with something i'm remembering the general structure from when i were in criminal law in one nine hundred sixty six so my understanding may be stale or i may have forgotten some the way i remember it probable cause just matters for the rest you know reasonable suspicion for the stop you need probable cause for the arrest has nothing to do with the search for the search it can be pursu i believe that there was no three involuntary consent because it was not supported by probable cause for the arrest and the critical part of the sequence of events which occurred is that the agent on no i don't believe it did because the took provided only information that delayed it's to non criminal contact there with the exception to that well let me rephrase that most of the tips  focus on the probable cause aspect because you have a reliable tipster they've used before always turned out to be right apparently they have the information about the fall to death occasion where they were going to g the airline they were going to use the their descriptions then the fact that they were they lied about them they've they originally said they had checked luggage  a matter of fact i would encourage you to go on to the second point the concern because the probable cause issue is pretty clear isn't it your honor i will go on to instance but i would like to correct  enough i mean we just all three of us well maybe two of us had to travel by airplane to come here it's really annoying and among the reasons it's annoying is you have to keep showing identification everybody knows your name he certainly was under arrest at that point in time because it was tell him that they could leave anytime you know at that point in time the information that was conveyed from agent king  that you are not getting on the airplane it's going to take us at least two hours to obtain a search warrant and we are going to obtain a search warrant at this resist to problems for me that made just be underbrush because i don't understand so it seems to me that you're probably right they're under arrest if they're under arrest then why isn't it a search incident to an arrest to go through their things number one and number two all of us we check our baggage and then gee until we got the fancy new x ray machines i was always getting those t s a cards in my baggage saying that they pawed through all my things i thought everybody what you checked your baggage gave up their privacy  i don't believe that everybody understands that your honor and start really when mr gillis was approached by agent king he indicated you've done nothing wrong nothing is the problem and brief we believe that the authority to infringe on the luggage although there may be an implied consent on checking it consented whenever the whenever there's an issue with respect to whether defendant consented to the search the government bears and of course repeatedly used these two by the words cover bears a heavy burden of establishing that consent what's interesting about what happened in this case is that the luggage and that he said yes subsequently she changed her testimony she said that she didn't ask him it was kenya who asked him problem then becomes that when king was put on the stand this is all contained roughly in pages two twenty six to forty of  e excerpts of record king then said that he never said anything to bring him never heard brittingham say anything and he never he did not recall any conversation between morse and and bring him love whoever did it whichever agent did it did you agree with what i think your co counsel said that at some point your client consented and that the real issue is whether there was probable cause at the time he gave the consent because if there wasn't then it was pressure to the point that it was an involuntary consent is that the issue respectfully i disagree just mccotter and i think there's an issue with respect to brittingham alone as to whether he consented at all and as you're claiming that notwithstanding what the record suggests he did not consent right that he never consented that there's this one statement by agent morse and then he did and then she subsequently testimony backed away from it and said old but agent king took care of securing his consent but the meeting king said no i didn't so you to twenty eight i think it jumps to two thirty eight to thirty nine to forty but in that fourteen page span it's all in there that's where both morse and king are testifying i think i think you can have pretty clear in the suppression hearing and then it got muddied up a little at the trial your office you can be detained for two hours you're going to miss your flight so at that point he certainly didn't matter that he knew that in theory he had a legal right to refuse consent and easily he was clearly in custody because again he was being detained he was being that when you hand over your luggage to and maybe this musical bit different she doesn't too and now do we have to say it's different now but i believe that you have your luggage to an airline you're actually trust them your luggage as you said as a bailment and so you're not necessarily just blankly giving up all rights to have when i when i get my luggage to the storage facility at the seattle airport when i overnight there that's a bail money and i do not consent to their going through my stuff but when i check it at the airline they do go through my stuff right i blanking on the name of the case but i recall having already the case where at least supreme court case where they talked about whether law enforcement  about the search incidents are going to rest well if it's not on their person then i don't see how it would be a search incident to arrest in this case the luggage was down i you know i don't know if it was curbside or freak behind the counter but there was a p t officer named lopez who was watching the bags make sure they didn't run a conveyor belt so the government really does need consensus search the luggage i have i really need to overcome you you have to show that the district court's finding of consent is clearly wrong factually clearly erroneous bring him request into the district court all of the individuals