please the court my name is peter smyth i represent johnny johnson the issue in this appeal this whether law enforcement illegally seized mr johnson on the thirteenth of february two thousand and fourteen mr johnson on the morning of that day he executed his residence in full view of eric curtis who was surveilling the house mr johnson had nothing in his hands mr johnson went over to a jeep parked in his driveway looked into the jeep and then went over to a pickup truck and hopped in the pickup truck which was carrying two other people and the to jeff tindall a patrol officer and asked him to locate the truck and find probable cause for traffic stop what's important in this case is agent curtis didn't say anything about reasonable suspicion he said stop to try to find probable cause for a traffic stop and agent officer tindall's testimony all through the trial was that he commenced a traffic st sniff around the car and under rodriguez they can't do that because the mission of the stop was limited to traffic violation and that was all now the government in its brief what ev do you look to to determine that the stop was a was over it was of officer tindall said that he had completed the search warrants information and that completed the stop but he found that all three of the passengers had outstanding warrants you know they had criminal histories criminal histories yes and they had a search warrant the argument is city they had reasonable suspicion to investigate for narcotics based on the fact that they had this informant in the information pertaining to the man's house yes that's what the government contends we contend that that is a historical fact and actually that would be lined with criminal history the government has to find along with this court's precedent that reasonable suspicion is based upon criminal activity that is occurring or about to occur that's present tense when we looked through the records judge davis the testimony was at trial was he was getting agitated and that's on page three ninety nine of the record and there are no facts supporting that it's just a conclusion that he was agitated there's no testimony that his hands were shaking that his arteries was pulsating or anything like that it's just that he was getting agitated and that could be for a variety of reasons nobody could call in pertaining to the house search it is after reading the record it's unclear to me exactly when everybody was handcuffed i know they were handcuffed when they were arrested you actually rodrigues your honor because one thing that the government argues in the briefing is extending detention where rodriguez to spring court cases ask the question what is the mission of the stop the mission  stop here was a traffic violation so and that's clear throughout the record with officer tindall you know but you but you're missing a logical step there because rodriguez doesn't prevent officers from doing investigation of something apart from the direct mission of the stop right but rodriguez doesn't imply that they have to develop the suspicion during the traffic stop in order for there to be further investigation right i disagree with that because the judge just says she talks about the seizures mission and the mission here that was only communicated to officer tendo was traffic violation there was no discussion at all about reasonable suspicion now we get to the controlled by like you said that's a historical fact that's in the past that was two days before the government cites the s'more a case and some mor canine up there at the very same time i don't think they can do that under rodriguez because that rodriguez says that a dog sniff is no ordinary incident because it is inevitable discovery a i don't believe so because there was there wasn't anything there was no indication that there are any narcotics in this truck in fact it wasn't even mr johnson's truck it was it was an unidentified driver intil he was stopped  identified because of the stop so that's a break in the chain also because on all the cases that the government sides the defendant is getting into his own vehicle and here mr johnson is getting into somebody else's vehicle so so you so you have a patrol officer who commits is a traffic stop based upon a traffic violation and under rodrigues in less something comes about during the investigation the seizures mission is a traffic stop and nothing more now you have some facts had arisen during that time judge jones then i agree that the mission therefore would change you'd have a traffic stop and then you'd have reasonable suspicion giving law enforcement let me ask you question that they could have stopped him on the street suppose he had emerged from his house carrying a backpack and started walking away they could have stopped him right there and done a terry search don't you think i think that's questionable whether they could have done that or not because the are the one case that the government sites in the brief that that seems to be the scenario and are the wine but the court there said that we're not reaching the question of a fourth amendment seizure if the government does contend in its brief on page seventeen that because of these two controlled by it could conduct terry stop it could as he was walking on the street anywhere on any street virtually at any time it could conduct a traffic stop while he was in a car and so what the government contends is to buy in the past historical events are sufficient for reasonable suspicion and i don't believe that's supported in this court's case law and i don't think that's supported by rodrigue sobber well they're not only buys but they're buys at his house yes buys from the house and in this case he didn't have anything in his hands and the stop occurred well beyond his house so as agent curtis so mr johnson leaves the residence there is nothing that he could communicate to officer tindall to say well we have some suspicious facts of ongoing criminal activity in fact the communication from curtis to tyndall was find probable cause for a traffic stop and that defined the stops or the seizures mission under rodriguez and then let me also just point out that in this court's prior case law and one thing about the criminal history is this court has said that criminal history is insufficient to support reasonable