important supreme court decision in rodrguez the united states carriage of court held that a traffic stop may not be extended beyond the time necessary to address the violation for which it was made in other words officers may not ad time to the stop by diverting from its traffic based mission in order to question of vehicles occupants or conduct other investigation intended to gin up suspicion of some other crime and the rule of rodriguez eliminated what had been a very perverse incentive for officers to take the opportunity of any traffic stop to indulge any sort of hunch even a hunch based largely on race so long as they didn't hold the motorist for too long in this case it's clear that the pennsylvania state police trooper followed a practice that had been developed to take advantage of precisely that incentive and knowing virtually nothing more than that two black men were traveling from new york to maryland in an air freshener rental car he pulled them over for speeding but rather than address themselves to that violation diverted from the mission of the stop to conduct a lengthy interviews asking dozens of questions and tie really unrelated to question obviously it's entirely irrelevant to the traffic stop what his cousins name it but because mr pruett had said he was traveling to maryland to visit a cousin the officer who's trying to develop discrepancies in these men's accounts to turn up something to support a hunch and prince and went back question now to me that's that's quite market i wouldn't expect if i were pulled over and i'm asked where i'm going i'm sam going to visit a relative to then be told by your vision what's your relative surety know it was a rental car by that point to the officer already know that the rental contract was expired he had not yet questioned mr for about the details  he looked at the rental contract i don't know when he noticed that the toro contract said right on it when it was expired in the weeks prior to a few weeks prior to the traffic stop right so  if the officers see the air fresheners in a rental car being driven a couple of weeks after the contract has expired and doesn't have the normal rental bar codes on it bundle of facts give the officer enough reasonable articulable suspicion d to engage in the traffic stop equivalent of a terry stop because even taken in their  those are simply too innocuous to slander a read or this court to come to a conclusion that there was an objective particularized so so we know at least so the test as i stolen vehicle i don't know but it's some suspicion at an earlier point in time and it sounds to me that what your pushback is is no it's not just the ability to articulate a suspicion that that articulation is must also be reasonable and so it seems to me that what you're saying is these facts although maybe sufficient to articulate a suspicion are a reasonable enough grounds for that suspicion to be within the bounds permitted by the constitution was that people only have a rental car for a day or two so they don't go out and buy air fresheners which that's how they're sold by when he's four packs of clips he didn't say that was extraordinary they don't equip rental car if they're only having a per couple days but what do you learned have a record for a month well beyond the contract that raises a whole new importance suspicion i e is this a stolen car is this now a stolen car this was a law fully possessed car now is it now is it  a car that the rental company is probably been looking for for a couple weeks i would say both as a matter of law and on the facts of this case but that's a mistaken approach so to look at the law now there was a notable decision in two thousand and eighteen and bird  united states supreme court decision about whether an unauthorized driver had a reason why expectation of privacy in a rental car and why was it stinks question from the one here the court made quite clear that really all that matters as far as does draw the line at a car thief right now here by this point before the trooper even approached the window he confirmed that the car had not been reported stolen and he had that information that's i paid one tab mannix so when he sees my client's name on the rental agreement my client is the authorized renter car hasn't been reported stolen that's actually the end of the matter you know where we're at resting our case on the notion that he couldn't have done some follow up question about the rental agreement but if it were material that would be my position now it's not material because it's not just love the rodriguez moment came at age five thousand four hundred and thirty three there followed seven and a half minutes of questioning if any portion of that questioning is off mission and there was not reasonable suspicion than it unlawfully extended to stop under this court's decisions and car and green so he did still have to confirm that ok this rental agreement have been extended and if you watch the video you'll see that everybody who ever discusses the rental agreement described it as everyone always extends rental agreements including which are his own words it didn't i thought that delayed the stop sufficiently and maybe we can ask mr the the bail or write which he did much later on and he did verify but my point simply that my client account was not suspect you offered an account still legitimate if we say it's legitimate to be inquiring into rental agreements for that you're better check that out but i'll just point the court in conclusion of mine if i were to periods of forty five seconds during that seven and a half minute period when i'm a trooper i asked my client and the passenger about their employment and their relationship with one another and  brief there and