who spoke about jealous is in britain has respective roles in this alleged conspiracy to transport p c p all of them admitted that bringing him was the junior conspirator played said that brittingham was in charge of carrying bags because usually the senior guy doesn't want to be handling the drugs and of course bring him also made some statements with the self serving or not he said i've only done this once before i was just paid to go along with jealous and get the i'm not the sentencing judge and been a district judge for a long time now don't we have to just let her judge she was out of bounds to the point of abusing his discretion i believe on this the i believe on this issue the standard  significant criminal history quantity of drugs is one of the factors that this court has allowed a district court take into account but it can't be the only factor criminal history is a fact of this court has never recognized permissiveness so when you take that in permissible factor of the equation what you have here  excerpts of records submitted in the kill us appeal in particular page forty eight that's the declaration submitted by special agent former and it's in that declaration in paragraph two in particular that he describes the information that individual paul lodgers defend him bring him serious was on the same itinerary as an individual named albert taylor and it was through that investigative work that he was able to determine based on what the reliable informant had told him that both of the individuals were traveling under a pseudonym so i do agree that there's no real issue here with respect to the liability of the informant that of course relates to the public will cost issue and let me address that there's some analog to the border search doctrine pursuant to which the agents would have been allowed to search the backs i guess those aren't bases that the government is relying on on the supply they're not  you didn't argue them but i worry a little that sometimes the government doesn't want to win the easy way it wants to win the hard way so that it can get some law that's even more expansive i do appreciate that i want to i don't want to give the government that honor or well i do think that in this case with respect to the consent that judge practiced and made extensive factual findings after hearing all of the evidence of the testimony of witnesses so i do think that there's a very easy basis for affirming simply based on his factual findings which situation in this case where the defendants were taken to the elevator told that they were going to be detained while the search warrant was obtained and then subsequently the defendant to kill  basically tried to negotiate something more that he couldn't or is it is that what is the current state of the law on what general consent every passenger gives when he checked his big your honor i'm not aware of  and this case is somewhat ironic in that it involves the transportation of five bottles of liquid that's something that i understand is not really permitted you can have all kinds of private or dangerous things in their luggage  if you toss your bit lighter in your luggage or your matches for your pipe they'll also pull him out i think that's right your honor and there's no question that i think any person who travels nowadays has to be aware and even if he's not aware it be reasonable to assume that the person is aware that their baggage is going to be scanned at a minimum put under the x ray machine but the government hasn't taken the position in this case and i'm aware of any these bottles that they're being transported in were unsafe to be transporting this kind of material and that there was a serious a safety concern in transporting these two so here with the safety search you got it straight down the middle but either might blow up the plane and if somebody touched the bottles you might get high or whatever you get from p c p i think that's right your honor but you know one other factor that perhaps the courts might look at is whether this was a flight  that was simply domestic or whether it's a flight leaving the country as your owners are aware their borders searched doctrine i think the fourth amendment is more lax in situations like that given the government's compelling interest in protecting our borders but this was a domestic flight however the counsel in this particular case following up on what judge clientle said that the government concede that if there was no consent given here putting the issue aside there's no consent there is no other one whole basis for searching the like edge in this case your honor that's that's the position we are taking on this appeal and and we take that position based on the factual findings that district judge area hearing after hearing the testimony a defendant bringing him scoundrel and women are you saying that if there if the if there was no consent then the we have to reverse if there's there was no other basis that the government has argued on this appeal for searching the luggage why did the government get a search warrant before it went to meet these people at the airport  obtained i do believe that it could have been obtained based on the liability of this informant the detailed information that he provided that was corroborated but your honor i do think for the record to suggest some reasons why that may not have been done in this case namely i don't think that the tests agents with the da knew until relatively late in the day in the game exactly what flight the two defendants were going to be taking out of l about this was pretty clear about what they were going to do either that or there's probable cause because he is this was a really reliable informant or that's not reliable so either you knew you had enough information to get a search warrant enough information your honor but perhaps not enough time on this record i think is a fair implication but when we did one of the one of the one of the tipsters give his tip to the d a your honor that there appear to have been several conversations that's the t specially the former was it more than two hours before they went to the airport i know that there was a conversation that