he was then interrogated in a language he didn't understand when he asked for a translator that request was denied so in this big scenario he stopped at the road yes changing a tire officer comes up and sells them to move he was the officer entitled to check on the disabled vehicle your honor in order to do so he needed to establish consent or articulate a reasonable suspicion of wrongdoing in the record indicates neither here what we have is the officer immediately approaching him and putting questions to him it was an inherently coercive atmosphere would you yeah you're saying when he started asking questions that's when the seizure occurred yes your honor because there was no there's no indication of consent here and there's no indication  that there is all sorts of indication that things happened before that would have aroused suspicion to begin with in the first encounter you've already acknowledged that your client didn't understand the language and wasn't responding in a way the officer otherwise would have expected and we know that later your client was a one point three pretty high and so it's not i'm reasonable to infer that his responses to the officer responses it could well over a suspicion now that claim that charge never got litigated so the evidence wasn't much developed there but why should we assume that the fact your client was not responding and i'm unusual or impaired or suspicious manner your honor there were three other witnesses there that evening two of whom the government opposed putting putting forward for testimony and the third of them the c h p officer the government said they need not and will not offer any offered evidence anything further to support the idea of their team so the limited record here is a creature of the government's creation and they now want to rely on inference from those a mission is to say that we can infer that mr brown's above as it displayed some behavior that alerted the officer but the record doesn't  this part of the case it puzzled me so we have a fellow who is stopped at the side of the road is eventually cited and convicted of a dui he pled guilty or nolo plea correct yes or so there is a guilty plea again i understand to no plea when there is a  conviction for this dui how was the fact that he pled guilty to the crime isn't that what is triggering his removal from the united states yes your honor and that's improperly that what i'm still trying to understand is that can he effectively suppress his conviction through a fourth amendment violation when he's already pled guilty to the violation yes  not soley in regard to nine hundred eighty three claims this court is also sat in real property outside eighteen it's applied to a civil asset forfeiture right and i could see could he could challenge if his car was seized as part of this but when he has laid out a factual basis and i understand an old plea but when he has admitted to a factual basis that says i did it why can't the immigration officials then use that to say he did it your honor when a defendant plead guilty the court relies on his admission of guilt to establish that guilt the finding for that guilt now the underlying character of the arrest is never litigated and there's no claim because of a fact because the court doesn't need to rely on potentially tainted evidence so because there's no claim because of the fact fourth amendment violations are not among those waived by individuals who plead guilty though the idea is then the fourth amendment violation that you allege could effectively wipe out the guilty plea for immigration purposes well no the guilty plea would suppress the i two thirteen and because the government insisted on relying on the eye to thirteen entirely it would essentially place the govern in the position where they need to establish fifth the government's answer they say only that we cannot show the timeline they don't say there was probable cause to hold him and they don't say that holding him past the forty eight hours was a violation but the record is clear on the timeline here mr carranza gov as was arrested on a thursday evening the ice d p to hold him for an additional forty eight hours passed when he would have been released which is issued that same evening under california law he would have been released saturday evening we exclude sunday perfetto law the absolute latest mr carranza got as should have been released was tuesday evening but he wasn't he was held until wednesday when immigration agents finally showed up to interrogate him and charge him a new one does the forty eight hours start running the forty four d h s or for c h p for the federal when does the clock start running when that per to eighty seven to eighty seven seven the clock starts running immediately once the state custody expires and i don't see what makes us say the state custody expired as early as you say it seems to me that the state was going to hold them until monday i don't let people go before them and so that's when the clock should start running should move under california penal code section eight to five it says only that the state may hold somebody for forty eight hours and if we exclu my name is jesse carlson i represent the attorney general in this matter your honour's though i want to point out the real issue that the court should be focusing on here this is an immigration a civil immigration proceeding that we're dealing with and there is a process by which motions to suppress are to be assessed by the immigration court and in this situation the petitioner is required to submit an affidavit presenting his evidence for why the immigration judge should suppress  the i two thirteen in this case the individual the petitioner in this