the government's perspective that that point we're dealing with a robinson issue the purse was on her person and so we have a container search under honor i think the distinction here is in my mind as a woman a person is more like a coat this is something that was directly like on her purse and i don't think there's actual factual finding as to where it was in her body at the time that she left she did it right i don't think there is a factual finding to that your honor but if i recal from the video that is part of the record she was carrying the purse she carried the purse into the grocery store where they had been responding to that theft investigation she sat down in a bank branch kind of area within the grocery store and the officer went over and moved the purse away as they conduct concluded the theft investigation part of the problem with this case is the complicated facts surrounding what the officers were looking at this was not a case where they were directly responding to miss knapp they had been coal to the grocery store by miss knap she was with a friend who had been the victim of a theft they ultimately made contact with the suspect miss naps friend decided not to press charges they allowed  s nap and her friend to leave and they had cold mist snap and the friends information into dispatch to add them to the call detail record and shortly thereafter law enforcement was informed that miss knapp had a active warrant for her arrest and so as one officer goes out to try to contact miss knapp in the parking lot and effectuate that arrest warrant he brings her back in to help the second officer wrap up the investigation so the facts are unique in that we have an off two officers in a complex situation where they're dealing with miss knapp miss naps friend who left the vehicle because he did not have a driver's license to take the truck which is part of the court's finding and the theft suspect so in some ways the the facts underlined when the search was conducted  complicated by the fact that you have two officers who are trying to deal with two separate investigations at the same time it is the government's contention that what this really is is a search under u s v robinson and if it is because i don't but as it relates to search of immediate surroundings yes she had miss knapp had the purse when she got out of the car i mean she took it with her but at that later they took possession of the purse from her they had possession and so possession of the purse and then they handcuffed her which means they could have put the purse anywhere they just happened to put it behind her so let's go into that for a moment tell me what your best organ with why under a shovel theory that that she in fact would have had that person or immediate surroundings and in particular what i want to focus on is the fact that before that person was put behind her the law enforcement had that person fully within their control i want to hit on two points there first i think your honour's question prevents presents the very problem that we have with why this wouldn't be  container search because if this is not a search under robinson then what is the situation that you're presenting officers the situation you're presenting officers is if someone has a container on them you have to give them an opportunity to dispossess that or to lock away i mean she's holding the purse at this point would be to persuade her or in a response to be able to safely secure it as they wrapped up the separate theft investigation yes but at that point  suspect being handcuffed isn't the only factor to look at you look at where the suspect was in relation to the actual object that was being searched you will look at the surroundings the number of the officers other people at the scene and in this case what we have again is i would disagree with the appellant this is an addict scene we are in a busy paid parking lot  grocery store there it serves many different businesses not just a grocery store it's night at this point  correct yes well it's complicated in that you are in a crowded parking lot mr ful i believe there is testimony from one of the officers at the suppression hearing regarding that fact i did go back and look at the court's order the court believe the judge found and it's the government's victim yeah that she would have been arrested at the time i believe it california versus her dari de that talks about when is someone actually arrested and a person has arrested when either there is an application of its goal forced or when there's a some mission to an officer's exercise of authority all right well ok she's arrested the only channel now is what we're talking about i can see under general theory clearly the officers could have searched her purse right then and there correct and she's holding on to it but that's not how it played out she went into their own office they took the purse they ha the purse they put the person away from her were where i were at least my reading of the record was she could not have gotten that purse i mean and so in that moment in time there was no foundation for channel theory to apply the only reese resurrected itself was because they put the person before behind her so what am i missing in that well your honor i think you just highlighted the government's concern about this case is could the officers have searched that purse at the moment they arrested her out in the parking lot and i think you know i think most people would say yes they could have either under  no i would say most educated jurist such as yourself because we're operating under two theories there either it's a search of the person that or us we robinson or we're dealing with a chat channel search so the question is if the officers had the lawful right to conduct a search incident to an arrest at that point and instead secured the object instead as they were spawn being concluding the other theft investigation does that then cut off their right to search it later and you tell me because it seems to me the answer is different whether you're proceeding under chairman theory or whether proceeding under robin's theory under robinson theory