morning now procedure on you may please honorable judges of the eighth circuit mr griese may it please the court your honors if i may i'd like to focus our short amount of time this morning on a couple of fourth amendment issues first and foremost i know there are several indicated in the briefing of the parties the pat down as to whether or not that consent was actually given and if so to the extent that it was voluntary then if we have time to get to the expansion of the scope of the original purpose of the stop as well as the role enhanced but there was applied under three v one point one at time of sentencing as the government notes in its briefing is that china's case is also cited in the appellant's brief there are a number of factors to look to  as to whether or not first of all or well i guess what i'd like to step back and talk about the facts of this case has to apply as to whether or not consent was actually given if you look at the record in this case particularly the testimony that was provided your honor i'm always prepared to educate myself as well however i i do think it's i do think it's plain air i think the fact of the matter is that someone putting their hands up who clearly in  questions that he answered on my cross examination he acknowledged that english was not mr espinosa is primary language the fact of the matter is that espinosa subsequent to the pat down at that point in time  was given the bilingual miranda rights card and if you'll notice none of the child as opinion this this court has discussed you know the issue of consent and the miranda rights being advised in this case the miranda rights were provided to the defendant's subsequent to what was inferred as his consent so i think that that tends to negate what his knowledge was prior to allegedly providing consent in other important that the opinion is is whether or not that consent was actually voluntary and the fourth factor in the five factors set forth in china says whether the person consented after being informed of the right to withhold consent in this case he was handed a spanish consent to do what a lot of things the consent can and i had him down well he has put the chinas the china is factor doesn't apply here because this was not a situation where miranda was human in play at the time of the challenge of consent well the pen down is for safety purposes before someone gets in in a police patrol car for what is likely to be routine post traffic stop question right i respectfully disagree with that analysis i think to the extent that terry would come into play as to whether officer safety was an issue for the pat down i believe that this pat down was not a terry pat down this was a routine he refuses to be pinned down and then you get in the question of whether he has sufficient suspicion to do it in voluntarily but to request someone to request a pat down before someone gets in your patrol car is is it's still a consensual encounter if there's consent it's like the person stopped on a street who says you know i'll talk to you as opposed  to no i'm going to walk away and i don't think that that consent here was i don't think that he did consent now do you say that the officer commanded him to do things or do you say the officer requested as though he was seeking consent and it's just that the consent was not voluntary those are two different there are two different things i think first which is that which i think it's both well it can't be both because either the officer asked him in the form of a request or he commanded him to do something well unfortunately your honor the day this happened officer boulder's video camera mysteriously didn't work so he had to testify what happened right in judge brisker had to make a finding that is correct  and my recalling correctly judge christer found as a factual matter that it was an ask it was a request and i think that's where you were that's clearly erroneous in that he was ordered to do these things i do because how do we get to that finding would have to be based on disbelieving boulder or what else is the i think you just look at you look at you apply a commonsense analysis in saying that he says he followed my directions accompanied by hand gestures i  his this was his testimony i inferred his consent down because his hands were in the air and that's what that's where he gets the consent from is that he puts his hands in the air and then when he says things to him in an english language a defendant who boulder also admitted english was not the primary language of that he seems to go along with him when his directions are accompanied by hand gestures i think giving someone hand gestures is tantamount to commanding them to do something you think the hands in the air of saying don't touch me who knows what it means it's submissive gets in the car well he he gives him directions where to place his hands he's a company thin again unfortunately and i i have no idea why the video doesn't get turned on something that's available in every case so i with that your honor i reserve the balance of my time  please the court counsel i think your honor almost from the very beginning in fact from the very beginning of this particular encounter the officer and mr espinosa were communicating effectively in english it was in fact mr espinosa who first flagged the officer down indicating that he was looking for directions where to go pay his traffic tickets and fines and having noticed the fact that there was no front license plate and the fact that one of the tail lights was out the officer stopped and engaged in contact with mr espinosa from that point he asked him for the officer asked mistrust but most of for his license registration proof insurance mr espinosa provided exactly what he asked for would you mind putting your hands on the car sort of thing absolutely and i think obviously just griffin was in the best position to evaluate the facts as they were being testified to by mr boulder and the totality was that this was a completely consensual encounter requests of the officer every step of the way to really comply with the request or do you comply with the command and that's one thing i wondered about in reading judge grits his order because he uses the phrase the defending complied indicating that in fact they did exactly what was asked of them in this case he was asked to provide his license and registration go to the vehicle he was asked for permission to pat him down if you was going to just patted down he