as for argument is united states versus easily some time for a puddle this encounter between special agent j theory and defendant nicole easley there is not one of the hallmarks of the seizure there was no application of force no any of these features was consensual and yet the district court here are relying on four factors that were either insufficient or improper concluded that defendant had been seized and suppressed the evidence against her as a result circumstances than would the prototypical reasonable person who the district court understood to be modeled on a wealthy white male but that approach doesn't square with the objective seizure analysis of the fourth amendment which  which employs a test that by definition excludes a defendant's particular traits and characteristics and perceptions that objective test ask in this context whether police conduct would have communicated to a reasonable person that they were not free to leave or terminate the encounter or decline the interaction with any other passenger taken from the bus no other passenger w to step off the bus to speak to the agents know of but the supreme court has helped that asking a person to step aside to speak is is kind of classic consensual encounter so i don't believe the fact that usually was asked to step off the bus conversed this consensual encounter into a seizure we've had a lot of bust cases so what is your best bus case that tells us what you just  leave the area where they were to step aside to talk to them and the court found that factor did not convert the encounter into a chair here in a public space in an airport aisle i mean you're not on the plane you're milling around and they take you aside and talk to you in a room here here on the bus that different no i don't think that it is different and when easily was on the bus she was in a public place when she was standing just off the bus in a busy bus station she was still in a public place the case is no different from taking someone out of the car well he or she was not commanded to leave the bus isn't per if she would step aside to step off the bus so that they could talk further and then he said can we step over here to get away from this noise nothing in his tone of voice is commanding her to leave the bus and i hope that the court doesn't listen to the recording yet it does so because there's nothing authoritative in the way that he was talking to her he made sure that she knew that she wasn't being hauled off the bus with all of her stuff never to return you know he told her that it was ok if she would leave some of her her stuff behind it clearly communicating that she's not being arrested right here in because he was her bus ticket taken from her and kept no at that time it wasn't was never taken from her and have agent kerry did request to inspect it a bit then he did that was after she was removed from the bus yet after she left the bus he did ask if he could see her ticket again and then he examined it again and then returned it to  and the district court found that he did so promptly that there was no pro longer attention of her and he returned to her before he asked her is that your luggage yes he did it had been returned by that point  certainly and returning to the factor of race the objective test calls for a consistent application regardless of the particular individuals and as of the actions of the police and accordingly this court on balance in the little case  claimed any approach across the board categorization of groups of travelers and rejected a rule that would hold for instance that all minorities are more vulnerable to coercion than the tenth circuit and the supreme court have also both recognize that a person's attitude toward law enforcement shouldn't be irrelevant to the seizure question for instance in yarbrough the supreme court said that even if a particular defendant history with law enforcement is known the effect of that history on the person is not known and still speculative cycle to of if that is true for an individual person whose history is known and it's doubly true for a large group of people precedent the approach that district court adopted is unworkable the fourth amendment objective test is designed to allow officers to know in advance if their conduct violating the fourth amendment and what the district  and then from that must determine what attitude toward law enforcement applies to a person of that particular perceived race it is not clear how they just how how an officer can do that because people of color are not much in this group with a single attitude toward law enforcement some racial groups a grant to consent to search higher rates than other things which is not on this record how uniform is that you have to be before it applies to the group as a whole and what if there are differences between groups what if there are differences in groups from different geographic regions gender and there are a whole different set of factors that could affect a particular category of people's view towards law enforcement and then even supposing that you could determine what you applied to this broad group of officers then tasked with assessing the impact of that attitude in the particular circumstances so here at a crowded bus in the middle of the day off there have to ask whether that view toward law enforcement has any particular forth in a situation like this where there are other people around that may grant some comfort in that situation and then the officer has got to determine what to do with that impression and there's very little that agent perry could have done here to improve the consensual nature of the encounter on this bu he treated everyone with respect he didn't engage in any coercive conduct and so he's left with no way to have a consensual encounter with miss lethally solely because of her race i'd like to touch quickly on the other factors that the district court relied on to determine that this encounter constitutes a seizure the district court looked first at the consent that other passengers on the bus had given inferred that that meant that agent perry must have been doing something that was coercing these people into granting consent to speak to him and consent to search i thought i thought the theory there of the district court was pursuing that she reasonable person takes from the conduct of the officer and the test phrases phrases the standard is whether the police conduct would convey a reasonable person they are not rea the encounter and so even if you may want to cooperate with police because everybody else is and you don't want to stand out that's not something that the police are doing to increase the course of  supreme court rejected a very similar inference that because other people were cooperating this person would be quercetin