bases to justify this particular stop and the stolen car one went out the window defused the court rejected the stolen vehicle bases so i am going to address the intoxicated motorists this court's well aware fer to law enforcement officers special training and experience and permit them to draw a reasonable inferences based on that training and experience why wasn't it reasonable here to assume there was intoxication the current come to a stop if it was no reason to not proceed further and stayed there for forty five seconds to a minute and then have it only it's and stalled at some point the driver was unable to start the car someone slow down and they drive passenger seat over starts the car for the person that's just special right there then when they make the turn he follows them and the car weaves out of it  just noted the delay at the stop sign and the passenger reaching over to start the car there's absolutely no evidence in the record that roots of tap root the arresting officer attach any significance to that there's absolutely no evidence in the record that root drew any kind of inferences from that now the prosecutor at the court did and that's the point that the evidence was put on and it's the court who has to decide in the courts that i do find there was sufficient information for the and for the intoxicated yes so clearly stating he saw the car we and he stopped it well the law in this circuit is clear unless you have pronouns or protracted reading within a lane unless it rises to that level you do not have reasonable suspicion that a motorist is intoxicated and all this court has before it again there was no evidentiary hearing all this court has before is ruth stating the car we've within this link there's no evidence that this cost rattled the double yellow line or that it straddled the fog line or went into the shoulder there's no evidence let me interrupt you for one second i understand the facts which are putting forth what you've said now three times there was no evidentiary hearing where did all this information come from was the information in the record from which the prosecutor made the argument there was a police report and where did that come from from route but there's no interest in evidence the prosecution ok well actually i'm getting at you said it was no evidentiary hearing what was the evidentiary information in the record that the judge drew from and where did that information come from what i'm stating your honor is the court look you asked my question to the court look at the police report where did that come from out of the sky officer route he also you could always have more course an evidentiary hearing would always be preferable but isn't that a sufficient foundation or basis for the judge to make a determination i think i don't think so i think that trial we weren't we were asking those types of questions now he did reveal some information relevant to the fourth amendment and the court relied upon that in the second motion to suppress hearing let me know what i'm getting at is i didn't see anything in your brief or you were making an issue out of those those factors and look at that and that's a tally the circumstances a long pause of forty five seconds to a minute is not significant there's no evidence that that was was in response to a red light well how the how of the fact that the car stalled in the driver couldn't get it started again and that the passenger had of you know restart the car when that's a little unusual your honor the fact that the engine stalled makes the  in significant cars stall all the time it stops and are delayed the fact that the passenger would reach over and start the car and then after that the officer sees the car we've insignificant circumstances does not rise to the level of reasonable suspicion is that a is that a fair and pursuit that something the matter with the driver the driver doesn't seem to be able to get the car started and then as soon as the car starts to drive are we why isn't that a fair inference that the driver may have some impairment that caused the driver's inability to start the car and made the car we've after the car started driving because there's no evidence that the weaving was significant your honor there's no evidence as i stated that it was it was straddling the  going into the shoulder there's no evidence that made broadchurch this court's decision in fernandez could steal this court look at three factors there was a reliable report of erratic driving the officer saw the car we appreciate really within its lane and the for the united states and taking what your honor just said if all we have in this case was the read the report by the officer of weaving it would not be this case it would be a different case and frankly and candidly had that been all we had i myself in prosecuting the case would have requested the court to hold an eviden hearing to go into the details on the weeding because i've certainly i've read your court's opinions as well as other opinions on reading cases and there does tend opposing the defense in the case we have a number of absolutely un disputed facts on the record we have a long stop the engine dies which by itself of course means nothing the car stalls fine but then we have the passenger meaning over with both hands to restart the car and we have all of this seen by officer root and officer has no interest in this vehicle and that's undisputed until he observes these taken together and collectively the are your your opponents and as that officer route attached absolutely no significance to the long stop or the passenger restarting the sheriff's report contemporaneously with the stop and the arrest and the search in this case and right there and i believe in the very first paragraph in the record it appears that the excerpts of record at page two eighty five he sets out to long stop i think he even puts a time estimate on it around forty five seconds to a minute he says the engine dies and he sees that and he sees the passenger reach over both hands to restart the ickle and then on the next page of the report page two eighty six he actually discusses this with the defendant mr ross and says to him later on in the evening i saw you reach over with both hands to restart the car and then of course important he calls in a check on the license plate of the vehicle and to perhaps draw a lightning bolt or two i like to turn just for a moment from the suspicion of driver impairment which i think is clearly supported by the indisputed faction the record a unimpaired driver just simply reaches over turns the key and restarts the vehicle if the driver can't restart the vehicle such as the passenger reaches over just restart the vehicle that does suggest the possibility of driver impairment and what the courts this court the supreme court of said innocent conduct doesn't have to be ruled out there can still be the possibility of other facts because we did present the argument that well we think of course the stop was entirely appropriate and reach really a good officer should have made the stop under the circumstances to see what was what the we have a number of things in addition to this consent before the drivers even asked for consent to search the first thing officers do when they stop vehicles i think we all know many of us from personal experience nice to your licensed the driver had no license as passenger has the license the next thing that happens is the passenger gives his name but can't remember his birth date almost all of us i think can remember our birth dates on a good day he calls in that information and it comes back to the pastor actually given a real name but the officer notices that the passer looks quite a bit older then the real person robert  name and we all know that happened both from the sheriff's report and the dispatch tape that the pendant put in evidence on the motion and then the defendant actually gives officer root a reason then asks the passenger for consent of the search she gives the consent and then the evidence is found and i was a bit your honor a rather long answer to your question the putting all those facts together i think even if you had  definitely would and the third mostly porton factor the degree of wrongfulness if you will of the team that stop why i would think here that everybody would agree that if the court did find this stop fell a tad short of reasonable suspicion it would be a very close call and clearly no certainly bad motive here anything like that if i could your honor though i'd like to have a couple of comments there on the stolen vehicle suspicion you really want to pursue that yes go ahead if you'd like to i would like to your honor because i disagree that the district court made a factual finding on that the second time around i honestly think that what the court did was make some type of legal conclusion perhaps at that simply wasn't necessary given the strength of the facts supporting a stop for impairment and also the court says i am not going to find in this case that the stop was justified as a possible stolen vehicle yes i agree and i think i pointed out in my brief as well your hon know and with all respect to the district judge a wonderful judge when we have a passenger reaching over with two hands to restart the car the car fern's the corner the right rear window is broken out and all the time the cars driving the passenger is reclining in the seat which could certainly be an indication of furtive conduct not wanting to be seen i think objective lee that does when the plate i am actually in everything's clean i am i guess i'm stunned by that that the united states are drawing lightning bolts well all right and plus the broken window the window was broken in that the people have changed the plate on the car should not if we've reached a level of reasonable suspicion should lower that level to now the officer no longer has the reasonable rise to the level reasonable suspicion of driving talks occasion this court noted in calling they did it was basing its decision partly on the fact that when the officer stops the car the officer does absolutely nothing consistent with going to get into that i mean that's what he was checking out and guess what well he did the car stolen did he do anything cause the car stolen because it was stolen while that's what he was checking out you mean you can't do everything at once won't your honor also there's no evidence at all that he does anything did nothing consistent with an answer pulling the car over do you want you have that same circumstance here did he ask for registration paperwork if you're suspicious the car is stolen perhaps when you when you approach it you might ask is this car yours do you have it where's the registration paperwork he didn't