proceed his number fifteen dance one five to six in one five five eight nine states of america versus air and cavity in the mosque hernandez cortez argument not to exceed good morning may it please the court john brewster appearing on behalf of demas cortez and could i please reserve two minutes for rebuttal or thank you this case involves the appeal from a jury trial where my client mr cortez was convicted but the main issue here is the traffic stop and the motion to suppress  judge cox denied that motion on september fourteenth of two thousand and fourteen and that happened before the very important case of rodriguez against the united states which was decided by the supreme court in april of two thousand and fifteen and the steeles with the traffic stop that was similar but i would argue  facts of this case are much more i agree just as far as what the officers did even compared to that rodriguez against the united states case and that's where rodriguez said that it is unlawful to prolong a stop beyond the mission of the traffic stop issuing a ticket and here we have sarah  and that basis because the legal limit in michigan is fifty five is on the low end processing on and i'm sorry there's something in addition to going too slow  change but that's what i'm asking about was the lane change legal we believe so because she was in the center lane of a three lane highway so i don't believe  am going after the red flags of the unlawful detention after the stop there you are yeah yeah and the initial well i would join in any too late now if you haven't well well i have as far as the well what i'm saying to you is troopers assign as part of up intervention team really and he's only written five tickets and five illegal and in a footnote i have the the fifty five is a legal speed limit in michigan but pass that the illegal detention i think we have a number of red flags and that is only a fifteen minute period is there not between the stop and the consensus or well and  but or well there are number of weak indicators in many cases in every case is a little different so i would argue though that these are weekend decatur's that trooper's assigner relied upon and prolong the stop where even the dog did not alert a second tug was brought to the scene they broke down panel  search well i i think there are cases to where consent to search where police officers have guns or or there's another officer with a rifle outside  you know might get to your argument isn't helping you i'm you ought to keep it in some kind of chronological order you're in the last thing we were talking illegal maybe not to that point but it was cured when my argument would be that when they found her purse and her license they still proceeded to bring book or the dog the dog did not alert after that they still proceeded to take the panels off the van they couldn't find anything then trooper schreiber a second combining apples and oranges here well and and nothing was found and then further detention to the length of about an hour and twenty minutes  morning your arse please a court that martin of the federal defender office in detroit on behalf of seroquel betty i'd also like to save two minutes for a bottle i'm actually going to start with the second point in our brief which is the legal interrogation that occurred after the traffic stop and i think there's a blatant fifth amendment violation here and then this call that he signed her clearly signed her name next to the word to say no that she didn't want to answer questions when they took her to the field office to interview her and the agent in mid on the stand that he saw that and yet he kept asking questions did the the government use her answers against her i i looked at the transcript and it appears that defense counsel's asked the questions that brought these statements and it was there or it was the defense that brought it up rather than the government in my i believe it was during the governments that the comment came out that betty had agreed to assist with the controlled delivery that was going to government solicitor that answer that was my understanding and i would double check and make sure that i thought i thought it was defense counsel i mean i agree with you that after the miranda rights were involved i alights miranda rights of any further interrogation and there's a so there's a there's a violation there that the government argues ok there's a violation we never used that evidence against her and if it was used it was used by the defense and not the government and i thought they were probably right about well i'll double check the citation i have a one page id one thirty one three three five even it even if the government used it was it harmless there  was a reversible error well i'm i think actually this is i think that the bigger problem here is that during the interrogation they taint her consent to search the home day that's a different issue than her statements though i mean that's correct but ok let's get let's stay on the statements here if if the government actually uses statements which i don't think they did what was that your harmless or was it was it doesn't require revers reversal here i do think it requires a new trial i think that is putting her as a necessary part of the controlled delivery was a harmful thing that would that the jury would have seen and i do think that it's even more harmful that the evidence from the search action by her by the need to search i don't see any testimony there that and that's what miranda is about it's questions