suspicion so i think the government's main arguments hang on to control bias that occurred in the recent past but they occurred in the past and they're not sufficient to support reasonable suspicion for an extended seizure or the change the mission in the middle of this  something that you consider so in addition to the nervousness of the driver if that's supported by the record yes your honor if it occurred during the traffic stop yes but i mean could they also if you got nervousness of the driver show allow them to consider what they know about the recent history of passion well i don't i don't believe that the recent history because of this court has said that criminal history is not sufficient to support reasonable suspicion now the question before the court would be if you have a control buy that occurred two days before or a week before doesn't that constitute criminal history well i think that's a stretch of terminology that is that is not history as most of us think of it correct your honor but but criminal history is usually founded upon a conviction based upon evidence be a reasonable doubt and here we're talking about to control by that are based upon probable cause which is the lesser standard but going back to just the no no to controlled buys meant there were two illegal baseband well it's based on probable cause well whatever it's based upon there were two illegal transactions in the immediate past and it's very astute of you to call them criminal history but it's basically house they had a warrant for his house and if we're in that right i believe so yes and so that's one difference and then the other difference is they didn't develop a basis four stop in clark what they expressly abandoned the argument that it appears to be making here and it says that the facts are similar for these reasons we we contend that mr johnson's conviction should be vacated and the case for made it back to the t expectation of privacy in either the car or the items that were searched and seized from that car the second is that the police had reasonable suspicion of mr johnson's illegal activity that allowed them both to stop the car and prolong the stop to conduct a free air drug dog search this court should affirm on both grounds it need only find one of those grounds but either way affirm it's is still the  result one argument that i don't believe has been touched on today in the argument but i do want to emphasize that here it has primary placement in our brief is the lack of a reasonable expectation of privacy  this goes all the way back to the supreme court's decision in iraq us which we cite in the brief the companion case that i would most rely on from this from this circuit would be pollo we also cite the pa case i think it's important to highlight that in this particular case when mr johnson brought his motion to surprise the government the response and in that response we argued a lack of standing the lack of a reasonable expect expectation of privacy mr johnson did not in response to our  objection to the lack of standing he did not assert standing as a matter of fact he was careful not to do so he said in his motion that for the purposes of his motion only he simply alleges that i have standing he stated a conclusion without any supporting facts as the district court issued its decision again he did not object in his serve any sort of standing by the time that mr johnson got the sentencing in this case he was pro se and at the time of his sentencing he actually indicated in his own handwriting  that he was never found to be in possession of anything in that car so once again he disavowed any sort of reasonable expectation of privacy even here on appeal he does not assert any expectation of privacy in the vehicle  stands for you still have to there is no such thing as automatic standing you have to assert a legitimate expectation of privacy that has both a subjective and objective component and thus far mr johnson has not done that he has relied solely on the what he calls the illegality of the stock he did talk today extensively about the mission of the stock however the mission of the stock is not mission of the stop he wants to restrict this court's analysis to what was communicated between the officers find probable cause to take him down for a traffic violation certainly that occur however that is not what restricts this court's analysis of the evidence is construed most favorably to the government as the ones who prevailed on the motion you can affirm on any basis in the record and here the district court expressly filed on that there was reasonable suspicion and he looked back at the evidence developed in the search for the evidence developed in the search warrant and i'd like to highlight this it's not simply that there were buys out of mr johnson's house the evidence included buys directly from mr johnson the officers in other words not only knew that it was coming out of the house they knew who was dealing in the house specifically mr johnson the informant made a by from mr johnson within two weeks prior to the issuance of the warrant and then within seventy two hours he made another by he identified mr johnson by a mug shot when the officer conducting the surveillance was sitting outside the house he made he actually observed mr johnson recognized him he had already as detailed in the record he had already developed evidence that mr johnson had prior drug convictions was on parole having served prison time and was now on parole for a drug conviction all of those things are not to be brushed aside or to be separated in what i believe it was the power cord indicated was a divide and conquer analysis where you look at individual facts in isolation that's not how this court is to look at things you look at the totality of the circumstances and certainly the are going case this is more a case that clark case all of those certainly indicate that what we had here in terms of reasonable suspicion and i would also assert probable cause justified all of the actions that the officers took that day from the stop johnson charged with this offense instead of bayard mr mr  g was charged with felony possession of a firearm your honor as far as the specific rationale behind the charging decision i'm simply going to son clear is it not to him this backpack  