may it please the court kitty shepherd for mr vernon nelson the primary issue in this case is whether it be or patrol agents have reasonable suspicion to staff mr nelson's tractor trailer about six miles north of the fixed immigration checkpoint and i thirty five outside of radio texas the answer is no because this was a roving patrol stop and be agents lacked reasonable suspicion under the al was unusual given what he thought he might have seen inside the three alert but overall the agents testimony indicated that he was very unsure about what he saw he was adamant that he didn't know for sure what do you see he thought it might contain bundles what he thought it might not contain what noles he testified about how in his experience there isn't any standard size for pellets sometimes there are larger sometimes they're smaller he about there might be one or two pellets but he just really wasn't sure he also testified about how the scans aren't perfect they're not exact and he testified about his experience when he being he'd been wrong in the past he gave an x specific the checkpoint to see if there was nothing inside the trailer so overall his testimony indicates that he had a hunch but he didn't have a reasonable suspicion because he just really wasn't sure what he saw and suspicion in this case there's nothing to indicate that when mr nelson went through the checkpoint he was nervous in any way he didn't have any doubts about his citizenship he consented to the scan the agent testified about how the out of state registration was typical there is nothing unusual about that there's nothing unusual of out a single in and driving a tractor trailer on i thirty two dollars new radio there this in happened during a shift change and there was no evidence that when b agents pursued him and i feared that he drove erratic we're acting suspiciously in any way also there was an evidence supporting reasonable suspicion on three other factors the characteristics of the area or the usual traffic patterns or any information about recent evil activity undergo any point say be it does have to be evidence of recent legal activity in the area case that cases nine years old at this point and also in that case the agent himself testified that suppression hearing about recent legal activity in the area which were missing from this case the agents testimony and also a comparison to supreme court precedent in this case as i mentioned mr nelson didn't go through the checkpoint and said he was a citizen we asked he was asked to consent to a scan and he did and then he was allowed to leave the checkpoint at any indication from the agents if they wanted to stop and then two agents decided that they didn't want to pursue him so they got in their separate twelve year olds and threw down the highway to get him and once they caught up with him they activated their emergency lights and moved her on the side of the road so under those for you we put no way or the fact that the secondary obstruction it's important under martnez fuerte to consider it from the perspective of the driver so american has plenty of evidence from where differentiated extensively between the far less intrusive checkpoint stops being stopped which makes it more reassuring for the drivers and the court talked about how the hallmarks of the checkpoint make the checkpoint experience much less frightening and what's annoying and what's surprising to drivers but in this case because mr nelson left the checkpoint without any indication that they want to convey a stop and was eventually stopped six miles down the road the roadside stopped is lacking those hallmarks of a child or so from his perspective and under information about him from the truck from his perspective he was on his way and you know what didn't happen in the context of the checkpoint anymore and i would also point out that in britain only ponce itself there the checkpoint was shut down because of inclement weather and the supreme court didn't treat that stuff as a grooving to fool the agents spotted the driver near the permanent checkpoint to pull them over because they even have the typical checkpoint experience that was a roving fall in that case as well just like in this case similar robber had done you turn before the checkpoint and in that case this court actually did apply the burden on you own state actors be drivers had approached in about thirty thousand three hundred and fifty yards away from the checkpoint video that you turn been this particular be all that they're interested in originated its journey at the border but in this case we don't have any particular evidence about mr nelson's tractor trailer we just have the general information it would apply to any wise based on a numerical distance from the border so in this case because i fear the barrier is a direct route out of radio the populous city to places like san antonio and dallas the court should not waive the proximity factor in favor of reasonable suspicion in this case checkpoint which i believe is at mile marker twenty nine outside of the radio on i thirty five and then the agents were able to catch up to the pressure trailer about six miles later around mile marker thirty five dollars or thirty six so it is close to the border as far and if being you know nearly raido and near the border it's in terms of miracle distance but this court has said that just the number is not enough because that would subject all of the regular legitimate traffic in the border area to suspicion when there's plenty of legitimate traffic that would for example take i thirty five to san antonio and dallas so because there wasn't anything  particular about this case for example in this for us cardona case there they had a tractor and there was a tractor trailer about forty to fifty miles from the border and it was d i who rode that who was serviced by ranch roads and so in that case i'm sorry it wasn't actually a tractor trailer it was a mid sized passenger car that was suspicious because it's ninety percent hunting jeeps and ranching trucks and so that was the particular thirty five if you're also a murderer suggested that we should look at this from the perception of the person being arrested that has been the suggestion in terms of again of the time lapse to the border much less than fifty miles you know very remote area and then based on the time line they knew they had reason to believe that it was the same beautiful fish you have several miles many of miles later but that was something particular to that  would subject every driver on the border even to populous