occur there has to be consent otherwise a police encounter along with any individual there is always going to be consensual but a consensual encounter is a two way street and in this case the officer testified to the officer home who is officer polish supervisor testifies that in fact they did not hear them speak before they went to approach them that these were the last two individuals off the bus that they walked into the gather to the bus station that walks together through the bus station they were conjugating together on that first one about what they heard or didn't hear if they had a right to go up and talk to them regard as of whether he was speaking spanish or not it would make a difference very well that i with all due respect i disagree your honor i think that border patrol if it wasn't only one of them at the border they had to at the same you know here and i guess in montana but i guess what you're saying is if we determine that the border patrol agents question if they have well in terms of lives that it's not you know it's not a terry stop it's not you know it isn't approaching you know what can i do under the law as it exists i mean obviously i heard it and you know in the last argument and i think that you were sitting there i said are you saying that officers can't talk to anyone who said well no but he should not talk to him and so are are we going to say they can't talk him on a train or they can't talk to anyone here or but and you just said if they're at the border but detroit and they do have a buffer zone where they're allowed to operate but they can go up to anybody and have that casual consensual conversation hi how are you doing today pretty good weather but this is not what happened here what happened here is  you born that's not a consensual casual conversation people don't come up to me and to hate where were you born they may say wow how much you have taught that's right but they don't ask me where i'm born she was asking a question specifically to elicit the answer for his investigatory purposes you know nothing is that the thing that bothers me in this case is that there is a factual difference between the plumbing their examination and or telling us truthfully at the other side of the the coin after he has her d h and home gives his testimony and fitting it to agent holmes testimony of what was the reasonable suspicion that he went and stopped mr government had the opportunity and the district court simply did not take mr beneath as it were at all and then the other as troubling aspect of this is if you read the next paragraph of the opinion it's because of september eleventh  the government now has to do this because of september eleventh and quite frankly i'm not sure what letter period comma what changed in the united states constitution on september twelfth that we didn't have these aspects versus right where it says that law enforcement officers do not implicated much closer violate the fourth amendment by merely approaching an individual on the street and ask him if he's willing to answer some questions asking him if he's willing to answer questions enforcement officers can approach people in public and put questions to them if they are willing to listen it can put questions to them good questions to them if they're willing to listen questions that identification and if the person they're asking is willing questions so long as a reasonable innocent person would feel free to leave so that's the standard in this case the initial encounter between officer pollock and balance where love was a consensual encounter and the reasons why officer po approached him he didn't need probable cause he didn't need reasonable suspicion he didn't need any reason at all to go in approach him and ask him questions at the initial encounter when he first approached him he did show a badge according to officer pollock but i'm very united got sort of different from the last case to the person step to the side you know if you step in front of someone that's a little closer to it having their exit perhaps but again i would say to look at the totality of the of the circumstances that if you're going to start someone you have to do something to get their attention and perhaps he did step to the front or put out his arm or did something to actually get his attention and officer pollock even said that sometimes he doesn't get people's attention and he doesn't that probably your strongest argument here is going to and i that i i question the appellant that that it has to do with the factual findings in terms of the court seemed to find that he was free to go right ye right and but what appellant is encouraging the court to do same while that just you know it well essentially unique that would be an unreasonable conclusion based on the conflicting are any other questions from the panel i will presume enough here to be thank you for your argument or your going for the additional time for rebuttal the last trace that you heard the border patrol officers talk to everyone one officer one from the beginning of the train to the end of the train talking to everybody another officer stood  net over the entire bust but they went to my client there must have been something that through their attention the totality of the circumstances is the guide for this court is whether or not a reasonable person is free to leave and judge thompson said you know i don't believe that so i would feel free not to answer that question i wouldn't either if an officer gets behind me as i'm driving my car i have automatically suspicion that criminal activity is a flight the criminal activity of that there's a foot there's the opening of the doors and looking around getting off of a bus and even asian home in his earlier testimony said you know it was really unusual that somebody would look around it's indian tribe versus the federal energy regulatory commission case just numbers zero three seven three two two five zero five seven zero three nine one right as you're getting at here i want to let both of you know obviously you each have twenty minutes so all of you here that these you don't teach get twenty minutes each side gets twenty minutes so i want to remind you of that so if you're going to split your time let me know stands that i will i will give the time over to the other party and i tend to be a little stricter on that just because