into doing so to the court so people cooperate for a number of reasons other than the  enforcement and the inference simply can't be drawn people perry is effective not because he is coercing the other passengers but because he is so nice and the considered that agent perry made statements to other passengers about being on the bus for security purposes and the district court considered these statements to be misleading but in context they are not misleading because agent perry every time he asked for consent to search asked may i mean a search for contraband and so no one could have been misled into thinking he was not looking for contraband when he performs the search also can draw a clear line between searching for evidence of drug trafficking and security those those two do have a relationship so in context the statements were not misleading but even if you consider them to have been a form of or peruse implemented to increase cooperation with agents requests there is nothing coercive about those statements he's not saying hey i think there's a bomb on the bus you've got to let me  or else you're going to be in some sort of physical danger there's no particular relationship between a person's feeling of freedom to decline a request when it's fort contraband versus when it  is for security of ursus when it's for illegal in our products even if this is considered a ruse there's nothing coercive about it and then finally the district court considered the lack of advisement of rights this court has held that that factor should be entitled to a limited way in the supreme court has said that it's not a requirement can form a person who will and so without any other valid factors there is nothing that can support the district district court conclusion of her i'd like to reserve the rest of my time although the court relied on for specific factors and even though we cited more than ten in our brief there is one overriding undisputed factor which is sufficient by itself to sustain the district court's decision when the clock struck eleven fifteen am on march tenth twenty sixteen and the eastbound bus did not depart the albuquerque bus station because agents were pursuing their suspicions less investigation lee and every other passenger on that bus was detained in violation of the fourth amendment the district court will live appropriately her be one of the only first times at the greyhound bus left on time and you know it is not a problem if the government can point in the records of the bus did not leave on time because of a problem with the bus no i mean if the bus driver was travelling smoke or whatever and i sure would have pointed that out if i was a government it sure would have been important because when mrs lee took the stand and sent pointed out with documentary evidence that she sent a text at eleven twenty four but he prevented that bus from departing while he sang to mr easily come here over here move here leave that to it's one thing to delays departure of the bus for suspicious of investigation but when you a part of the bus and focus on one passenger the only black passenger on that bus when you subject a passenger to a level of questioning immediately we don't know that she was your only passenger you know i do  front page seventy eight of the transcript i asked is it perry do you remember if there are any other black people members says i don't remember now it may be that he he is i don't remember was i don't remember there may have ten which he tried to explain later but i read that and i think the district court probably found that he does not remember that there were any other black passengers on that bus and that's page seventy eight of the transcript of the the hearing testimony and the other thing that is important to bear her that others would not have and the only way i can answer that question just briscoe is it might have but we don't know how many other passengers had two tickets purchased at the same time we don't know but the mothers were traveling with their kind of questioning that he had for the got german travelling from bakersfield to oklahoma and i think that's what undermining the court's awareness an assessment of the totality of the circumstances in this  under the district court analysis this passenger was his when she was already to get off the bus and i think in terms of your review of this record you can sustain the decision of the district court on any one of the sixteen factors that we mentioned but when you look at the undisputed evidence that bus was posed as a part of eleven fifteen by eleven twenty four he had even asked mrs lee to get off the bus and that after he asked her to get off the bus the only objective evidence in the record for why that bus did not leave was because that agent was pursuing his suspension can you relate that factor with him today to be saying most of martin factor two to the issue which is whether a reasonable person would have felt free to free to get on a bus or free to leave and i think it's i think the court in paris which we cited in our brief said it best an officer evidence that this that the bus driver had collected all the tickets that he was ready to go and yet the past is not a part and there's only one reason from the record why the bus is not part and that's because agent perry before the bus the passengers we boarded the bus had gone into the luggage hold and observed and i think the district court used the court observe the luggage that is a concern that practitioners in our district have had for some time  but then again the levittown case which you cited and i've read the district of columbia decision a reasonable person can feel free to walk away when she knows her means of getting home is to be held over until the officers are finished with their business i don't think you can look at this record and any other conclusion that misty's way home was impeded by the agent's actions that everybody was ready to go people are saying was a hold up what's the hol no one's saying oh it's because we have a few problem or it's because i need to get better directions it's because an asian saying i need you to step off the bus you can leave apogee you can take that and then when she's awesome bu come over here put your things down there some some people are picky about their stuff so i'm to stuff them down here and hope that you're not yourself that's why we have to tell your circumstances and i think the government's probably in plainly recognized in this day and age with names like tamir rice and michael brown and every corner crossing our minds in our consciousness for disparate level of treatment of people of color by law enforcement it out of proportion in the way that the district court relied on it as a target the circumstance because it's so obvious based