explanation for me mr reuben on this result no your honor no your view and i know i know both of you are veterans from our st audio oral argument on thursday so you've had a practice run at this made it please the court opposing counsel the twenty plus minute traffic stop for speeding was undoubtedly prolonged the video makes this clear the officer's testimony at the suppression hearing makes this clear in rodriguez versus the united states supreme court held that inquiries needed to handle a traffic stop involved checking the driver's license determining whether there are outstanding warrants and inspecting the autumn automobiles registration and proof of insurance traffic stop or a long beyond the amount of time reasonably required to complete the stops mission is unlawful here there are more than a dozen inquiries that were unrelated to the speeding stop including where the defendant had been living who she was with her relationship with her sister whether they were biological sisters whether they were staying together how long they'd been in douglas arizona the occupation of her non presence boyfriend and how many lakes were in alabama how  any of this remotely related to speeding it's not and the officer admitted so accordingly the officer collecting the script has a license insurance and registration within minutes of the stop yet it took him twenty minutes to complete the speeding citation even though the citation self populated and there was no testimony that there were any computer or quitman glitches at the suppression hearing officer was question and the question was and so since approximately three minutes and fifty seconds on the timestamp of the video you're having a conversation with miss cortez about things that have nothing to do with the speeding violation he answered yes not only was the driver question about issues completely unrelated to speeding violation but the non driver was also questions  question with questions one related to the traffic stop the officer was gay engaged in a fishing expedition that clearly prolong the stop and this was this was unlawful and this idea that he was riding the ticket simultaneously just isn't the case and was not at all credible unfortunately the district court applied the wrong standard when it viewed the evidence in the light most favorable to the united states based on this incorrect standard no matter what the officer said the court would have believed him and add present two thousand and eighteen the supreme court stated when a finding of fact is based on the application of an incorrect burden or proof the finding cannot stand we ask this court to reverse the lower court's denial of the defendant's motion to suppress and suppress the fruits of the unlawful stop detention and interrogation there is no argument from the government that there was any reasonable suspicion for the st seven minutes of the stop however even after this point the extension of the stop was not justified by reasonable suspicion when the officer saw the two men in the backseat for three reasons st because there was no reasonable suspicion even when he saw the man however assuming this court found that there was reasonable suspicion at this point the nd reason the extension extension of the stop was not justified is because it was fruit of the original illegal prolong stop and rd the officer was not allowed to continue to prolong the stop even if he had a reasonable suspicion during the your opening statement a debt and is it your contention that all of the and not with your social questions were asked were improper or that only only some of them were improper others might be permissible on there are cases where the permit inquiry into travel plans and things like that yes your honor according to travel plans asking where they were going that those are likely to miss school but in terms of whether her sister was a biological sister was what her boyfriend did back in douglas arizona as well as how many lakes there were in in alabama those were clearly impermissible  prolong the stop during the st seven minutes yes in terms of what her boyfriend does for a living in the again this was a non this was a boyfriend who wasn't at the scene so that there were in permissible questions before the the seven minute the two men in the back seat that were unrelated at that if we don't buy the argument that the question of them went through the of the poisonous tree why did why doesn't alvarez then have reasonable suspicion that they may be in the country illegally or that the driver is part of a smuggling operation flight he still doesn't have reasonable suspicion even when it comes to his attention that there's two gentlemen in the back of the car because all he wants from them is that they don't have any sort of identification as well as that you know they answer his question very very very strange for two single women with children to pick up two strange men there was there was there was nothing implausible about their story their story matched they said they picked them up at a gas station they were traveling on the way back was nothing illegal about what they had done and there was not nothing completely implausible counsel this is judge moritz i have a follow up on that i think you were getting to it but i'm not sure in your opening statement you suggested that even if there was independent reasonable suspicion that would arguably prolong the stop i think you are about to suggest that perhaps they couldn't they didn't have a photo or any two to extend the stop because they didn't have a story to a r they didn't at least that's how interested you bring that could you expand on that that's correct as a new mexico state police officer under arizona versus united states the supreme court held that a state officer lacked the authority in training to perform functions of immigration officer alvarez officer robert testified he did not perform an integration inspection or story he did that he's not allowed to perform an immigration inspection he's not trained to perform an immigration inspection and he was in the operation stone on to say that he calls border patrol that's all he's allowed to do but then he goes on and he says if they catch and they catch him further down the road if they don't they don't but he then goes on to say in fact he was actually detaining them he says that when he's cross examined so that's correct