that would elicit a testimonial response and  doesn't seem like it fits miranda to me right and i recognize there's there's case law against us on the idea that it violates miranda itself the bigger problem is really i think the way that it contributes to her consent being involuntary and i think that requires a look at the totality of the circumstances including that they had violated her miranda rights and there's other factors to look at that there was this prolonged search she told the officer she was sleep deprived she'd been driving twenty four hours straight then they ignore her request to speak with them and there's no evidence that she was told that she could refuse consent and i would point in particular to the haynes case that cited in our brief and there there was following an illegal search of a vehicle that they asked for consent and the court looked at the illegal search of the vehicle and they noted that when suspect witnesses a blatant disregard of their rights there's a sense of futility that's created in  further ability assert their right your argument here that they consent there is no consent as a matter of law under these circumstances that the consent was involved or the consent to search was involuntary as a matter of law or as a matter of fact but i think the law requires us to look at the totality of the circumstances which looks at all the facts ok well if it's fact dependent and you requested evidence rehearing these factual issues in the district yes it is clearly stated that there was an involuntary so that the consent was involuntary did you ask for evidence or experience so the judge could make a finding of fact as to that issue that you now say is important for i'll have to look back and see if there was actually a request for have a denture hearing in that motion or if you need to do that that would be an issue on appeal but i requested i have a factual question here as to her voluntary loss of consent and judge  i need to have a finding the facts as to that factual issue well to do that you have to preserve the issue of and request the factual hearing and then have a have a ruling that i don't think you didn't hear and that i will i don't think your client i mean i don't know your trial counsel yeah but this was clearly raised and when they raised the issue of them ran a violation was clearly raised that her consent was involuntary that the trial judge has to be put on notice and judge we need to have a hearing on this so i can present her testimony so you can see that she was sleep deprived and that she could not have consented under all the factual circumstances if that's the the argument if it right fact based we need ruling  the facts for appellate court right if it's as a matter of law we can rule here but if it's fact based you have to preserve the issue so we have the record i mean i just don't know if we have the record if it's factual basis for the district court no fifth amendment violation in the first place so it really didn't there it kind of killed that issue right at the start there was no chance to further elaborate on the involuntary is the the whole analysis of involuntary statements was that there's no  government's duty to do that and the government fell a supplemental brief yesterday addressing this consent issue i know that they did this still they don't meaningfully respond to the argument that it was an involuntary consent and they can see that the evidence of the consent is scant at the everything about the interrogation is scant and that it's their burden they're arguing that it was harmless error even if the consent was involuntary how do you respond to that because you have the evidence in the car itself right from the consent to search the house and the evidence in the cars obviously i think sufficient for the conviction but how would played a huge role i'd note that the government emphasized both in its opening and closing about her residence they called it a stash house in the opening they called it a dope house in the closing there was nearly all of the witnesses talked about the house the first and second both the first and second windows talked about they were called two witnesses that talk soley about the house how didn't have much furniture in it there was two witnesses called by calvary and one of them was just solely to  contest the evidence that came from the house and about the idea that this there was no furniture and that it would have been a stash house because of that when you look at the evidence of the videotape and we've raised this is part of to argue that the evidence from the home was evidence of drug trafficking because of all these items that were found there so i really do think it made an important impact on trial and that's why we think there should be a new a new trial without those statements thank you morning of may please the court prolife united states would like to start first with the traffic stop and just put things in sequence because i'm i think some of this is gotten jumbled together this was a fifteen minute traffic stop and then there was an hour long driver's license the well the driver's license and this is something mr brewster bruised the purse was actually not found in her seat until about an hour and five minutes into it this is almost the conclusion of the search she still asking right before and i know you've seen the video right before she starts deleting the contacts of a coconspirator on the phone that she still asking have you found my purse and that's the point when the troopers