to the factual basis now that said the issue that i believe that i have i have the burden to show that in this case the district court was clearly erroneous in making look at his testimony in light of commonsense and human experience and it's not the only time because the judge ruled on the safety issue but that issue never erroneous is my understanding your argument correctly but i don't think you have to go all that far i've brought that out as what i hear you arguing and if that's your argument can you give me a case that says that that that's what we're supposed to do in reviewing the factual determination of suppression here judge i use that to support that i can just turn to the motion to suppress it without but even we can consider it or we can and my question is give me a case that says i can officer with ten years experience five years as an immigration officer whose job is to detect illegal aliens and drugs and here is a man who self is married to a hispanic born in mexico testified under oath but he could not tell the difference between a black man and a mexican later on he says i could not tell whether bravo quivers was this panic and then a couple pages later on custody and we have supreme court authority that says it is not illegal for police officers to engage people in conversation when they are not in custody on that type of a street type stop how do we said there is nothing in the constitution that says you can approach a person in the street and ask them questions and as long as that person is free to walk away my name is john loke as i represent the united states in this matter i'd like to address the issue head on and the government's admits that this case stopped involved in this case involving agent phillips was not based upon race the record is clear and uncontroverted with respect to the events which gave rise to this contest conduct or contact the defendant agent phillips and agent callahan all testify consistently that there was a car accident in the middle of a busy roadway there's a law enforcement perimeters that are around the accident scene that there were no crosswalks more pedestrian crossing anywhere near the scene that there were a number of individuals standing on the side of the roadway and that the defendant for some reason unknown to anyone decided to walk directly through or very near the accident scene and it was at that point that agent phillips contacted the defendant and he called out to him in english quite simply inquiring about why he was walking through this accident scene through a police perimeter and does this occur at the time that the record was looking up and that the defendant had walked in the proximity of the wrecker and that's why he contacted him again importantly he addressed the defendant twice in english i would submit to the court that suggests that agent philip gave him an indication that this individual was perhaps from mexico and he described his pants that they were essentially tattered did not fit properly they were dirty in that he was wearing a pair of shoes which were made of which in his training experience are very commonly worn in mexico and again this encounter according to agents bill to curb the two and a half miles of the border and the governments of myths of the initial contact which was the result that the agent juleps testimony and i believe agent callahan's testimony and in fact the defendant's testimony indicated that the predator was d car demarcated with police vehicles with lights flashing this this incident occurred at night at approximately nine or nine thirty pm it was dark and the accident was removed or blocked off by several police vehicles with lights flashing with respect to the callahan's testimony deputy callahan testified that in his opinion he didn't believe that the defendant had presented a safety issue however he did not refute the fact that the defendant walked in or near the accident scene and had differentiated himself from everyone else at the scene who apparently were hispanic and with respect to agent chala hand opinion that the defendant did not present a safety risk at the scene of the accident deputy callaghan conceded that he was preoccupied with his duties to investigate the accident and in fact he was filling out paperwork at the time and although he could testify that the defendant did walk nearby he was not paying attention to what the defendant was doing what do you think  because again your honor i would submit that deputy callahan's admission that he was not paying close attention to what the defendant was doing further diminishes any of the impeachment value that his testimony may have but even to the extent that the court wishes to consider in featurette value for its impeachment value it i would submit is simply a difference of opinion i reasonable difference of opinion between long two law enforcement officers who look at the testimony both at the suppression hearing and at the trial in order to determine whether jurors bolton was clearly erroneous in her factual finding you're right i think that's that's both reasonable procedurally and in stated that it would not change the result now with with respect to whether agent phillips contact with the defendant was a consensual encounter the government submits that it was the record is clear by did not attempt to walk away that he was not handcuffed or otherwise restrained and therefore this was a consensual encounter it occurred in the in public in plain view with scores of other people and the defend point do is own testimony did he ever even suggest that he was not free to walk with much less to the attempt to walk away and it was based upon his admissions freely and voluntarily given that  by the government can mendenhall royal roll over all these cases there's one thing that the officers did not approach any of these defendants where the first question officer testified that he said to your client in english to which your client made no response if i believe you said where are you going i think the first thing he said your client was not where were you