testimony of the masses best interest of state trooper who stopped and searched the rental car the defendant was driving however this simple case was permeated with serious constitutional errors including the legally erroneous denial of a motion to suppress the fruits of the car stop the preclusion of all cross examination respecting the bias namely the racial animus of the trooper towards african americans the exclusion of highly skilled patrol or a third party culprit evidence and grossly improper prosecutorial misconduct in closing argument taken either cumulatively or individually these serious constitutional errors require relief let me start with the motion to suppress prior to trial defense counsel filed a motion to suppress based on an argument that the stop was pretextual that is that it was based on racial profiling racial animus based on the fact the defendant was african american as opposed to the legal standard of reasonable suspicion motion i think it is absolutely clear that the standard review is don't know how this is constitutional error it is preserve constitutional error of the government i asked that the trial judge to deny the motion based on argument that the defendant lacked standing because he was not authorized driver of the rental car under the contract and he and his license was suspended it has been clear since this court decided kimball twenty one thousand nine hundred ninety four that all so the government inviting the judge to deny the motion to suppress based on lack of standing was completely off base and unfortunately the trial judge accepted that invitation and denied the motion based on lack of standing never reach the merits you're trying to redirect the judge seem to think that the motion was directed towards the search itself as opposed to the stop rather there is no way complain about the cannot move to suppress the fruits of the search that was the government's position that the fed had no reason to race and defendant said the violation of my rights i have a right to proceed the government argued standing and the judge accepted that invitation standard never reached the merits and this court said there has to be a remission and it is and that the government's argument here that plain that the standard of review here is plain error is for phyllis if you look at the this entire motion it was litigated on the legality of the stop that was the argument the argument was that the trooper was racially profiling that he just a portion of the stocks african americans and at the stop was unconstitutional that was the argument it's impossible to look at the record and view it any other way there's a second argument of wave her that i use something like this argument that the trooper was in error when the trooper said the vehicle was in fact cross the white line a number of times and that was the  i mean frankly the government is desperately trying to avoid this court for a change this claim and if this court wants to find a way to affirm by pretending that what happened at trial didn't happen in the court won't do it but to be fair the road and stop the car for that reason i agree the defendant loses but there's no basis on this record where the judge never reached the merits never made a credibility determination about the trooper to make that finding and certainly a cold record this court points waiving it what it would it would it would include the argument that the stop was not based on reasonable suspicion it was based on a racial profiling and the reasons given were  judge has a lot of leeway in how much to regulate cross examination but that that leeway is limited by constitutional kramer's and the complete preclusion of cross examination of bias we're talking about  is a liar that he's lying about what he did to justify what he did because what he did what he did because he wanted he stopped the defendant because he was black and he was making up a story to cover up his illegal stop  testimony was that he found a bag plastic bag near the defendant and inside the bag was a gun and ammunition and the defendant's prescription drugs and that was at issue and was there any evidence at all in the record that any of that was not the case your honor he was the witness ok so if the jury believe you said beyond a reasonable doubt they convict if they don't they acquit that was the case it was a one to witness case based on credibility the reason was only based on credibility issue was framed arguably probably quite probably incorrectly from the start but it didn't begin the defense counsel's a motion to suppress and this is page forty six of the record there is a section on standing over the defendant to have to include one other defendant did and it says because the defendant stark's has an expectation of privacy in the car he has standing to challenge to stop and search of the car while the pen is not the owner he borrowed the car from the renter so government has an independent obligation to it here i defendant to present the correct law i would have served the court far better by clarifying rather than reiterating a mistaken view as to the grounds for standing in the case and that's what we can only reiterate kept telling  other issues the case and when you resolve standing the difficulty and i again i agree that the that had the issue been apparent to either of the governments counsel it should have been presented to the court the difficulty was that all the and then going to the argument about pretext they said this is not a fourth amendment issue and then goes on to argue wondering for protection and makes an argument for standing under article three standing the typical standing applied to that not fourth amendment standing which is really not standing but reasonable expectation of privacy so i think the problem was the defense counsel did not properly identify the grounds for the stop it was making argued that in fact was incompatible with ben that was not really an available argument and that was part of the problem and with evidence that they're having an important evidence that actually incurred a lot of expense to get this evidence and it only relates to one issues and the government family tells the judge that they have no standing to which was crystallized for the district court that there were two possible grounds of standing here two different issues with different