as a new mexico state police officer you know under operation stronger and he doesn't have the lawful authority to detain them for what he suspected to be an immigration  various miranda were involved in criminal activity presents without documentation it's a status crime which does not necessarily suggest that ms cortez in this race miranda were involved in criminal activity a police officer may not legally detain a person simply because criminal activity is afoot the particular person who is detained must be suspected of criminal activity yet the officer continue to prolong the stop counsel could i'm not i'm not sure i fully buy that  a in a crime isn't it could an officer continue to extend the detention until he figures out what he's going to do with the suspects in the backseat other words let's say there was a report of a bank robbery recently in the people backseat you know could fit the description could we continue to detain the driver while he figures out how he's going to handle the situation with the passengers if he has i mean i guess in terms of bank robbery p has the lawful authority to hold someone for a bank robbery thing yes but as a new mexico state police officer if it's an immigration violation again he's not trained even selfies not able to lawfully prolong the stop for an immigration violation any any any he he confirms that in his answer that on a routine basis if you suspect something that he calls border patrol but then he's not allowed to prolong the stop so the what violation and that that's not his remade remit as a state police officer no he's not allowed to detain them order qualities to prolong the stop just to wait for border patrol to arrive with anyone the officer knew that and admitted it he knows he's not allowed to do that i answer your question your honor i think so so your position is that the officer could not arrest drivers even if they have probable cause the alien smuggling  only the you have to this is only the border control can do that well your honor i don't think there's any argument that there's probable cause i think it's reasonable suspicion but if there but yes it's it's border patrol is who's trained to understand immigration crimes and it's there it's they are authorized to make those arrests the state police officer is not allowed to do so and again we get back to arizona versus united states no he's not allowed to do that under reasonable suspicion  i if you will are you finished with your response to judge him yes your honor i have another question going back to your original argument you mentioned that you thought the video and the testimony make it clear that it was a prolonged stop but the problem that we have is with the district court's findings on that the district court seemed to make a number of findings that would indicate that while while the officer officer alvarez was asking the question also continuing to to go out of kick it or complete the ticket or respond to her question about what you know how much this is going to cost and various other things that occurred i read the district court's opinion to say some of these questions might be unrelated but that they were ok as long as as long as the officer continued to complete the citation how do you  respond that well st of all do you just record using the wrong standard is was plain error in terms of his factual analysis because the district court the standard used was in the light most favorable i think all of the factual findings that judge made are we again were in the light most favorable to the government using the wrong standard so i don't think this court can give them really any proper weight and also i think that  i think different minds would see that video and he answers differently that a gentleman who has a license and registration everything else he needs the officer within four minutes and then takes twenty minutes to write a speeding ticket and simultaneously completing that speeding ticket at the moment that the border patrol who he's waiting for has a riot's is clearly not credible it's just not credible that it just so happens he completes everything at the same exact  time unless this officer with the best multitasker in the world which i don't get that impression from either the video or his testimony and the fact that it took sixteen extra minutes to complete a ticket that was already pretty much populated by license it's just not credible and again that it's a reasonable enough standard we don't inquire inquire into the subjective motivation of the officer and he did say typical traffic stop that in the twenty minutes  isn't this week in the ballpark of what we would have an average police officer might expect the fake war a traffic stop because it's clear that the seven minutes before he recognizes that the men are in the back he is asking questions to try to crew to try to it's a fishing expedition that is clear and then after the seven minute mark when he finds the two men what he calls border patrol and he starts asking about leaks and in alabama look for him to take united states this was only yes your honor good afternoon counsel may i please the court if i may start by thanking the court and counsel and the defendant frankly  continuing this matter from the march setting to the special setting this afternoon i just wanted to make sure that everyone knew i was very grateful for that this court knows it can affirm a district court's ruling on any grounds supported in the record that being said this court has a number of grounds upon which it can choose to affirm and should do so st this court can simply affirm the district court's reasoning and decision finding that the traffic stop in question was not unreasonably extended or prolonged in any way and that there was no violation of the th amendment we know that the stop lasted approximately twenty minutes and during that time sergeant alvarez conducted the stop and normal and unremarkable way including asking for misspoke questions about travel and other things this court has exhibit a to the supplemental record on appeal to observe the entire stop from beginning to end and can make those determinations for itself nd if the court feels that in some way that the the sa was somehow prolonged this court can certainly find that sergeant alvarez had actually developed original suspicion of a crime approximately approximately seven minutes into