motion to suppress in which three issues are before the court today the first of which deals with whether there was reasonable suspicion to effect a consent in this particular case and the third if it is found that you can see it was not voluntary whether probable cause existed to conduct a search of their vehicle anyway i'll take up the reasonable suspicion portion of the argument first in this case the a brief said out that the appellants d'anna agent detected the order of marijuana in the vehicle ran what is known as a text check and discovered that approximately a month and a half earlier this same apology and shaken have been denied entry to canada position of the appellant in relation to the reasonable suspicion is that there is only one factor that remains there is only one factor that justified the second stop after the stop that is one factor that the government can rely upon in order to attempt to support the reasonable suspicion for that stop and that is the observance of two additional people in this vehicle i  of the fact that there was no evidence showing how long it would take to get from the border area to the point that the palace were stopped so what that thieves the government with is that single additional fact that there are more people in the vehicle that's why they were stopped one of the things that needs to be stressed in relation to that is the fact that even though there was a search conducted at the border nothing was found so this vehicle as it proceeded down the roadway on the facts that existed at the point that the second stop occurred with proceeding judge there is no evidence stating how long it would normally take travel our route none official crossing points and we know that there were additional people put into the car now doesn't that at least give an opportunity to stop for some kind of reasonable suspicion and ask a question or two in relation to that in this instance i'd like to point out that portion of the record concerning their benson's experience in relation to order stops obviously the why is that training experience is one thing that plays into reasonable suspicion to stop certain benson's experience was virtually nonexistent he said  say that he had been a border patrol agent in this area for two years he has never stopped anybody and found marijuana in their car and in the only two instances had there been a stop where marijuana had been found in two and in this instance your honor we're talking about this particular officer and his training and experience not other officers in other cases with us what i'm wondering why clint some community experience back that up he had the experience with that at all only two instances where marijuana had been found and no real explanation of what those were about this is a case where again i get back to the fact that there was no marijuana in that car when it was a search border and when officer benson saw this vehicle traveling down the highway it was not breaking the law was not doing anything there were two other people in i and usually a long time to reach this point is that reasonable suspicion stop and ask the question do in this instance where there has been the last of time and there has been and i believe that in this instance it is a situation where i understand that the question isn't whether there are other innocent explanations but that is a factor i think that should weigh into it in other words he has they have a right to travel up and down this road that they have a free ride of association if they stopped along the way and picked up somebody the consent issue is one where the judge found two things that we specially disagree with here one is that the defendants were not they had not been seized that the opponents had not been seized in this instance their driver's license the driver's license of the driver had been taken and we've cited case law thompson and a party which we believe supports proposition that a reasonable person under those circumstances would not believe that they are free to leave secondly you feel that the fact that the court stated that the defendant knew that dissent at the end of shape and knew she had the right to refuse because she did refuse our position as set out in the breeze is that that is not proof that she knew she had the right to refuse there was no indication in the record whatsoever that anybody ever explained to her that she had the right to refuse and every time that she did refuse it was twice before in a third occasion she finally did agree and gave him the keys to get into the trunk he continued to turn up the pressure after the first refusal she was ordered out of the car after the second refusal she was asked what are you trying to hide she had been separated from the situation where all that they had were two other people in this vehicle so we know she lied when she said that they come across the border together that's correct points that the court feel satisfied with and so i want to give the court opportunity to just ask me any questions if you want me to address particular issues  i'm sorry what was the question well it seems suspicious that someone went through him and said look you got it wrong you better give up the notices based on probable cause you in the record that the government had sent any kind of a brief or any kind of a signal to the court but it's been  something well i believe your honor if i remember the record correctly the judge stated that he was going to give the ruling from the bench but that he was going to subsequently write a written order he stated that from the national practice i mean i  seemed to me that it's a desire to communicate to the parties right then and there what the ruling is going to be and substantially how the judge is getting to that point but recognize not but  honor i would simply submit that although it may seem odd it is really without any consequences because i believe that the law of the circuit is that that the judge's ruling may be say i just believe was probably a matter of time and then when he saw that it was going to be the issue on appeal that he needed to do what he had said he was going to do which was issue a written order and to try to set out well your honor i don't know what to say to that i can only say that i don't have a cynical view of it and maybe it's because i know i've practiced in front of judge large for for quite a while and it's testify that she had manifested consent but that that manifestation was involuntary that was not her testimony she was adamant that she never manifested consent at all that she that she express i'd consent and refused consent on at least three different occasions and that the only way the officer got into the trunk of the car was by both officers putting their hands on their guns and one of the officers forcibly taking the keys out of her hand that was her testimony that there was no consent period and jazz winds made a credibility finding basically that her testimony was not true and that what the officer testified to was what had happened which is that there was confusion which arose initially over whether she had given consent to search the trunk and actually he asked he asked a generic question can he look can he search the car can he look in the car and she had gestured and looked around and said go ahead he then asked her to pop the trunk and the agent's testimony was that she reached down as though she was going to do that and then she said something to the fact of either no or i can't do that something to that effect the officer was confused thinking that she meant she could not pop that from inside the car so he asked her to step out of the car and to open the younger i i do not believe he was wrong i do acknowledge that that's a fairly close issue because of the driver's license and that's not something that was real the senate given the record the agent testified th that he didn't think that he had given them the license back george was held so that the fact that he may have kept the licenses did not mean that they were in custody i would point out to the court that the testimony made clear that kne where they were stopped there was a caf the three moral cafe i think i think the the law on the in the case law that's out there in this area is that indicate that practical difficulties in weaning  een for example being pulled over but i would point out that there are also opinions for example the preamble opinion where the person basically is not technically under arrest but that's only because  officers have said we're not going to arrest you right now but the really clearly that the person is sitting in their home they're not really free to leave they in fact the defendant was handcuffed during the search for officer safety reasons and furthermore the officers told the defendant in that case that if he did not consent they were going to go get a search warrant and it could take several hours to do it and the court specifically found that the reason why he consented was he was concerned for the health of his dog who's out in the c to take several hours but under the totality of the circumstances this court ruled that consent was voluntary in that situation under the totality of the circumstances let's look at the top talent here the circumstances here you are i think though that they were not demanding that the trunk be open i think the testimony was that he asked her after the confusion has had arisen over the trunk many times did they ask i guess you could say that they asked two or three different times well as it was after joseph chabon had become hostile that's what prompted the officer to get everybody out of the car was because he had become hostile and there was some clothes and stuff laying in the backseat but then the officer testified that he asked in the shape and what are you trying to hide she said nothing and he said look where you are you know let me look in the car not and that's the way he put the question to her she said go ahead and gave him the keys and he opened the trunk but i do believe the judge largest correct here that in certain respects the consent issue is academic because i think that the officer certainly have probable cause by that point to look in the trunk as soon as he opens the trunk he has to smell the odor of marijuana and the trunk which was empty at the border is now completely full and at that point i think he had certainly probable cause going to trunk and once he sees it's full smears the marijuana he certainly has rights he said what are you stopping us for why are we stopped the officer took that as hostility and ordered his mother out of the car the one thing i like to point out of the record which i don't think was pointed out well enough in the breeze but it is there when the officer wrote his report and related what had been said to him about the refusal to allow the search he capitalized the words no in both occasions when it was related i have no idea judge i'm a little cynical about it myself frankly because seriously how did the one thing that did come up is that the government never argued probable cause at the suppression hearing that never came up until just logged and a ruling said there was reasonable suspicion to search the truck and then later wrote a written recruit