and yes the titles and moran's name it seems to me in today's world more or less than half the people in the united states do with marriage anyway you know these are ancient lines and it may be going that way you want to but there's no  also was the owner and there was nothing in the record that says one way or the other that the uphill e had driven the car intended to drive the car only if there is evidence that he intended to drive the car because when they find out that her license is suspended they look at his license and mexican license to make sure that it's a valid license because obviously they can't let somebody go off you know with the same problem and so there's every intention to have him drive the car but that was after and block cameron was still the owner of the vehicle distinction she's the only person who had the reasonable expectation of privacy in that car she had the ownership interest and that's really the difference between the driver and the police and you're on the  car that's correct your honor and that's where brennan comes into play in this court of course has given guidance to bring that in the context of a passenger in a traffic stop it said that the passenger can challenge a search that results from a traffic stop and very limited circumstances and they are first at the police decision to stop the car or extend the stop wasn't justified that's the first part and are we on the extend branch of that that's exactly where we are iraq and that's really the the crux of the case under  analysis of this court has under brendan and in this case the stop was reasonably extended based upon reasonable suspicion of criminal activity on the part of the elite as well as the driver  stops and i guess when all is said and done it's about thirty minutes the first fifteen of which you know he's talking to the driver he's going over and talking to mr rodriguez says well  subjective conclusion of course it's one the government a very strongly disagrees with and we believe the facts in the record particularly the desk and video belies that completely and shows otherwise so the answer your question or are we not me so we supposed to watch that video as if we were the trial court i think in this obviously there's there's deference that's given by this court to the district court i think in this case it's particularly helpful in showing why the district court reached wrong conclusion as to p officer and what he was doing you know what way i have watched she claims very clearly that he was stalling and doing nothing during the course of the stop but the officer explains in his testimony exactly what he was doing at each juncture and he also explains she also finds that he's not credible yes but her decision there to find a new credible is on a very narrow line of reasoning and on a very narrow fact as she said and that is as to his stalling or your honor and everything  like i said all that she was nervous the district court found otherwise it could actually video i think certainly every reason to hold that it was certainly not  what seemingly of it was when i first read your brief i thought well yeah ok that's completely inconsistent but there's she didn't know or actually when asked she said yeah i told of this pennsylvania so and she didn't know he had said that i saw her explanation was that this was supposed to be a surprise but she came up with the word pennsylvania the place pennsylvania independently of her knowing that he had said we're going to pennsylvania and the district judge placed weight on that fact the district judge said yes she says it's new york and then she immediately with no prompting no opportunity to communicate with rodriguez says it's pennsylvania i mean that there are fifty states you know it seems unlikely that she would opt out with that but importantly she also says that the up ellie knew how long the trip was going to before she says two weeks recall that the up and we said today and guess what if you start from los angeles you drive all the way over to new york and visit new york for a little bit and then drive back to los angeles you've probably taken a two week trip even though you only spent a few days in new york well theoretically you're on but what this doesn't address and this is what the district court doesn't address hotel lined up there we're just going to kind of wing it people do that all the time maybe i know a different set of people than you do that people do that all the time they'll go to paris and bomb around for someone who's never been there even or to to to go to to say they're going to new york and have no idea where they're going and importantly i don't understand why that's implausible at all well you're right if you're going to go to a city especially for the first time look at york for two weeks and not have a place to say and say to exist said that she said the like what she said that's correct but she was going to major city with no plans and what really stands out is when the officer asked her where exactly she what she wants to say she says and i quote i want to go see the what do you call it the statue of liberty this shows no effort on her part to really think about what it is she's going to be doing which is there you never gone to a place and just gone to the visitor's center and said you know well what's here i mean obviously i mean you're remember what the police it he said they were going to pennsylvania with no place in particular to go no one to see and no purpose in being there so it's not just the driver it's both these people we can disagree as to what plans