thank you your honor my name is john rhodes i'm from the missoula office of the federal defenders of montana i represent matthew brown i'll try to reserve two minutes for rebuttal please be informed that the time showing is your total time remaining thank you your honor i detected schofield did not have reasonable suspicion to see matthew brown the government and the district court have maintained that this was a traffic supreme court's decision in rodriguez you have to examine the mission of the traffic stop and what the officers in fact did to determine when the traffic stop and then their colleagues investigation began here is soon as holds he didn't run the driver's license he didn't run a one it's check both of which are standard operating procedure when processing a traffic ticket sergeant holds or admitted he was not processing a traffic ticket he also admitted that when he was in his vehicle the traffic stop it ended in your comics investigation well he did run a registration check and i think an insurance check as well and presumably feed found something it would have reacted to it so i'm not sure it's factually correct to say that it was all over once the car was stopped in his own testimony he said that when he was in his vehicle running the registration check the twenty eight it's called in the nomenclature that the traffic stop it ended that it was a criminal investigation from the beginning but as soon as holds or surrendered the driver's license to schofield the traffic stop and ok i made a minute wait a minute so forgive me so it's not your argument that there was never be a demarcation but wait a minute i don't necessarily think they could overlap in other words the traffic stop could have stopped right later after that narcotics investigation already started and i don't think you've ruled out that possibility going to that issue your honor ok that's exactly what judge christensen rule that as soon as holds or exit it his vehicle that's when the traffic stop concluded at that point if you look at exhibit five o three and it's from the time stamp of about three minutes and twenty seconds to three minutes and twenty nine seconds that's hold cers body camera he gets out of his vehicle you can see him get out of his vehicle and you hear detective schofield say hi to mr brown so at that point detective schofield had not even begun questioning mr brown so even if the district court is correct any of the information gained from mr brown by detective schofield was not part of the traffic stop period that was part of the new york investigation astonished and why it's an either or situation we have mixed motives all the time why can't it be mixed here as long as there was a stop going on that would have continued for traffic purposes what's the problem that's my latter point your honor the one didn't start until the other ended at interval is it's less than two minutes it's what was on three minutes yes your honor approximately two minutes when we can when we synchronize the various cameras it's it's we had less than two minutes interval yes it's about two minutes ballpark two minutes so at that point detective schofield had not even begun question mr brown and going back to rodriguez you have to look at what the officers in fact do to determine reasonableness look at what detective schofield did the bottom line is he either absentmindedly erroneous lee testified or he flat out lied he had all sorts of details in his report and in his testimony that he said he gained from mr brown that are not on the video i think that there are some disturbing inconsistency between that transcript transcript and the video for purposes of discussion i'm go grant you that but if those happen later in the sequence of events after there is already enough if in disha of reliability to corroborate the anonymous tip what do we conclude from that well you exclude them from the reasonable suspicion analysis exclude what the newest information provided by detective schofield the brighter generously right and so and i think that's right so what that would leave you with the avalanche blew avalanche is a blue chevy driver's name is matt it seems to me that's a very powerful cropper give evidence it's not your honor first locations ninety miles from kosovo yeah but we know the person is not going to sit in kalispell he's trying to get drugs across the border so so tell me it's far from kalispell doesn't tell me it's not where you would expect to find it is trying to get to the border well that's where the supreme court case law is important j l talks about you have to have an assertion that not only determines a particular person but  and all the blue chevy avalanche with b c or california plates driven by somebody that is assertion of a determined person it's not a determination of illegality the robber ration isn't that it's not specific that's where the morale escapes from this court becomes important is the problem specificity or the predictive nature it's the both it's the specific details are not corroborated ninety miles away three days now a here in seattle i don't think that's specific and you know you don't know they're going to get across the border start looking up around blaine that seems to make sense to me then there's one set of laws for this in a city and another set of laws in a rural area where you saying oh ninety miles is colonize the moon this it's all you know what's reasonable under the circumstances so you take into account all of that and if i mis used to get