say you know is underneath your seat there's about an hour and five minutes into it but when she's pulled over three minutes into the stop she comes back to the patrol car and says i don't have my license so at this point the officer asked to investigate this takes this traffic stop outside the context of a typical traffic stop so even if we're talking about the de minimus seventy eight minutes and rodriguez this is not a typical traffic stop because there's no license so three minutes in she's saying no license then shortly after that we get into the fact that she has new registration this is five minutes in so now this is not only is she a licensed driver does she have a license this is also issued legally entitled to drive this car she said she paid it that this was her car but then if she's running the information in this database it doesn't come back register to her and this is where the sequence of events become more and more problematic for  betty she shows that she says that she's sleepy so the officer is concerned whether she's fit to drive this is where she then mentions and this is about eight of eight minutes five seconds into the video of this when she says i've been driving twenty four hours straight from mississippi and so on it's it about twelve minutes in the troopers i see you know walks to talk to mr cortez this is where the conflicting information arises because as he returns to the vehicle he returns to the vehicle at twelve twenty explains it that no they're trying they're in the per process of purchasing it the point of all this is there's a lot of different areas that are pressed investigate to take this far outside the context of a typical traffic stop and it's at this twelve minute mark or if it's true an officer in this context in this or situation would be entitled to even contact the driver and say hey by the way can this person drive your car because it's not like that she's even a relative where there's a similar last name and it's a after this  it's about twelve thirty five when we start to have the information about mr cortez moving to michigan now i know there was a reference in miss companies reply brief that these travel plans were not inconsistent but they were both internally inconsistent and externally and consistent if we look at twelve thirty five in the video miss kaveri is insisting that it's her is not insisting but is stating that mr cortez is the one that is relocating from houston to michigan he's a truck driver he's being transferred up here this is very different than what mr protested said which was that ms that he was moving to michigan these are not reconcilable these are substantially inconsistent statement they're mutually exclusive there's no way to reconcile who  moving from one end of the country to the other so there's they're extremely inconsistent but they're also internally inconsistent if we look at exhibit two b which is page id fifteen twenty it was a double cage there was a small bag of believe there was a coat there were a couple clothing items on four or five hangars there was what looked to be most bankers box and maybe a printer box this is not the sort of personal belongings that you would expect from someone that is moving cross country even if there's a moving van you would expect a little bit more than just this and then of course there's a motorized wheelchair so we've got these inconsistent statements internally and externally and at fourteen fifty three is when miscavige he provides consent to search now the officer does continue to investigate at this point but the case law is very clear that a traffic stop you have to terminate the traffic stop or you can at the point when you there is reasonable suspicion or concern of consent and fourteen fifty three is when we have consent that consent is never revoked now the officer does continue investigate and it's in the eighteen minute to twenty three minute range that we hear about the drug charge the fact that is how betty has a prior drug charge for a similar sort of incident she was pulled over with another gentleman fifty pounds of marijuana in the car she only got probation and this comes about because he's asking she says she's already said she's a nurse and he's asking whether that prior drug charge a fact of her license and she said no i didn't have any prior convictions and so i only got probation in fact they terminated early it's twenty three thirty five in the video that she's talking to mr cortez having a drug charge it's at the officer when he learns this is asking for the details spelling of his names we can run this in his database twenty eight twenty in the video is when ms covey provides that and also mentions that mr cortez served eighteen years for a drug charge so this is not an insignificant drug charge eighteen years that was twenty twenty on the eighteen years and then a twenty eight forty five in the video she mentions that he was also involved in a shoot up these are a number of these or certainly factors that would play into whether this was a reasonable detention to investigate as i said at fourteen fifty three there was the consent and so that point this is converted from a traffic stop to a consensual encounter but it's not until thirty five forty five that the search actually begins and the search last approximately say about thirty seven minutes forty minutes or so because it's at one twelve in the video that mr cortez placed into custody and discovered he shortly thereafter i know there's a lot of inflammatory references to the officer jumping