branch and we want to welcome a visiting colleague judge william billy ray who is a federal district court judge on the northern district of georgia before that judge absolutely thank you all right into to our attorneys welcome to you as well sorry we can't be with you live in person from montgomery but this will have to do i think many of you have been before us in the past but just want to give you a few ground rules as you know your time before us is limited so i ask you that you skip the formalities and the factual recitations in the procedural histories and just proceed directly to the points of your case that you think are most salient there's no lighting system of course on the telephone but valerie is on hand our courtroom deputy valerie geddes is on hand to give you a two minute warning just ala and we have here for mr zale mackenzie one and for the united states tally so ms one you are going to start us off this morning and i see that you have reserved two minutes for a vote that's correct your lacked a particular arised and objective basis for conducting the vehicle stopped in september two thousand and seventeen moreover even if the traffic stop was justified at its outset the deportation officers unreasonably prolonged the stop in order to investigate unrelated criminal activity finally mr gonzales as consent was the direct product of this illegal seizure and the district court failed to hold the government to its burden of demonstrating that the consent was voluntary  to begin reasonable suspicion for terry stop requires particularized and objective basis for suspecting a particular person stopped of criminal activity and here the deportation officers testified that mr gonzales say i did not commit any traffic offenses they were not looking for him for any reason and they had no suspicion of criminal activity that was unrelated to the fugitive al far you are in fact the only reason for this vehicle we have to look at this lead in the surrounding circumstances a little closer and i think the lead is simply too stale and not detailed enough to supply reasonable suspicion to detain any male individual leaving this residence on suspicion of being aguilar when they staked out this residence in september th teen based on the social security number this tip came from a clear report which revealed that the social security number in question was being shared by multiple individuals and in fact belong to a why an individual unrelated to either but two people at issue in this case and then when purdie generated his own report using the social security numbers a search term it pulled up twenty six separate names with varying dates of birth and this report also revealed that the social security number had been associated with this address from september th two thousand and eleven through january th two thousand and seventeen so at the time of the vehicle stop and september th seen it had been more than eight months since the last confirmed date that the social security number was associated with this address and then additionally when purdy went to verify the clear report by checking the e a r m module report and the relevant immigration documents he discovered that mr al far as you are was ordered removed by an immigration judge in july two thousand and sixteen because he did not show up for an immigration hearing in houston texas that hearing mr o'farrell aguilar's lawyer presented evidence that mr afar you are had departed the u s in july two thousand and thirteen so i think it best all this information reveals is that an unknown individual using a shared social security number set up an unknown utilities connection at this residence and half when alabama and that social security number had actually not even been associated with the address for eight months prior to the vehicle stop so i think based on this totality of the circumstances and what the officers were going off of a more fiercely does not provide the particularized an objective basis for stopping any mail individual who left this residence on the state so i think your honor affectively what they officers did is they showed up with the stated operation plan of stopping any vehicle that left this house but even though they observed no physical characteristic that would have led them to believe this was mr  gular this is just not a particular as an objective reason to suspect the particular person stopped of criminal activity and certainly not based solely on the fact that this shared social security number was used eight clear individualized suspicion is not an absolute prerequisite for every constitutional search or seizure well your honor i think that's correct but in determining reasonableness the court must balance the governmental interest involved against the constitutionally protected interest of the private citizen and this is not like in britain or any ponce or florida v rory or where it's at you know near the border at an or at an airport and there's a heightened governmental interest of drugs or securing border security this is helpful in alabama and a group of deportation officers are looking for a single individual who is subject to an administrative order of removal because he didn't show up to an immigration hearing and we have an entire we have three ice agents showing up fully armed to stake out a residence at five am and they seize the st individual to exit this residence without stopping to confirm whether this was in fact the person they were looking for i mean the governmental interest is simply not compelling enough to support the degree of the intrusion upon the constitutional rights of the individual particularly given the high likelihood of infringement upon the th amendment rights of people totally on involved with mr al for aguilar and you know i would like to proceed to the nd issue and talk a little bit about the fact that these officers are reasonably prolongs the vehicle stopped to conduct an unrelated criminal investigation so supreme court precedent on this point is really clear the scope of a terry stop must be carefully tailored to its underlying justification and the stop my last no longer than is reasonably necessary to complete it mission anderson let me let me let me ask you about that this is judge wright so i mean i think you agree that the question that was asked about who else was in the residence or who might be in the residence was really merely seconds to remember or just a minute or so after he was stopped is that correct that's correct your honor and so how was i question given that their purpose is to look for an individual who said so deportation order who was named has been associated with that