paramount factor is the proximity to the border it's sort of where this case begins this is a case where the stop undisputed occurred more than fifty miles from the us mexico border well that's by road that's not not as the crow flies as the crow flies it was about twenty five i double leave that was the testimony of of the agent however he did concede that he did not believe in the end that this vehicle came from either a checkpoint or from the us mexico border at any point there was also testimony to the effect that he at the point the vehicle was stopped by road the closest checkpoint was about one hundred miles away from where the vehicle was stopped this occurred as a context as occurred on highway ninety highway in texas and it connects to a farm market road farm to market road final five which became an issue in this case what's important here is highway ninety horse it's a public road not a private road not a road to the checkpoint on it not a direct route to the us mexico border  the agent did a state that he this road has been known for drug trafficking in the past however when pressed on that issue he admitted that almost any road in texas that inevitably leads to the border they would consider a road that's been used for drug trafficking in the past this farm to market road again it's not a private road not any type of ranch road not a road to the checkpoint these are roads that are parallel to a checkpoint and so this farm to market road that was used although the agent stated that it was a road rarely used it was a road that led to a scenic loop which was registered out of odessa texas and the it was registered to a female no there was all consistent with the facts that were before the case you had a female driver and the district court in one of its findings in stone that the shortest route to odessa texas from where this vehicle was was the route in fact that the vehicle took the agent initially stated that he she could have taken the different route by taking highway ninety all the way to i ten and then on her way to a des however again mileage for mileage purposes if she would continue on f m five o five to one sixty six and then to highway one eighteen that would have taken her to i ten sort of at an angle up now that's all that again we're going to the proximity of the border the paramount factor weighs against the government if we take the agent's testimony about he did not believe this the it won't rose from the us mexico border however you have other issues and i understand we're dealing with the experience of the agent and we'll take that on he testified he had eight years of experience and most of them dealt with this area west of marfa texas i think what's important here though is that his testimony was that he spent a lot of his time in this farm to market road five o five and he pretty much stopped anybody who was from outside the area it's sort of like he created a defacto checkpoint now this is distinguishable from other cases where the court has found suspicion in private branch roads or other farm to market roads because in most of those cases the roads were parallel to a checkpoint to either a highway that contained a checkpoint and so truck individuals were trying to avoid the checkpoint road this isn't the case here neither highway course it's there was testimony there that this is where the vehicle initially stopped when it stopped there the agent in i think this is in his testimony didn't stop to fully observe passed by slowed down dead of them and made his headlight glanced in this is when he first noticed a female in the vehicle or outside the vehicle this is going to this factor of the observations of the driver and whether there was passengers in this vehicle i think this also weighs against the government because this was the first point where the agent was able to get a clear observation of the driver however it was only for seconds his testimony was that it lasted for seconds he used the word and glanced it was simply a glance of the driver in the vehicle and by the time he reached the roadside park because the support recalls he was about a quarter of a mob of half a mile behind this vehicle and it was pitch dark so he couldn't see inside the vehicle the entire time by the time he reaches this roadside park the driver is already outside the vehicle he testified that he did not witness any other person exit the vehicle or whether any other pertness person had exited the vehicle later on when he positions himself on his farm to market road five o five then the vehicle turns on that road that's the first time he observes the skip going and is and then that he gets his observations of the other passengers we believe that in that context considering that this is a case where the proximity to the border weighs against the government and taking into account all these other factors consistent with the driver heading to a desk where this vehicle is registered we believe there was not reasonable suspicion to conduct th as my colleague mr quest you know is explaining this area in west texas involved paved roads public roads not a private dusty road as we see in some of the cases and these roads have innocent legitimate traffic going on them nevertheless mr mclean agent mcclain to testify that his practice was to stop pretty much any vehicle on those roads because it's a specific place to be at night your honor asked about the ryan roadside park it's actually on highway ninety as that which goes from martha to van horn and that's when agent mcclain first encountered the chevrolet three hundred he had just gotten on the road a little after midnight hundred and and he thought that this meant that she was looking for a place to pull over perhaps and in fact that's what she did she pulled into the ryan roadside park which is a designated area where innocent travelers could stop to stretch their legs reorient themselves except for a relieve themselves even and he as mr castillo said didn't see her parked and see her get out and didn't see whether other people had exited the vehicle by the time he drove by she was already standing outside of the vehicle facing the highway has shined his alley light for a few seconds just a glance and didn't see any other people there and he continued on he didn't even call his fellow border patrol agents to say that this vehicle had stopped in the right and the roadside park he didn't try to circle back to observer instead he went on the five o five to his what sounds like his normal sitting spot spot is de facto checkpoint