you would have when you go someplace i'm here in i plan to stay at a hotel that's me that's that's normal i think going to new york and not having a place to stay and not be able to articulate what it is you really want to see really stands out as a factor under reasonable suspicion but stand up to scrutiny then we're we're we're get a lot narrower i was trying to figure out exactly what multiple air fresheners mean i think there is some reference and cases that are in the fashion right now experience is in indicator of masking agent essentially two in the front two in the back a very strong odor he made very clear in the record your honor that that stood out to him as being suspicious and he noticed it met at the district court i misstated the record and saying that the officer didn't notice too in the back in fact he did and this report really misapplied the to attack only the circumstances test here throughout if you went through each factor in isolated them from all the others would sort of have to if you're going to talk about all the factors i guess you could have the final paragraph saying and now the totality has made a very good you're your you've actually used up all of your time at this point so maybe i'll ask you to sit down and i'll give you a final minute thank you may please the court good afternoon i'm steve will be on the federal public defender for the southern district of illinois here for mario rodriguez so here's my issue with this case mr well they mean the first stop the traffic stop is a legitimate traffic stop would you know there's right so that that much is ok and that gets us off to the side of the road and it gets the trooper looking at both miranda and rodriguez and  and then we get into this sort of fuzzy thing about it and actually at the very end it's moran's car so she can give consent to search the car it's hard for me to see the nature of her consent  worst frankly she doesn't seem cool worst to me at the moment she's sort of waving around saying you know go ahead and do it he seems a little shocked that she decided to do that but that's that's different so we wind up you know about whether this was unlawfully extended after you know whether it's dragging his feet to to write the warning or and then eventually force to find out to also write the paperwork on th suspended license i was bothered by the air fresheners tell you the truth you know masking and although you can come up with an explanation about the places i was  i'm not as worried about no hotel in new york which seems to me not probative much if i could address those in turn your honor with respect to the corps and i think the government in its brief describes the consent as being coerced i and not effectual the second issue on the air fresheners and the other the other factors i think the judge looked at all five of the factors if you look at page six of the water the same exact five factors that the government listens brief for the same factors that the yes right to prolong it i mean the brunt of this pretty long it was over over half an hour yes i believe thirty five minutes or so before they actually conducted the search and i don't want to dodge your question on the air fresheners the judge addressed that in her order she considered it i think it's fair and a fair reading never were that she thought the issue was being exaggerated i think when you watch the tape there's not one mention of air fresheners i think when you read the officer's report and i know that it's a smell i mean i guess the trooper is thinking who would want this overpowering smell maybe other people like the smell but you know who would want that permeating the car if there wasn't a reason well i've driven that distance from los angeles to st louis and your car smells a little funny when you get back there there's a good reason to have air fresheners but i think this idea that the air fresheners were so important the author says decision when you watch the tape he says not one word about the air fresheners his report says not one word about that in his discussions with the other officers he doesn't mention the air fresheners none of the other officers mention air fresheners and when you look at the photographs it's all kinds of junk in that car there's no photographs that highlight those air fresheners as being of some significance that seems to only take on significance when it is obvious that the officer has extended stay beyond the point where he can hold the folks without reasonable suspicion and that's what the judge that happened in this case and the government says we're strong will see a pro strong strongly opposed to this determination that it had been extended but it didn't challenge that and it's brief i don't see anything in here saying the judge erred and making that conclusion do you have any idea mr welby how many motions to suppress have been denied in drug cases in the southern district of illinois that we've  credibility findings a lot i don't know a number but i don't usually get to sit at that table anymore so yeah we usually lose these and i think when you watch the tape it's obvious that their style and all of this leads up to the point where normally in a case they extended that then you know there's a question of whether it was properly extended that they have reasonable suspicion the dog comes a dog gets they find the drugs we have now this is what at what point do you think this became unreasonably prolonged i think to issue a warning ticket to someone for an improper lane change cannot take more than ten minutes and even if you add on the fact