up and down trying to in the car and things of that nature that all happens after this consent not all happens after the search begins so that's all happening in this thirty five minute to one zero eight one twelve minute range we're not seeing that that's all off the screen but at that point that worst that that sort of thing happens when we exclude that when we it's when we separate the details of the search from the details of the traffic stop traffic stop they're not contesting with was based at least in part on a change and then when that you separate that from the details of this reason suspicion in the concern of consent this was not a problematic traffic stop and this was not a problematic search it was certainly reason one of the circumstances under the fourth so make sure you didn't consent to search the car so it is our burden to show consent to search the house i went back and i've read the record a number of times clearly the government as well as the district court sort of caught off guard and did not even recognize that it before the evidentiary hearing and said no she initiated she's the one after she invoked miranda she initiated the conversation with the agent then we have the evidence you're hearing which is very short i think is about thirty five page record it's a very short there is an evidentiary there is no evidence you're hearing on the miranda violation now there's a more evidence hearing on the miranda violation this was a believe at the end of june very short and that's when the agent said yes she signed it but she didn't say anything and so i kept asking  questions so then that they say follows up and said you initiated with her and the agent said yes that's why i'm conceding there's a miranda violation because this is not ms cavity initiating the conversation that's correct yes page thirteen thirty seven makes there is there is there is no question that is correct there's no question this is a page thirteen thirty seven of the record thirteen thirty five actually mr bur because she was sleep deprived this goes your honor there was no development of the record they didn't ask for a separate evidentiary hearing and when judge that but that's a factual issue that we would normally want did she cement documentar would really require the evidentiary hearing or did she do is argue it actually none of the above so that actually is coming drug they didn't even argue now and it's got it's very peculiar actually and i'm not sure where the fault lies and perhaps the best way just to explain it and you can be the judge of that what happens is they have that interview hearing and my read of it is everyone sort of caught off guard when the dea agent says that he effectively ignored her miranda recall that the government had brief to the initiated the district there is no argument after the evidentiary hearing so neither party argues anything defense counsel doesn't develop any of this issue and there's no development at all as to whether her consent to search is voluntary whether she was sleep deprived or whether she understood anything any of that nature no one developed it i think no one really recognized this the district judge then rules a few weeks later and clearly just i think also missed the bit at the bottom of the one of the pages where the agent effectively ignor now that he did not ask the judge to reconsider didn't say hey wait a minute you mr huge problem here and there was no further development when he is arguing now that she was sleep deprived she's relying on the evidence from trial and granted she did she did renew her motion to suppress  she can do that but there was no development of this record whatsoever and frankly it was unclear to me until the reply brief that this was even the crux of their issue as they claim otherwise i would have made a harmless error argument which is why i tried to put everyone  that i'm relying i relied exclusively on the video in the patrol car in support of the fact that she had both knowledge and of the conspiracy and participated in it but also the jury didn't get to the jury evidence that  agreement to participate in the control delivery that was solicited by defense counsel so what did we do we introduced photos from the house and testimony about it but this was both cortez and cavity and recall that mr cortez took the stand  in sort of a strange falling on a sword for his girlfriend and he said yeah and i put all that stuff there i mean if you look at it at the end of his at the end of his testimony he actually claims ownership of those very items reasons for that first if you look at the jury if you look at the last day of trial this is internet were eighty six on the docket the jury asked for the video so after they go back to deliberate they asked to watch the video again they're not they don't receive the photos from this from the house second as i was mentioning mr cortez's the trial i'm sure they did i'm saying during their deliberations they requested specific evidence and that was the video they did not request evidence of that you know you know we read into that as much as you will but that is all they asked for mr cortez claimed that he was the reason why those items were in the house so he takes ownership of this in this attempt to say look she had no idea what was going on and then as i mentioned the video by itself if we look at what the video says we've got it as soon as as soon as mr cortez gets in the car he is immediately trying to reach reconcile with what did you say there is what i said this is a thirty