across the border with backpackers where would you expect to find him when north south the most direct north south route from and how about him over on what is really kind of east west route yes libya's but your blue brief said that he was headed north because it's east west but the road goes like this because i'm looking for geographic features but it's an east west route libby's a little bit north is going staking out ninety three because that's the most direct route from cowbell kalispell north to canada is that right yes and also because that's what the tip said in or near stake out highway two between kalispell in libya or just ninety three just ninety three agent captures the state highway ninety three which is the north south route and by tuesday night they were getting frustrated they were thinking we're not going to find anything so wh your argument about what's the significance of that the fact that they stopped him and he went to libby went to mcdonald's but said he got turned around so let me let me just make sure that i'm right about this when he when he was stopped he said he was coming from kalispell that would be  information regarding the movements of third parties such that it's likely to show that there is inside information the informant has inside information and is likely to  therefore be correct about the other information that they have here i do think it's important to take into account that this happens in a rural area of montana this isn't like alabama versus white which dealt with a matter of a few miles within mcgovern alabama this was a prediction that there was going to be a blue chevy avalanche with b c plates driven by a man named matt it's the best thing about the yak wright said nothing about that fact that got picked up later sort of like by the game and i don't mean to imply anything nefarious about that but that was not part of  e right the as as described by agent caps or he said that it would be going to traveling from kalispell north the canadian border to to be backpacked across the border didn't specifically there's no specific mention of the jack but as the district court notes page one eighty four and one eighty five of the record there's that the yak which is everything to the west of  is national forest there if you pick i don't wanna take up too much of your time so if he had proceeded north on ninety three which after all is where they were watching would he have gone through an area that's not forested there yes there is not that area right around right or brown part of roseville is is not forested and again as a district court in order to put pages one eighty four and one eighty five there's two ways to get to the yak one of them instead of going up and i think maybe my point is just that the yak was not part of the anonymous tip and i haven't heard you can concede that point in my wrong on that point there's no evidence that the word yak was used in the and in the tip oh how as as agent schofield testified at page sixty three of the record that area is was a known area for for the trafficking of drugs across the border i understand and ok what about the very what i have describe words disturbing inconsistency between what is on the record and what was testified to about what the defendant said while he was waiting in the car i don't there is one seventy two of the record agent scofield acknowledges that he had got the timing wrong with respect to that sequence wrong with respect to that conversation about the hunting  you've read it i'm sure it's not just the sequence but there's a significant detail in the testimony that doesn't appear in the recording right oh oh you know i'm sorry i was talking about there was a mistake in the in the report about the sequence there was there was undoubtedly additional testimony that wasn't in the report and i would note that the district court found that testimony to be credible area where the district court is in title to to deference we've had the record here says that there's not a lot to go ahead and i do think that some of those are our exaggerations i would point i would recommend the court's attention to page one forty of the record where defense counsel indicates that that detective schofield was erroneous in the list of states where  mr brown had visited i think in the court can can judge for itself i think that testimony doesn't indicate that he was in the indicating that mr brown was in th states i think he correctly identifies the path that mr brown took and then in articulating the fact that he and but what about the hunting in canada and the question of where he hunted and the size of the deer and all of that conversation your your that that conversation happened but he did get that information he didn't get that information before he had the sequence wrong he didn't have that information before the tip is in there and he acknowledges that at page one seventy two of the record and the district court didn't rely on that information ok so let me put it this way if i think there are if i conclude that there are disturbing inconsistency is there what am i supposed to do with that that conversation the conversation that i find disturbing happened after you know sort of late in the sequence so what do we do with that there's corroborative some corroborative information and some information that  three which is the logical route to canada and they found him over in libby west where they didn't expand he's two days i'm going to say roughly two days late and i mean as you