of united states versus the torah counsel may it please the court hell my name is katherine young i represent the appellant in this matter mr bruce michael atory under the supervision of mr turris identification and pilot's license effectively detaining him at that point agent manson later acknowledged that he requested those documents as a stall tactic that he did not have a reasonable suspicion of criminal activity and that he personally knew very little information about the request to stall mr le tory what is reasonable suspicion require reasonable suspicion requires knowledge of facts that you can reasonably say that someone is or is about to be engaged in criminal activity a minimum level it is less than probable cause certainly  later observed behaviors that he considered suspicious that's true but if you look at the totality of the circumstances many of those factors were not object suspicious and even if they were mattson certainly did not have a reasonable suspicion of criminal activity and lieutenant why there is information is not properly imputed under the collective knowledge don't we take into account the experience and the professionalism of the of the particular officers involved when they see somebody without a transponder going from one place to the next and then going back the same way doesn't that raise a little suspicion in your mind if you're a policeman we do to first of the experience of an officer but that alone does not travel especially with air travel it's pretty common to see people traveling to one place and another pretty quickly so that in and of itself is not objective least of suspicious as were as many of the other factors also were not but even with even  if lieutenant wyler had a reasonable suspicion of criminal activity the collective knowledge of doctrine does could not just justify agent mats and stop in the situation the collective knowledge doctrine can justify a stop an officer who does not have a reasonable suspicion of what we what we have here is an investigative detention is that right that's correct and what requirement must be met by the officers in order to do  that by the officer who actually did the detaining yes well that's the problem with this case is that agent mattson didn't know anything about the reasons why he had been asked to see more just you couldn't just  stop him and say what's your name and i need to see your your your pilot's license i need the registration for your aircraft he couldn't do that just that just a clean terry stop no because he did not any information or knowledge about suspicious behavior on the part of mr le turi other than that he had a criminal history and when he requested those documents that's when it became an unlawful detention at that point two and four make a difference it goes to the attenuation of the information but there are also other differences from rodriguez rodriguez that make this case different another difference is that in rodriguez rodriguez the investigation incurred occurred very rapidly it was a matter of six miles and minutes where those two change of community chains of communication occurred whereas here this is an investigation last three days over multiple states also rodriguez rodriguez involved imputation of probable cause which is a much higher standard than reasonable suspicion which inherently more reliable information whereas here you're asking to impute less reliable old standard of information along a longer chain of communication and that's the point where this collective knowledge what wasn't wasn't widely or whom i think you would admit had sufficient knowledge to stop had certainly enough for reasonable suspicion wasn't he in constant contact with the people at the airport in wyoming he was not he did not speak to the people at the airport in wyoming he spoke to agents in all my heart of brassica that he did not specifically recall what information he relayed to them other than that he updated them on his investigation we don't know exactly what those omaha age as i agents then said to the salt lake h s i agents but they did know th airplane was expected to arrive in wyoming that was suspected of some criminal activity those agents then contacted the wyoming agents who ultimately stopped mr le tory and that's where this problem arises agents further along in this chain of communication well i thought madsen was told to hold him to detain him he will don't let the plane leave he was told to stall him at the airport until s from he knew that it came from h s i gents out of salt lake city but he did not know where they were getting that homeland security is that what you're talking yes he did not know where they were getting their information from for an investigative detention would you agree that we should affirm in that situation i think that it would be different because that chain of communication would be much more clear about what was it the plane hit going in and out of radar because it had no transponder correct i don't recall that agent lowry knew that i believe he knew that someone observed so he did have limited information but criminal history alone cannot go to reasonable suspicion or amount to reasonable suspicion and given his we have a lot of cases presidential cases that say th criminal history is sufficient not only for reasonable suspicion but probable cause is not necessarily is but it is certainly a substantial that the criminal history is a factor but it cannot be a factor standing alone and that really is all the information that each on lowry and agent mattson had we don't know what the extent of the information about the omaha h s i agents but really the bulk of the information was a lieutenant wide letter who was four degrees removed from the officer who ultimately acted on that information and who never communicated with the wyoming agents maybe we need to move on to other issues what about the consent to search so because mr le tori's stop was illegal because it the collective knowledge doctor does not still bad it is your honor why in addition to being out of an illegal detention it was also not voluntary under the totality of the circumstances because mr le tor y was removed from his vehicle or his mode of transportation he has documents were retained and he never receive them back he was transported into the lobby with three officers and he was told that it was a consensual encounter but it wasn't really explained to you what that meant was and he told that he could leave any time he was free to leave was he told that i believe he was just told that it was a consensual encounter and i i don't believe that there's any information in the record and his documents his pilot's license and the registration for the airplane they were placed on a chair between he and one of the officers yes they were placed on a chair  between him and another officer which it would be i think incredibly uncommon for a normal an ordinary citizen to reach out and take something from an officer who had already had them who sat on the chair and reach out to take those off i don't think that a reasonable citizen would feel that they were allowed to do that in those circumstances so in addition to  being tainted by the illegal detention even if this court were not find that it was not voluntary under the totality