you could search it later no problem under general theory i think that's a different question and a different answer it is a very different way and it's a more complicated ones it is more it wants on how i'm i'm begging for your he focusing on that is a much more complicated question to be answered by this court what the court found in its order was that given the circumstances there that the purse was ultimately still within reach of the defendant when the search was conducted which was i want to say about six minutes past from the time she was arrested until she was actually handcuffed him after she was last night but i looked at it recently the government in part anyway didn't make robinson theory that is correct the government proceeded just as they are today on two theories one on a robinson theory and then the briefcase one thing i did want to note quickly for the court i know there are some discussions about the statement that miss knapp made and what's how that played into this and there was an argument about whether or not that same was sort of legally obtained i would note that the district court and its order did find that any argument as to the suppression of the statements in this case was waived by the defendant so i did want to note that for all to me that was going to come down to credibility determination as to what the standard was and as i go back and read the order there are no factual findings as to that issue so upon reviewing that further i know i did argue that i my reply brief or my response i think that is problematic the court specifically did address the fact during the hearing that that was going to have to be a credibility of germination and we have none in the order on that  so with that i see that i am running out of time if there are no further questions from your honour's i would ask that you affirm the judge's order there is no authority at all that i'm aware of and no authority that the government has cited in its brief that searches of things like briefcases and gym bags and the like are searches of the person that qualify under rob doesn't qualify as a search of the person going back to your honor's point the court said when you're arrested you have a reduced expectation of privacy in your body but because through the fact of the arrest the police necessarily have your body they don't necessarily have containers that you're holding in your hand they've got your body and that's why lafave says and the other courts of appeals say a search of the person is a search that involves an examination of the clothing or an intrusion into the body why would it be difficult despite what the government said why would it be difficult to draw a line between a purse and a briefcase it seems to me it served different functions there are different sizes ordinarily i mean we draw lines all every day i mean i don't know why that's so difficult and particularly given the function of a purse these of the a wallet which which other those of the other gender would be more likely to have on i mean i suppose that you could create a purse unlike a briefcase is a mediately closely associated with your person as is a wallet in the only difference you know is a practice of use i mean it well the reason the reason that that would not be the jurisprudential the correct line is the test is not what function does this item serve for the arrestee the test is what can the police do to protect themselves that's the test and with the wallet in a pocket the police can't protect themselves from what's in an arrest these pocket by separating the arrestee from his clothes they just can't do that the police can protect themselves by separating an arrestee from a hand held container and that is why in hell containers a state court cases but not in the court of appeals cases that i'm aware of that draw the line there and in fact one federal court of appeal i'm struggling to find that out of my recollection was no riley when really started kicking off what were things that were immediately associated with with a person one of the things that it kicked off was a purse i would have to go back and look at that on my own have to look who i was trying to find it but i'm pretty sure i saw it go ahead yeah there there is a meaningfully distinguish a purse from a gym bag or a backpack or any other containers i don't think that it would make sense to litigate is this really a purse or is it a gym bag the satchel that i carry to work every day is that sort of like a purse i do keep my wallet in it i don't think that would make sense particularly given that that's not the function of the rule the function of the rule isn't to give the police and entitlement to search what might be in the arrestees pocket the function of the rule is to protect the police and where the police can do other things to ensure their safety besides searching we apply a stricter to and for that reason i would ask the court to hold this wasn't a search of the person it wasn't that simple search and that the motion to suppress has to be granted can i ask you keep talking about protect the police i thought the articulated rationale for why you could search items that are on a person is because once you've arrested that person they have a diminished expectation of privacy and therefore no other justification is necessary that's the language you're robinson and other cases that has nothing to do with protection that has to do with what your expectation is at that that that is one of the rationale or sets a rationale that doesn't then that doesn't vary when you're talking about clutching somebodies purse you have you have arrested that person they have no idea you could just design sorry i don't mean to interrupt you could just as easily say that they have a diminished expectation of privacy in their briefcase or gant maybe had a diminished expectation of privacy in his car he was in possession of the cars no question about that so they have a diminished expectation of privacy in their body and things that are inextricably intertwined with their body that's the diminished expectation of privacy thank you thank you case a minute thank you counsel