all right good morning it's april first other than that we're staying within the lanes straight down the line no way befor docket as we sort of always do can't beat this job of variety so we have twenty cases of mixed cases we've picked the argument or ones that we look forward to the good advocacy we have for panel sitting this week so it's a robust week so the rules are straight forward all of your veterans in terms of the light and so forth the one i'm told to remind is just stay in a microphone we have become dependent on listening to the  patrol agent in the primary lane of inspection impermissibly extended the stop by questioning him about matters unrelated to his immigration status for the purpose of giving a service canine more time to conduct  trailer at a time when the agent was already satisfied that mr teo was the united states citizen and rodriguez which the traffic stop case in two thousand and fifteen the supreme court make clear that an officer cannot extend a stop even to a minimus level to investigate matters unrelated to the purpose of the stop without reasonable suspicion or consent as the court explained there can be no detours from the mission and the officer cannot and officer cannot earn bonus time to conduct an fuente immigration inspection which is the per the purpose of this particular immigration checkpoint consists of immigration related questioning and requests for documents of the people in the visible states spaces of the vehicle so you would be looking for people in prison presumably also looking for drugs because that's what these dogs are trained to do but the government rightly concedes that he cannot sniff standing alone is beyond the justifying scope of the well again in martina's for a supreme court case which balanced the public interest against the private interest and made clear that at least for stops involving private motorists the immigration inspection is limited to immigration related questioning and getting immigration related documents from the persons in the visible spaces as i said before so it's not for starting for people that's not the purpose of the immigration stop that's supreme court said that a checkpoint stop intrusion on fourth amendment rights is quite limited because quote it involves only a brief detention of travelers during which all that is required of the vehicles argument is a response to a brief question or two and possibly another case from the circuit this court stated that we have determined the permission will duration for the stop was the amount of time necessary for evidence to question the visible passengers and conduct brief checks of the buses restrooms and a carriage luggage position that it doesn't matter whether it was thirty seconds too long or five seconds too long after it's done with it's purpose that's not the time that's an issue even one second could be too much or where were what is your require reasonable suspicion without reasonable suspicion just everybody gets stopped is it most limited in a in theory or border stop yes more so than in the border that's for  sure so again much if we're to use the case that that said these things were ok now no here if you look at the facts of this case what happened was mr teo pulled his tractor trailer in the primary inspection lane at the fell for is checked point answer he testified that he was so he did not even ask for immigration talk to me he didn't ask for proof of citizenship so objective look at this point there was no other fact owing into question his citizenship status so the initial this initial exchange essentially ended the martinez fuerte immigration inspection which as i said before consists of immigration related questioning a request for documents why i mean but if he could have requested the documents you know and that could have given even if it was for this i'll tear your motive if you just requested the documents it would have taken the time the thirty seconds or whatever but he didn't it was he was satisfied or if he had requested the documents they took thirty minutes with the guy about is because he didn't want to open the window with well that would be a different situation we have here i mean here we have you know very quick the officer very quickly  taylor was a citizen but then the canine an officer gives him this glance signaling to him that he needed more time so the asian decided to buy more time for the dog to do this now so  have you have some cases that have said that questions about traveling through the origin and destination would be commonplace for an agent to ask course none of those cases say cargo which was a question asked here but in any event after rodrigues we know that the reason most of a seizure depends on what the police in fact do and therefore the subject of the questions and the facts and circumstances coloring the interaction or off mission questions about the cargo all for the purpose of giving this canine more time to sniff and objective lee what happened here was that the reason the only reason he asked these questions was because the canine handler gave him this which is the case from the circuit court recognized that the martina's is where tase limitation of suspicion list checkpoint inspections is to visible spaces and so the dog may be running around the tractor trailer but those aren't visible and check the registration of car so that's really beyond the scope of it to me if you stop a guy for speeding what does that have to do with with asking him questions related to the reason for the stop well because the supreme court said that you can't have these you can't it there's only a toll been told duration for these traffic stops and it's stupid or total duration is tied to the mission of the traffic stop and those other things checking the registration license whether outstanding warrants the supreme court said those were sufficiently related to keeping motorists safe on the highway which is all part of the traffic stop but that would not be unique and they're neutral all vehicles have to be briefly retired marine to question people agents don't need a warrant and they don't need individualized suspicion this court is made clear it will not scrutinize the particular questions that the border patrol agents asked at checkpoints as long as they generally relate to determining citizen ship this court repeatedly has refused to inquire into the subject of purpose behind a border patrol officers questions at the problem with this is objectively the border patrol agent has said these were not to determine citizenship these were to delay it long enough to get the drug dog there this is that uniquely extremely frank officer in his testimony he says no i wasn't doing this for any