could have turned around and done so but instead  s permission to do so there was never any indication of a lack of consent in fact by his conduct in his behavior mr espinosa did exactly that he consented a little bit longer a little bit  pulled the pipe out of the pocket and placed it on the car so once again all along the way every at every point they are communicating effectively and because there is a fact of unification judge bri and correctly concluded that this was a voluntarily voluntary and consensual encounter and then from that point on mistrust when osa is under arrest and we're a completely different situation at that point  there is no expansion of the traffic stops searches incident to arrest occur in which some of the other evidence was located in the vehicle and from that point forward i don't believe there's any dispute about what happened there was valid consent here there is watts of evidence that in fact mr espinosa understood english understood what officer boulder was asking of him and he complied with regard to the other issues the record was not aware now whether the court whether the record reflects that i don't believe it does us or boulder was just a patrol officer by the facts that are presented in the in the at the suppression hearing was just a patrol officer who was patrolling that day and happened to come along when mr espinosa flagged him down asking for directions with regard to the other issues briefly that are that or have been presented for the court's review today  there is no abuse of discretion for judge the trial judge judge christer to deny either the motion for new trial or the the judgment of acquittal motion clearly there is significant evidence here of what mr espi was involved in doing there are multiple witnesses richard hole just one marino and brandy ventura who all testified that mr s but most of provided them with large quantities pound quantities in fact of methamphetamine over a period of time  in addition to that there was evidence that mr espinosa directed them to handle the money or the drug proceeds in various and specific ways which they did there is also direct evidence in the form of intercepted telephone calls or represented the grantor to the jury rather which indicated his involvement in the conspiracy so the court properly denied those motions at the time they were filed finally with regard to the sentencing issued by manager or supervisor is clearly supported by preponderance of the evidence in this case as i just indicated found that the trial evidence that mr espinosa directed individuals perform various acts as part of the conspiracy was sufficient to conclude that he was a manager or supervisor he directed mr hall to transport money drug proceeds in specific ways and then he directed m ensure lopez who didn't even know mr hall to go to his house and collect drug proceeds from him and then in various and specific ways transport those funds back to mexico the origin of the drugs and i believe his western union and also alternatively a mr whole said this is well mr i suppose spinoza's direction though proceeds as drug proceeds were actually deposited into bank accounts and so clearly those are the type of things that the courts generally consider in trying to make a determination about whether somebody is a manager or supervisor and the court did not error and correctly concluded that he was so those are the issues that are before the court today unless rooms thank you your honor and judge loken to respond to a specific inquiry as to whether or not officer boulder was aware of the overall scope of the whole drug conspiracy is being investigated on the date of the espinosa stop that we've talked about in my primary argument i believe the record actually in the suppression hearing transcript page thirty five line thirteen through twenty when asked on cross examination officer boulder up acknowledged  that he believed espinosa was part of a larger drug conspiracy when he pulled him over despite having no knowledge as to whether or not it's been knows it was under investigation at the time so i do believe that there is that does a couple of things that demonstrates that perhaps i think it demonstrates that stop was pretextual but it also calls into question the overall credibility of his art representations to the court during his testimony concerning both whether or not there was consent and then to the extent there was whether or not that was voluntary in regards to the communication in english again even the communication that was allegedly made the exchange of ideas between officer boulder and mr espinosa that communication was inferred and that infer was not a word that i use that was a word that officer bolger used i inferred his consent because he followed my directions his directions were stated in english but they were corroborated or backed up by his hand gestures so when his hands are in the air he says put your hands on the hood and then espinosa of me puts his hands on the hood do we know that he's doing that voluntarily i don't believe we do and unfortunately the individual who was in the best place to preserve the evidence for presentation to the court failed to do so in some regard whether it was intentional it was deliberate whether it was unintentional we had faulty equipment that day we don't know but we don't have the evidence necessary to really make that conclusion i think what is important in this case again is that the only time that spanish language was definitively used with mr  who the officer acknowledged was operating in a life where his primary language was spanish the only time that the spanish language was actually used with espinosa was a presentation of the miranda rights card which was done subsequent to the pat down and then subsequently the record also shows espinosa was taken to police headquarters and he was interviewed with the assistance of a spanish speaking interpreter that calls into direct question as to whether or not there was or understanding of ideas between the officer in the different on the roadside when you know a half an hour hour later we have a conversation with him where we talk about his involvement the whole drug conspiracy but that's done entirely in the spanish language so i think if you examine the child is factors if you do believe there was consent which i don't believe there was but if the court makes that finding clearly there is sufficient record to support that any alleged consent was not voluntary without i