every one on this snowy morning we have four cases here and we will start with united states versus torrance which is case number eighteen sixth two thousand and sixteen new mexico state police officer nathan several measurably extended the duration of a traffic stop for reasons which were completely unrelated to the purposes of the stop about six minutes into a stop for speeding officer russo quit writing a ticket and detour his investigation to question mr towards his passenger for almost a minute about things that had absolutely nothing whatsoever to do with the offens speeding we respectfully submit that either the court meant what it said in rodriguez versus united states or the words measurably extend our meaningless victim to the exigency of punishing the possession of thirty eight pounds of methamphetamine the district court erred as a matter of law for three reasons one officer to several did in fact unconstitutionally extend the duration of the traffic stop to mr tours was unlawfully detained without reasonable suspicion and three mr tours did not and could not freely and voluntarily consent to a search of his car after also officer looser told him that family consent officer sarah would deploy a canine dog i think the most obvious violation here is that the officer about six minutes into the stop told mr tours that he was going to go check the vehicle identification number that was a pretext that was a ruse because the officer freely admitted he only checked the vehicle identification for a couple of seconds and even in his own having custom he couldn't possibly check the last four numbers of one van and compare it to another in a couple of seconds missed cory up until that point the officer noted a strong smell of air freshener an excessively increasingly  the search he talked about mr tauruses being excessively nervous and although this court has condemned that in isolation because he doesn't know mr torres he doesn't know how nervous he might be when you look at the actual dash cam video of the stop mr torres is not shaking he's not sweating indeed as the testimony provided by our own witness confirmed there was no sign of nervousness apparent on the video and a two day vacation to amarillo without plans even the district court conceded is not enough to establish possible probable cause in isolation so and the suggestion that mr tourist could consent to this questioning and to this of inspection is court to not talk about that but again those seem to me after the facts rationalizations that are belied by the record and i think that if you're going to say how could they be after the fact why and the officer questioned  mr tours and his passenger at least two times each about travel plans so it doesn't seem like it's after the fact that it was in the moment that the officer seemed to be concerned about it's important that we review this step by step because if the officer did measurably extend the stop without reasonable suspicion then whatever he discovered after that cannot provide the sufficient basis for before the ticket was issued if i understand your brief correctly is that you're on the my am i reading it correctly yes the constitutional violation was ongoing but but the case comes down to this and as just as ok i just want to i just want to know when when we enter into what you consider unconstitutional territory when did that first happen in your view when the officer said he was going to check a vent and didn't check event when the officer said he was going to go check a vehicle identify any stop writing a ticket and said he was going to go check a vehicle identification number and then didn't do that or did that only a couple of seconds well how do we know that he didn't do that i mean there are the video he goes and looks at the windshield and looks at the inside at the door it i think justice murphy distilled this case to its point which is in less the officer had probable cause based on these four factors of travel plans air freshener nervousness and i forget the fourth one feigning sleep or the feigning sleep thank you just as much as  much at that point the officer if without that reasonable suspicion unless these things are truly innocent or unless these things are supported by the record unless the evidence of that is supported by the record then what he did was measurably extend the traffic stop and i think both judge browning and this court and all courts since rodriguez are struggling to define the term measurably extent but the simple fact fact remains that if you are not writing a ticket for speeding or pursuing an investigation that's related to speeding and you detour to be like i think i'll go on a fishing expedition i think a question this person is feigning sleep and thinning sleep i mean it's in the category of nervousness how do you know she's feigning it's you're challenging what's in the record is an observation in what i want you to do is do this first of all i would like you to rely on cases and tell us why for aggregate things like that do not constitute reasonable articulable suspicion because i  nervousness is the same as anyone who is removed from a car and told to said i don't want to get back into that i'm asking you this very straightforward if those four things are facts nervousness are legion nervousness by itself is not sufficient i agree so if you add nervousness and unusual travel plans does nervousness suddenly become sufficient and there is no case law to address that cases from the tenth circuit on unusual travel plans how does your case back up against a case like would or a case like lopez which had unusual travel plans plus other things  you've got these four four factors you want to rely upon but but now we need to have a little more help in terms of how they match up against their case they guess what i'm trying to say is for example an unusual or strange plan the case on that is simpson six o nine s third one one four zero that's not enough by itself since it an overly ambitious travel plan i think that slope as a forty nine and thirty one twenty four so i think when we talk about each of these that case but he's not coming to the help to rescue a sister who's being beaten by her intimate partner on the other hand they didn't even know which state she was in that seemed a little unusual you know and of the cases that we cite are on page thirty four of our brief driving more than six hundred miles from nashville to tulsa oklahoma for work after spending the week i mean we're trying to categorize people's plans as suspicious unsuspicious but the our travel plans are they trip is a trip that you and i might take perhaps you know perhaps me absolutely i'm the type of person who loves to drive i love to drive in places that i've never been before we also