immigration purpose i was doing this just to help the the dog and  cracked i understand that's the testimony your honor but what's a little bit unusual here from your typical case is this is not a suppression hearing this came up during a trial and so a lot of these issues weren't fleshed out as you normally would have during a suppression hearing for example the handler wasn't there to testify because all they were doing was trying on the trafficking issues but what we're doing by analyzing those very questions is exactly what the court has said we shouldn't do which is looking at the subject of purpose looking at parsing the questions out what if we're not looking at the subjective purpose we're looking at the stated objective purpose but under this court's law in alvarez and others and i believe you're already pointed this out the court isn't tied i mean she's near the border patrol agent is entitle to look at the immigration type question i mean papers and questions about cargo questions about where you're coming from where you're going those types of things regardless of what this agent says this court has recognized are immigration related because as we all know that's where the border patrol agent often develop some type of suspicion because where he's coming from doesn't match up where he going or that type of thing so it is a little bit unusual here but the court has said repeatedly in much you could excuse me in much and it relied on the supreme court of martinez where today that the detention not the question asked that controls here how can that survive after rodriguez well roger regus first and foremost was a traffic stop at that has more a traffic stop is more robust and has more freedom so it would seem that this would even be more restrictive and i don't see anything in that context and this certainly would apply in this context which is more restricted to begin with i don't agree i don't think i don't i don't think that's correct it's of the those u s supreme court has said repeatedly that they need to make these checkpoints stops is great that the united states has a great interest in policing its border and the consequen see rodriguez even citing much of our us than a traffic stop you have to have some type of interval that individualized suspicion and the pleasures are measured against the mission of the sto rodriguez were extremely different it in all total it was a twenty nine minute stop and after the officer had issued a ticket seven to eight minutes elapsed while he called while the other officer showed up so that he could run his dog that is not at all like checkpoints checkpoints when they come into the checkpoint as this court knows everybody must stop the dogs are there as in this case it was a simultaneous inspection the dog started running immediately what we have in the record is that the handler indicated he needed more time to just report may have excuse me interpreted that to mean that reasonable suspicion was brewing and again because of this unique situation meaning that this arose during a trial as opposed to prove where suppression hearing is normally held a lot of it you know it was a little more limited i  for the barton didn't it of course it did and so you could put it on you the court didn't say you can't put on this i agree with that i know and i do understand that and there's no question about that but again much flows from  you a hypothetical what do you know k nine handler is having a bad day or the canine self is having a bad day and so it's moving really slowly and so instead of  taking thirty seconds it takes five minutes because it's just they're just slow that day they're tired and it's not immediately doing anything or to same type of thing what if they're in a different lane and it's taking a while to call the drug dog over because there have something in this other lane in there not enough of them there at the time so it takes ten or fifteen minutes is there a limit to this argument that you're making well what i'd like to point out is this c long but this is only thirty seconds well i think it would depend on the facts because i'm asking you i've given you the facts is fifteen minutes i think that was probably a good bit definitely be too long but i have minutes five minutes there are cases that upheld five minutes and i the particular facts and the facts are going to drive for example if they knew the facts in this type of scenario it's ten minutes the magic number five minutes i think that's irrelevant here because we know that it's undisputed that it was thirty seconds total and this court has repeatedly found generations like the i'm sorry i don't want to answer the hype no i didn't answer the hype of the hypo the fifteen minutes yes i'm sure would be long but ten under rodriguez if you're going to apply the traffic stop but this is a checkpoint i think that if an officer were to testify that he was asking questions and the fellow said that he was going to go to shoes to but really he's on a road from laredo and he's going to take an alternative one now if the officer continues to ask questions along those lines ten minutes is fine because based on the answers that are being given he's developing the reasonable suspicion and i think there's a lot of cases that would support that what was happening here no and of course here is very different i agree with that but i don't think there is a magic number and i think all these cases that have looked at that that is why they're using reasonable duration tolerable duration as i said was used in madrid just as was you cannot measurably prolonging rajeev is to not say five minutes is too long time minutes is too long fifteen minutes is on but what what we come out with and rodrigues is that the seven minutes seven to eight between issuing the ticket and waiting to run the dog of the ports a dock did not fly and again  demographic drugs and what not and is rodriguez said the critical question is not whether the sniff occurs before or after the purpose of the stop is completed but whether conducts of conducting the s which is somewhat interesting bright because it's saying you can do it after the stop but you can't prolonging the stop so sometimes the verbiage in these cases is a little bit a little broad whatever you want to call it but the whole purpose of these immigration checkpoints is to find illegal aliens you can set them up as a general criminal like let's say we're looking for heroin or something obviously that happens a lot but the purpose is to check for the illegal aliens and that's why you're allowed to have these dolls and some dogs specialize in drugs some specialize in currency but of course but we see here in texas a lot are there running for