the stop when he spoke to the two the passenger front passenger misery of merino and observe the two men in the back of the truck looking at the totality of the circumstances sergeant alvarez had the following constellation of factors before he had stopped a vehicle on a highway which is approximately fifty miles from the us mexico border in particular as he explained during his testimony at the motion to suppress that this is the only route directly from the border that does not have border patrol checkpoints having pulled the truck over he observed two men in the back of the truck with a child who was not theirs in between them when he asked for a as merino about the men she was defensive and claim that she didn't know them and that they were not her friends finally when sergeant alvarez asked the men for identification they wouldn't look at him requiring him to ask again and to which they simply replied no taken together the facts warranted further investigation and there was regional suspicion to believe that ray as marino and cortez were involved in criminal activity on this point defense makes the argument that sergeant alvarez did not have the authority to investigate immigration crimes and the government does not dispute that however he was acting in consultation with the federal government through operation stone garden which is a federal grant program to help border patrol and other agencies and judge tippett i think you kind of made the point in your questions to defense counsel but this would be like if a person came into a run into a bank and presented counterfeit money to a teller they call say albuquerque police department and the albuquerque police department comes to the scene and detain the individual attending the secret service because they have jurisdiction over counterfeiting issues or counterfeiting crimes i should say the albuquerque police department can and should detain pending the response from the force from the secret service how would you think we're sure they would group them so they were cruise was a case that was very actually very very different from here do a cruise was simply a person dropping off an individual to go to work there was no there was  no question or a suspicion that the person who had dropped the individual off was engaging in any kind of criminal activity here or we had something very different and we we of the circumstances sergeant alvarez had developed reasonable suspicion to believe that defendants were actually transporting illegal allianz it was the location of the stop the circumstances related to how the men are got into the vehicle was st raised just to be clear in the reply brief and nowhere in the in the actual initial briefing or in the response is that that issue raised nevertheless there doesn't appear to be any dispute about the facts in this case the court has in the record the twenty minute video that it can watch to ensure that the facts are correct and beyond that this court reviews of the district court's final decision the no vote so it's going to have the opportunity to look at everything all all together and make an appropriate time determination despite the fact that the district court did in fact use the wrong standard and just to that and judge the more this is occurred in a few cases now in fact the case that i argued on thursday and i know honor i'm not because the defense really doesn't take any issue with the actual facts and what happened here you have a video that you can look at and and see that that there's no dispute between the parties about the fact this case and what occurred during the twenty minute stop so the court can take those facts and move forward and decide whether the defense the district court's decision was reasonable under the circumstances one of the defendants argument that the officer actually admitted this testimony that he was prolonging the stop waiting for the immigration to show up well i'm not sure that he i don't know that he said he was necessarily i don't know that he said prolonging the stop i think what he was referring to was he he was he was holding them that basic he was detaining them and if the if the court wants to take that fact and then then what we would argue your honor is that he had the reasonable suspicion suspicion to hold them there pending the arrival of the border patrol agent are there any other questions you can play have a couple of questions st of all i guess i'm not understanding why you think that we can see everything we need to see from the video the district court as i mentioned to defense counsel make some conclusions about what was going on when all these unrelated questions were being being asked and that's not you can't tell that from the from the video you can't see the officer when he's asking a series of questions that have nothing to do with the scope of the stop in the middle of the stop and we can't tell from that video whether he's continuing somehow to work on the  district court didn't make those findings and i guess i am concerned if we're going to view the facts in the law if the difficult would be on the facts in the light most favorable to the government how it might have made those findings in its favor even though the video and the audio certainly aren't clear on that your honor i guess what i would what i would point you to is what exactly the defense is now raising as facts that they dispute and it's not it's not clear from the briefing that in fact they are disputing that the the ticket that the computer was not doing its job during the time that the officer was asking the questions of the two defendants i don't there's nothing in the record to say one way or the other and i don't know necessarily that the the defendant is disputing that at least even in the st seven minutes that the that the computer was not doing its job obviously you can see that the officer going back and forth to the car and that kind of a thing so  even if i guess what i'm saying is your honor that the defense is not necessarily disputing that the officer was doing that what he's saying is that he was somehow asking questions that were inappropriate somehow prolonging this stop and and the facts and what they dispute don't necessarily go to that argument or it would have a nd question sketch more to be and again you mention operation stone garden as they were working these officers who work in consultation