six a four this is also really getting the facts before the judge your honor i think if you look even at the appellant's an initial brief is opening brief if you if you look at the state issues it's not a reference there it's a file that's what we were urged to in the open i mean the reply brief  not going to i take them as out in the issues on appeal are the issues that are framed in the statement of issues and the issues raised in footnotes or in passing are not before well that's the case then it's not before you and whether it was harmless or if you disagree that it's it seems to me i don't was harmless with respect to him but not with respect to her i don't see how that would be i'd also has see how it affects mr cortez when he takes the stand in mit's that he was involved i mean accept full responsibility for this and stand you do whether there's sufficient evidence taking into account all the evidence and later on you go to whether there's a violation and if it was was it harmless or not i agree that that's the analysis your honor i'm i'm simply saying that if you look at this efficiency if you look at the fact that she is clearly expressing concern when the officers and the dogs are searching around the trap this was it if you look at page out of the fifteen zero seven of the record she explains to mr cortez why she pulled over the way she did try to coast in that lane all goes to harmless just harmless and also sufficiency i mean i think how it goes to sufficiency because i don't see how there's any question there's efficiency because they had these docs they had these pictures of of drugs in the house there were no drugs in the house or where were the they were the pictures in the in the house and perhaps this is the missing rafters or whatever drug it was like four or five boxes of dryer sheets read into that what you will i mean there was evidence that that the eight hundred sixteen kilograms of said yeah i'm also the one that put that there what i'm saying is if you're doing a sufficiency of the evidence to convict you have to include that and with that a reasonable juror certainly could convict i think there's no question there's sufficient  evidence but i think even absent that in with the harmless error when we look at what she does with the phone that's why i think it's harmless but i do think it's an interesting procedural issue that for you can get there i think those are interesting issues but i think nature it's a yes or no now in that case there was further development to show that that consent was voluntary which we don't have here otherwise i would have simply rely exclusively on that that case and every court that's addressed this other than i believe the d c district court that they cite every court of appeals that i've found has said miranda is irrelevant to a consent to search these are completely these are wholly unrelated thank you notes thank you and  given acceptance of responsibility points i don't think he and anyway had the fact that drugs were his and so i think judge should have given them acceptance of responsibility points under the sentencing guidelines three a one point one and that's in my brief in i cited a case in my reply brief with a number of cases but one was united states against smith where it shows a number of indicators on a traffic stop that were weak but those were things even such as the driver appeared to be scared nervous and the driver even appeared to be stoned and had a white mucus around his mouth neither of the defendants were listed on the rental agreement things like that some different things like that were not enough in the circuit to provide enough reasonable suspicion to further search  i wanted to address the idea that it wasn't raised in our brief and i would point the court to there's three pages twenty four twenty five twenty six of our brief in regards to the involuntary in its restatement in the part i  footnoted was actually this idea that it was a these unpublished decisions from the sixth circuit talking about miranda itself that was footnoted and because of those decisions is why you know i didn't spend time on that in the text and the text address is soley that that the totality of the circumstances the consent was involuntary in back to whether the request to consent to a search violates miranda i mean the right there's a there's a case that was cited when this issue was raised in the district court which is a northern district of new york case u s versus go christian where they ignored a request for an attorney and continued interviewing someone i think the die signing her name it could be considered that she's she had asked to remain silent and for them not to speak to her and so then when they ask her to consent and they ask her to sign her name saying that she  so and i just i understand they are and that's why i that's why i think the stronger of the the more important issue is really whether the blatant violation  she had asked to remain silent and continue to speak with her afterwards that then when that when the requests to consent fall on the heels of that and that's why i pointed that hans case where there was also any lead illegality that occurred before the requests for consent and that idea of a sense of futility  was in custody and they point to that there's a key test especially when someone is in custody that if you're not told that you can refuse consent that that's has to be looked at in terms of whether that consent was was voluntary so with that i asked for a new trial from this coming thank you