us on assignment for a few days and we're very appreciative thankful that she's helping us thank you happy to be here so our st case on the calendar is williams versus gentry and that's been submitted on the briefs and the st case up for argument is united states versus iris rodriguez  defendant validly consented to the pat down search of her body that decision was in error this court should overturn the district court's order and find that the defendant's consent was voluntary the district court wrongly decided that the consent in this case was involuntary the magistrate the fact finder in this case made clear comprehensive factual findings those factual findings included st that the defendant verbal he consented to the search that the defendant never revoked that consent and that there was no evidence that the defendant was threatened coerced or her will over born those are factual findings made by the magistrate in the last paragraph of its of his r and r on those factual findings the district court's determination that the defendant's consent was involuntary it was clear the district court applied the wrong legal analysis in coming to this determination and did not adopt the factual findings and credibility determinations  so the district judge in footnote two of the order you know he he says he takes the facts and he acknowledges what his obligation is this court found that to be the case in united states versus hernandez akun at the examination of the examples that the government cited its brief of the two instances where it is clear that the district court is in fact rejecting those factual findings and credibility determinations clearly demonstrate that that rejection although it was implicit did occur it when i looked at this what struck me is it seemed like what the what the district court judge did was he adopted the central facts of the magistrate judge and then looked at similar case law and came to a different conclusion to whether that's wrong well your honor i respectfully disagree that that is what the district court did in this case other the district court did state that it was adopting the factual findings and credibility determinations there are two instances where the district court clearly did not do that the st was that the finding by the district court that there was not a nd consent or multiple consents in this case the district court relied on that in order to distinguish this case from pres the defendant was credible agents all saito specifically testified that she informed the defendant when they had entered the privacy shed that she was going to begin the concert i'm sorry she was going to begin the search and the defendant replied yes ok consented at this point but the district court rejects that wholeheartedly and that is a rejection of a factual finding and a credibility of terminations as to the credibility of agent sell saito by the district court and that was in error because the district court cannot do that without either a didn't without a due no evidentiary hearing in this case but i want to turn back to the st issue which is that the st issue that i'm with i wanted to discuss which is that the district court in addition to rejecting analysis but there are five factors that the right that the court in united states versus can see it castillo instructed should guide that analysis the st of those factors is whether or not the defendant when she gave consent was in custody the four subsequent factors include whether there were guns drawn whether miranda warnings were given whether the defendant was told she had a right not to consent and whether she was told a search warrant could be obtained in this case the district court improperly equated that st factor of whether the defendant was in custody with seizure and that is a problem because those seizure in custody are legally distinct concepts and this court has held in multiple cases that a stop at a checkpoint for a routine immigration inspection even a stop that involves a referral to secondary inspection is a seizure for purposes of the th amendment analysis it does not amount to custody absent additional facts that demonstrate that the defendant you  surrounding her consent are certainly relevant to that but the error here was not that the court considered that she was seized the error was that the court equated seizure with custody for purposes of that analysis and that was opinion what way in what sense did the court do that well the so that the five factor analysis the st factor is whether or not the defendant was in custody and going through those five factors the court said the defendant was seized and therefore that factor weighs against voluntary ness those are not the same thing but in addition that error was compounded at during in the rd factor of the analysis which is whether or not the defendant was read her miranda rights prior to giving consent there is ample cases also seem to recognize it's still a factory that can be recognized when there's been a seizure it can but again it shouldn't weigh against a finding of voluntariness and in that situation where the defendant was not in custody and the  surrounding the detention at the defendant in this case i think also very relevant to this analysis because the testimony by asians i'll say which was explicitly credited by the magistrate court in this case indicated that her interaction with the defendant prior to the defendant consenting to the search lasted approximately fifteen seconds the entire interaction during which time the magistrate found the defendant never revoked that consent lasted just a couple of minutes this was not a pro along search there were never any handcuffs on the defendant she was never threatened with the use of a weapon she was never told that she she was never there were no facts found by the magistrate that would indicate that her detention rose to the level of custody and so therefore those two factors that the district court found weighed against a finding of voluntariness should have weighed up on the other side of the scale i have one minute left your honour's i'd like to reserve my that's funny thank you of whether or not there is consent in this district largely governed by the five factor set out in party on soriano although those are not certainly exhaustive and of course it is the government's  burden to prove that consent was freely and voluntarily given and as the government has indicated the st factor has rich receive the the reduced amount of attention and i think appropriately that being whether ms rodriguez was in custody typical type of checkpoint case an individual drives up in his own vehicle is aslam immigration questions that arouses further inquiry and as a result of that the request to restraint and that's what happened in ortiz for is and what happened here both of which of course involved individuals on a shuttle bus who were removed from the shuttle bus and it or tease flora's the and i think i understand fully why what happened here does constitute custody and gates voluntariness it's important to look at the taliban at circumstances as we are directed to do by is rodriguez is a native born u s citizen traveling entirely within the united states when on this shuttle bus she comes to this checkpoint she is removed from the shuttle bus and is questioned about her immigration status all passengers are removed that yes yes you are and although she is of course not required to have identification as she didn't travel entirely within the united states she is able