of the circumstances and then we have a question about grand jury testimony in new york we do your honor and that occurred several months later in june was he was detained arrested held between these two events when he was stopped and questioned at the airport he was not so she was placed in handcuffs at the airport but she was released that i don't believe that they took him into custody but there were subsequent interviews with the same officers and  they have i in wyoming i believe he was allowed to return to california but there were other interviews in wyoming as well the agents maintained contact with him throughout this process provided him with a plane ticket to new york and testify at the grand jury and i think that you can infer that he he did that because he expected that the government was going to do something helpful for him in return so i think that that goes to the issue of whether that testimony is also tainted there were not enough intervening circumstances because of the contact between the agents and while tory there purchasing well there was a huge break of time wasn't there there was a break up time but time alone is not dispositive and when you're considering these other factors he didn't receive a fresh warnings he wasn't represented by counsel he pretty clearly had he received miranda warnings at any time in this case he did after she consented or arguably consented to the search for their cra and they found the money in the plane he was informed of miranda after that occurred and was he interviewed the next day and again given miranda warnings yes the next day and then but the testimony at the grand jury occurred much later and he did not receive a fresh set of miranda warnings at that time and was not really again not represented by counsel so it just goes to way of background this case began with an investigation by a state police lieutenant in illinois who was monitoring a software product that enabled him to track what i'll call really blips on effectively information from f a a radar so he's observing air traffic in illinois he spots what he referred to as a primary target and that is a blip on his screen that is not operating a transponder in other words he sees he sees the blip moving and he knows it's airspeed but he doesn't have other information about it because it's not operating a transponder is there any requirement that you must have your transponder on when you fly  on a any distance i don't believe that distance imposes any requirement your honor there are various different areas of what are called controlled airspace there's also controlled airspace and i believe it certainly would be possible to fly from small airports exclusively in uncontrolled airspace without a transponder and that's a lower altitude is that a believe that ten thousand feet is a is a threshold your honor and i said no this flying below ten thousand feet without a transponder well it's unclear how high he was flying your honor because without the transponder as i recall there's no altitude information and he certainly later claimed that he was flying below ten thousand feet and i believe the test lieutenant why their testimony was he couldn't ascertain one way or the other whether this aircraft was complying with the political f a a regulations in any event lieutenant wife in illinois monitoring a software continues to observe the blip as it flies eastward stops at an airport in wayne county ohio there's the lieutenant speaks with an error report employee who tells him that the pilot is supposedly going to buffalo to visit family they lose track of the may track again the next day as it flies back west and ultimately on december the ninth to buffalo i don't believe they tracked it to buffalo your honor but into the vicinity it was i believe i can't remember the specific testimony of where they lost it i believe it may have been somewhere in ohio but what they observed the next day was a similar looking primary target so no transponder appears in hamburg new york which is near buffalo flying the opposite direction and they believe it's the same aircraft and later because that aircraft lands in the brassica and its tail number is identified they were able to ascertain that indeed the aircraft would have been flying east on december seventh was now flying west on december ninth by that point in time the just the collective knowledge issue arises because of tenet wife or the police lieutenant illinois does most of the investigation he's communicating with homeland security investigation especially agent in omaha who is communicating with a homeland security investigation special agent in salt lake who's been communicating with wyoming d c i in southwest wyoming  so there are multiple levels that are involved here and that's why the collective knowledge issue arises i'd like to begin with the question you posed that if special agent  the homeland security officer in salt lake if he had enough information should the court affirm and the government would say yes that's really related to an alternative argument that i raised in a footno the brief which was that setting aside the justification all the way to the top or to some extent if special agent mattson himself the office who actually detained mr le torie if he had sufficient reasonable suspicion on his on then the stop was good and his information is coming from only one step above which is from agent lowery and in volume two so what did he  know the agent that stopped or the officer that stopped the defendant what did he know your honor it's funny you should ask that page seventy seven of volume two of the appendix and here's what he testified to this in from it this will this is special agent mattson testifying and he's getting this information from his colleague agent like t and by the way just a quick footnote agent like these name is spelled wrong in my brief and throughout the record it's actually l i e c h t y so i carrying narcotics and that the aircraft owners name was a brutal tory and he had a history of flying marijuana across the country and then actually been caught by diego back in two thousand and eleven and then moving further in matt since testimony like the it indicated and like the is me putting the brackets and he had indicated that h s i reported to him that they had been notified by the illinois state patrol air unit that this aircraft was flying suspiciously and they're the ones that had reported to h s i that it may be carried narcotics and then agent mattson recalled like to telling him that the transponder wasn't turned on and at the time that didn't mean anything to matt said he didn't know about transponders although he later asked but so in answer to your briscoe and following up on judge bacharach's earlier point that's the information that agent mattson had and the government would submit that that's sufficient reasonable suspicion to conduct a terry stop at the airport  it's the collective knowledge doctrine still probably applies because mattson is relying in a conclusory fashion on the statements that the that the airplane is flying suspiciously and might have drugs and if there were no foundation upstream for those conclusions then certainly the reasonable suspicion at the bottom would be an accurate well ford is the collective vertical