or there's a multi factor test that is applied in carlisle that we're supposed to look at and that does not say that a passenger status a determination that he is a passenger as opposed to the driver means that he doesn't have a reasonable expectation privacy and i had one random question about this maybe you have the tip of your fingers the answer so here we have mr iman's in the airplane the says now for lots of hours and he's also in the  been called the courtesy car that they keep at the airport and the courtesy car reminded me actually less of a rental car and more of a taxi cab so i wanted to know if people sitting in a taxicab who maybe throat you know i was envisioning myself in new york desperately trying to throw my suitcase into the back seat of the car along with myself before they drove off so is there a reasonable expectation for that taxi cab passenger yes because  long as you got the what you would call the limited possessory interest by virtue of the fare that you pay you have an expectation of privacy i don't think society be prepared for police or bystanders to come in and pull you out of the vehicle when you're free to their rummaging around furthermore i don't think that it's an apt comparison or to say that it's a taxi or that it's a rental car here it's like a loaner that you would give say a spouse or a child or somebody else to let you use this car that's what this is akin to there's no rental agreement and there's no distinction among the three groups about who has superior rights versus one another so i don't see how under carlisle or under what society would say we're reasonably expecting once we get in a vehicle that a person who is a passenger suddenly has disappeared and any expectation of privacy because they are a passenger where are we going to draw the lines for who's in the car and what rights they have basically because they might be and that's what case here both the plane and the courtesan car so let's move from minute why it is serious mr iman concede cities got personal use an ounce of marijuana in the car why isn't that the end of the game for him because of what  before makes that determination that finding so you went on that only if there's a problem that went on before right so there you have to deal don't you with all of the surveillance that the that the da just people have been doing of this airplane back and forth around the country glad you used the word surveillance because that's what they said she should be doing they don't say interdict they don't say or ask they don't say the former terry stop and so forth were to look at what the officers knew were there said that the pilot the plane and the passenger non suspect and then it goes to even spencer who says conduct surveillance if we have collective knowledge this is all the knowledge it's been collected and it doesn't tell anybody who's there  litchfield to go ahead and perform and arrest or to make a terry stop yet that's what they do exactly that so they list on pages seven and eight they're brief the things that caught the attention i'll just say of  say this airplanes flying pretty long distance from california to allegheny county pennsylvania and back again it would be an exceedingly poor rule if now people in rural communities are under heightened suspicion by virtue of where they live because folks in chicago where there's probably a lot more drug use in transit through airports or non suspect you're on i don't think that support it's not what i said either as i said taken together you're you're right i'm not trying to put words in your mouth i'm limited surveillance they come out there they are in body armor there are their weapons are visible they've got local police cars rights are on documents are taken money is taken they're surrounded they're not allowed to go to the spot left doesn't green light the government to come in and surround you and keep you in it so they should have been allowed to leave were guards the number of spots they position their cars purposefully to avoid the suspects from now departing that communicates a reasonable person they are under arrest they are under arrest enough free to leap that's again and issue of arrest and so the government might want to say we did these things because they came at night so night times not a factor but it's not just defectors same thing with surrounding a person doesn't matter how many parking spots there are if you have impeded somebodies ability to leave then that demonstrates custody and it's as simple as that time of day same thing to say nothing how that undercuts the government's argument they say these people were going to go in a hotel room so there's nothing to fear here about this this is maybe a quick word about inevitable discovery the gunman argues that they followed them to the hotel because they were curious about them but that they were going to go back anyway with the dog to the plane can't can't we why an inevitable discovery when the evidence here suppression transcript page three hundred and twenty nine if i recall correctly is from the chief of police under whose control dog is the canine handler works for the chief the dog is part of his forces if you will that he can deploy and he says nowhere that he would absolutely have deployed the dog it depended on what happened in the parking lot st so they cannot show a course of events in the independent course of events that would have led to the absolute deployment of the dog at the airport so they cannot make inevitable discovery work this is to say nothing about the reliability problems so if you bring this dog that is unreliable because it actively alerts in the past with words when a dog does those two things