detention and reason the government never below a listed testimony specific testimony for how long this handcuffing took place everyone below understood what the issue was is whether a reasonable person would believe that he's been subject to more than temporary detention as pointed out by the defense that is us he brought us we broke loose regarding the temporary and brief handcuffing as an individual at the border this is what was being litigated in the case in the government's motion papers filed in the district court they devoted two and a half pages of argument regarding what the standard is for handcuffing at the border and man well at a different house the police stayed at the house and it's an investigation there they clearly obtained probable cause to arrest many well every agency at a different house after this development the focus for purposes of resolving the taint issue in cases such as this one must be whether the defendants incriminating statements were obtained by the exploitation of the illegality of his arrest the illegal arrest has to be exploited in order to arrive at the statements so what do you have to show exploitation in this case exploitation nish fix it like what is shown from the record this in this case is mr ivan di now without probable cause was taken t other than the fact he's in the cell let's say that he was he was in the holding cell simply for holding him been handcuffed there's an argument that he was arrested and then they do exactly the same thing they would out of talk to him and say hey we found a kid in your car you want to talk to us but has his rights have been exploited that is fundamentally fundamentally different from a person whose rights have not been exploited and there has to be something that has been accepted by the supreme court or this court as an event that would p these two statements not just one continuous interrogation you know i think that would be the same thinking areas if right when we got into security opposite some questions work were asked obviously those would be suppressed but also to order him to the secondary inspection area yes what happened when you got there i walked him into the office they call zero two at that point i handed him off to an immigration officer then i went outside to see what was transpiring with  vehicle to someone else vehicle that this engine had two specific times to testify that there is anything else he did in regards to mr hart and i know about removing the handcuffs into being asked by the prosecutor is that the in response to a question by the court for them now to say oh wait we missed something i think this way that they've been convening this whole time they produce division evidence they shouldn't do it that the even moral argument be able to completely change their arguments  person was handcuffed in the security office the same thing happened in hernandez the individual was reading in the security office there's nothing that i don't think you can simply assume that this person you know that the on man well that well who cares if we didn't have reasonable suspicion we found drugs in the car later on with any taint is purged i think what the government then you'd be seeing today we're not going to ask what anyone does secondary without reasona suspicion but tomorrow they're going to be saying well you can hand anyone we want at any time as long as we find something in the car later on we can use any evidence from this person knew why and i don't think that's what intervening  plea and what a conditional plea allows you to do is preserve your pretrial motion and if you're successful on the issue and exactly shoes that you preserve you can go back and basically withdraw your guilty plea so the way it works if you're hon answer to the question of why do you need to specifically allege heating and abetting in the indictment and we've got the statement in armstrong and other cases and so that's implied in every federal it is the specific intent element of corn in one circuit law but all of those cases stand for the proposition that it's implied in every case in the reason the differences in abetting is not a separate offense it's not a separate charge it's a theory of liability much like pinkerton and the the government would never be obligated to have the grand jury specify the pinkerton language in a dynamic but even if there is tension between the specific intent aspect of aiding and abetting and all four of those cases that i hold that it's implied in every environment it doesn't have to be specified this is not the case for this court to resolve the issue because judge hogg was absolutely correct i just don't think will be right for this court to overrule four different ninth circuit cases on point that is implied in every issue in a case where it is not right because the count of conviction where it matters not involve title eighteen united states code section two i happen to think that the theory does not require it to be specifically pleaded before the grand jury garbos but that issue is that there is tension between the two and that issue we back before the court but it what happened in this case while we don't know what exactly this case was no different than bravo no different than hernandez no different than there are ghosts of you know different the novel customs policy is that they are handcuffed during the primary walk over to the secondary office where they handcuffed are removed and that's what happened in all three of those other cases we don't know for a fact that it happened here but we do know for a fact that he was hand security reasons for the walk over the sprecher couldn't be more clear here's what we have here are fifty four to fifty six handcuffed for stealing and security reasons i had to explore them the secondary i didn't want to have to wrestle with him or choose him through the traffic in primary i was also concerned about his running back to mexico i put him in the secondary office new york fifty six that's all you are fifty forty fifty six well it only stands to reason this if you're  handcuffing him for security reasons so we won't run away or if you want have to wrestle with them at pre primary primary and you're handcuffing him because you want to get him over to the secondary office once you get him over the secondary office and you turn him over to another inspector there's no reason you haven't had any more other words the inspector didn't say i handcuffed him because we wanted to secure him at primary and because i wanted to make sure he was secured in the secondary office it was simply one reason when he's getting him into the cell well i don't think he was put into the cell for some period of time but our records is silent unless you're i would agree it's not a secure but that wasn't the stated reason for the handcuffing in other words expecting what the inspectors that we handcuff them because we don't want to run mexico i don't want to wrestle with them there's general traffic his safety my state he and i want to get into the office that's the state of our record really know how many people were in