please the court alyssa bell on behalf of appellant luis santos and i will also be mindful of the clock and try to reserve two minutes for a bottle your honour's in this case is but one in a series where the government disclaimed any reliance on deputy james peterson although he was the only possible finance to the key events in interactions that took place during the traffic stop and i want to make clear that that decision had consequences in terms of the record that is before this court the record does not include any inferences that the government would ask this court to draw on deputy peterson's behalf it includes only with the video shows so no consideration of any testimony or the police report correct that's district court assumed for the purposes of decision that there was no reasonable suspicion there is no traffic violation visible there also is no swerving within the lane there's no moving to the side of the lane for ten seconds the video simply does not show that now second and this is an important and important element of the i five is not a known drug trafficking corridor there was no testimony to that effect there's no way for this court to understand or to assume that deputy peterson thought that and the fact itself is not self evident and as i cited in elias and another just direct court evaluating a similar claim in fact found the opposite that the i five is not a drug trafficking corridor and in fact thousands of law abiding people travel there daily the small quantity of cocaine that was found in mr santos his pocket is not a fact that the court can consider in its analysis because it is fruit of an unlawful for ask the government created no record below from which this court could infer that deputy peterson believed mr santos was presently armed and dangerous the fact that peterson initiated a stop alone at night on a vehicle with more than one occupant cannot supply that reasonable suspicion that he was presently armed and dangerous and i would point the court towards rego's of r c i where the ninth circuit was very careful to say reasonable suspicion cannot be that it was not supported by reasonable suspicion can you address that the district court made a finding that the co defendant's flight and subsequent crash constitute invert and intervening circumstance factor the second is the presence of an attenuating intervening circumstance and the third is the flagrante of the police conduct so it's do novo review of the district court's decision in that regard to the extent this court were to find that there are real fact bound question because there are facts found questions the video itself is not exactly sui generous for example the district court found that the manner of flight was so inherently dangerous that it created independent probable cause well we know very little i think that's what i was trying to get to and perhaps i phrased it imperfectly but i think one of the key questions here is whether there was erratic flight that sort of heighten the danger of the inferences that can be drawn from this record no your honor and that's because the district court was reaching a legal conclusion the district court made no factual findings to the extent this court would rely on a fact thousand in korea and would base disputed facts a re man would be required for the district court to hold an evidentiary hearing and to hear testimony for example peterson and perhaps van know at what speed that the car took off from the highway what we can see from the video i would contend is that in fact the car takes off at a rather average rate of speed there's no squealing tires it doesn't seem to be going at a higher rate of speed than the cars around it it seems to be merging reasonably eliminated that much is true we know that the car was only on the road for a very brief period of time before the driver and the passenger abandon and fled on foot that would seem to be significantly less voluntariness the supreme court was clear in brown that an intervening voluntary act in that case a confession does not break the causal train causal chain merely because it is voluntary and voluntary act can still be the fruit of an unlawful police fourth amendment violation the question here is how attenuated are we on the chain and here are we i would contend there's there's no attenuation at all first there's an unlawful stop followed by an unlawful frisk followed by peterson engaging in an escalating course of conduct he uses profanity he uses force against mr santos to shove him into the police vehicle that's heard clearly on the video and it's only then immediately that the passengers take off it would be to to borrow something for the case of the parlance it would be a sheer fiction to say it was a coincidence that the passengers took off rather it was the direct result in an unbroken causal chain from peterson's misconduct that garcia and mclendon which are the primary cases upon which the government lies are really readily distinguished all in garcia for example there is much more than flight both the supreme court and wardlaw and this court in both crime is happening evidence will be found somewhere in that vehicle in garcia there is a stop at a border checkpoint in a vehicle that's associated with human trafficking the driver fails to eighteen roads there is a there there are both well there are two things we can draw from this one there were many factors that would yield independent probable cause and seconds there is intervening act which is the taking off the officers did nothing to induce that the officer referred to the driver to secondary inspection full stop that simply of a different character than the deputy peterson's misdeeds here police action they have independent probable cause even putting the backup source to the side to arrest him mclendon doesn't know about the backpack search of the officers are not exploiting that fourth amendment violation in any way that's for that reason that this court every morning your honour's may please the court david ryan on behalf of the united states this court has repeatedly held that flight from an unlawful stop whether a traffic stop in garcia and arrest in mclendon or a terry stop in coleman attenuates or breaks the cause of chain between that initial unlawful stop and the post flight discovery of evidence as this court held in garcia because or where there is no indication that the stop the unlawful stop was quote designed to lure suspected criminals into flight officers do not exploit the initial stop or when they discover evidence after and because of the flight and that's the crucial question whether the officers obtain the evidence at issue here the methamphetamine inside the tire by exploiting the on lawful stop it was a make a difference that the flight is by a third party as opposed to mr santos who was secured in the back seat of the officers car in this case it is not your honor but the reason for that is because the passenger the third party was also detained for purposes of and during the traffic stop so if it were the case that the person who fled were not actually detained they were an onlooker or a civilian who was not part of that attention then the flight would not be an intervening act because they were not detained so they were not fleeing and that was indeed in fact the argument that defendant relied on excuse exclusively below in the district court arguing that the passengers were not detained therefore there was no flight therefore there was no intervening act as the district court found under supreme court case that primarily brenden all passengers in a traffic stop are detained during the stop until they're informed