belonged mr mr berg was questioned after the arrest mr byrd said that he owned the backpack but he disavowed any ownership of any drugs in the car at all including in the back miss the kid was also interviewed the third occupant she indicated that the backpack belonged to mr byrd but johnson was charged with possession with intent offense that's right that's  right it's important to note that drugs were found in more than just one location here and there was one in the backpack in the eyeglass case the eyeglass case was not actually inside the backpack it was on top of the bank that's right the lock box that was behind the seat was something that mr berg would later specifically reference so that i don't know if i answered your question about why mr byrd was in charge but we believed we had sufficient evidence that mr burr was a felon in possession of a firearm based upon the location of the firearm relative to where he was sitting in the car we did not to get a look at that knowledge in order to determine whether this stuff matured into reasonable suspicion certainly that is fair game for this court to consider however i completely disagree that the case law restricts this court's analysis what your point your best case contrary to the well all of the cases the talk about the totality of the circumstances because that is certainly discussed in the pollen case in the pat case are going to more of clark and when you're talking about the totality of the circumstances by definition that's what it is it's not simply what comes after it is also what comes before and again it is not new but they should involve a fact that happened before yes they did your honor they they involved both there's a myriad of facts some involve tips from informants some involve search warrants some involved were simple traffic stops that then developed into additional evidence so those cases don't have  a set of facts that is exactly on point with what we have here but collectively so what they stand for is that just like the district court did here correctly this court can and should look at what happened before what happened during and then decide based upon the entire record whether there's a totality of circumstances that shows reasonable suspicion probably because as you indicated judge graves the officers in the clark case they didn't have a traffic violation based upon one controlled by two like we have here but based on one controlled by  an evidence and information from a c i they were going to they were sitting outside mr clarke's house similar to what was happening here they then saw mr clarke drive away just moments before they were going to execute the search warrant without a traffic violation without an arrest warrant they arrested him on probable cause he got some significant differences one of which to me they have search warrants both for the house and the b not like in this case right well they had in this case we applied for and received search warrants for the house and for vehicles not the particular vehicle that was driven by mr johnson because that vehicle was not associated with mr johnson or driven by mr byrd because that was not associated with mr johnson's residence however that distinction that you didn't have a search warrant for that big not for that vehicle but as in the clark case that was a distinction that does not make a difference here because the probable cause in the clark court talks about this they talk about the fact that driving away from the scene unlike the bailey line of cases where you're trying to get into a vehicle that drives away from the scene of a search warrant without sufficient connection to the facts in the search warrant the search warrant by itself as in bailey isn't enough to stop that vehicle away from the scene you have to look at the underlying facts and here are underlined facts again are not simply that this was that there was drug activity at a residence without knowing who was doing the drug activity we actually have to control buys from mr johnson to our informant and then mr johnson being seen by the officer leading but the undercover officer who made the phone call called up the canine officer and said find probable cause to make a stand and you seem to be arguing that he had the basis for an arrest when he was sitting in front of the house looking at yes i do i believe that we we do have a basis for that and i look at the language in the c pacifically to support that conclusion but that's not what we did here they took a more cautious approach they justified the stop based upon traffic violations but again even if they had not had traffic problem because there was no arrest warrant in that supreme court case and watson and this court reversed a district court's conclusion that there was some contemporaneity requirement between  what had happened at the the location where the probably cause was developed at the house and where the stop occur you know this cordon clarke said no that's that is not supported by our president so again i go back to our two primary arguments are the lack of an expectation of privacy the second is that we had ample reasonable suspicion and i would argue again consistent with clarke that we had a full fledged probable cause there is certainly evidence in this record for this court to farm to find the evidence in the light most favorable to the government and we would ask the presumably was not in the offer hearing knowledge well it actually was in the officers knowledge your honor there was a team though that was going to be executing the search warrant for the officer who actually made the stop you know about the application they were there were two officers officers courtesan tendo also tend to was the canine officer and he was actually assigned to help execute the search warrant that morning so he was not simply a random canine officer that was available he was part of the search warrant team officer curtis who was doing the surveillance saw the gentleman leave the house knew that officer tyndall was involved knew that he had a canine and that's why officer tendo was specifically asked you have a patrol car you have a canine you're coming to do the search warrant with us pull that vehicle over and that's what happened and then we have officer rodriguez who was the affiant on the search