know from the record that mr taurus has his own gene company and that much of the luggage in the vehicle were samples of his product so this is the type of a driving a traveling salesman would do is this unusual is it not the agree that if we will against you in say these four factors establish reasonable articulable suspicion that the case is over in you should be affirmed on the district court's decision i don't think i think the sad answer is yes if you're going to say that yes he measurably extended the stop but in six minutes between looking at the travel plans nervousness air freshener and a woman and the feigning sleep is another example judge murphy i mean on the one hand psych this is so unusual why would they drive all night and yet we have a person in the back seat sleeping or she wasn't really asleep but she drove all night i mean at some point what i'd like to leave the court with is that the court knows that none of these factors by themselves ask you a record question when exactly did he smell the air freshener he doesn't say there's a reference later when they probably why i asked that i don't know and i'm good and the thing about an air freshener is there's only one air freshener and if anyone's ever smelled or had the unpleasant experience of smelling say axe body spray are certain chemical senses that are offensive to to us older folk that are not so offensive to the young folk and that may be overwhelming or overpowering ok that doesn't understand your argument or moving  the minute when and if we if we think that the reasonable suspicion and question is close then why shouldn't we divert the officers ability to distinguish between innocent and suspicious actions as we've said in our other cases you believe that in six minutes these four factors are sufficient to establish reasonable suspicion there's nothing more to say but if you look at the record and you realize that this person interrupted the writing of a speeding ticket and measurably extended good morning in may it please the court counsel my name is paige messick i represent the united states mr torres claims that his traffic stop was forty seconds too long and that that entitles him to the suppression of the nearly forty pounds of methamphetamine that he was transporting in his trunk at the time of the stop this argument has a number of problems that now that's the pre it detention argument of the forty second that's right ok but that's not the only the tension argument he's making though he's also argued that hew wasn't detained upon reasonable suspicion at the end of his traffic stop after he had been asked bring in the dog to sniff the car yes if you say he was detaining them yes all right and but i also assume you would say he had reasonable suspicion them absolutely ok and was the reasonable suspicion based on any factors other than the ones we've already been discussing this morning yes it was those factors that just murphy listed earlier all of those existed from nearly the beginning of a stop before officer lazaro even went to check that then but as the stop goes on from that point where we've already got those for reasonable suspicion only continues to grow so first mr tourist level of nervousness continues it doesn't abate as the officer would expect as he's getting more used to the traffic stop it continues when he end it increases when he handles the truck the citation his hand is shaking and the officer can observe that the travel plans get weirder and weirder as this goes on says but why amarillo and torres doesn't answer that question and instead he has he goes what we might go to albuquerque to or make it albuquerque instead at this point they are mere miles from albuquerque and he doesn't mention anything about albuquerque so far and then he said that actually i don't know much about either or and then officer lou sarah goes to talk why amarillo and she says something about family or friends or family friends in amarillo and then officer goes back to talk to tourism didn't he have any family member l o no doesn't mention anything about knowing people in amarillo and there's some confusion about how long they plan to stay there so the traffic plans are the travel plans were strange from the get go when they need just to get ranger stranger than in cases where we haven't found reasonable suspicion based on unusual travel plans i do think stranger now how about helping us out with the cases you know we have to pay attention to the hose and compare  one and if you could help us out we appreciate it of course now i think that the best that the most helpful thing in prior cases just is to look at these particular factors says the court over recognize unusual travel plans as as contributing to reasonable to fish and yes has iraq recognized air freshener as contributing yes each of the factors that we're relying on here have been recognised as contributing in some degree to reasonable suspicion and which if you're by and cases do you why on primarily i don't think that there is a particularly particular shining case with the strangest travel plans the supreme court certainly recognized that travel plans can be so strange as to provoke suspicion there have been cases where the court has said yeah these travel plans were somewhat unusual but in the absence of any other particular factor it's not enough that we wouldn't contend that these travel plans alone make reasonable suspicion but there is no other case that takes all of these factors and addresses the weight of them all together and whether that constitutes reasonable suspicion so here we have half a dozen factors that this court has recognized independently can contribute to reasonable suspicion so let me ask you questions to judge mathis and ask mr poori about when the officer smelled the air freshener you know from the record when that occurred you know i'm sorry my impression was that he immediately did but i was just flipping flipping for through the brief when that question came up and i didn't see it in the moments right there i mean is it possible there's a failure of the record on on that factor what i'm getting at is mr pouri has all these items that are in isolation don't give him a you know arguably worry needs to be but as you start taking some of these things away such as the air freshener maybe maybe it's gets closer because i had an impression i was wondering if the air freshener was maybe smelled when the officer went and leaned into the vehicle to talk to the passenger i just checked what the district court found on this female passenger was rest in the back seat and noticed an overpowering odor of air freshener and so it indicates here that the officer noticed the air freshener when he did approach the vehicle but not necessarily he didn't do so until