may please the court counsel good morning my name is amber corrigan and i am an attorney with the office of the state appellate defender and i represent the defendant appellant in this matter carlos cregan i would like to begin this morning addressing what may be one of the more important questions raised by this case and that is whether or not the reasoning in arizona began it applies in the non vehicle context the facts of this case demonstrate that the answer to this question must be yes because if the reasoning and can't does not apply then citizens of illinois inexplicably have more protections in their vehicles than in their luggage and if can't does not apply then officers have unbridled discretion to rummage at will among a person's private effects this is exactly the concern that the get decision sought to address  notwithstanding mr craig position regarding the applicability of the decision in gantt to this case the search of a small somewhat transparent hair gel container in mr cregan is luggage exceeded the scope of a valid search incident to arrest and one was unreasonable under the circumstances of this case chimo teaches us scope here the officers and the trial court were looking at knowledge that they were looking for weapons or that seemed to be the concern when the officer krieger in this instance sees no weapon he looks to a container of hair gel seeing nothing that g pause about the hair gel he opens it reaches in and pulls out a baggie of what he thinks might be cocaine in schimmel the united states supreme court argued or held that in that case the scope had been exceeded because the defendant was arrested in his home and officers then proceeded to search drawers in rooms that he was not standing in they searched his attic they searched his work room they also searched his crotch the scope of a search incident to arrest has to be commensurate with its purposes of officer safety and safeguarding evidence and we don't have the those two things in this case because in this particular case mr cregan was surrounded by two officers his luggage he was handcuffed his hands were behind his back his luggage was removed from him i believe to the side of the train station and then officers proceeded to open the luggage even though mr creek and could not have gained access to it and then upon seeing nothing out of the ordinary no weapons if officer safety really was the concern they then go to an auction is you know hair gel container officer krueger readily admits he could tell it was half full he didn't see anything out of the ordinary and then he proceeds to open it control meaning of the area from within which an arrest team might gain a weapon or destructible evidence we don't really have the evidence element in this case because the trial court found correctly found that there was no way they would be searching for evidence when mr cregan was being arrested on a civil war and for failure to pay child support and we also know based i think on the facts but the weapon wasn't a concern again he does not have the reason being when we look at these cases they're specifically dealing with the arrestee in this case miss collins is simply arriving at the train station to pick up an acquaintance there is no evidence in the record to suggest the officers possibly could have been a weapon in the luggage maybe that allows the officers to get into the luggage but it then doesn't explain opening the handle container because certainly there it has to be reasonable and it has to go back to the justifications which are officer safety and looking for evidence of the crime which we don't really have the evidence of the crime factor in this case but again it's the hair gel container but my problem with the explosives argument is is twofold and kind of relates back to what gant and chima were suggesting is that the search has to be reasonable i don't think in this particular case we can say that it's reasonable that there might have been explosives in that hair gel container i mean if because this arrest occurred at nine thirty pm they had moved mr gregan and his luggage kind of out of the way in the other thing that's interesting and justice scalia kind of touches on this in his concurrences but this concept of if you're so concerned with officer safety then why wouldn't didn't every case be more effective to remove the defendant to a squad car and place them in a squad car again if that if your concern is explosives or something that's going to harm everyone it doesn't make any sense to open it on a platform where it could affect you know several people standing there and the other thing that i find interesting is you know i'm no expert in explosive certainly but i don't know that you would open the container and go sticking your fingers into something that you think might have an explosive agent in it and i want to go back to the question about russia could i mean i think sure curry is relevant in that the third circuit specifically said they didn't agree with the state's argument there but again only applies to vehicles and for the same reasons that we're arguing they have to apply because it doesn't make any sense when you look at again that was based on channel which was a search in search for arrest in someone's home again the idea being that chima stands for this idea that it has to be in the immediate control meaning the area you go into where there could be a weapon where there could be evidence of the fruits of the crime and also you know if it's reasonable that it's in there reaching distance what about th not wrong in the sense that where i'm going with this is in gantt he says there is something particular to a vehicle search and that's where we get this language of if it's reasonable to search for fruits of the crime in a vehicle that is specific to a vehicle and i think what they're talking about there is this concept that we have a reduced expectation of privacy in our vehicles so that certainly i think is relevant to the vehicle context and that is where davis i think is getting that but i don't  gant is going back to the limitation in general and schimmel is based on a search in a house where we arguably have the most protection and we also you know