know there are some things that that weren't consistent so what about those  the supreme court addressed a similar issue in illinois versus gates particularly at footnote fourteen there the tip involving from people traveling back and forth forth to florida and the wife flew down rather than drove down or or perhaps vice versa the court expressly said that courts don't ask government informants to be infallible and that that information is to is taken into consideration in the totality of the circumstances and to answer your broader  wrong in his report doesn't change the objective factors objective corroboration that there was of the tip and i would also point out that this is this case is different than some of the other cases where the stop relied entirely on the external information of the tip unlike morales or or j l or even alabama versus white here there was a valid traffic stop which allowed two things to happen but didn't the thing was anything gleaned from that stop and it seems like the narcotics investigation rests primarily almost entirely i think on the tip and it's partial corroboration there wasn't anything obtained from the traffic stop that was useful was there i think there was t important things that happened in just the first moments of that traffic stop most importantly the crabber of the name which is the key one of the strongest fact we've got i mean what percentage of the population are matthews you've got that yeah and then the other thing that i think is really important in this case was the testimony of both officers both officer holzer and detective schofield at pages one hundred and one forty two of the record about the nervousness of mr brown this isn't a case reflected at all of the recording my recollection is that it really wasn't well and so it's not to say the testimony is wrong but if there was nervousness or shaking it may not have been as dramatic as all that well mr brown's hands are not are not visible really the entire time on the video so there's no question no question one way or the other the video can't do think there's a there's a difference here between a garden variety traffic stop when you're driving a truck filled with stuff you have to you have to make a large inferential leaf he's nervous he's nervous because there's a he's doing illegal activity the illegal activity  drugs whereas here they already had a significant amount information to believe that this vehicle was carrying drugs the fact that the that that matt driving that vehicle was also unusually nervous is bottle thank you your honor our one forty detective schofield said he referring to mr brown went through utah oregon and i don't know he never said that he said he went through oregon that's what mr brown said he never said utah idaho on this nervousness nervous issue mr brown's on the video for something like forty minutes there's no demonstration of nervousness also with respect to the government claiming now it was unusual there's no testimony from the law enforcement officers that his nervousness his behavior was unusual his throat is visible on the video it's never seemed to pulsate and again when he's sitting there law enforcement swarming in and it's not true that his hands are never visible he does hand the documents to sergeant holtz or see if they're shaking when he answered documents to sergeant alter my notes schofield testified that brown quote made comments about a big deer being seventy five pounds and  asked brown how many bucks brown had killed brown said the biggest buck is like a six point buck on its head which the comments made no sense whatsoever close quote you are one forty two are am i wrong that there's not corroboration for that testimony he said that happened during his initial questioning of mr brown and that he based his reasonable suspicion on that baffling doesn't start i know what i'm what i'm asking is whether or not there is i cannot find corroboration for that testimony seems to be at odds with the record am i wrong about it may have come out later i'm not sure about each specific detail what happened in whole to want to talk to mr brown while they're waiting for the k nine unit which was coming from wagner fairly yes so some of that information may have been provided later but it was not provided during the initial approximate four minute questioning scofield did of mr brown in terms of the specificity i would just point to this case in morale us where there were far more details far more predictive information and the court ruled that it was not reasonable suspicion and in particular i would note that the vehicle was starting albertine which is about twenty five miles west of missoula and the court in part of its ruling said that doesn't mean the vehicles going to missoula finally with respect to this idea that there is one reasonable suspicion standard determine whether a traffic stop can be made and another reasonable suspicion standard for whether there's a narcotics investigation that's not right that idea was rejected in j l they're going to have one reasonable suspicion standard if there's a gun involved and another for everything else that was recently rejected by the supreme court and navarette it's a single standard and the government and the district court are trying to distinguish morales perhaps alabama v white by saying the reasonable suspicion was established prior to the stop not anything gained during this stop here we don't think anything was gained other than perhaps mr brown's name but this idea