types of standing up like a ball had that issue been squarely presented the judge may well have said ok well if that him tell me more about those two different theories the standing for the st again in fairness the defendant there was evidence that they mentioned they were intending to bring in that they did not get to because the it was cut off at the issue of standing on the merits were not met so one presumes that the district court to its remanded would would consider what additional issues might be raised once you go beyond standing to the merits and so we would not pre henri man the trial judge kook lutes that the officer had a valid basis to stop the car independently of the question of discriminatory motive and that credibility of the officer and anything else that you know over and in the government's view would that preclude consideration of discriminatory and well i think the difficulty is rendered which is that the stops may be pretextual as long as the admission of the expert testimony and obviously there's a difference between expert testimony which may be excluded x extensive evidence of ice may be excluded and the cross examination which is not supposed to be entirely eliminated but that distinction was never brought the court's attention the fen appeared to assume that the decision on one control of the disc on the other the court affirmed that without ever being a hearing an argument that i have an independent confrontation clause right to ask a few questions independent from the reports independent from the expert that's why we're argu of you there's just simply not a showing on this record of a different result had those questions been allowed so that's where our argument focuses because we agree that in general the better questions on pass that's the law mr graham i truly don't understand the answers here you seem to suggest that if we find an error on the  that may be another reason for waiting on the other issues because to the extent that they change anything in terms of the record there could be an arguable impact and i thought you just wrong issue that you didn't think discriminatory intent had anything to do with the facts in the case that's where we started when you stood up with respect to the suppression issue i know since i started there mean with respect to the trial of us yes well as i've conceded i think it would be appropriate in this circumstance to have allowed cross examination of the officer with respect to price as it once was credibility but i don't understand beyond that that it's relevant would be that if he's if he's biased he may not be illegal but when he says the bag was found in the front seat rather than back seat or anywhere else as my brother has explained i think that is the argument that those facts did rely on the credibility of the officer's testimony and that's why it was it would come in o relevant so i'm still having trouble if take the exclusion of the expert testimony at trial if we firm that and then remained for the first issue then that exclusion those to the mandate but if we simply remained on the first issue and don't get to any other issues then the exclusion of the expert testimony remains the subject of the discretionary district court l and if there's any cincy i think that's what it is i'm speaking to the existing record i don't think there's anything here that renders any of the errors in the admission of evidence not harmless but i agree that the record could change and we're not taking the position that the district court could not or should not allow additional testimony under it are there any questions with respect to any of the other issues presented here on the closing argument and i'm puzzled that your office just doesn't have a clear rule that it's easy for all the prosecutors to have you don't put your toes on that line don't don't don't go in are making such arguments are there particular  the court said that they would allow the government to speak to what the government arguably went further than the agreement in saying that this is a done deal it's settled the court decided rather than simply saying you don't need to reach this issue again that was object his disproportionate stopping of african americans for identification so i mean she did everything she could do to preserve that issue at trial with respect to closing argument one which i just find most egregious is w discussing the officer his credibility the prosecutor says at the beginning of his initial closing argument this is not a response to the defense closing he says because you look alan he had stopped it's been settled the sto was legal the arrest was legal the search was legal that's a done deal that's been decided by the judge that's objected to a trial that is extraordinary number one that is not what the judge ruled the judge  standing basis i'm not going to die the motion the judge never said it's a legal sop it's a legal arrest so legal search secondly even if the judge had ruled that way which he hadn't none of that was before the jury the prosecutor had absolutely no right to say that to the jury which essentially put not just the a pre mature of the government but more significantly the imprint tour of the district judge on the officers conduct in a one witness case which with which his credibility was basically the whole case now i've read a legion of decisions from this court either excusing prosecutorial misstatements in closing or finding them harmless but frankly this one just goes over the line this is a this is not a case about wanting evidence this is a one witness case it went directly to his credibility it was objected to a trial and frankly i don't think this court should have to reach these complicated issues about suppression issue there is more than enough grounds on the other constitutional errors we've identified for this court to reverse and vacate the conviction and i just want to say when we think about a reunion just to clarify what i said i know this court has not yet spoken on whether or not suppression can be good remedy for an equal protection file ation so i think i i misspoke when i said that's the end of the suppression motion if the trial if the court on a remained found that the car and it's not a claim your client is a defendant in a criminal proceeding the question is whether the protection clause gives him a type of