social security number and was suspected of being at the residence how is it prolonging the search to ask about the very thing that they're searching for your honor the key is this is not a voluntary encounter it's the th amendment seizure the officers cannot pull over and detain one person and then extend the stop for the purpose of investigating an immigration offense committed by someone else but most of the cases that you cite in that we're familiar with are cases where they're asking about criminal behavior of the person that was stopped in this particular case the questions didn't necessarily the person that was stopped once it was determined that it wasn't he wasn't the guy it was who's at your place is there anyone there that we need to know about again your honor the th amendment requires a particular as an objective basis for suspecting the particular person seized of criminal activity once it was clear that mr gonzales it was not mr al far as you are authority for this seizure evaporated and they could not continue to prolong the stop in order to at several different junctures but you know what it is a minute and he's admitted to a separate club why isn't that enough to prolong the stuff your honor we know from rodrigues that stop can become unreasonably prolonged even if conducted expeditiously and even just a few seconds as this court held and campbell can be the basis for concluding that the stop was unreasonably  mean is that it was unbelievably prolonged will or he within a minute mid is that he was in the country illegally yes your honor specifically my argument is the officers lacked reasonable suspicion for the initial vehicle stop but even if not it would been immediately apparent to any reasonable officer as soon as he approached the car that this was not as far as you are and the stop was unreasonably prolonged when the officer asked for a name and id but even if it was ok to ask for a name and id it was a foray into have a specific form of id it was an impermissible to ask if he lived alone and for consent to search his house like an rodriguez for the purpose of the stop was complete after the officer issued the traffic ticket this stop was complete after they ascertained that mr gonzales a was not as far as you are asking to go back to his home was investigating an unrelated immigration offense committed by someone else and a immediately realized that this person was not the fugitive sought the deportation officers had a photo and a physical description of a far aguilar right in front of them on their field work and these two men look nothing alike they have drastically different skin tone and facial features mr gonzales is a decade younger of off than off our aguilar and perhaps most notably mr gonzales has several very prominent physical deformities he is missing four fingers on his right hand and one on his left and he is modeled again on both arms none of which are noted in their description of far as people are and it does not matter that this officer subjectively believed that you know he could not the question is whether an objectively reasonable officer would have immediately recognized that this was not a far more and again these two men look absolutely nothing alike except for broadly speaking they're both hispanic males and so even the st question asking for any form of identification you say was a bridge too far yes your honor that's our position but i think even if it was not a bridge too far it certainly became a bridge too far when he that this was not a far aguilar he provided his own name nothing came of the fugitive they were looking for then he produced a mexican identification card with his own picture name and birthday which again did not match the name picture age of the fugitive they were to investigate an unrelated traffic offense which they don't have the authority to do on unrelated immigration an offense which they do not have reasonable suspicion to support and your honor i believe it looks like my time has expired i just want to jump into this extended stop question because i do think this case represents an opportunity for the court to clarify the standard in rodriguez and campbell it's true that questions cannot go beyond the mission of the stop the supreme court's definition of mission and rodriguez is quite broad the mission as the supreme court sought and that traffic stop case was not merely the narrow purpose of the stop wasn't just speeding or a blinker that doesn't work but rather quote ensuring that vehicles on the road are operated safely and responsibly and that's about as broadly as the court could define the mission of a traffic stop and this court should hold the supreme court to his words and apply this broad mission based theory outside the context of a traffic stop to investigative stops such as this one so in the case at hand missions here would permit ice agents stopping individual during investigation into immigration violations to ask any questions related to that mission without violating the rules rodrigues they cannot ask questions about drug trafficking or money laundering or whether they're dead bodies in the car those questions would go beyond their mission but they could ask the ordinary questions attendant to an immigration investigation including questions about identity status and the like the standard supervise the test records and officers and as long as officers questions relate to their mission this court need not beyond the person stop so in my sort of think session of questions that i was posing to the law on questions one who are you to show some id three show us another form of id and then for me at that one it seems like they've probably figured out definitively that this is not aguilar and then the th question well why can't you give us another form of i d at that point that may be sort of immigration related but it's no longer aguilar immigration related well i make a couple points on that i think one the broader question can you ask questions that go beyond specific person i think you can i think you could do that in a terry stop before rodriguez i don't think rodriguez changes that rodriguez did not rewrite what the mission is it was not a sea change in what terry stops or about it was specifically about whether or not questions that went beyond that mission if they were dim in a miss if we could just sort of ignore that and move on so i guess i would say it seems to me pretty clear from the case law that before rodriguez you could ask those questions i think you can ask them after rodriguez specifically to this case though and i'll just say this specifically to this case the moment the moment they walked up to