there is no rd option so what is it about the dogs conduct that shows that what it is doing actively or passively demonstrates the rule i believe the necessary for probable cause to allow under harris the use of that dog so i think your honor you can pick between those two things that are both  court most credible witness as to whether there was an arrest a medium they win these eight offices and six cars and flashing lights showed up at this parking lot is chief wilkinson who  prefer we alluded to the fact that the testimony has shifted because when he gets to federal court he has very different testimonies of all i actually meant an investigative stop it was brief and  but his testimony in the state court was sufficient was he was a testimony that he didn't understand me state hearing the difference between a story stop and rest no there's there was never never any direct comment states that states attorney didn't even try to argue that they weren't in custody from the beginning and the state judge said the former literally police chief arrest at the car in the hotel parking lot surrounded by federal and local law enforcement officials say if they were arrested from the beginning even if they work even if it's the lion was on the rest of the things he was improperly arrested without grief it was some maryland versus pringle and it's very different and i want to take my very limited time to say why the rd point i wanted to touch on is that  police can take out only something that might potentially be a weapon you know night the gun i think that's actually so i think i hate the term black level put in minnesota if the terry protective search goes beyond what is necessary to determine if the suspect is is no longer valid and its roots will be suppressed i think of all the issues in this case that point is if we should went on and it's important because the judge really doesn't have much of a argument respectfully to the district judge to to find probable cause i'm an admission he's got the small amount in his backpack which  is verified just simply doesn't suggest imputing in mr mind i don't think so and then the judge has three other things he mentions that he was he became faint when this massive swat team like comes upon  faint too and secondly that there's this mysterious box which never even gets to inventory and seems irrelevant to me as to whether or not the maker and yeah i mean that once sort of silly and even when agent having talks about they took the morning your honor smith please the court counsel my name is victory and i represent the united states i'd like to st start with an item that mr hillis raised with regard to inevitable discoveries and you think this is a very important argument for the government  and i think it's important for the court to understand that the excerpt of the testimony to which counsel referred st of all it's clear to everybody that this is a federal investigation run by federal agents with the assistance of state law enforcement personnel the very st act that the federal agent did when he received this tip hours before the plane touched down was to arrange for the availability of a canine so this was a federal investigation from the start and want and state personnel were there for assistance it was the underbody testimony of each of the federal agents that without a doubt as soon as those defendants left the airport in the courtesy car at some point they would go back to that aircraft and deploy the canine around the aircraft the aircraft was left unattended the aircraft was left unattended and it and how many there were how many agents and officers involved their surveillance wise your honor there were two federal agents and there were three state officers and they made the operational decision which needed to be made in in the moment to take these five on for some personnel and follow the two defendants because they just saw them unload something from an aircraft that they reasonably suspected was being used to traffic drugs or some other contra let's talk about reasonable suspicion at some point here but ok yes you're on whether and whether this was an arrest or anything that's correct your honor although it is it is notable that the police had to use keys to open up the aircraft in the keys were taken from defendant lyons but with regard to the test the testimony from the litchfield chief of police as to whether or not he would have without a doubt deployed that came out number one that wasn't his call to make because this was a federal investigation but more importantly number two that came in response to a specific question in the sky wait a minute he read tell me the feds would have ordered with it at least with regard to that with three got with regard to the canine the chief of police of litchfield answered a direct question if the federal agents declined to deploy the canine around the aircraft would you still have done it his response to that was well i don't know because there must have been some intervening factor or some other event or some consideration for those federal agents not to deploy the canine on the aircraft and so therefore i would have to consider whatever else that what other whatever other factor it's that was not it yes i mean it's i don't know it's not a yes but it assumes that he would have deployed the canine but for some general vague intervening event that would have cost the federal agents not to do so with regard to that not the strongest but anyway with regard to the reasonable suspicion there is there is a host of articulable facts that were conveyed to these agents and law enforcement through a mock of a an agency with which these agents and officers had prior experience and