allowed his statements to be at minute and then well does not apply here though because it addresses a completely different issue whether ordering an arrest without probable cause may make the actual arrest and detention illegal well they're without probable cause yes that's correct and well actually contended on appeal that his arrest and murder charges was illegal because quote it was ordered by tribal police before they had probable cause to believe that he had or you see here there was no order to arrest as a matter of fact the government might not contest directly with the government says it doesn't agree after reading the latest united states supreme court case on border searches in the case of the support there doesn't seem to me to be that he was ordered border according to the supreme court is subject to a detention and here all they did was exactly what they did in the hernandez case was that in a place where that's where he was secure while they followed up leads on the car so he more recently in florence montana they say that would seem detention and a brief detention and questioning at the border is permissible under the fourth amendment however hernandez while recognizing that some grief  retention and questioning is permissible it goes on to say that the fourth amendment requirement of probable cause for an arrest is not disappear at the border i would disagree with the contention that hernandez controls in this case because in carol and all the other cases the recent supreme court case realize they talk about the inherent power of the government to stop anybody at the border so i don't see how a detention at the border even putting somebody in a cell like that according to the requirements you had to pass or somebody you know in a private place to begin with necessarily can be construed as an arrest i think you can only have an arrest when they say you're under arrest at the border the fourth amendment requirements as explicated that the supreme court had never stated temporary detention and recognizing cases like brother hernandez into was there testimony about that the searching officer being there was only one other person alone or something that there was not that that was part of the reason that he was there was nobody else available there was no one else to watch him while he was being detained if or when you're you're using the word arrested that it was their testimony and lower court to that effect  money to that effect whoever the reasons for the officer putting him in the holding cell are relevant to whether he will not have as much relevant i mean i'm sure you've read the floors montano and that in turn refers to united states versus ramsey where the supreme court reiterate that search is made at the border pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country are reasonable simply by virtue of the fact that they occur at the border should now should by now require no extended demonstration so it appears to me that the only reasonable construction of the facts in this case was that he was detained at the border while they while they legitimately pursued questions about the vehicle that he was driving so i think that's the district court was dead and long in construing this border situation as an arrest at any other place in the country might be absolutely right this could be construed to be an arrest but the border is different the case did not say that detention and questioning as without any limitation at the border it did recognize that there is routine detention and questioning that does have to occur because the united states right to basically prevent unlawful entrance from coming into the country is fine also argued as some sort of fourth amendment right not to be subject to delay at the international border responding points to no cases that shields efforts from inconvenience or delay the international border we think it clear the delays of one or two hours at international borders are not to be unexpected well  that you know how that what the personnel situation was like in these circumstances what you think the constitution required these officials to do the constitution require them to engage in more searching questioning nation engaged in questioning about that and it's hard to confront if it's them from looking at the car which was what they said had suspicions of the constitution does not prohibit them from conducting a routine search of the car but in this case the position a low in the in appeal after the district court mostly that well even if this was a non routine search it was justified by reason suspicion i think it's clear in your honor of just try to hit it right on the head this report nine zero has fashion to new balancing test and extended it to searches of vehicles i'm reading from page from history but the reason is that might support a requirement of some level of suspicion and the case of highly intrusive searches of the person dignity and privacy interest of the person being searched simply do not carry over to vehicles complex balancing test to determine what is a routine search of a vehicle as opposed to a more intrusive search of a person have no place in border searches  person which might require reasonable suspicion and searches of a vehicle or property at the border which require no level of suspicion at all and i think that this that this court would do a disservice in deciding this case based on the question of reasonable suspicion point in other words he was taken out of the car primary he was temporarily handcuffed for the two to three minute walk over to the vehicle security office and at that point time he was searched and the handcuffs were taken off now and bravo the person was told why he was being handcuffed hernandez they weren't told anything about why they were being handcuffed and in this case the person was told two things were very important one he was told that you're being handcuffed for safety reasons and secondly you're going to be held there