then there was another thirty seconds where the trooper asked my client and the passenger a series of questions about whether they had contraband or drugs in the car so that i could not be more clearly but i mean it one level i are you basically saying that would read is creates almost like a zero tolerance for officers who ask any question off mission it's not suppose a car over speaking with a person outside the card reasonably addressed to the traffic violation so in the example that i just feel rain which iverson is a very different from the questions here i think that could be defended as incidence of a traffic cops mission and that an officer might need to develop over the bit of report with a driver to enlist his cooperation in processing the speeding violation or whatever the traffic violations and there might be some room for small talk the question would be was not reasonably geared toward addressing the traffic violation that's not the case here then the question what is your cousin's name was not conversational i you can see on the video and you can tell from the trooper's subsequent testimony that it was an interview or interrogation an effort to drum up contradictions in the the overpass he could stop with i mean obviously we would hope troopers would stop people a safe place but that doesn't shed any light on the legitimacy of the th amendment search it does your honor because if you're going to be suing him for toward of a dangerous traffic stop no no your honor it goes to the characteristic of up to traffic stop for a speeding ticket if if you really really is twenty miles over the speed limit you'd want to you want to get it done is what i'm saying in this area the stop not the location of the stop the location is in the area this stop would want you if you were going to just address a traffic violation to do it in a rapid manner and get it done not to try to prolong it but well in this case well i mean maybe that's the case until you see for air fresheners in the car and maybe if it were just the traffic that's ok we just want to get this done we're going to gun you walk up and offer what's up and says i just saw for africans this may be unfortunate we're in a very busy place but now i'm developed facts would explain away why this was stopped there and extended not just the desire to stop someone and acted in opportune place i'm i'm trying to say is that if you're looking for a reasonable time for a traffic stop for a ticket if that's supposed to be five to ten minutes well there's eagerly winces yeah if you were just going to do that it would be the low end of the scale this is this is way longer than a normal traffic stop i think even even mr ford will agree that so but that's why we've got to determine whether there was reasonable articulable suspicion at some point because if there wasn't early on then it's an illegal search understood your i want to get to the trial issues my client does go to trial mr fruit and answer the plea agreement where he's allowed to preserve the issue of the of the essentially one of the main issues in my client's trial because he's a passenger in this vehicle gets no connection with the renting of the vehicle he never drove the vehicle there is no evidence that he had a connection with  evidence that he has any connection with the drugs that are found in the trunk of a car if you look at the video you see there secreted deep in the trunk there under chairs on a grill on weight way underneath the back of the trunk so what the government does what's the crime of conviction a two thousand and seven new york city so what's the crime a quick conviction in this case because action with in this kind of activity that's being prosecuted in this federal court we're talking d about a situation where we're one hundred and seventy miles away from new york city where there is drug secreted and in the trunk of this vehicle  the judge says in his opinion that the conviction is highly prejudicial so if it's highly prejudicial has to be somehow super probative to overcome that balancing test and word is it where does it go the prosecution tries to say that it's knowledge and intent will knowledge of what knowledge that he needed the drugs aren't found in the backseat of a car it's not knowledge of like oh i should know what's in the backseat of the car there are certain air that's that's contraband that's cocaine no then the drugs are found deep inside the back trunk area it's not in the passenger compartment at all specifically at page twenty of your brief your brief says the rd circuit does not appear to align with the approaches taken by the other circuits as laid out below as evidence particularly by united  but this panel is powerless to do to change you know you have to have you know you speaking in the speaking case because we're getting farther and farther afield africa bhagavan divided in this case we're talking about a decade old conviction you know what are we going what does this court has to put some limits on this so if you're convicted of a drug trafficking offense it's going to be admissible for life is that what the court wants i think there has to be some of the amount of balancing that has to come wrote the opinion he's telling you that this is highly prejudicial so where does he show in that opinion that this is highly probative it's not it cannot make an articulate argument your honor stat it's highly of anything other than wakes all the jurors up pain he was convicted in two thousand and seven trafficking drugs in new york city so the game was over right then and there could recover could not and and  i mean that's sort of been an inherent problem with this type of evidence right because it it can influence a jury in both ways right it