areas like the radio to that suspicion and i see that my time has expired but i have and yes the shipper your time has expired but you have saved time for about thank you ms wilson and therefore either an investigatory stop or or a referral to secondary was justified this was more than a hunch reasonable suspicion was established at the checkpoint during this game and the agent initially thought he saw a small number of bundles that could have been tarps or equipment that everything was fine in his view until he saw the seal the cable seal at the back of the trailer and still as agent s us is inconsistent with homing personal equipment instead a seal is used to protect cargo and therefore that's where his suspicion was raised but due to the configuration of the checkpoint due to the construction he c through and because because agent stuff in there was unable to communicate that he needed to stop now isn't meaning they he was able to go forward and so then they chased him down the road six miles later i mean that's when they caught up with them six miles later so what happened there is the suspicion grew at the checkpoint and as i said before originally he thought that maybe he was trans because of the dolly and the small amount of bundles but only when they pulled him over to the suspicion grow up and that was based on the bill of lading and the bill of lading showed several inconsistency is that raise the suspicion said and he supposedly had five pallets of cereal which did not comport with what agent stop finger had seen on the scam and so nelson was given the option of consenting to a search of the trailer or getting a dog and he opted for the latter and that's what happened in relation to the roadside conversation so there was approximately five minutes he testified that they had to wait for the dog and both the magistrate judge and the district court judge here found that it was either an investigatory stop or that it was an extension of the secondary inspection secondary inspection the judges did not rely on going ponce as mr nelson says this was not a traditional roving patrols stop unlike many ponce the government here suspicion developed at the checkpoint where as are going they were pulled over simply because they were mexican so the facts are very different and as we know a traditional roving border patrol is you think of an agent or two sitting in the high rank sitting alongside the highway saying if any cars develop or things like that and under big noni no single factor is determinative and you can't employ a dividing conquer analysis test instead it's based on the of the circumstances and even if you were to apply bridge known here you have several factors you have as we've discussed the twenty nine miles from the border the areas well known for trafficking  judge may have cited a couple cases one of which as i recall was older these are judges that have been sitting down there and laredo for a while they could have just made the statement in their in their opinion and it would have been fine it would have been just common sense also here we have an air and agent who was very experienced agent stop finger had nine years all of which were spent at the rate of north checkpoint except for a two year detail to training and constitutional reasonable n'est doesn't depend on an agent's motivations instead you've simply cannot develop into the subjective intent so in this case whether this court wants to employ  amendment violation once again the totality of the circumstances controls and here are those proved that nelson wasn't under christo due interrogation and miranda did not apply the just a court had the benefit not magistrate for pointed out that questioning lasted just a little over two minutes and applying that right factors the courts concluded that the stop was brief it was on the side of the road in plain view the questions were not accusatory the magistrate judge even found that it was cooperate nelson was not physically extract the excuse me restrained or even handcuffed and said he was leaning against one of the agents cars and the agents statements didn't suggest nelson would be automatically arrested even if somebody isn't free to leave it doesn't mean they're under arrest and agent stop finger testified that he didn't think he asked nelson about the anomalies in the back of the truck or the bill of lading and the video shows that that that conversation never occurred either and that's the magistrate court found that based on based on the video there were no further substantive questions were asked  between agent excuse me agents to offer guard to not tell him he was under arrest and in fact they weren't certain he was actually carrying something illegal another agent brought a steal another steal  found that he could be sent on his way the testimony doesn't bear out that if you must tell that she would be arrested but she was it was along the lines of nothing's found you can go on your way that's detained you definitely said that in the record there's no there's no dispute about that but that's not that that isn't the standard here instead the standard is the right factors and those are fact that he wasn't taken into a car by himself and handcuffed and questioned in there instead it was alongside the i thirty five jets mature question i was going to ask particular concept here well i looked and i looked and looked and i did not find this is a to me this is an outlier it's an unusual situation there are cases as misstep or just scots where people try to purposefully avoid the checkpoint one of those cases you know was i think human judging a bottom or on the panel and freeman where somebody turned on the road right before a checkpoint and the issue  whether they're boarding it or not we have the case that was mentioned where people turn around before the checkpoint i did not see any thing and i guess nobody else did here either where where there is construction and there's a there's thank you aaron just a couple of points one is just to be clear in that the information on the bill of lading is irrelevant to the court's reasonable suspicion and nonsense because the agents didn't have that information and til after they stopped rhone so as far as the kellogg's misspelling of the number of pallets that was not information that the agents at one deciding tunes also as far as smuggling route not just a court case from nine years ago that says that so in this case unfortunately for the government they did not provide at that and so the count in favor of reasonable suspicion on the record in this case