that there were even if you run the license and you find out that it's suspended doesn't that start making you think well what's going on here i i think at the point that the license is suspended he makes the decision to issue another ticket that you know given him the benefit of the doubt that might take a few more minutes to add a second charge but these are facing routine charges in this idea that is flipping through a statute book to find to find the proper codes for a lane change and driving losses spent at those those a routine traffic ticket said that the officer should be able to write in minutes we know that he wants what did the did the district judg question that that the officer knew that the canine unit there was available was going to be tied up for another ten fifteen minutes right yes and to that figure in the district judges evaluation about credibility in prolonging just i think she that i think that's why she used the word stalling that she said it was stalling because she knew the officer with the canine unit was not available and he was driving at a very high rate of speed with the dog in the back to get get there as quickly as possible because they i think we're cognizant of the fact that they had unlawfully extended this detention beyond a point where it was reasonable certainly was driving fast absolute i don't know the speed but i that the video and i think that's where she said he was stopped you know you're just sitting there your job is to issue the traffic tickets that's the mission and he had plenty of time to complete that mission and i think the judge found it was obvious that he was stalling i don't know that that's been directly chance on appeal the government said the issue is whether there was reasonable to kill or suspicions well that's right it is a question i mean maybe even if he was stalling he could have been stalling if he by that time already had articulable reasonable suspicion to wait for the dog let's say right and i don't think it's fair the way the government has characterized the district nurse decision that she looked at each of those factors in isolation i think if you look at her order she notes and the verbal order that that she gives she makes repeated mention to the fact that you can assess these factors in a vacuum you have to look at the quality of the circumstances that's at one fifty six and one sixty three she says she's considering of the factors individually and the combination she also repeats that of one sixty six and at one sixty six and one sixty three at the end she says considering all of the facts in the case this is my conclusion in a written order she outlines the same five factors at the that the court considers on page eight she says she's looking at those factors both in combination and in and and in isolation individually that's exactly what the totality of circumstances test requires and at the end she concludes that the prophet evidence individually and a combination with the other factors were insufficient to support reasonable suspicion that's the job of the district court to make that i think she executed that properly the issue of consent that was raise a second ago i don't think you can be in a situation where you get the consen the poisonous tree or coerced on behalf of the rand you know unlawful detention on behalf of mr rodriguez and somehow those both cancel each other out and say ok you can't be in a situation where you coerce a consent you have to be in a car you course consent from one person and you go of course the consent from the other person and you say well neither party going to check because the other guy consented then you can challenge it that's the johnson case that we outline in a brief two wrongs and that situation can't make a right joe are you making the you haven't made the argument have you that as to the searches of the suitcases there was no obligation to find out which suitcase belonged to home i don't think it the officers had an obligation to find that out ahead of time i think the defend immediately i think it was obvious that there was a man and a woman in a car or men's clothes in the suitcase or most of the drugs were found and immediately after the drugs were found mr rodriguez claimed ownership of those drugs so i think claimed ownership of that he said it's mine is what he said so i don't think your neck and a case here where you are and should be where the person at the time of arrest makes no claim of ownership at the time of the filing of the motion to suppress makes no claim of ownership at the hearing but saw no evidence of ownership and then an appeal says well you know hey that was my students that's not what we have here we have a situation where it's being searched and obviously they the defendant immediately claimed responsibility for the contents of that suitcase but to answer your question directly i don't think the officers have to divide up the luggage and say whose bag is this but i think the question is is there a violation of his constitutional rights when the search of a suitcase takes place while he's being unlikely to taint and i think the answer to that is yes important fact to him as to reasonable suspicion and i also want to note one final time pardon me that at the end of the day with regard to any inequity or injury as to the up illegal drugs that were in this be it go by his own admission belong to the ad pelly they were his not the drivers so if this court were to bake it the order and considering the fact that i'm going to is dismissed the other peel there would be no in equity or injury as to