while google search your car some more which is very important now the only factor that's different between this case in bravo and hernandez is it is the case that he was kept in a lot holding cell and i think your honor hit the point right the nail right on the head which is  butler i'm aware of it because they also argued it takes over and wrote the opinion and in that case the district court had found that there was an arrest not just a detention and the court said yes that's true because the person was kept in a lo and his shoes and belts and personal items have been confiscated that is what happened here now i don't think it should matter whether the government detain somebody in the security office in an open cell or close that officer didn't have anything else to do with him i mean he had that they were short staffed i mean he for his own security and i would think you would remove the belt but fair officer safety but also for the individual safety because you don't want people to hang themselves in a holding cell that's that's that's not part of a record that is why they remove the belt it's kind of standard police procedure our case relative to the holding cell question is the same as butler with the exception being that here  compensation instead of just permanent somebody but what i think the court what i would hope the court would do is to say we don't need to determine whether bulger has been overruled by force mcdonnell we don't need to determine whether butler is affected by the fact that there is only one person to watch him and we don't need to determine whether butler is determined by the fact that it wasn't just holding somebody would you have the confiscation of property because even if you assume argue window that there was an illegal arrest we're talking about three to five  vehicle they come back to him tell him he's under arrest in two and a half hours later he was interviewed and that gives us the independent intervening manual argument the district court judge in this case judge  you are one fifty to one fifty six sprint grew up here which is talking about the effect of the manual decision pointing out there was no exploitation of that three to five minutes now the words no physical evidence was seized from an statements were made and it's clear decided by this court but it's nothing that can be relied on by the district court it's a recurring issue because what ends up happening is you get these extended hearings whether it's a detention whether it's an arrest the extent of it were in fact as far as the law and turn it doesn't matter because even if you assume that there was an illegal arrest for three minutes they subsequently find the drugs his condition really doesn't change they come back to tell him is under arrest he's interviewed two hours later the search was going to take place regardless of the fact that he was put in a holding cell and his shoes were confiscated or he was kept anywhere else it's a procedure under federal law and a federal agent tell somebody you're under arrest and then ten minutes later the ree to five minutes but i don't i have the flavor that yes i do think that the government at the border can hold somebody for security reasons it doesn't matter where we hold them constance you're removing property which isn't going to  but i didn't but the butler panel went off on the confiscation of property now when bravo a different panel said that there was no arrest there was a lot of talk about the shoes but they pointed out i handled the brothel case that the shoes were saying that i think the butler case was rightly decided what i am saying go is i think we can assemble somebody anywhere that's an important distinction but even a problem was rightly decided even if this person was arrested for two to three minutes it's clear that there was independent and or being probable cause because the drugs were seized somewhat sourced in c separate they came back to the person he was interviewed for two hours later this case is right on with manual and it would be very important because everybody we're back in district court the government says many law controls the district court relies many well defense counsel says no manuals distinguishable and as i say we know i know of at least six cases where we've been on a manual issue before the court and i believe it's important to decide one way or the other i wish we could really look at it and bulger and maybe brother needs to be reviewed now in light of the fact that we have fluorescent tano i am hoping for the opportunity to file supplemental tundra noticed noted there are three thousand vehicle drug cases per year of the california ports of entry for the government to be obligated three thousand cases a year to produce two or three border inspectors pulling them off the line and testifying on the nuances completely different issue whether it wondering around without probable cause makes a later arrest illegal as i said before and well argued that his arrest was illegal because it was ordered by travel police officers before they have probable cause involves truly independent evidence a court stated that regardless of when the arrest was ordered the police officers in that case gathered evidence independent of his confession to justify his  and cross examination during the motion hearing that he did not believe that marijuana struggling occurred until he found the drugs in the car through the probe regardless of when it occurred at that point he used the evidence that he found to confront with that evidence and to ultimately tell him that officers will come by to speak with him by confronting him with the evidence for amanda's hold on a very at a minimum that by confirming that there is marijuana in the car that transf into an arrest in other circumstances for instance in the miranda context confronting some one with incriminating evidence is sufficient to constitute an interrogation because that makes it more likely not less likely that mr