to produce a valid current driver's license and a valid current passport card the gold standard in immigration documentation she's told these aren't good enough this isn't you so here she is removed from the shuttle bus in the arizona desert either not permitted to get back on and travel on her way or she is in a position of having to inconvenience the entire dozen approximately people on the bus until she can satisfy immigration officials who are holding her identification documents as a background what we are also are facing is what she is facing is a situation in which this is far beyond an immigration check the agent at the suppression hearing it stated that she almost immediately thought that this individual might have been involved in criminal activity and just based on her demeanor before any search or request research thought she might be smuggling drugs so under these circumstances she's asked to consent to a search knowing that if she doesn't satisfy the immigration officials she does stranded in the arizona desert or she's inconveniencing the whole the whole  bus the court the district court could correctly concluded that this is not a voluntary consent now as of the st factor was she in custody the government references california versus beeler baylor i pod evident of the pronunciation there's interesting language in the in that opinion that states that the defendant is in custody if there's a formal significantly restraint on freedom of movement of the degree associated with a formal arrest and then goes on to cite the language miranda if that was my reference as she wasn't free to leave was she no she was not free to leave and even if she was to leave she could as a practical matter leave because she wasn't allowed back on the bus or if the bus left she would be stuck there in the in the desert the language of miranda talked about custodial interrogation meaning questioning after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way which he's clearly deprived of her action her freedom of action in a very significant way in but even if she were not in custody under the rule set out in ortiz florists she's at least at some sort of heightened level of a seizure that that triggers the requirement of miranda counsellor if you say that the district court concluded correctly that the consent was not voluntary doesn't that go against the magistrate's findings so wouldn't there be a hearing required now the district court no your honor the as as the court said in rabbits there is not a right to do novo hearing only a right to do novo determination now the government has said well and at the at the hearing at the suppression hearing there were significant differences between the government's agent and the defendant regarding what happened at the at the at the checkpoint obviously the defendant deny that she gave any sort of consent actually or coursed but the district court accepted all that what the district court did not accept was the legal conclusion that by saying yes ok that that constituted consent consent there is not for the for the magistrate to conclude as a legal matter but for the district judge to decide and it's certainly not for the agent to say consent was given because that requires the legal conclusion that what what ms rodriguez said constituted consent so the met the district judge is accepting what the magistrate found as to the statements including the credibility of of the agent in saying that ms rodriguez said yes ok but but concluded as a legal matter that did not consent constitute consent i mean it's not unlike if the warden is telling a condemned man we're going to proceed with the execution now and the and the prisoner says yes statements and footnote to that in effect he read he rejected the magistrate judge's credibility determinations are that the go back for just a new freshman hearing in front of the district court judge is that i read it i think the district court judge said he was adopting the minister judge's findings of fact and i just understood him to coming to a different conclusion yesterday after his review of the record yes  and that's why i don't believe there is a right to an already i mean the government thinks that that's not correct and what the government the district court in fact did was to reject certain findings or credibility of yes i'm just trying to figure out what what would do that it would we would say there would still not be a need for aged novo hearing evidentiary hearing i think the court could be instructed to review the record that's what he did he reviewed the record and came to a different conclusion yes and i think that's obviously why i believe that there is no need for the novo of an injury hearing his he can accept the facts and he let me ask one of the question if your time expires in your almost out of time its persuasive value but it's not binding authority so what do we do persuasive and the fact that the facts are so similar to those here and i would suggest in this case given the the other additional factors of the threat of a taser and the the other  is very little at this point and the reason for that is that there were not specific facts found even in the memorandum opinion that would explain the court's analysis in that case and that would allow this court to analogize this specific circumstance with that the facts that are recited in the district court order as the government noted it's free for drawn entirely from the parties briefing in that case those were not facts found by the th circuit and so we don't find facts anyway absolutely but they weren't so they looking for guidance and they do the they see a member dispose that is hopeful or helps give them guidance on how to resolve a particular case you know they'll look to it just as the parties do and this particular judge thought it was very analogous and dug deep there's no question about that he obtained the briefs and he read the briefs and tried to figure out what was going on because the cases are at least on the surface  factual and i think that your last comment your honor is what's important is on the surface but the fact is that it's a memorandum opinion that doesn't have a recitation of the facts that would allow the  think that the court has focused today on what the government also feels is the most important thing in this case in which the court in u s versus tom's noted which is that in the business of judging there is nothing more important than getting the facts right and the factual findings by credible and your honors i am actually quoting from the report and recommendation of the magistrate in this case the court found that agency testimony that she sought and obtain the defendant's consent prior to the search was credible and the court found that there was no evidence that defendant rodriguez was threatened coerced or her will ever born moreover the court found the defendant rodriguez did not revoke her consent at any time during her interactions with agents all said oh ok we get that we read that ok and quickly on the remedy your honor i think that there was a legal error as here as as the government has noted and the court can overturn that apply the correct legal standard on the factual record that exists before it and find this consent was voluntary in the alternative if the court is not inclined to do that the appropriate remedy would be to overturn the district court's order on the motion to suppress and remand for it to know that hearing ok thank you thank you counsel the matter submitted