patrol to the left of him border patrol in front of him four to patrol on top of him he was going to the clutches of the border patrol and could not become free to mix within the general population are you asking the school extend the rule that exists in the circuit already or do you think the rule that we have covers your situation i'm not asking the court to extend the official restraint doctrine because it's not necessary in this case the ninth circuit has made many fine distinctions in this area of the law sometimes finding there is a fiscal restraint sometimes finding that is not based on very fine distinctions and this but the the ultimate question is whether or not the person  alert and he responded to that alert he also indicated through his testimony in the short bench trial that he responded to the alert and that the alert went out on the radio to everyone in his team he was  he crossed the border into the country that's and that's something we don't know if he was or not because there's no evidence that he was there is no evidence that he his movements were controlled and that he was completely surrounded by border patrol and the problem in the first issue is that the government has the burden of showing lack of official restraint so the second problem in this case which distinguishes it from very low class is that it district court in this best trial would not allow me to ask questions percipient witness who was out there in the field the white person that the government called the government chose to bring one person it wasn't until trial that we found out that there was a high school cooperator who could see mr riehl back in court and may have seen him come that from where he arrested mr betancourt the nightscope operator could see him whether they were looking at him isn't in the record but again the district court question after question after question would not allow me to ask questions to show control and found they were all irrelevant and i believe i was confused about the official restraint doctrine and didn't think it applied in the founding case and that's on the record twice when i tried to ask about the secondary fence the district court sustained objections on the elements and found that that part of control which was finally mr murray back in court right to the night scope operator and the bright lights were all irrelevant i tried to ask if there were other agents out there on foot we were able to determine through my questioning that there was an agent to the eastern nation to the west the reason why all of this was not discovered this is typical the government will only guess that's the discovery of the agents that were out there and this is it wasn't like it was a surprise this is a short bench trial the government knew from their own reports that he was there he was arrested around actually less than two hundred yards north of the border that there was a seismic sensor alert and so they knew that they would have to show a lack of official restraint and they failed to do so in this case and i did try to ask most importantly i tried to person is for example in los angeles it can be inferred and the government doesn't have to present any evidence of fiscal restraint but when it's near the border it cannot be inferred that the person entered from fish or strain especially in this area right that continue surveillance isn't the only way for the government to control someone because the ultimate question is whether or not you're in their clutches whether or not you're free to or whether or not you're free to go within the population and ins of all members of this court found that there was official restraint even though the person was not under constant constant surveillance someone driving from alaska from canada i think into alaska they had lost sight of that person and  then they don't get a deportation proceedings and so that means that they're not subject to criminal prosecution right back that term to definition of entry is exactly the same for thirteen twenty six as it was for all the immigration cases so this has a long history from government easily could have charged mr memory of going to court with attempted entry instead they chose to charge him with found it and you cannot it is a legal fiction that you cannot be found even though you're physically present in the united states you're not found here because you haven't entered if you're if you're not free from official restraints so if they're watching you or or as in this case if you're within the government's clutches border patrol to the right border patrol to the last border patrol in front of him border patrol quickly responding the sensor he had no possibility of entering the united states and that most fundamental question when i tried to ask whether or not the next pope operators could have apprehended him objection sustained and the government should have asked that question and and brought the nightscope operator to to say no i couldn't see him i didn't see him i wasn't looking that was logical is to presume that he was looking at the border that's what we're protecting is the border to keep people from coming in  absolutely right and i tell you this case really comes down to the facts and every single factual concern that defense counsel just raised in his first presentation is actually met in the record broader asked about cameras this twenty seven but in that area there was no cameras we know there were no cameras it whiskey not whiskey eight or ten maybe not not if even not your honor i look to the next question because the question that the defense claims that wasn't able to physical agility and evading fixed physical barriers and cops she century next whether or not he was ultimately able to run the obstacle course and reach the streets of san ysidro is beside the point now being you know having a not necessarily true it's not supported by the record and it also makes sense i mean if the agents if they're all looking at this the one with the borders there has to be somebody who looks to see the ones who make it through and you know they are also testify that once people get down into the t water valley it's often hard to see them that's why it would make sense for infrared scope operator then to be a second line of defense but we can make all the speculation what about what the policy rationale whether it's a good idea to be pointed one direction or the other back to the matter is this record an excerpt of record twenty six specifically says the scope truck you must question the scope truck is set up to watch the valley below and look for it has thermal scopes answer yes sir and again out the beginning of my presentation it's just when he was that there were no cameras in this area so to be precluded from asking about sex or dispatch again that's irrelevant to the issues here and finally the defense complains that they weren't able to ask about other agents in the number nor the fall of question so i don't understand what it was the defense was not able to ask about the other officers on foot in the defense council also pointed out that he wasn't able to ask about what about the people to the north of the defendant who was working  fiscal restraint are you in the constant visual surveillance to be able to not be able to ask about officers who are situated past the point of arrest again i think the trial prosecutor did a good job of reporting that evidence because it's not re that chill below where you found mystery about in court objection speculation but i would like elation because i asked you earlier what direction it was pointed and you said there was no information on that but it clearly says the s set up to watch the valley below right that's why i think that line that's one thing that it can do well you want it speculation could it see this way that it wasn't that's why it's irrelevant i respectfully disagree on the scope tried to set up to watch the valley go and look for they would look and when they look at the valley they look at the value when someone has already made it by the line of defense that's when they look at that you want to river valley what they're doing is looking north including that hill where mr maria betancourt was that's where they're looking  they get a car on their radio so to look for people who've made it into the general population which is the question i was getting into is that he had made it into the tier one of a valley where he would have been free to mix with the general population and as far as the government's argument finally that official restraint requires constant surveillance taking to its ultimate experience that would mean it's if an officer blinks that you you're not under official restraint and this court's decisions and