knew them to be reliable or at least provide reliable tips and these that the tip included the fact that twice in the past two months this aircraft had making made long distance quick turn flights between california and that's of it was identified as a single engine cessna aircraft which is relevant because this isn't a jet plane that can make that flight  matter of hours in fact the evidence bore out that each flight took a minimum of twelve hours one leg and that's time in the air that that excludes taxiing runways and refueling etc and so it makes these quick turns at the destination even more relevant  resources point out and the aim lock good advice was simply be on the lookout right the a mock advice was simply be on the lookout because the underlying assumption with all of this was that this plane was going to touch down in litchfield refuel and then continue on to its destination which would have been consistent with prior travel patterns that underscores even more the inevitable discovery argument because even though that was the underlying assumption that there likely would not be content an encounter with these defendants because they like y would never leave the airport the agent still made available to the canine in those very specific but unlikely scenario that the defendant's state the state in which field for the night and soon as they powered down the plane and left the airport going to pennsylvania and then coming back with marijuana from pennsylvania and that coals to newcastle i don't it's a funny theory well your honor i know while that marijuana was on the plane to be clear the reference in the a mock tip with regard to areas of california known to be prominent in drug trafficking that was not the specific area that the plane had departed from but rather there had been some activity with that aircraft about is a very low threshold of establishing reasonable suspicion that there is well there's a what which we need to focus on is the difference between grounds to be on the lookout in grounds to restrain  freedom of movement under threat of force right that's what that's what a terry stop authorized certainly your honor and that's where it looks frankly to me is if the the officers on the scene jump the gun here  by conducting what for certainly looks to me like an arrest in the well your honor with regard to the standard for being on the look out there is there is no standards really all we're talking about it right he is the standard does it rise to a reasonable suspicion to affect a terry stop and given that two quick turn flights in the prior t months does the government have any evidence about how law abiding pilots use their planes for long trips like this not not in the record your honor but oh in the g analysis here looks like some of these old drug courier profiles travels alone travels in pairs travels in groups that is stops a remote  i understand why they would have said willems and with it's an odd pattern let's keep an eye on this but i don't see the grounds for restraining liberty well the one individual ice factor that was present in this case was that the pilot of this medically qualified in an instrument rated pilot right correct and again that the practice the continuous practice of using these small rural airports at times when these airports are effectively closed suggests to a reasonable reasonable person that this pilot or these travelers are attempting to limit their interactions with others again the navigation through a storm or an apparent storm was mistaken right well it wasn't a mistake your honor but it was something that they the district court didn't rely on because  there was there was questions to the veracity of that of that assertion but certainly the officers relied on that in good faith and what one of the reasons a pilot gets instrument  well to put to navigate it this way is united in bad weather right certainly certainly but it also even the most qualified pilot pilot is assuming some additional degree of risk however slight it may be depending on the weather and if a pilot is electing to fly through a storm as opposed to landing in and riding out the weather it made it might suggest that the pilot is the wide open spaces parts of our country who have pilot's licenses they like to fly because it's fun and then they probably don't adhere to the same twenty four hour day that the rest of us do and and that may well be and that's again that's the that's fair for the court to to consider but again the flight in question in coming to libya was following the same pattern as well as a small role airport it was at after midnight at a time when the d air force airport was effectively closed they were not going to be interacting with any authorities there any fellow fellow passengers the air at the airport was essentially blacked out and then he has to do this self service gas you have to use your country you know you have to use a credit card got to leave a paper record behind that's correct everything was was there any indication and there are indications of efforts to make stealthier flights was there any indication here we've seen it we see in case law for example pilot  mean absolutely well and the district court also noted that when the surveillance officers were were observing these defendants disembarking from the aircraft unloading their cargo and loading it into the courtesy car that it did include this this box which again in and of itself is totally innocuous but it was also inconsistent with personal luggage or luggage that someone might take with them for no one understand that if you're in your own car airplane if you just toss in a bag or a box you have to worry about packing it up so