immigration because that's where we have so many of these checkpoints and the cases they cite in tennessee and new jersey i suspect they have no checkpoints and of course we don't have the rule of orderly bus here but raji just didn't change the law over guarding checkpoints talks obviously fourth amendment principles apply but the rules regarding traffic stops are different and there's a significant difference between the traffic stop where you have to have an individualized suspicion versus a checkpoint were everybody house to stop or all  look what happened i think it would be because where the bar they got into trouble was the seven to eight minute delay between the issuance of the ticket and then running the dog but the issues are different in the traffic stop yes and the fourth amendment fourth amendment concerns are much more limited the supreme court has continued to tell us that and because again the united states has a very strong interest  enforcing its border actually the opposite you have much less freedom of what you do with the immigration stopped the cop the police officers can do more at a regular traffic stop based on reasonable articulable suspicion than what the immigration stop person can do they can only do things directly to determine citizenship and in this post move on well but as we see in some in cases as they're determining citizen shops based on the answers o the card over what have you that they're developing reasonable suspicion where then they can be sent to secondary and of course they can be sent to secondary for any reason with that person wasn't sent to secondary for reasonable suspicion of say  reason for the draw i don't believe that and remember not to say that again i don't believe the record supports show me where in the record it says that it was ok to have the drug dogs come because they had developed a reasonable  as opposed to just we're going to look for something oh no no that's not those are not the facts the facts are as soon as the something came into the checkpoint the dog started running and agent along the way started asking mr teller questions those are the facts that during the dog law we have two things on the record one that the handler indicated he needed more time this is according to mr  and i believe that mean that that's after he's keeping him longer to ask him questions before the determination is made that he needs to go to secondary i agree that there is testimony to that effect but what i'm also saying is the handler had indicated to him he needed more time and that's why he asked more questions emerge term alap between the term a hammer after more term and the dog aware of the handler when he's doing these inspections and these checkpoint lines which makes sense right because they're working in tandem and it's not a situation where you're calling over a dog later what have you can sometimes have a pre determined signal or i need more time here what does he say that's not in the record but typically yes they do he said he signaled that the handler signaled that mr teller should be sent to secondary agent dyl on the consistent or do you agree that you lose if you don't well i realize that i have a template of proximity issue but i would contend that they did not break fit in much detail i think we both believe that to sponsor the issue here thing well i think yes his consent was knowing and voluntary that he agreed to go there and there's no there's no evidence to the contrary because num ber one the agent the handler had suggested he go to secondary which is enough but they always as a practical matter asked if he sees me if the driver will consent if we have that but i do believe that martin is for today which is the united states supreme court remains for checkpoints remain sound law under the under post project just as evidenced by the fact that rodriguez was in two thousand and fifteen and this court has continued to apply martinez for a time and much to cover rare and i set forth all those cases in my brief that it remains  what is the nature or extent of the government's quote concession close quote you asked earlier you want to pay seventy briefing you read language i just want to hear from you what is it you can see you read with in the brief i'm seventeen and i'm asking you not to really read me would pay seventeen i'm trying to understand did the government can see anything and if so state clearly what the they can send us your ok argument and if it's true that consent was not an independent act of free will sufficient to purge the taint of the constitutional violation because from the officer indicating to him more time until the officer said the secondary the vehicle the canine handler said second to a vehicle and in the interim agent was asking off the machine questions about the cargo to give the dog more time to sniff there was no break in this causal chain between the agents illegal detention and teo to buy time for the dog to conduct a sniff and then the handler signaling to go to secondary and then the because presumably because the dog alerted and then the agent asked for consent to search so essentially the agent in the primary special lane is exploiting the delay for the purpose of getting consent to search the vehicle and e p says he even testifies that you know that's that's that's what he was doing that that basically that when they have these he's working with the handler in the handler tells him to give more time to search that's what he did but outcast for consent is different than the rodriquez tests and you know about it's not a long delay and he's not being held he's not not keeping his driver's license or there's nothing that's coercive about the consent that's true judge all right but it's not just voluntariness there's there's two prongs here there's voluntariness which is what you're misconduct it's not do you see these cases with consent that's not appropriately given how is this a flagrant case of trying to get someone's consent compared to those cases but because he was satisfied that he was a u s citizen and continued to detain him for the purpose of letting a canine handler run the dog and as martina suerte tells us and i'll read it here would he have said no and driven off yes i'm sorry to have said no and driven off passage without interruption and arguably on their right to personal security but involves only a brief detention of travelers during which all that is required of the vehicles occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the united states and here the agent was satisfied that his us citizen didn't ask for a document but because the canon handler telling him to keep asking off mission questions to give me some time here and that that