warrant so under the collective knowledge doctoring who was also at the scene of the search warrant when they brought the gentleman back there after they arrested them so under the collective knowledge dr we we certainly have sufficient amount of evidence and communication between  officers but you have to resort to the collective knowledge doctrine because there isn't any evidence is there that the officer who actually made the stop was aware of what was included in that search warrant it was the surveillance officer who called and said i need you to make this stuff in that when i that is correct your honor but i would i would disagree that we're having to resort to the collective knowledge doctrine that's a recognized doctrine and it's it's perfectly permissible and actually it has great practical appl ad but it gets raised when the evidence that indicate that the officer actually knew it himself well otherwise what what this court's precedent would require and it does not is that officers have some sort of a collective  briefing before any of them take action relative to a suspect and that's clearly not what's required under this court's precedent or into the supreme court's problem that they can know who was there before the  officer who made the stop made his investigation to check out the vehicle the the canine officer made the traffic stop made to traffic yes officer curtis who was not the canine officer he was the one surveilling the house he's the one that did the initial following of mr johnson's vehicle he saw the speeding violation he saw the failure to signal violation and at some point deputy tendo the canine officer over takes him for practical reasons because he has squad car and so he was the one who was instructed here's what i saw pull the vehicle over so he was the first ones to actually pull the vehicle over make contact with the occupants of the vehicle etc officer curtis the surveillance officer pulled up shortly thereafter they were pretty much together within within moments or a few minutes ok thank you very much like to make two points on rebuttal one is one is the rodriguez case because the rodriguez case the supreme court talks about the seizures mission and what the government argues is in effect that officers can enact emission a traffic stop but then that traffic stop can be judicially reengineered into reasonable suspicion after the fact and rodrigues i think for him it's that the government sites all these free rodriguez cases about totality of the circumstances but rodriguez says ask the question what is the mission and when is that mission over the second thing it does go to collective knowledge because the i bear it case says that there must be some degree of communication between officers for collective knowledge to apply it's not just and here the record shows that the only communication between officer curtis in tindle pertain to a traffic stop that morning and that's all that the communication was in fact officer tindall says i was called by curtis to locate defendant for a traffic stop and i made a traffic stop and that's all that curtis said about probable cause ask you a question no i thought i got the i thought we were just told that the fellow who had the canine was the person who had observed the controlled by that wrong i believe it was said that he was part of the team to go do the search warrant at the residence ok and the search warrant was based on controlled by yes controlled by us from this defendant so yes i don't understand why the plea to me this whole business about the mission is superfluous or rude or an abundance of caution is from the standard for search except who the object of the seizure search is and they had probable cause for both well comparing the davis case of the  law enforcement with in arresting him and then did a search pursuant to a lawful arrest here you have the search occurring before the arrest and it's based upon it's based upon the fact that he was personally witness to engage to sufficient evidence yuri standard for probable cause in drug deals well that's where we disagree your honor because there are no articulable facts that morning that there was ongoing criminal activity where you don't have to arrest somebody at the very moment that the crime is committed do you know but make it very hard for murder cases you know but they didn't they didn't go to arrest mr johnson th that they could have but they did not and since they did not we have to look at what they did and how they did it and they were a little more careful because they were even more circumspect the evidence must be suppressed well see i disagree i disagree with that that they were more cautious they were looking for probable cause for a traffic stop and then once they affected the traffic stop then they did a dog sniff which rodriguez says well that's a that's a whole different mission than a traffic stop well i understand what you're saying but just for the sake of argument rodriguez is talking about the potential interference with the rights of innocent people who get stopped for traffic violations and then something happens so the stop it's unconstitutionally prolonged or whatever but but this is not that case because you've got a fellow who whom they have every right to arrest at the time that they can conduct this but but again they did not arrest him until after they conducted the search in the search was pursuant to an illegal seizure offers have to know more for call or the mission was to go arrest johnson then they arrest him and if they do a search whether that's a lawful search pursuant to arrest but here they they do a traffic the mission was a traffic stop and then they go over and beyond that based upon what based upon past history not based upon facts of ongoing criminal activity and in so that's an illegal seizure there if if they had gone to arrest him we don't know whether or not what would have happened because it didn't happen you know it's just hypothetical and i think that's one reason why the government abandoned the traffic stop arguments in clark and said well it was a and that this the search was pursuant to a lot for arrest but here as officer curtis says we did the search and then we found what we're looking for and then we arrested which is reverse d thank you very much thank you your hon