in this particular case we have more protection in our luggage than we do our package in someone's pocket so i didn't their focus was more right on the person rather than something that may or may not be immediately associated with the defendant and you know the limitation in robinson and then which leads to the issue about hoskins is this concept that it's lawful based on the custodial rest i don't believe that reasoning survived gan certainly they did say that the scope of the search must be strictly tied and justified by the circumstances circumstances which rendered it permissible but bell when we get this language that the compartment  you know the compartment anything in the you know immediate vicinity or the compartment is fair game time at the time of the search and in belgium the issue with belen really  you know they said well it's based on the need to disarm and discover evidence it doesn't depend on they have this language from washington where they said it doesn't depend i want to quote me later decide was the probability in a particular us situation that they're going for told that the officers were entitle to just search the general interior of the vehicle but also any containers yes they are looking at the passenger compartment always under the standard proposed and again because in can't we go back to channel which is this reaching distance rule and they specifically in ghana talk about bellman and this concept that you know based on the arrests we're going to say that every time there's a vehicle involved here within the region distance of the passenger compartment and they talk about that if that is the standard then you're basically evaporating the protections of the fourth amendment if if we believe that there's sort of some of the confusion surrounding your position i don't believe it does because again i think gant focuses on us on channel and schimmel is not a vehicle case i think the language that specific and get to vehicles is this idea that if a defendant is secured and removed like he was thinking at there's still this aspect because of the unique circumstances in a vehicle but if it's reasonable to believe that there's evidence of the crime then you can search and we wouldn't have that be hoskins this court itself stated that the fact that belton and robinson were vehicle cases couldn't be used to distinguish their case and again i think what we're going back to in ghana is the concept that it has to be limited it has the search has to do with the purposes of officer safety and evidence destructible evidence of the fruits of the crime because otherwise you are i think the key differences in this case are and we have the container within a container which they did not have and shook her we also have the fact that in shook her they talk about the fact that the defendant was an extremely large man they were having trouble handcuffing him and at one point you know they only had his hands in the front so the argument could be that he was still within reaching distance of his luggage they were also in the no of a very very crowded that fact is in their crowded hotel lobby and he actually has what would amount to a codefendant somewhere near him that the officers are kind of trying to figure out where that person is so those facts are very different than what we have here in the other thing it was a violent crime it was armed robbery again in this case this is an outstanding warrant it's a civil civil in nature and then we also have the addition of lindsey collins who you know was there to take the bag certainly but we then also have the container within a container we don't just have a gym bag as i think it was and s her i want to just briefly touch on the argument regarding people be hoskins my remaining time again we're specifically focusing on the language and hoskins you know that house case where we arguably have the most privacy and again in a vehicle we have less privacy than we do on our luggage and in this particular case we're not just talking about a search of luggage we're talking about the search of a container within that luggage a container that arguably the officer could see into and if there are no more questions mr cregan respectfully request this court reversed the decision of the  really weren't touched upon too much during the opening but i think that are important for for driving the analysis of this of this appeal we made the argument are brief that this issue was forfeited because it was not included in the post trial motion the defendant in response argues that plain error rescues that claim or salvage is that claim for substantive review however if this court if the defendant's position here is based upon overturning hoskins  n any decision or any error made by the trial court in these proceedings cannot have been clear or obvious because it was relying on that good law hoskins at the time it rendered its decision in the case therefore his plain argument is cut off from the get go because there was no clear or obvious error that would have a pit been apparent to the des to the judiciary below and on the very back end of our argument we have a good faith argument that good faith argument is that the officers here were acting in good faith when they conducted the full search of the defendant's luggage based upon this court's decision and hoskins so hoskins turns out to be bad law and i'm going to get into why it's not in the moment but if it turns out to be bad law and now after this court renders its decision it cannot be said that the officers acting at the time in good faith on that law were acting in a way that was grossly negligent or in a way that subverted intentionally t defendant's fourth amendment rights so that's the front end on print plain air in the back and on good faith the defendant's entire argument here predicated on overturning hoskins really does close the door for those two parts of this argument with trying to do is take the very narrow ruling in gantt and apply that to all non vehicle content searches our view is that get certainly reaffirmed or reiterated the schimmel principles and what had been happening prior to get was that courts were really kind of taking the belton rule regarding