could be focused upon for knowledge but it could also to ask for consent to search the vehicle by the point that he did that you know what time in the video that was your honor i have it a few minutes between before thirty five minutes and forty seconds the trooper turns the video the audio off it twelve minutes so thirty five minutes into the traffic stop correct john they can't be right the well why is that the moment your honor that's the moment because everything that he did prior to that was relayed to the traffic stop or including things that aren't directly related to the traffic stop to include concluding fishing for other crimes like drug trafficking says you can't worry yeah you can't you can't investigate werner crimes that that's that's for get extraordinary clive's you know is that your position no you're on what rodriguez says is that the trooper isn't restricted to strictly asking the defendant about speeding he's also allowed to check into warrants in to determine if the vehicles operating correctly whether there's any safety issues regarding the vehicle he's also allowed to take steps to ensure his own safety but it doesn't matter that after the trooper pulls the gentleman over for speeding it's license registration get that information go back to your car your squad car run the plates run the license any outstanding warrants go back an issue the ticket is now what that  doesn't it doesn't mean engage him in dozens of questions you know where you go what cousin what's the name what any drugs in the car on and on and on that that seems to be the exact opposite of what we're green this is telling us to do your supreme court tells us that do understood your honor but this court also although it didn't directly address it in a green which was decided after rodrigues in that case under the facts of the case the trooper did ask the driver about travel plans  two you don't get too much else unless everybody take all suspicion so isn't it isn't your shouldn't your real point me that there was some other reason that took this out of ordinary criminal activity investigation and went particle suspicion of a specific crime and then you get more flexibility even post rodrigo's as opposed to try to push the rodrigo's moment out past a handful of questions your honor i believe that there are several if there was a time when carryover was kind of permitted as long as it wasn't a long that time is gone understood your honor but that conversation what happened is that about three minutes into the traffic stop the  if and step out of the vehicle they have a quick conversation and he says that the defendant states that the vehicles are rental car he asked him to get the rental car contract the defendant comes back hands tripper ramirez the rental car contract ramirez asked where he heading how long are you going for what's the purpose of your trip and it's whenever he says i'm coming back in two days trip or mira says ok are you working yeah i'm working what are you doing and working in construction so what does that a speeding stop your honor it's all part of it is employment and element of speeding is employment activity or non employment active you know many speed asked him what he does for a living and whether he was taking days off to make this trip how does that relate to the purpose of the traffic stop your honor i believe just as just as you mentioned before mr donahue oh your honor it would be no different then did you just feel line how're you doing today questions along those lines and so what do you do for a living is just the just part of small talk during a traffic stop i believe your honor that this is just all part and parcel of his comp is questions about where he having what's going  but but the point is this that might have been the one yes ma'am it just doesn't seem like i mean it is i read that that part and parcel kind of just we can talk we can talk as long as we don't talk too long that's not the whining as i see it has to be on mission unless you have a reasonable articulable suspicion and so let me ask let me ask this question is it your position that a car without a state circumstances i believe it does your honor and additionally at that point trooper rodriguez also stated that he knew the vehicles going from new york to hagerstown and there was nothing in the vehicle there was no luggage when he i think visible in the vehicle that  luggage in the trunk that there could have been your honor but i believe he realized that the vehicle had been out for several weeks and whenever he looked in the vehicle he didn't see any luggage he didn't see anything indicative that it was being regularly used the only thing that he saw that jumped out at him was for air fresheners additionally although this might seem like a minor point i do believe it ties into everything else trooper ramirez stated that whenever he st identified the vehicle he pulled up alongside it and he looked over  back behind the pillar it's almost kind of obscure his view that some was after that the speeding stop your honor i believe it ties into reasonable suspicion i believe it's one of the other elements so before so he knows he speeding but before stopping him for speeding he pulls up alongside and does a visual then backs up and says now now i'm going to pull over for speeding yesterday is that is it common practice to pull up the site you see a speeding vehicle and then you say you know i want to do a visual on on the on the driver before i apparently make a decision to stop this car for speeding it seems that if you want to stop the car for speeding you've got probable cause at that point in time to stop the car for speeding you can get the visual in a car pulled over  resendiz vehicle stopped why did he