that they're free to go that clearly have not happened here on the contrary the officer was repeatedly yelling at the passengers to remain still in the car and the passenger repeatedly trying to escape first by exiting the car and then by jumping over the center console to whether or not the flight was an intervening act just as a preliminary point because in mclendon for example the act of merely walking if you steps away from the police was found to be an intervening act so i don't think you need erratic dangerous flight in order for the flight to be an intervening act however in this case the video i believe does show that it was an erratic and dangerous flight or more to the point the district court did not clearly err in making that factual finding and i believe that is a factual finding whether or not the flight gave probable cause or was an intervening act is a legal conclusion but the district courts and now says of the video and whether it shows erratic dangerous driving is a factual finding that is entitled to deference what the video shows is that the passenger after having been told twice not to get out of the car or move didn't get out of the car and walk around to the driver's side door open the door and drive away he jumped over the center console and with the officer running after him and yelling at him to stop merge left onto the freeway with the right turn signal still blinking i believe you can see certainly while the traffic stop is ongoing you can see in the left side of the video cars going by there was not any heavy traffic so cars were going at it freeway speed you know somewhere upwards of sixty seventy eighty m and this was not late at night in the middle of the night where there were no cars there i believe you can see cars going down the freeway throughout the traffic stop we know that the car then crashed approximately two miles two minutes down the road coming to rest over  hundred feet off the freeway in a ditch the passenger who jumped into the car was on the side of the road had either been expelled from the car or after the crash tried to continue fleeing on foot and we know that the other passenger who was in the car is nowhere in the video had clear correct whether it was a crash or voluntary abandon however i think you can see where this record could fairly conclude in the video that the car was damaged in the ditch so it was not gently parked off the side of the road it had rammed into a ditch coming to rest and you can see damage to the car in the record however the continued flight after the crash can also be considered in determine the erratic and dangerous nature something caused either the car crash or the subsequent on foot flight the passenger to be severely severely injured as part of his continued flight as a result of that erratic dangerous flight both in the car and on foot the district court did not clearly air that in determining that that was erratic dangerous conduct and then did not erring concluding that gave probable cause to search the car both to find the missing passenger identification as to who those people would be or as this court held in roberts what they were trying to conceal by fleeing once officers searched the car they developed further probable cause to search the tire and cut open the tire in the trunk of the car because as deputy van stated in his undisputed declaration and i would point out that that the record does not contain merely the video the record also contains a declaration of deputy event which was undisputed below defendant did not request an evidentiary hearing to cross examine deputy van after the government said that the court could assume for purposes of argument the unlawful traffic stop the defendant did not dispute the declaration of deputy than or any of the untainted post flight facts that either he described that were shown in the video or that were in the police report which the defendant himself put into the record only for the first time on appeal this defendant seek to contest the declaration of deputy man or the post flight facts set forth in the police report what was the probable cause to search the car once it was either abandoned or crashed into not not so much the truck but the initial search were think there's about them that i mean other things  the basis for the probable cause to search the car was primarily as the district court held the manner of the flight from law enforcement which the supreme court held in one sun creates quote strong evidence of guilt and which this court in roberts garcia and rodriguez has held provides problem can provide probable cause to search the fleeing car what the search will be for in this case is among other things initially the crime of fleeing from a law enforcement officer these are california state officers and they two individuals who fled from a law enforcement officer in violation of california law and they're looking for the second guy officers are looking for the second guy who could be in the passenger compartment he also could be in the trunk there also could be identification documents about who were these that illegal flight from law enforcement as well as evidence of what they were trying to conceal when they did flee one son i think is instructive because there the supreme court held that flight from law enforcement did not provide probable cause to pursue the defendant and then searched the room that he fled to because the officers had clearly identified themselves as police officers so the supreme court held it was ambiguous whether the person was actually fleeing in which case the flight would create a strong evidence of guilt or whether he was merely running away because he had an armed man standing at his door commanding to be let in this case presents no such ambiguity of course the officer had clearly identified himself as an officer and the traffic stop had been ongoing for approximately two minutes before the passenger ultimately decided to flee if the court has no additional questions here on news the fact of flight itself does not supply probable cause the supreme court was careful to explain that very premise in that very point in world law stating that especially in communities of color there may be good reason for people who are entirely law abiding to get away from the police and here we have a situation where the objective facts to the extent that they are there what we can see on the video is peterson in gage in a series of fourth amendment violations followed by a physical a use of force against mr santos and only at that point do the passengers take off and the question is was that inducing and we clearly think it was i'd like to point the cortex of record for and this is where the district court analyzes what the video shows and when the district court is analyzing the manner of the flight says sanchez his codefendant fled at night with the right signal flashing while merging onto the interstate where large cars and trucks were traveling at high speeds and crashed the vehicle a hundred feet off the interstate and fled on foot the first of those facts are entirely innocuous essentially it's merging onto a highway  with the wrong blinker illuminated there is nothing particularly erratic or dangerous about any of those facts and if this court is going to turn his decision on the crash and on what could be observed of the car during the crash i would submit that every man for further fact finding would be necessary here however i would remind it is the government's burden it was the government's burden to create a factual record for this court in the first instance and the government chose not to do so because it had an unreliable