vehicle searches to the breaking point they were conducting interior vehicle searches incident to customer dealer arrests while the the were out in a way and secured as in get handcuffed and placed in the squad car the dual rationales underline the schimmel search incident to arrest rule to preserve evidence and to prevent retrieval of weapons was pretty much out the door under those circumstances that doesn't mean however that can't change the the calculus with respect to the non vehicle context as we have here and the facts here show that the defendant was arrested as he alighted from the train he was a known gang member the officers knew this he was a sane disciple he was wanted for an outstanding civil war and i believe it was for failure pay child support he were he actually did the train with his luggage i believe  duffel bag and a regular suitcase the officers noticed that he made contact with the woman before he just is getting off the train he made contact with a female unknown to the officers upon his arrest he dropped the bags and requested that those bags be handed over to his friend miss collins at that time he was handcuffed and the officers conducted a routine search of his bags in accordance not only with  but also so with hoskins the schimmel rule comes in here because those bags under the facts of this case in this record were certainly within his reach they had been in his possession the defendant's main argument in this regard that he was handcuffed and that two officers who accompanied officer krieger to affect this arrest were standing near him that's all and good but what the real question here is what would a reasonable officer do and think under these circumstances we have a gang member on an outstanding warrant was arrested a couple of bags sitting there and an unknown accomplice or friend or somebody somebody at least picked them up at the train station or waiting in the wings it was completely reasonable under the circumstances for the officers to undertake a search incident to arrest of the luggage is the key fact that the us has had to information that he was a gang member no it's not your honor i'm just adding that because the supreme court has instructed that the reasona safety would still be in play and everything about him could be searched it would judge i added that and i added some other fact while i didn't add i eluded to other facts in the record the fact that it was a public place the fact that there was a person waiting in the wings for him these all enhanced the situation perhaps heated up the situation a bit more than it might have but that's not to say that if mr cregan had been an eagle scout leading a troop and was arrested for some outstanding warrant the law says the the reasonableness of the searches is underlined by a couple a couple things that could have happened shared any reasonable officer in the field could have foreseen again i noted that the defendant was only handcuffed he wasn't restrained in any other way the defendant was free to use his feet to kick to run to try to escape whether to kick the bag toward his accomplice to kick the bag to spill some kind of contents on the floor these are all contingencies that officers in the field face every day and as schimmel and hoskins recognize have to be prepared to face if they're going to be conducting their business in the safest way possible so the initial opening of the suitcase amply supported by both the supreme court and this court's precedent now the container search the defendant also contends that the opening of the container violated his fourth amendment rights because it was simply on necessary to discover any fruits of crime or to discover any weaponry or that sort in that it really did go beyond the scope of the fourth amendment robinson however is instructive in this case as it's this court's decision  hoskins robinson found that the discovery on the person of the defendant of the cigarette pack something as small as a cigarette pack was searchable based solely on the fact of the legal arrest it was the lawful arrest that provided the officers with the authority to engage in that conduct because at that point the defendant's fourth amendment privacy rights were reduced given to his customer deal status the same rationale applies to the container search here the defendant was seen in possession of these bags as he alighted from the train as he put them down he was arrested the officers were well justified to go and take a look not only in the bag but in the containers in the bag and in this respect i like to bring in belton a little bit in belton the supreme court as the justices were discussing earlier with my opponent allowed the full contain a full vehicle search with the exception of the trunk but a full compartment search not only of the areas in and out of the passenger and driver side areas but also of containers that might be held in the passenger or driver side proposition with respect to containers so container searches certainly are well within the scope of searches as contemplated not just by belt in the vehicle context but by robinson in the not vehicle context and of course by this court and hoskins  that being the case the search of the suitcase was appropriate under fourth amendment standards in this court supreme court case law as was the search of the container in  the baggage the size of which doesn't matter robinson again recall endorsed the search of an object as small as a cigarette packet that was not not just a cigarette packet but a crumpled up cigarette packet that the officer had unpr destroys what was the purpose of the room in robinson the driver was pulled over for driving on a suspended license and upon his exit from the car the officer searched him the supreme court said that the original justification for the arrest played no role in the officers subsequent the scope of the officer subsequent search for is the custody all rust standing on its own legs that provides the adequate justification for that kind of search the container in this case i note is in the record there's a photo of it in the common the record in the common law records quite short it's very easy to find it looks like it's about the size of a coffee