with the federal government but as defense counsel points sound i think the record pretty clear that even this officer demitted he does not have any authority to detain or arrest for immigration violations and nothing about operations don't gordon change that so how many how is it that even if we agree with you that there was independent regional suspicion of immigration violations even if we agree how do we get to this officer having a state officer having an independent basis to paint this defen i on that point your honor i think what arizona says is immigration violations as in a person who is a legally here in the country i don't think that that extends to alien smuggling which is something necessarily that that sergeant alvarez potentially could hold somebody for i agree that he couldn't hold somebody if he just believe that perhaps they were in that country illegally but beyond that we have two individuals who are suspected of smuggling and lands and not talking about cases involving for instance only and smuggling and they go on to say that they would hope and they expect that locals would in fact work with federal the federal government to enforce  the authority to detain someone kind of hype the example that i was trying to get to judge kemp to that about if you if if any law enforcement officer suspects someone of a crime and although they may not have the authority to actually investigate that they certainly and should from a just a basic policy perspective be able to hold somebody for some period of time in anticipation of the person who can investigate that crime arriving and that would be the position that the united states would take  with regard to the alien smuggling in the reasonable suspicion that the officer had just more to give the authorities side in your brief on this point doesn't support the position we just took that in the q case i think is what you cited primarily and that's not similar to this case that that's a case where you had a security officer that was holding someone at gunpoint he suspected of the current and he then called local authority who does have the story to come out and make an arrest and they do come out and an arrest and the issue that in that case was whether the local authorities had reasonable suspicion and could rely on their security your information but that case was not stamped with the proposition that we're there i would agree there are no cases in our brief that you say that and i'll leave it at that and are you aware of any because you're saying i'm not going to or a proposition that i i was unable to find any case will that affect i'm not your honor but from i would just say from a policy perspective it wouldn't make sense for someone not for a law enforcement officer who suspects a crime to to briefly detain someone who they suspect of a crime that they may not may not have jurisdiction or she's not jurisdiction but the authority  investigate to just detain them briefly just like i was saying in the bank example where you have someone where you have someone who's accused who they believe is counterfeiting money france town council judge to give it some of the if i may or not i would say that that a number of the questions that were asked that you're referencing came after that seven minute mark so presuming that there was reasonable suspicion then it was ok for him to continue in that line of questioning if in fact a few of those questions perhaps were were before but before the seven minute mark and your honor i would say that there's really that would next go to our causation argument that there's really no causal c of it were questions that were unrelated to the stop that the questions were all permissible when a police officer pull someone over you can't i would expect that there's also always small talk regardless of it being travel plans and it would be our position that versus united states came into effect because this immigration law is a technical area in terms of criminal immigration law and it's for safety purposes to understand what's going on so the fact is we make this argument that it's fifty miles from the border well it was in transporting is one of those areas that we think would be covered under arizona versus united states for many of the same purposes was supreme court came to the determination because you need someone who is actually trained  in that aspect of criminal law asking the right questions in making the right decisions to detain people who will do what what what what what if what if what if this occurred one hundred or two hundred miles from the border where there was not an opportunity for border control to be accessible to the officers that  so i think clearly the context would change yes for me i again because it's ultimately just a status offense i think you know there's border patrol actually i don't know within the inside the country but i think there's probably border patrol all over the country and they are trained to do the sort of works in a matter where we are i think the argument remains the same that local law enforcement can call border patrol and it doesn't take border patrol probably a long time from different places to a rifle yes local officer should not be engaged and during the sort of work that they're not trained to do for safety purposes for legal purposes yes also again i i  think that it's just so clear from the testimony the officer admits every single time that he's crossed each question was not related to the speeding violation and then it's only argument that  well it was done simultaneously you know i that's not the legal ball at all and also the fact that he's been living two questions that are completely unrelated really flagrantly flies in the face of the rodriguez decision and then the same officer again and i mentioned this earlier still it's early in the in the testimony in front of the district court well i call border patrol no are not allowed to arrest and no i'm not allowed to detain them but then he admits in cross the says no i was detaining them because i thought they were engaged in transporting so he's he's he's clearly deviating from what he understands to be the allowed process which is if he's allowed to call border patrol that that's what but then he says well i was clearly detaining these people and i think that sort of admission it just really didn't gives no credibility to the fact that he's