the car and saw this individual who was not for i will or they arguably had reason of suspicion of us of a different crime at that point because they have a house where there is a social security number that has been stolen that has been used to attach utilities this was not just them stopping any person leaving that house this is five o'clock in the morning it's reasonable for the police to believe whoever leaves the house at five o'clock in the morning is not somebody who just  sugar that's the person who lives in that house that's the person who attacked that utility so they have reason suspicion that this person has committed a crime that there is there is a crime afoot i do think though even putting that aside i don't think there's there's any reason why the police if they ask you who you are they ask if you're out into cation you have the american driver's license that you give the the officer was very clear when he testified on the record that they see fake license all but tom frankly even if he had given them an alabama driver's license i think they could have continued asking questions because that could have been fake and they have the right to establish his identity and that that is a very old precedent that when i if it's a valid terry stob officers may identify the individual that they're stopping so i guess i would say both broadly speaking yes and in the narrow circumstances of this case yes they could ask those questions with one of the on so it wouldn't make well i think i think that's an interesting question on the one hand obviously and this is kind of a cop out when the circumstances are different the circumstances are different and we look at each case individually that obviously would've been a big blow to the reason the suspicion that this was off our audio are from guatemala now they did not have that information right question whether this person leaving that early in the morning from a house with a so security number that had been stolen  been used to attach a utility where they could stop that person anyways because they had reasonable suspicion that a crime was afoot but for the narrow purpose of the immigration case that would probably be a problem for me if i had them stopping a woman or like you said an individual  who very clearly they could see was not this person now that is not the circumstances here they testified of a very dark they were very very early they really could only tell that was a man one other thing i want to address on this rodriguez and campbell question and this may be a loser from the start but i think it's an interesting question whether the standard even applies here as the appellant made very clear this is not a traffic stop as a vehicle stop this is a terry stop and while we analogy as vehicle stops to terry stop it's not clear that the analogy goes the other way and there are concerns that you have a traffic stop that you probably don't have at a terry stop the biggest one is you have millions of regulatory stops happening every day for everything from a blinking tail light blinking too fast like you had in campbell to speeding and the supreme court if you look at rodriguez was obviously very concerned the police were going to use those regulatory stops  things that they had no reason suspicion to even consider we have a terry stuff you already have the reasonable suspicion that there is a crime afoot beyond that so i think even at this point even with campbell it's still an open question whether or not the rodriguez the sort of strict bright line rule about beyond the mission questions even applies to a general terry stop cordial no guns were drawn nobody was handcuffed and i think if you take a look at all of the all of the various presidents who have come out of this court when you look at those factors it seems fairly clear that this was a voluntary encounter if there are no questions  offense the moment they walked up to this car the riv reasonable suspicion here is tied specifically to the fact that they believe that this vehicle contained so far as you are just a few cation for this stop evaporated the moment it became clear that this was not requiring mr gonzales say i had to answer numerous questions about his identification and why he did not have a specific type of identification along the stop for the purpose of investigating an unrelated immigration or traffic offense  only additional information that these officers learned during the encounter was that mr gonzales say it was in fact not mr el for aguilar which was the only basis for the stop and they also discovered that he was apparently of mexican descent but i mean we know from brig nonny ponce that an individual's apparent mexican ancestry does not justify a reasonable belief that he is an alien or reasonable belief that he's concealing those who might be in the country  illegally and then frankly your honor rodriguez is very clear you cannot prolong the stop to investigate unrelated criminal activity regardless of how expat expeditiously the unrelated inquiry right do you agree with this concept that once they are aware or have probable cause to believe really free people suspicion that a different problem was committed than they were originally investigating to that would give them the grounds to continue to detain a seeming that at the time that they discovered that additional information that they had a right to be there at that time so more times but i can attempt to answer yeah right so i think if they had reasonable suspicion but these are deportation officers it would have to be reasonable suspicion of an immigration offense that mr gonzales say i had committed but even then that would preclude investigation into unrelated criminal activity as to an immigration offense committed by someone else i believe honor again i think the difference is that we're saying the scope my speech strictly tied to its underlying justification and what mr talley says might make sense in the context of a traffic stop but here there is no reasonable suspicion to believe that mr gonzales say i committed a traffic offense and the dep deportation officers do not have authority to enforce the traffic code the only justification was to confirm or dispel their hunch that he was out for and again the reason the immigration offense they're investigating here is tied specifically to al far aguilar so once they dispelled their suspicion that this was not out for aguilar they could not continue to investigate all related offenses committed by mr gonzales say a unless they had independent freestanding reasonable suspicion to do so and i think the record is devoid of anything that would support such a finding