mug perhaps with a screw top the officer couldn't see anything inside but hair gel but be that as it may he was still entitle to open it under prevailing law did so found the cocaine and seized it in accordance with  not just this court's precedent but with supreme court precedent that being the case there was no fourth amendment violation here this court need not overrule hoskyns because it can't did not did not suggest that that case or any cases like that would be we have on the record here should guide this court's resolution the other way and affirm the court's decision to admit the evidence and the appellate court's decision to affirm that decision as your hypothetical of course the facts were that this defendant were was in a car and the car was stopped luggage was next to mine the see how would get it what would happen that well would depend on what the officers did with the defendant let's assume that they   i think it would say that search is ok because he's in proximity to the luggage and under an arrest situation like that that's still in flux so if he was taken out of the car and handcuffed then what his his proximity to the vehicle i think the gant court would say would be enough to allow the search gantt was a case where the officers to physically took the suspect to a whole different area walk him in a squad car with handcuffs on they said under no possible there's simply unreasonable for an officer to believe in the touchstone here is reasonable this it's unreasonable for an officer to believe that he would be able to access that stuff where the defendant is still in proximity to his things i believe that gant would would think long and hard about not allowing the officers to conduct the search at that time in his presence the officer safety concerns under your set of facts i think would would demand that the search be that go ahead without delay so even if get applied the fact that he's still standing there next to the bag would give the office that is the key well yes your honor although drawing lines like that in the fourth amendment context as you know can get it can get really messy i think that in in our case he's cuffed he's within proximity he's in proximity to the brief i believe it's the feaster case from maryland which is a very very insightful case with respect to line drawn in the circumstances and i suggested it forms a very important part of my brief but if the  defendant is cuffed in like luggage is in proximity schimmel would certainly allow under those circumstances the officers to conduct a search for safety reasons unlike those circumstances and reason to allow the search under the circumstances i couldn't find any authority on point where a search was conducted with the express purpose of checking it out before giving it to a third party who was present but reasonable this in common sense dictate as it dictated a chick here and this case that before the officers were handing over this luggage of a gang member to a friend to pick them up at the airport that they at least take a look inside the watch to make sure there was nothing in there that could be used to harm them upon its delivery to her and i know in this regard that there was contact between miss collins and the defendant just as they got off the train and a reasonable officer under the circumstances certainly could have believe d that that communication at that point might have signaled some kind of plan of action the defendant might have said i'm not going again i got this in the suitcase take care of it when i push it over to you or when i give it to you i want to make sure that you know where stuff is within there this is of course is stuff that any reasonable officer in the field would be concerned about so miss collins is present it's here is certainly significant in our argument  proceeded as a stipulated bench trial based upon the evidence to do so at the suppression hearing the defendant however did not file a post trial motion as this court requires and has required for decades now so we've argued that the issue is forfeited and that plane error does not point to an exception the defendant points to a number of exceptions your honor the first one being played air as a mention in my introductory remarks that does not apply because any error here cannot have been i just have a few brief point going back to this one of the first things i think the state talked about which is that you know this exclusionary rule in this in good faith reliance on  hoskins the problem with that argument one is that gantt was issued a full six months before the search in this case and also gantt again is taking us back to chima which has been around for decades so to say that the officers in this case are relying in good faith on hoskins i don't think is an accurate statement of the law because a gang was issued six months prior to and also that us back to which i think has always been as the gant corps indicated always been the state of the law of the law and courts were applying it to liberally i also want to direct this court's attention to the facts of this particular case for the idea that officer safety was a reasonable concern here we have a defendant who secured by two officers his bags are removed from him his presence there moved to the side of the train station and when the officers are specifically asked did he ever make an effort to get back to his luggage they respond no he was in handcuffs officer safety is not what was at issue in this case and even with lindsey collins being there it belies a finding that they were worried about officer safety they never first turner they don't even talk about frisking him they move in on him they secure him his hands behind his back they remove his luggage almost immediately and open it up they don't find any weapons when they open the bag but instead of stopping they then proceed to open this container of hair gel this isn't a concern about officer safety it can't be thank you for your arguments today case number one one three six zero zero zero people versus pregnant is taken and under advisement is agenda number two you are excused we're going to take about a ten minute break so mr marshall we stand  recess until ten forty