the district court errors when it implements obliquely and exclusively focused on the defendant's age and array and disregarded the seven non exclusive factors test used by this court to determine if in fact a seizure actually occurred looking at the district court's use of race this was the district court specifically noted that it took into consideration the defendant was a young man of tenth circuit recently addressed this very issue in the easily case which was decided on december twenty second this involved a greyhound interdiction bus case where the district court found that the defendant's race was a relevant factor the tenth circuit held that it was inappropriate to consider subjective characteristics like race as part of the court's reasonable person analysis for determining whether an individual it's not practical and there's no uniform way to apply a reasonable person tests that accounts for racial differences in places and it in this place is an unrealistic expectation on police in addition the court unduely and improperly focused on the defendant's age contrary to the district court's repeated reference to the defendant as a boy twenty seven times in fact the defendant was eighteen he was an adult at the time he legally possessed a firearm hearing at a subsequent detention hearing the court noted at the time that it wrote the opinion that the parties presented no direct evidence of the defendant's age but it was undisputed that he was high school age and we agree with that but it's also notable to look at what's not on the record in this case under the juvenile justice and do believe quincy protection act eighteen u s c fifty thirty one that applies if the defendant is not eighteen at the time  noted cases involving minors the fact that the district court referred to the defendant as a boy twenty seven times and adolescent young high school age three times also the court the court also said recognizing that minors often lack the experience perspective and judgment to recognize and avoid choices that can be detrimental to them these are direct quotes from the judge where he is stating stating referring to a minor this is troubling to the government because the defendant in fact was not a minor despite the fact that the court referred to him as a boy and twice as a minor in the opinion and the bottom line was age was never an issue going in and till the district court brought it up in the suppression order we had no idea this was an issue it wasn't argued it wasn't briefed at the just report level the senate initially argued the fact that the officer was in a marked car he was in uniform it was dark he drove four toward the defendant in his car and a weapon was visible those were the reasons the defendant argued that it was a seizure and the government responded based on what the defendant was alleging in addition the defendant did ask if the officer inquired about the defendant's age twice in fact an officer did indicate yes i asked his age and that age was in fact eighteen so where does that leave most of your point is the judge mistakenly relied on a perception that this defendant was a minor well that would be a clear air that would be a factual clearly show in the court in fact those facts in its order show that this was a hallmark it was not an ordinary consensual encounter so the government would ask that th is that only one resolution of the factual issue is possible and that is that the defendant voluntarily consented to the pat down and this was testified to by the police officer as well as the second witness so we don't only have the testimony of the  may please the court this court should affirm the district court's order granting mr rodriguez lozano's motion to suppress i think it makes sense to start with a discussion of judge cotton had with ms shirley where the court's analysis should really focus on and i think it makes sense to evaluate the most important part of the encounter between officer condon and mr rodriguez lozano and that was the pat down a pat down is of course a search and thus there must be fourth amendment justification for it and i read the district court's opinion at page nine of the a denim to include a finding that the pat down itself was not consensual as ms surely said the district court certainly focused  the encounter between the two but it also said that nothing about the pat down was conscious consensual as well and that's a legally significant distinction here because that finding would be reviewed for clear air and the district court in our view didn't air it it certainly did not clearly error in finding the patdown aspect of the encounter to be nonconsensual what rendered it nonconsensual if the earlier conversation and the consent if you look at the supreme court's opinion and mendenhall the court first evaluated whether the encounter between the officer and the defendant that case was a seizure but then went on to determine whether the search of the person's body was justified by that doesn't seem particularly coercive or unreasonable for officer safety concerns to to have some assurance of passengers not being on well that gets into the question of whether mr rodriguez was on o or a reasonable person and is is position would have felt free to terminate the encounter when officer condon offered the ride our argument for many of the reasons identified by the district court is that he would not have felt that way but beyond that i think it gets to bumper versus north carolina and whether officer condon's directive to mr rodriguez was honored to submit to the pat down was something that he merely acquiesced to or if that was voluntary self any consent that he gave at that point to the pat down search was not voluntary and that does get to the defendant's age which was a relevant factor and here's what the district court did know at the time of the suppression hearing th or court knew that mr rodriguez was on it was a high school student knew from the conversation that he had with the officer that he played high school sports knew from the conversation that he played video games knew from the conversation that he engaged in sleep overs those are all things that very young people generally do more often