took place on i believe june second i think that's what i do well more than two hours well but that was fact that information was something that they were going to be there were going to be these two people going to either last they guessed or california subsequently there was a further conversation between the reliable informant  and the specialist informer i believe the day before the day my point the day before the games in las vegas made it clear they were going to go get a search warrant it would take about two hours my point is that they could have done that during that time and had information previously from the tipster a day before whatever they certainly had plenty of time to go search for your honor if they did have that second subsequent conversation the day before i agree with your honor that was not done in this case  bring him who he says did not consent where in the record do you find his consent your honor in two places first of all there's a special agent marston's declaration and second of all r sixty two three sixty four and my problem is i'm worried about expanding the notion of consent on necessarily when a person gets taken down to a special investigation room at an airport and told you can't go on until and unless you consent to a search of your baggage that's a lot of course and yes now maybe that's ok maybe it's not i'd rather not say if i don't have to  but it strikes me that when you have plenty of evidence that somebody has not only contraband that could land him in jail in his luggage but contraband that could in danger the flight in his luggage the general consent of all airline passengers to have their bags checked for things that may interfere with flight safety would apply and we never have to even reach consent in the special investigation room at the airport as looking at the bag to take ephod also p c p which they already had a corroborated tip on is good enough reason to look in the bags for bottles of p p to prevent the ether and the drug that can be absorbed through the skin from getting on the plane i know you didn't raise it but we're allowed to affirm for anything that is shown by the record issue has been the latest with this with respect to this particular appeal and if i find i guess you must have always checked your bags at airplanes with the fancy x ray at the more rural airports where they don't have the fancy x ray they pok through your stuff let me research this issue some give a more informed response the second responder no i don't know if we will or not but do you know offhand of any problem with that yes your honor with respect to the search instance of the rest basis no no i wasn't asking about that i was talking about you know of any problem with the theory that submitting the luggage to be checked that the airline authorizes a search for things that mean danger the flight such as matt are fluid you can't bring home a candidate zippo lighter fluid right and these are all what you're referring to you're on i think our recent regulations that have been promulgated and i'm not aware standing here today if the case to p s a that's one branch of the government this is the drug enforcement agency there's no authority anywhere that i'm aware of that would allow the drug enforcement agency to search bag based upon what the very important function or as of this case the drug enforcement agents are trying to interdict the transportation and use of illegal narcotics yes rather function yes and just to add sucked in the respect i just mentioned i thought the fourth amendment just went to what the government could do when these things of this agency or that or matter whether they followed their own regulations or whether they can have a beginner agency staff and but as far as the constitution goes i wasn't aware that it mattered i'm sorry i didn't hear the last part of the question as far as the constitution goes i wasn't aware that it mattered what agency did what with the baggage i thought that was just regulations between agencies i think that's a good point your honor and again because i'm not aware of any specific t s a regulations in two thousand and two it's hard for me to fully address this question but i did want to return to your concern judge klein thought this was a very unusual case and it's a case that would not in any way i don't think expand this court's jurgens with respect to consent and this is why this is not a case where the police or law enforcement went to  where you got a search of facts both defendants said no and that's an important fact right there under the names the corrales case they clearly understood their rights not to concerned now at that point law enforcement agents did not try to link the consent issue with the detention they simply said well this is what's going to happen we are going to detain you temporarily while we obtain a search when there wasn't any attempt to in other words what you have is a kind of a stretch don't you think counsel to suggest that they didn't get the connection i mean that was a lot of coercion there well it's i think that this case is different from other cases you have for example case where there is a much more explicit me be released that's completely different from all of the other cases the defendants were essentially trying to bargain and negotiate with the agents this again and then says that their consent was rational the product of willful and willing action  and again it's just completely at odds with the notion that they were coerced they were getting a substantial benefit thank you honest if usually or i think you have the rebuttal time just briefly i'd like to go back to the consent of the luggage and also the government's position is that he was negotiating what the record indicates clearly is that there was a in this particular case there might have been probable cause to arrest goes the person but certainly that does not extend over to the probable cause to search luggage that has been out  x back to baltimore the dates that the return flight would be on the time of the return flight the they were equipped with more than sufficient evidence if they really had a reliable credible informant to have obtained a search