the office now we know that he did turn him over to another inspector but here's the bottom line the other inspector might want not want to wrestle with him either that's that's true that would be different than policy and than speculating and rather than guessing fairness dictates that if that question matters to be remanded to the district court the fifth count is that matter though in other words let's assume that he was  handcuffed for transportation and i think he got over the office and was not and handcuffed he stayed in the office for some period of time to the point where we could assume conclude that an arrest had taken place i understand right now your because probable cause existed at the time of the arrest there so on my hypothetical i'm giving you the probable cause was discovered after his rest i understand so what's your best case you honor that's purges the problem i have the arguments issue six times and finally recently this court held in a published opinion as follows united states versus novel three sixty three f three d nine forty two tank constituted intervening in independent probable cause to arrest him irrespective of the legalities of his detention as we have explained the border officials had the right to search the truck and remove the tank the result discovery of the marijuana provided probable cause to arrest novel and subsequent interrogation was therefore not the fruit of an illegal arrest now that's footnote two defense counsel going to stand back up and say it when this absolutely and if the role is at the border given the circumstances where and it's usually not the person it's usually the vehicle and i think we have a supreme court case now that says you can dismantle the whole vehicle if you want  any kind of authorities the government can go out willy nilly arresting people hope they find probable cause and meantime what's fundamentally different about this issue is the border and particularly this and i think your honor just hit the nail on the ha would not have been released anyways and he was being detained because the his car was going to be searched at the border so that's much different then away from the border where the question of whether you're holding the person at all whether he's arrested whether  detained really matters because most of the time with free to go he would not have been free to go he was going to be detained regardless while his car was being searched the only difference is was he had got really or was in handcuffs for a long period of time and was the method of this detention different than we would otherwise want to be so i think your honor is actually correct the critical factor here is that we're talking about the border and not does what i mean the manual says what it says you know three different yes well that is an interesting question who has the burden of proof i would resolve it this way i cited case law much and in the supplemental briefing that the movie party normally has the burden of proof and that for example in a case are they alleged government action for private search they have to show that there was government action is part of a search if that's the case that it is a warrantless search or a warrant less to arrest there's a preference for a warrant so the government has to prove if it's a warrantless search that the warrantless search is justified for example by exigent circumstances or consents or something else or there's a warrant for arrest we have to there or he's taken aback to all these other cases that he hears but fairness dictates more than speculation and i welcome to remain and if it matters i'm pretty competent which way that it with that will come out to be but i would say that regardless of which was ever any time an issue like that matters when it matters it shouldn't be because defense counsel didn't ask we didn't ask the court assumes something but if you look at their brief are their argument i think  cannot handcuff everybody who comes is being referred to secondary there when we handcuffs when we hand because somebody at that turns a detention and it makes it a non routine detention and it has to be justified by reasonable suspicion that was the implicit holding in bravo and i think that point needs to be made clear because i just don't think the government or anybody else should be suggesting that everybody given up and come across the border but the district court judge found in this case that the down at the border and somebody doesn't know exactly where he got the car and he's acting nervous and you like yes and you look under the car and you discover a metal compartment that's non factory and you've worked as important structure for all those years that's probable cause but we don't have a finding of that and we didn't contain that because we didn't know that that was the issue because it wasn't raised in the pleadings so problematic  and to the extent that this panel wanted to make that point i said in my twenty day letter i spent a page and a half referring to the broader litigation we're all in the appeal before the court and in to the in bank panel i take the position that we cannot hancock everybody who comes across the border we cannot handcuff everybody is referred to secondary when we do handcuff somebody doesn't make an arrest but it makes it a non routine detention and it has to be justified by reasonable suspicion but our case here that we have before we have legal suspicion in spades of discovery of that non factory compartment is reasonable suspicion the judge made a specific finding on that i think implicit with the judge's judgment binding on that and frankly it costed probable cause but we didn't contend it because that particular issue hadn't been free in that way that it was arrested required probable cause asking other questions i thank you for  one of the there's this plea to can convene definitions of victory going on in the circuit one is whether or not it's essential to the homing is obviously not essential to the holding because the holding was there was no illegal detention the second point is a motion usually when there's an alternative holding to a case there's two different discussions actions this is just a footnote without any citation whatsoever but i also think it's fundamentally wrong and without any analysis with the supreme court cases where you can't just focus on one factor you have to have a multi factor test but that this is the exclusionary rule and the reasons why we have to reject that that n knowledge at the border particularly if there needs to be some protection there i mean the government's been sitting here arguing that yes we need reasonable suspicion to hanka and yes we would need probable cause to handcuff permanently in place in a detention cell but if they had this intervening probable cause doctrine they didn't have to do either for example if someone would without any reason constitution would protect your statements it has statements come as a result one last comment varying issue that the government just talked about that it's implied in every indictment and that you'd have to