than older people at the same time the district and mr court knew exactly what mr lee's arguing the district would have known that this was not a juvenile court proceeding and thus mr rodriguez a lot of must have at least been eighteen years old at the time that he allegedly committed the crime so when you put those factors together it's a reasonable inference that this record did in fact know that mr rodriguez was on a was very likely eighteen years old at the time of this encounter age is a very significant that's not really consistent with him all his references to boy and minor that's the thing i mean he does say one young adult that he calls them boys throughout refers to this case law concerning minors doesn't that suggest he was treating them as minors i think specifically with respect to the reference to case law involving minors i believe the district court was suggesting that there's an in why that to somebody who's  there's an inverse proportion between your age and your ability to disregard what an officer is telling you what to do in my view and i think the g d b opinion from the supreme court can be read in that fashion and g d b also supports the notion that age age really defines the entire context of the situation njt be had some women pull out of class they were school administrators involved the encounter with the law enforcement officer or as here you had to be two young men or boys however you want to put it sleeping over at each other's houses those are things that young people do and that's an important context will factor in deciding whether  if we look at our law you know there's a lot of debate right now about what kind of brain science ought to we be concerned about when we deal with youthful offenders and we talk well youthful offenders we know that brain development does not in males does not become complete until no earlier than age twenty five right but the law is always said that eighteen well not always ever since we reduced the age of majority to eighteen the laws said that eighteen is is is an age which you treated as an adult them as if they were minors why why should we do that the court doesn't need to treat mr rodriguez on a as if he's a minor but it should treat him differently than if he were thirty eight years old for example because there is a correlation between age and your was a consensual encounter here the district court appropriately considered age to be an important factor for the reasons i had identified it provides context in a provide some information about the  legal what the individual knows about his or her legal rights but then also consider the other factors in the case the fact that this encounter happened at night and the fact of this encounter happened as the officer told mr rodriguez lozano with his friend that they were essentially suspects in a disturbance call the fact the officer was wearing his uniform and he had a gun on him he didn't brandish it those are all factors when considered in conjunction with the young age of mr rodriguez that support the district court's finding of a lack of a consensual voluntary encounter with the officer now with respect to race i don't read the district court's opinion to show that he considered race in the ultimate  court mentioned mr rodriguez was on it was race on page two of the opinion kind of the factual narrative also mentioned his friends race in that same section of the opinion and then at the very end in describing mr rodriguez as on no call them the young man of color but there was no analysis as to how race or did or did not play a role in this encounter so i disagree with the government's argument that the race of mr rodriguez was on played any role in the district court's disposition of the case now we also argue that the court should consider the entirety of the encounter as well and conclude that it was a seizure for many of the same reasons identified by the district court again as a tally of the circumstances test regardless of whether the court analyzes the just the pat down itself or also the entirety of the encounter in those those factors do not suggest that the district court erred once the court has any other questions i would ask you to  become consensual at any time prior to defendant's arrest and i think the sentence preceding that mentions the patdown as well excepting of the pat down which i would submit is an odd way to phrase it but might my view of accepting of the pat down is accepting of granting consent for the pat down i would agree it's not it's not fleshed out in the way that i would like but i do think inherently district courts overall finding regarding the encounter is  finding of no voluntary consent for the bat well i'm just wondering if it was that if there is a finding that it was made in the context of a legal conclusion that he'd already been seized and wouldn't that you may need to remand the district court to decide the question of whether if he was not seized if the patdown was voluntary i don't read the district court's opinion in that way but i understood it could have been better fleshed out on the two separate question what would happen if they didn't want to ride after stated they would have been free to go out i would have said all right have a good night i then asked you asked if they would be patted down the officer said yes i asked what were the responses officer said that he didn't recall if the responses were verbal or nonverbal but it was an understanding to where mr rodriguez actually walked to the area where the offer was going to pack them down and he put his arms up without being asked as to be p mean unless there's a clearly erroneous finding right he says condon said ok i just have to pat you guys down for my safety he didn't find that condit asked them for permission to pat them  if he could pat them down looking at the second paragraph on page four according to m a the after the boys agreed to ride in the car and said ok i just have to pay you guys down f to a pat down but he did not recall whether there acquiescence was verbal or nonverbal and a friend to testify that he thinks they both said yeah i know but i problem with that is that's just a recitation of what they said that's not really a