that it will survive the baggage hand and again your honor that may well be and it's a very you know this is one of the many of the suitcases briefcases we see and zillions of cases and it doesn't necessarily speak to the fact that that box was carrying drugs it just makes to the fact that it wasn't actually and it just beat to the fact that perhaps these  defendants were up to something other than a standard overnight at a hotel and that's that's the only that's the only probative relevance of the box but it's something and it's there and again this is a totality analysis and so that's of so could we go back to the question of whether a reasonable person in lyons in arguments positions in the hotel parking lot would have felt free to walk away or choose not to talk to the  certainly well that the district court did make a several factual findings with regard to whether or not there was an arrest in the parking lot the fact that the duration of the questioning was very short the fact that there were no physical restraints about the free to leave element which is  necessitate that they park eight to ten feet behind the car which is where they which is where they did park but the car can't get in i mean the car is not going anywhere right but but at the same time you're on of these defendants had exited the vehicle and were walking toward the by that given the history of this case and i can't imagine the police chief and senior lieutenant didn't know the difference well your honor unfortunately as counsel noted that the record is not developed enough to to determine at the suppression hearing the nature of his his prior testimony whether there was a mis understanding of the law i mean i take your point that we hope that all of our law enforcement officers temporarily or get here to the you know object of findings have to be made from data on the ground and he's an objective observer just the same way into his story in his head and his his testimony again should carry the same weight as a good as the other witnesses who were also objective observers who said no this was not an arrest and should pay no attention to what the government agent said in your view since you don't want to pay any attention to that that's what that's my point your honor is it could be probing probative of something but it's wasn't just the position of the cars the physical layout of the parking lot the behavior the duration you know lines winds up in the car after the fainting but we can give him two minutes on sound preachy at the extra time your honor for the inevitable discovery it's not the federal agents dog it's which field police officers department's dog rather under the chief's control his dog his call simple as that last the testimony was unequivocal that the dog would be deployed and it's not here and i don't think they can meet their burden under the not to be lightly invoked exception to the th amendment warrant requirement that's what we say of these things like an episode discovery they're likely invoking it here they say there's was no likely encounter if the man left excuse me if men stayed at the airport that seemed to be counter to the narrative that we heard elsewhere that the police had to come in and would always search because of the presence potential presence of drugs so i think that undercuts the claim that law enforcement would always have made contact which is one of our contentions here anyway i misspoke when i said that the have a mock official said that there was a passenger in the list of people that he said was not suspect the plane the owner of the pilot said nothing of the passenger that she helps us there's no mention of a passenger who's under any sort of suspicion that be mr reiman the government does a fine effort in taking individual factors from cases to say this doesn't indicate a stop or a rastan pieces these things together but if we look at cases like forrest ask you to actually look at the totality of circumstances or spross the versus book where we find a lot of similarities here that definitely tilt this into the direction of an arrest and i think that that's important to look at a case that considers truly the totality of the circumstances or how  a case like that the testimony while it may have changed from chief wilkinson time to jarman said the men were always under arrest and also you don't have to draw got to show that you're under arrest visible arm visibly armed law enforcement officer communicates a great deal and there's no contest here these officers were visibly armed that had nothing else all right well thank you very much and we thank you mr morris for accept only to direct the court's attention to three places in our brief where we talk about this change testimony page six we said wilkinson reversed his state suppression hearing testimony concerning when i meant an alliance were arrested page nine to ten the government should not have been allowed to do over that which the same witnesses offered altered testimony that conveniently improve the government's case and the page sixteen we said in discussing collateral estoppel that that to have a nd hearing allows the government to alter problematic testimony to improve its case which is precisely what happened here my point is that the government's brief does not in any way respond to that on three separate direct statements about ulta testimony by the person who was present that's all i want to say all right well thank you as and i so started saying mr morris i believe you took this case by appointment we appreciate your efforts on behalf of your client the surveillance we always appreciate the efforts of your office in these cases and thanks of course or to the government we