on all of our experiences you know you're honest if you've ever been subjected to a judge in addiction stop you can in determining whether she could feel free to assert her constitutional rights and decline to consent to an encounter with officer perry as a primary counsel has already addressed in this case there are many factors that indicate why ms easley was not able to assert her constitutional rights and declined to answer after perry's questions my assertion to this court is merely that race could be one of those factors it could be properly considered by the district court and the district were properly did here primary counsel mention that mrs lee was the only african american passenger on this bus she was subjected to a heightened level of questioning based on the supreme court's precedent in mendenhall her race and her reaction to that question factor in the tally of the circumstances test that they stablished here all of the circumstances indicate that ms easley was not able to decline consent to the search by officer perry other passengers on the bus consent nine and she was not able to deny and was not able to not give consent and the officer would have known that how do we get to the objective test from her view of life as it is you know under the tally of the circumstances test inherently clues the factors that would implicate miss easley's view of the world as she is encountering situated and in that inquiry the district court should look at all of the factors that would influence whether someone is similarly situated including their race we know who has the burden in this case does the government have the burden to show she consented or didn't consent or does the defense have the burden to say she was or was not ceased you know i believe that the defense has the burden to establish that her consent was was invalid based standard all of the factors should be considered when the district looks that is his that is presented before it the district court has the discretion to walk that line and to determine whether based on the factors that are present in this case a reasonable person who experienced the same factors the same circumstances and had the same view of the world the lens through which they experience an encounter with the police would have been able to assert their constitutional right to live district court didn't just the fact that the district court applied here essential she applied it to every case and every every person of color when they're challenging whether it was consensual and she said she heard the people of color are conditioned to presume that asserting their constitutional rights  a police encounter will increase their likelihood of physical work rest that would apply in every single case where we have an individual color woman yes joe i mean you're talking about the totality of the circumstance in this case she saying i'm going to categorically apply this pro choice based on race in every case a person of color it's making an argument about consent and what authority would we have to firm that you know i before it in the circumstances that are before it in any increase it's properly left to the district court to determine that race was a relevant factor but that's different than saying i'm going to categorically say that a person of color i'm going to  der a person of color and the fact that they are presumed to act in a particular way because she's she's applying this in any case and that's not what mendenhall said in fact it's kind of the opposite of what you're saying respectfully your honor i disagree that that's contrary to the holding of mendenhall mention holmes says that all of the circumstances should be considered when considering all of those circumstances a person's age a person's gender a person's level of educated but that's consent men the consent case yes your honor first we have to get through the door called seizure your honor i my so so does the court have to again responding and following up on judgment this question is this something that the court must always consider and we must always consider when looking at whether or not a person is seized whether they can accept or size i don't know it's got you used the feeling of whether she was able to decline that that encounter with the police is relevant and whether how would the officer know that based on considering the to tell of the of the circumstances your honor the district court already has to consider those factors and the factors that mendenhall decision in the case to police officers that they also need to consider the hell of the of the circumstances for all of those reasons i respectfully request that this court a from the district with decision and find that race can be a relevant factor thank like to address the argument that even without the improper factors that the district court relied upon that there are still enough to support the district court's conclusion and i'd like to return to to drayton this case is similar in a number of respects to drayton i will acknowledge of course that in drayton the defendant there was not asked to step off the bus to talk to the officers but also in drayton we have the arrest of the defendant's companion right there hauled off the bus then officers continue to talk to the defendant in three ten and that was not held to convert the encounter into a seizure so we don't have one particular factor in draining or britain doesn't have one of the factors we have here but those are i would say roughly equivalent in what they might convey to a reasonable person in fact i think when you consider that agent perry with talking to every single person on that bus and that he spent eight minutes talking to a previous passenger before he talked to defendant easley she would not have felt that being asked to step off the bus to continue the conversation was a particular aggressive focus on her especially when you consider the tone the polite and courteous tone agent here used throughout so i don't think told she was there looking for contraband and they pulled her off the bus and no one else that is particularized well i suppose it's always particularize when officer is talking to you but with regard to them looking for contraband the reason he treated her differently than anyone else that he spoke to on the bus that's particularized well but he also spoke to another passenger for nearly three times as long as he pulled her off the bus he asked her to step off the bus know it would be it would be different if you had said you've got to get up and come with me right now but he didn't he asked permission and she agreed to go with him and asking to move to a different location has been held under the case law not to constitute a seizure i see that my time has expired thank you thank you thank you