case presented an affidavit which outlined his depiction of the encounter with the california highway patrol all the way up until the time of his arrest and thats it that was provided in conjunction with his motion if he had presented with the evidence in the affidavit if that had presented to the immigration judge evidence of a prime a fashion for them in violation she could have at that point decided to move forward and grant him in evidence your hearing at which time he would be able to testify and be subject to cross examination by the government about the circumstances outlined in his affidavit now that's a big if violation but assuming that he had the next remedy would be an evidentiary hearing after he he would testify during evidential hearing and then again there be another stopping point if he had continued to support his case at that point the and we get back to the question i asked opposing counsel here we have an old plea to dui they're contending that this effectively that if there was a bad stop here despite the guilty plea the bad stop could cancel out the i  thirteen do you agree with them that's the proper analysis that even if with a guilty plea if the actual basis saying i did it at a bad stop him basically wiped out your honor i have to get  then your but by your answer then you're what i'm hearing is that a guilty plea is not conclusive that even if there is a guilty plea that's evidence it's not conclusive evidence is just evidence and then they were still up for grabs whether or not there was a fourth another violation i believe what it would the immigration judge would be able to consider that what the immigration judges supposed to consider is what is in the affidavit the evidence that would have to be presented as the evidence from the alien so in this case  the burden is on the aliens to demonstrate a violation for example if the alien said on so and so day on january first two thousand and eleven they were banks never open on january third two thousand and eleven i robbed a bank i plead guilty to robbing the bank as part of the bank robbery investigation the police searched my house without a warrant and they found evidence of my crime so therefore it was a bad search my fourth rights were violated are they correct that under that circumstance and that's in the affidavit that they at least have a plausible claim that we would have to adjudicate here today because they've allege a fourth amendment violation whether it's agreed use or not that's the question we would have to answer but the fact that he admitted in open court under oath that he robbed a bank that does not end it as far as you're concerned we still have to look to whether there's a fourth fourth minute well as your honor i am i'm not sure that i would want to make that concession because i i would i'm not entirely sure that that would end up but he the evidence that's before the i j a is really what is what is important well as i indicated there is this very specific procedure that's was to take place and in this case all of these other claims that have been raised and not exhausted have come come  after what's supposed to be the course we're looking at here really what the course we're looking at is just the motion to suppress and whether that case had been made and whether the i j a was reasonable to deny that motion to suppress in the in the instance that the court believes that that conduct was not reasonable but on behalf of the i'd say that the solution would be to send the case back for evidence you're hearing here and the government does not believe that is necessary in this case it's very evident that that there was no fourth amendment violation set forth in the a other side is pointing out the allegations only went up to the point of arrest and anything beyond that was not addressed and wasn't in the evidence was not proffered certainly there is also no indication that any claims were made you know as you but he didn't contest the charges but certainly took responsibility for the charges and in the real issue here again this is a civil immigration proceeding as whether or not he admitted to his alien age and whether or not i said appropriate evidence to to f j was was necessarily incorrect there there is kind of there is evidence to suggest you know i believe there is a regulation that that talks about when when this kind of information can be  be used but this is an open issue the board did not address it in this case and so we believe that to the extent that is an issue that the courts take up a should be remanded to the board to address it in the first instance any further questions you that occurred then they should be suppressed here the government on one hand did not even address this issue in the brief and on the other hand the statements that were given should be suppressed because of the c h p officers agree conduct and because mr crimes ago this was held by c h p and v h s beyond the two forty eight hour periods are allowed under california regulation in california statute these days are clearly in the record the government has not proffered any timeline to dispute these dates and so what would happen in the end at the end do we wind up going back and having the government prove what apparently is the fact that he's in iran the reason why the officer acted the way he did but as i see a bigger picture question i mean in the end is there any doubt about your client's alienation if that's the case what in the end gets accomplished by sending it back to the executive office of immigration review for further evidence on that subject or you're out of that also lends its point to the third issue with the i j m permissibly course saying my client into abandoning