the morning michael kennedy here on behalf of mr costa tapio mr lauren graham and i will split our argument five minutes apiece and i would reserve one the main issue here is whether this consent in this highway traffic stop was unequivocal specific freely intelligently given the thrust of the argument is that the district court judge mr appleby handed that heavy burden because of three factors first there was no with expressed object to the search and that's no defined scope of the search second the consent that was given was given by an individual that did not speak english nor could he read spanish the undisputed testimony was that he is reading skills in spanish was less than a first grader's reading skills in this country he was someone who had only three years of rural schooling in mexico the the testimony was that the officer trooper signs could not ask in spanish this could not give this statement you're free to go he did not know how to say that in  spanish he couldn't use the word you he couldn't use the word can and he couldn't use the word go in spanish the testimony was that he only knew a couple of words of spanish fewer than ten words that he can order a beer but he can't order dinner in spanish and that the questions were and and combination of english and spanish that when he asked questions in spanish he was not certain at all what he asked he didn't know if he was accurate so it was that is the thrust of your argument them that he understood that he was being asked to allow the officers to search what he didn't know because the officer couldn't affirmatively tell him that he didn't have to consent that he was free to go to fret the thrust of the argument was that he would not even have known what the officer was asking because the specific question was incorrect in spanish  was nonsensical part of it was the officer used the word layout english latest spanish is not a spanish word a person hearing that would not know what he was asking well is there evidence  that the disregard found in the combination of circumstances and and having struggled with in a foreign country not being in a foreign language speaker myself i think we all have we sort of communicate by you know a mixture of whatever we can with hand gestures and everything and ultimately in most cases one can communicate some primitive things certainly the court seemed to think that he understood enough to produce an id did he not and  that he went ahead with the with the search that's what i'm trying to understand if you're trying to decide this and have this decide this case that because he couldn't speak exact precise words of spanish that no matter how he communicated it 's ineffective or does it come down to something more refined which is whether or not there was an understanding of the elements of voluntariness there was not an understanding of the elements of voluntary is because the level of communication did not rise to the level to make a finding that it was specific and unequivocal knowing involuntary certainly there was some amount of communication at hand but when the object of this church was not set what was to be searched for was not said what was going to be searched was not defined and so there was neither a scope nor a specificity that these please court my name is fred denny i'm having i stated your honor the government would concur that the communication between the officers and the owner of the vehicle mr ortiz was in fact primitive communication however based on the the circumstances the district court found that the defendant's responses to the officers question which were in a combination of english and in spanish they seemed to establish that they were being able to converse for instance when the trooper asked the passenger vehicle owner for the registration and for the identification in the vehicle the passenger comply he provided a form montana id card he searched for the registration and questions of whether there were firearms with or there were a large amounts of money and then asked him specifically different types of drugs i mean we have to asking those questions which again that defended it seemed to respond appropriately by saying no  beginning with the stop and why the officers conduct was appropriate from from there through what he ultimately yes you are the officer found to traffic violations the taking place first  stop in this case for probably caused this to traffic violations during the stop itself very minor violations that i was thinking of normal driving on from for example on the freeway here and so forth  not in the very outset your honor but as he spoke with back with the driver and passenger there were a number of factors that gave him reasonable suspicion that there might be some type of criminal activity afloat he smelled a very strong odor of air freshener he also smel type of items might be a mask in order to cover the smell of controlled substances he noticed when he spoke to the driver of the vehicle there were some discrepancies in his story from what the passenger mr t said and judg known the passenger for one to two years for you know his last name the passenger said i'd only known the driver for three months when they asked him how they know each other the driver says when we worked on a potato farm together and i go the passenger says i work at a ranch in montana i really don't know what the driver does then when he is looking for the registration the officer also observed mr ortiz the passenger owner sort of curiously peer inside the glove box that really opened it up it's what it generally look inside just an inch and close in the officer found that this kind of just didn't open it up and later when he actually had changed sense that was the first place the officers went search for narcotics and they were actually hidden behind the glove box so there was a combination of factors that the officer relied on thinking that there might be some criminal activity afoot and i believe that judging the kid and families to be significant for the reason for this detention and how is it that he  were simply they simply pulled out oh but that's not responsive the judge relied on the absence of obstruction but if you can't see what's going on how can you object they were taken seventy five feet away from the car with  series of questions they're looking for drugs but the failure to object implies were assumes explicitly really that you can see what there is to object to and what's the objective being put out of position not to be able to see where you want whether or not there was a another form that could be read to mr archies and i think a process that they hadn't place at the time and in the reno area was that they they didn't just have interpreters that they could call and there's some testimony about that if they had the spanish speakers didn't understand and they needed someone to help explain forms in this case wasn't done i think important is the context of this stop was the they've really free to go anywhere the officers testified that within minutes of the stop they considered this to be a drug case and they made a phone call to bring in the canine to assist in the search and and for the forty one minutes that they were sitting there waiting for the canine to get there i think they were basically doing what they could do to keep the gentleman there without them leaving and then ultimately they testified what they says they didn't haven't enough evidence to or enough probable cause to search for example that they need they felt they needed to get a signature on a consent form in order to go ahead head with a search and that was that's what they were really doing there on the side of the road was attempting to get a signature and so that they could go in the car the reasonableness of the any evidence as to why they did or didn't attempt to get them in this particular case i'm not sure now that they my understanding is that they were working with the ins and that and with the federal three if they had had to give or did they give miranda warnings and if so whether they did or not or the officers furnished with some kind of a form that uses spanish and phonetic as judge gibson was saying so that there's an consent form ok your time's up thank you very much the cases are you will be submitted we thank counsel for their argument