on that road before highway one sixty six where he positioned himself with his headlights on facing the highway so that he could see the traffic as it comes by so a little bit later in the fifteen thirty minutes later he saw the chrysler headlights turn on to five o five she presumably could have seen his headlights it's the desert and he has this vision and she travels on that five o five road to the other highway and when he sees the vehicle pass her him there he again gets a little bit of a look inside of the vehicle and he testifies that he sees three past three people in the front seat and multiple passengers in the back this apparently aroused his suspicion and he followed her at that point to then run her tags and see where the vehicle  registered to during that time when he's following her you know erratic driving behavior there's none of this were being that sometimes agents testified to suggest that they are nervous about being followed by a border patrol agent his vehicle is a marked one so presumably she knows at that point that she's being followed by border patrol and when the registration comes back to odessa he says ok this is an out of county car and and odessa is a destination force for smuggling for alien trafficking and for for drugs as well but as this court has stated any large city with a population and workforce is going to be a destination for immigrants sitting to come into this country and work or disappear into the shadows and ultimately it's a texas vehicle driving on texas roads going into in the direction that makes sense to get home not that by the way in the united states of america we need to always be driving back to where our car is registered from and so the district court actually makes an error in its ultimate findings on this issue because the magistrate court found that it it was a direct route but in the district court's findings the district court even though it adopted the magistrate court's findings says that it wasn't it was an indirect route it wasn't them the most direct route to get to a desa this was suspicious the district court also relied on the fact that odessa according to agent mclean was was us a smuggling hub and the district court relied on this inference that the passengers increased from the time that that the agent saw the vehicle at the ryman roadside park to when he saw on the five o five the district court adopts another error from the magistrate court's ruling which is that three that agent mclain saw three passengers sitting in one front bucket seat edge at mclean near the chrysler three hundred had to bucket seats and a consul and he testified that there were three people in the front seat so while that may still be a strange sitting arrangement it's not as strange as having three people piled into one bucket seat which is what the ma gistrate court found and so these errors factual errors accumulate also to the old to mitt conclusion that the legal finding of there being a reasonable suspicion based on articula facts wasn't supported and of course as mr cust you know was explaining these roads not only go to ultimately interstate ten which is a large major thoroughfare they pass wrenches they pass an observatory which is not in an abnormal place to go at night and there of course are local ranchers who have guests that come in and visit them aging mclean said at first that no he didn't didn't stop everybody that he knows the locals that he only stops out of county vehicles that are not ranch pickups but then he later testify that he has stopped to look goals driving on those roads and that he could have put a number on it so many that he can't even count all we know is that at some last and fifty in his eight year old line had been involved in over one hundred arrests so if you take those numbers it's about a third of the john mcclane is out there on these dark roads stopping innocent travelers who are coming back from an evening in the past so and so this is the type of situation that that is not supported by  ponce and that the fourth amendment exclusionary rule is is meant to provide some guidance to the officers and prevent of this unlawful police conduct  consider the agent's testimony as not in any way establishing that he has a defective checkpoints set up in this area his testimony is very clear he has worked that exact area for over eight years his entire career he is familiar with every ranch owner and that the tickler stretch or road and is familiar with the vehicles that they drug he does specifically state beacon that smugglers use to track their way twenty five miles from the river to the highway so that they can basically be picked up he's leaving marfa driving down highway ninety and he sees some tail lights up ahead he follows behind he notices some or radek tapping of the brakes keeps driving stays behind he sees the vehicle stopped at this roadside park there's a woman standing outside the vehicle who is staring off into the distance mind you this is after midnight in a very desolate area maybe she's looking for the marfa light could be on just asian he specifically is on the other side of the of mar from the lightning yet i think it is actually on the other side specifically as to what he saw when he drove by i think it's important to read characterize he's asked now you didn't shine your alley light at that point correct he says as i passed they said you did yes and you shined that into her car it lit the whole everything in the state specifically all i saw was her now the vehicle then he continues on his way and sets up down the road he encounters that same vehicle about thirty minutes later and it's crammed with people articulable facts that distinguish this case from all the other cases where they argue this is completely innocent behavior if we go back to terry and the supreme court's opinion in his do this is not a dividing conquer analysis this is a totality of the circumstances and as a supreme court stated this isn't probable cause this is reasonable suspicion which is something considerably less then a preponderance of the evidence here when you look at the totality of the circumstances in the exact area in the proceeding two weeks he had made three arrests two for drug smuggling one alien smuggling the area is well known in this court's cases as being in a very hot area it's desolate in fact he has patrolled this area and understands the traffic patterns and although the proximity of the border analysis is in this case somewhat less relevant because essentially it's a backpack case this