collective knowledge go ten twenty thirty or forty people could yes it could be a runner that would i think but it would depend on the facts of the case i certainly agree with miss young about the difference in the numbers of relationships as with this case as opposed to the rodriguez case but those differences are explained simply by the factual differences in the cases in rodriguez we are talking about a traffic stop with with officers who are physically present in the same location speaking to one another the nature of this investigation really dictated the number of collective knowledge relationships because we've got an aircraft that's flying across the country it never stopped in illinois lieutenant y there in illinois just happened to be the one who noticed it so he's calling employees at aircrafts or airports in different states he's calling omaha because i believe that they were the ones who are listed as a point of contact by the a mock entity so he gets their name so he's calling omaha the only reason that all my husband calling salt lake is because other learns that the aircraft is en route to evanston wyoming so h s i in omaha is calling each assigned salt lake because the testimony was there about forty five minutes from evanston but even they would were afraid they weren't going to get there  time and in fact did not get there in time so that's why they involved wyoming d c i so i guess in answer to your question judge kelly i think depending on the nature of the case that there may be that level  of that number of relationships and the policy really underlying the collective knowledge doctrine i think supports its application in a case like this where you're talking about the need to to try to effect  stop of an aircraft that's moving quickly and using the small airports it just was really dictated by the nature of the investigation although there may be pragmatic reasons  particularly when you have an airplane who is traveling obviously i've lost city does it also logically follow the links in the chain and i think this is probably implicated your answer to judge kelly the more links in the chain you have the greater the likelihood that something is going to be distorted you know there's an elementary school game that we all play and you repeat something and by the end of it you know it doesn't have any familiarity with what was originated so if these law enforcement officers and you have are communicating simply conclusions in four links what is there about that number of links and their communication that gives this in indices of that we should have confidence in in the fact that these communications are are are reliable after all if any one link distorts with said then that would distort the ultimate conclusion i agree with your analysis your honor i think the telephone the game of telephone is is an apt it is really an apt an for the risk the risk is mitigated if we're talking about a conclusion that's being filtered down because if the conclusion is this plane might have drugs on board that's pretty simple and that conclusion can be passed from mouth to mouth really that's vertical collective knowledge is talking about passing down a an order request please stop this person or a conclusion there's cocaine in that truck or there might be drugs in that airplane now where the game of telephone would really come in is if we're talking about the underlying facts and your honor i think certainly this case could illustrate that because lieutenant passes the underlying underlying facts he said he was in the flying to buffalo to visit family he paid cash for his fuel in ohio the details about the transponder etc it's extremely unlikely that those my new show are going to pass all the way to the bottom in effect they did not so if we're talking about a scenario where the officer at the bottom needs to be aware of specific facts and sort of make his own conclusion with reasonable suspicion that game of telephone could be a problem if we're talking rather about though that illinois thinks this guy's suspicious and maybe hear some of the reasons why but really the gener conclusion they think he's suspicious the risk is mitigated because we're talking about a conclusion as opposed to specific facts what about the consent to search the airplane your honor the consent again i agree with mr young accurately represent the government's position the united states would concede that if the detention is on waffle the taint is consented so operating under the assumption that the  detention is not unlawful then again we're looking at the we're looking at the totality of the circumstances and as like knowledge in the briefs certainly there are some that cut in mr wood tory's favor but but on balance they really don't  this was a this was a conversational interview in a public place it wasn't behind closed doors there were the two h s i agents there was that the cia agent who was nearby well  mattson when he actually encountered the defendant to try to get him to stop and not get into the plane he was in the midst of getting into the plane he shows his gun does he not yes your honor and i believe his testimony was he was just showing his gun and badge to identify himself as a as a log for the jacket back so they could be seen that's right you're not draw the gun not that there's no evidence that any weapons were ever drawn mr look tori is told that it's consensual agent lowery's testimony wasn't super clear it went when i asked him questions about weapons and also questions about you know if mr le tory asked questions agent lowry's responses really were sort of more about  generalities you know when i'm doing a consensual interview i say this or mr tory is the type of guy who will ask questions if he's confused so but even allowing for potential ambiguities of the test about his documents were held whi conversation was ongoing right the testimony as you indicated your honor is that they're sitting on a leave of chair between the agents and mr le tory but certainly they were never returned and returned to him and he was told he was could could leave was that said the phrase free to leave was said your honor by agent lowery but again it would be good to go back and check that portion of the record because i believe he may have been testifying about when i do a consensual interview here's what i say i don't know there was a suggestion based on testimony by the defense expert that there are state culture of compliance among pilots and that they they do as they're asked because they're very worried about losing their licenses which well and good maybe could be true for some pilots as a general matter but mr la tori's behavior in this case suggests that's not true for him because when agent mattson originally was asking to speak with them and this may have been before he drew the jacket back i didn't check violence or threats no promises no deceptions no trickery i'm not sure whether he did or not your own it was that in the subsequent testimony i thought it was i thought i would agree with the underlying conclusion judge that none of that was there is no evidence of any of that wealth or glittering knowledge that and i i don't remember that the turner thank you thank you counsel thank you both for your arguments this morning case is submitted