do that right then and there would be very easy for the driver just put a safety belt on it that way your honor and i can't say the trooper mira's testified that he did that in all of his cases but it didn't seem like and in  practice i want to he was stopping a vehicle for speeding so the information that he gained from the safety belt check contributed to his reason park equal suspicion later is what you're telling me the fact that the driver leaned back once he identified that it was a trooper  he need thirty five minutes to develop his reasonable articulable both especially no your honor again i believe that he have reasonable suspicion early on in your fix stop i mean you identify when and what facts it was that th facts that we just mentioned john or st there was the fact that he leaned back nd the fact that the vehicle was going from new york to hagerstown maryland with absolutely nothing in the vehicle in the in front of the vehicle with the accent with the exception of air freshener he know those facts your honor he knew those before he asked that final series of questions to defend fruit and contraband in the vehicle and he couldn't any guns anything along those lines so he knew all of that information at that point excuse me additionally what he testified to at the suppression hearing and what the district court found was that there was a reason that he it took from twelve minutes to thirty five minutes for trooper ramirez to finish all the checks that he needed to finish st these defendants had out of state licenses so he couldn't just swipe those in his reader he had to manually input the information additionally whenever the information came back they had extensive criminal histories tripper nearest to the five he was five foot nine hundred and sixty dollars pounds these two gentlemen were much larger than him he wanted to check over that criminal history especially since there was an issue with firearms in the past additionally he had to call enterprise rent a car and check on the rental car contract so all of those checks took times additionally he called the pennsylvania criminal information center at the state police and they ran a check to find out that these two individual individuals were also involved in hiding cases so as a result all of that built into the ultimate reasonable suspicion but all of those were checks that he would have had to take even if he never asked for consent to search the contested them or not i still had to put on information now st with regard to knowledge cocaine was in the vehicle it's important for two reasons st the fact that he previously had distributed cocaine indicates that he knew how to package cocaine he knew how to obtain cocaine he knew the pricing of cocaine he knew the general quantity or qualities of cocaine what it looked like what it smelled like things along those lines therefore it would make sense that he would know the probably more importantly in specific facts of this case goes to his statements to the trooper regarding his prior drug history when trooper ramirez pulls him out of the vehicle and asked if he'd ever been arrested he said yeah mainly for fighting but he again he never stated anything about i've previously been convicted for distribution of cocaine additionally in what the government initially tried to put in the district court that denied we also tried to put in that he had been convicted of possession of cocaine and they also had charges pending for marijuana distribution in hagerstown maryland but all of that the defendant did not tell trooper eras so to tease this out i mean yes there any limiting princip with this knowledge exception to fall for b once an individual is convicted of any drug crime for a specific truck because again it could be math very you name it it seems that then under your theory is what i'm talking about of a specific drug can always get it seems like under your theory that can always come in in a nd trial because that would be needed to show knowledge your honor i would under your theory although caldwell dealt with a firearm i believe what caldwell came under caldwell if actual possession was that he she would not constructive possession i believe that it would not be able to come so even in but but the point is this we have constructive possession case and there's no living principle in constructive possession case is what i'm hearing no your honor i believe that nd step in huddles and the step that requires the government to put it into a logical chain of inferences i believe that's the limiting factor and i believe in this case i believe the facts are very much in the  it was sufficient that it was a now by any inherent danger of unfair prejudice your honor i believe it's from page ten to eleven of the district court's opinion and i apologize dealing with two different  prejudicial stated it states proving knowledge and intent is a critical in this matter where circumstantial evidence is necessary to prove crucial elements of the crime as it is here corroborating evidence becomes even more important and does a lot like judgeships is automatic roll right that he was asking you is this is this automatic that all prior distribution convictions are coming in no your honor i believe that limiting piece comes in in that nd step where you have to fit into a logical chain of again defendant fruit was still and in the at the case at that point he says that we can infer an intent to distribute when someone with knowledge of packaging and distribution techniques is found to be in possession of materials necessary for packaging to distribut again in this case there wasn't just the drugs there were also gloves there were also small bags items that were there for packaging we agree that such