car didn't need to originate in the border it's part of the nature and characteristics of the area and so while the case law says we view the other factors more chair lee the district court was not incorrect in giving the proximity the fact that as the crow flies about twenty five miles give or take that this area is close to the border in an area well known for smuggling in this case within the lax to leaks there had been significant activity in the area he sees a vehicle and by the way he testifies i rarely if ever see a sedan on this road he says i know all of the ranchers and their vehicles and he senses i've never seen a car i've only seen trucks and s u v s so he sees the chrysler three hundred which has its own disputed has two bucket seats past him and it's now laden with people he then follows runs license plate is registered out of odessa but i mean let me be sure that i understand what you're saying your suggestion that we not night he would certainly have lots of exactly right yes it's the area and by the way that is a scenic route and when the district court finds that it's not a direct route that is far at night for everybody who's been out there it's a treacherous drive it is not the usual route most people in we can quibble are about whether it's the most direct route or the most convenient route but he testifies that there is virtually no other traffic on this road tourists take that road during the day to get up to the mcdonald observatory and all that sort of thing but in the dark of night there is nothing out there it is a long stretch of nothingness in fact he's specifically states zero other cars so when you look this is experience and train the characteristics of the area the proximity which is part of those characteristics the actual things he observed where we have a car stopped in an area known for alien smuggling the car doesn't have he cannot see any other people besides the driver and that exact same car shows up with basically stuffed with people three people in the front seat that means when one person sitting in the console or two are sitting in one seat next to the driver and the back is full all of these things kill basis to believe that criminal activity is of not certainty and certainty is not required if we go back to terry we've got officer mcfadden pacing up and down in downtown cleveland and he sees a group of individuals walk past a jewelry store several times it's innocent behavior but except to officer mcfadden he knows they're getting ready to rob the jewelry store the experience and training of the officer or the agent in this case is very significant he knows the area he's patrolled this area and he exercises his discretion in this case based on articulable facts as what reasonable suspicion mike opposing counsel i invite the court to review the transcript because i think it shows a different version of the facts than what necessarily may be taken from what opposing counsel described  for instance agent mcclain does testify that he knows the locals he knows approximately their vehicles but yet he is still testifying that he stops them so regularly that he can't count them and certainly they don't see any other traffic on that road that night because this was the first car that he saw he stopped the first car that he saw on the five o five and that is consistent with what he testified as his practice on that on that farm road but what do you do with the fact that he saw only the one person outside of the car the first time in the car crammed with multiple pass years few minutes later i challenge whether that inference that whether the car was devoid of any other people co counsel read all i saw was her sir that was the answer to the question can you say for certain she didn't have any passengers and he didn't say yes i can say for certain he said all i saw was her and this was in the seconds that he drove past with his alley light shining and that the testimony isn't very clear of how much was illuminated how she was positioned how well he could actually see inside of that car he had participated in those three arrests in the two proceeding weeks but there wasn't any testimony about the details of those arrests other than that they were near the aerostat balloon we don't know if they're involved backpackers we don't know if they were getting into vehicles we don't know if they were at midnight and we don't know if they're on highway ninety or on five o five he also testified to that typically trafficking organizations change their method of operations and how and their pattern once they start getting apprehended i would think getting apprehended three times in the last two weeks might be a signal you need to change how you're doing things but but agent mclean still was there and that was that recent experience was not anything like  be on the lookout intelligence that there were actually backpackers in the area that night there are lots of references to terri but i would encourage the court to also look at the actual cases involving border patrol roving stops that the supreme court has heard and those facts are very distinguishable from what we have here in our view soon there's a dusty primitive road  that sensors were alerted to and that made the agents go out and best to gate there was erratic driving there was taking turns that vehicle was not equipped to handle in what looked like an attempt to and void inspection and that was reasonable suspicion and help but as you know there have been a lot of stops just west of odessa on on  twenty which isn't an interstate and those were in broad daylight and we upheld many of them we reversed on on shaam right and on the ones that have been upheld there is observation of the passengers typically observations of erratic driving by the vehicle and those factors are missing yes we saw several people in the vehicle  five or five but he didn't see what they looked like didn't they look like they had been walking for the approximate four days agent mclean said it would take two to traverse that mountainous terrain over to where highway ninety is he  didn't see it all he could see was that the driver was the woman and the driver's behavior of going slowly and tapping the brakes and pulling over to that right roadside park was consistent with an innocent traveler being lost in the low night orage what lots of us would do if we thought there was a law enforcement vehicle behind us we'd be sure that we had slowed down to be below the speed limit wouldn't we some people might that was a friendly question