he was sticking his head in the window there ok do you think that makes a difference for i don't think it makes or breaks the case i think it helps certainly doesn't help though the timing yet if he is noticing this before he has allegedly prolonging the stop then that certainly contributes to the reasonable suspicion he has to keep going at that point right so i do think that that fact helps i don't think that we would lack reasonable suspicion without it but i think it strengthens and i think there's enough in the record to put that factor in the pre extension box and say in what do you think about the idea that the star you know the basically the initial excessive detention was like forty five seconds worth of extra questioning did it seem like judge browning thought wow that's not very long would judge frowning his opinion does contain some question about whether a short amount of time is really measurable extension but i didn't read his opinion to hold that just wasn't long enough to care about i don't think that he dismissed it as de minimus or anything like that i agree with that because he went on it very thoroughly and talked about everything else but what do you think about the idea that forty five seconds even even if he really didn't have a need to talk to him for forty five seconds is not enough i think there are cases in which we could argue that certain amount of extension is not actually measurable in the common meaning of the word we haven't chosen to do that here because i think that is getting close enough to a measurable extension but i would say that if there is if there is no demand in this extension if you can really have a traffic stop extended unconstitutionally by thirty nine seconds that it's going to be very difficult for a defendant to show that that very short extension is what caused the discovery of his evidence and that is precisely the problem that tourist suffers from here those thirty nine extra seconds if they were indeed extra if they were indeed not supported by reasonable suspicion at that point have nothing to do with the discovery of the drugs in his trunk later it is the defendant's burden to establish a causal link between his alleged fourth amendment violation and the evidence that he is contesting well d when the report indicates that the report indicates that the statements were important i am guys in that certainly adequate for the defendant to get over that but no i don't think that it is and i'm glad you brought that up because we have got in the record by defendant's own choice one of the six pages of that report we don't know what the officer has said earlier about raising his suspicion and at introduction quite so narrowly to ban but at ok but he chose to put in one page you don't know what is on those other pages but you do know that on the one page there there have been previous be just where he's recounted other things that have happened and then he says among the things that caused my suspicion are these four things and then you can tell that that's not actually we can infer that these other factors were reference but we cannot infer that the education important preceded each one of those but it did this one so doesn't that isn't the standard for the the says it's an important factor haven't i met my burden of proof and it's time for the government to step up and talk about attenuation were the burden is theirs i don't think so at that he can just get over that that that burden by showing that it was a does it say among it uses a language if not literally says something very close to not limited to but including and then he lists four things some of those four things are you talking about pages that aren't part of the record oh no i'm talking about the one page that is part of the record before his sort of bullet point style list some of those things in a bullet points don't actually pertain to things that happened previous to that point in the stop so i don't think you can say the officer is intending this as  his chronological list of things that matter to him at that point and his testimony the defendant of the burden could certainly have said had you not talked to garrett would you have asked him to answer more questions about that would have been an easy thing to let me ask you question about this this characterization of important is that is that really the officer subjective belief about importance that we should be worried about isn't this this is a fourth amendment issue are we really thinking about what a reasonable officer would consider to be important based on the evidence that we have so does it really make much difference how off himself subjectively weighed these things what's important is what a reasonable officer does a reasonable officer have reasonable suspicion with a reasonable suspicion question i agree that it's absolutely an objective test and we believe that reasonable suspicion it was already present at that time but i think for the the but for causation tests it would make sense to look at what that officer would have done otherwise and i believe the court's cases have taken that approach all right and i understand your point could i just ask you what is the government's position on when mr torres was detained he was not well he was detained during the initial traffic stop our purpose at the traffic stop no i let me i'm sorry i should have been a little more clear after the citation was handed back to him at what point after that in your view was he detained not until the officer in response to his question what if i don't consent well in that case i'm going to run my dog around your car and if you are time going to detain you at that point we agree he was detained but not until that now or never before agree that rodriguez establishes that standard subject to perhaps two questions in a case where you could argue that it wasn't a measurable extension of what you just rodrigues been alive for at least a year not more at the time the district court held its hearing why why why is that not just determined to forward the district court rather than getting into well you know me or if you guys didn't say that traffic i'm sorry travel plan questions are no longer part of the stop in this court have held that it officer may extend a stop to ask that type of question yes i don't think that roderigo is clearly says that that these questions would have been an impermissible extension that's probably not the easiest ground for the court to reach but i don't and i think the case comes down to the fact that judge browning transmuted the measure would be extended standard of rodriguez to excessively prolong and that's not the standard in this case and i think the idea that causation was not met these case will be submitted and counsel are excuse