an inference is reasonable his reason but we've been reasonable before the rd circuit  you wouldn't have the gloves and the small bags and maybe maybe maybe this is an automatic corrector or in instances where it's already packaged for resale where you might have several bundles already in the defendant's pocket rather than a brick like to just briefly briefly address the sufficiency of the evidence argument you have a defendant in a rental car traveling from new york to maryland with over twenty thousand dollars worth of our consulate trunk the barcode to remove the air fresheners were clipped each bent there's absence of luggage anywhere in the vehicle d you have contradictory statements between mr frewen mr gardner were guarding where they're going to they're going to see how long they're going and most importantly this defendant specifically lie and we know that he specifically lied not  just about his prior criminal history but additionally the government brought a witness in from the state of new york testified the defendant did not have a child custody hearing at any point or the defendant had told trooper ramirez during that stop  have to be back to new york for a child custody you your honor i think mr ford offered the court just one fact that your honors have not identified known to the trooper as of what we've said is the rodriguez moment and that was that my client leaned back slightly when the trooper pulled alongside before pulling over the car troopers never claimed it was an extraordinarily suspicious gesture and surely it st of all in big you is whether he's even trying to hide himself at all but mentioned earlier that the trooper disclaimed that that was reasonable suspicion at page one hundred and ninety three of our appendix and enterprise rent a car representative for the defense actually call because planes go missing all the time so you can't really assume a car is missing at that means the present occupant removed it and what that means is air fresheners and that's just it's too innocuous this court has said quoting the supreme court that the facts cannot take into large a presumably anything category of passengers to create reasonable suspicion so clearly the air fresheners alone isn't going to cut it but i certainly agree that you seem to be doing a slice and dice about the fit here you are less to look at everything individually and say these things individually don't equal reason why article suspicion but we can't do that we're going to look at the totality yes and i but in the totality you're saying that some of these other items don't are if anything grains of sand on the balance you saying leaning back is at most a grain of sand on the balance for totality you're saying that removal barcode is at most a grain of sand on the balance and so where what gives the weight to the balance if it weighs enough i don't know suspicion is the presence of not one but four air fresheners in a rental car that is that and then the question is is that reads what it will suspicion with all the other facts or not that's that seem quite right if it is then subsequent lines of questions are permitted because there terry permitted if not then you've got but regas to contend with and maybe that moment isn't is late is your opposing counsel  yeah i mean i think the way your honor just put it that these are grains of sand on the balance is well put and so i do believe the court has to resolve whether there was reasonable articulable suspicion and it must conclude there was not even trigger mirrors never testified outright that he thought he had a reasonable suspicion and as of seven and a half minutes into the stop he testified he thought he had reasonable suspicion when my colleagues and thirty seven minutes or thirty five minutes into the stop so this court shouldn't be the st to conclude that air fresheners along with these truly as i challenge you to look at what the district court knew about two thousand and seven new york city can drug addiction that's it's in the it's in the motion eliminate that the prosecution filed and i submit to you it's very limited  limited information other than just the fact that the guy was convicted in new york city so you don't get the benefit of trying to expound on that to say well he knew about how to package you know how to cook powder and to crack he knew how the baggies go he knew he knew how to use the gloves you know all these things that's what mr ford trying to tell you that this conviction meant but where do you get that knowledge it certainly isn't in the one line that that he was convicted that was submitted within the motion  so how do you get to jump to that those conclusions can't you you can go the other way too and say well hey someone gave them this these actors or rocks to go on the corner and swap them out and hand and seals he may not know anything about how to package all these drugs in different ways and manners and make money or how were they come from isn't that one of the hurdles to sept to analysis in this specific case matters because it wasn't just drugs or booze drugs clubs and small banks that's what was found in the trunk of the car but how does my client have knowledge of that as a passenger there's no evidence there is no evidence that he was ever in the trunk that he ever had any knowledge that that was back there you know there's actually compartment it's a circumstantial case it's only it's only and then when you add this conviction to it until or so you go look at it and if the judge himself in his opinion saying it's highly prejudicial and it is highly prejudicial what's highly probative what's highly probative that gets you through knowledge and intent and it's not there and i ask you to send it back let's do it