next case is united states versus chorlton williams lengthy traffic stop in the winter act on if you if he called you on the phone so you know this is ridiculous i've been out here in the cold for forty minutes i think your advice would be you tell those officers i no longer consent and you cannot search my car any longer in a perfect world i would agree with that right so so when you say he did all he could under the circumstances of this case and when we could have said that i mean that would have taken some degree of legal knowledge or perhaps extensive engagement with the criminal justice system to know that but those words you know stop you can't search my car anymore i no longer can sense there were five or ten different ways to say that he didn't say those credible only to a degree and i think that's very important because that this accords reasoning in finding it credible only two degrees because it wasn't audible on the tape and there is no evidence that to provoke her the sentence that they were made in revealing the audio video tape in preparation is all our god like to direct the courts to a citation it may not be apparent from our briefing and that is that twenty one fifty seven thirty three twenty one fifty eight thirty the tape clearly shows to provoke leaving the back of mr williams har where he had been screwing instant speakers leaving the view of the camera saying yes there and mr williams can clearly be heard over all the traffic noise and background saying i've been out here i've been standing out here forty five minutes there's a lot more it's that i can give i gave you people the right to search my car and everything up and standing out here and there's a lot of traffic noise so not everything is hurt but you can tell that he's clearly protesting his voice is loud but very circumstances what would a typical person have understood by the scene between the officer and the suspect mr ball or mr williams excuse me had been there he had been questioned by trooper brothy given a very aggressive stance i time getting out going back to the car again this searching going on for a long period of time in the meantime mr williams had requested his cell phones he was not given his cell phones perhaps he was going to call his lawyer and say how do i get out here instead  like to address that because i think this court cannot affirm on the basis that the drug dog would have at some point a future arrives and overdid the drugs and the reason for that there are several reasons one is first of all it's pure speculation and we don't know that this particular drug dog would have alerted and have the drug dog show that had they respected his the drop in sound and said ok we don't longer happens that we're going to close up the car going away for the drug dog if the drug dog arrived and to learn it which is not a certain mr williams's words assaulted but there certainly was evidence to show that there was some disagreement between through her prodding him and this williams there are loud voices there are some suffering sounds perhaps it asserting himself unfortunate there's so much road noise it's not fair we don't know exactly saying but what is clear is that there were this was not a calm encounter throughout the entire interaction as time went on to go worse as time wen that's a very intimidating experience you didn't raise the supreme court decision us versus rodriguez from last term no i didn't know here on it because you know why doesn't that ha know they want to consent they asked for it and then they refused to accept his withdrawal or any sort of limitation i think that it's very similar imo why wouldn't why wouldn't the rodriguez theory support your position there suggest that the your sick argument here about the coercive environment and his frustrations slash attempt to revoke consent might be bolstered by what the supreme court seemed to say about the reasonable most of the lengthy delay without reasonable suspicion or probable cause to think that a violation of law has that he had met with with a title there was no surveillance in detroit there was no confidential informant no tep it was it was a hunch and i believe that rodrigue me change the landscape of what is reasonable under terry in terms of how long a citizen can be held on the side of the road waiting for the arrival of a drug that question isn't before us that might have been as they said had they chosen to respect otherwise delia controlled substance etc punishable under any law of the united states that definition that element that predicate act is broader than the definition of a controlled substance offense as defined by the guidelines right and categor know you don't agree with that but i'm asking you to accept that for a minute there because we there are different ways of violating this rico law the you just articulated manufacture importation it cetera some correctly said that he was selling drugs right yes so why why did they just record her in accepting is true what he said in th phrase but each individual means in other words that the receiving and film and the selling are all different by legions of retail if that is the case  into thousands of different crimes which is a sort of the way rico structured i mean you've got this well obviously it's a unique statute and it's complicated but you've got this overhang of racketeering activity pattern of racketeering activity right and then congress has seen fit to make all kinds of other actions as a criminal under that support that that crime that is when the discussion of the twenty one u s c forty one activity comes into play so it's only massless the government never identified this is an element of offense this is and has it's not an element offense but then why would it be choice of the jury and we get into that problem because it is a jury would have to find this beyond a reasonable doubt they would because of the structure of rico that that is true but there's again we're building away though from the  is testimony about the prior acts that is to me seems clearly established on the record the same situation where you on on  a response that i disagree i do not believe the purpose of the model i purchased to find out what prior acts were committed the purpose of the modified categorical approach is simply to allow the court to determine what statute the defendant was convicted of and we go to prosecution the government could insist on going to trial or of teenie a plea to a substantive controlled substance they did not there must have been some benefit that was receive or you know receiving the or ascertaining a better week of conviction instead but they must live with that now is simply not a controlled substance appends you need to look to the definition of controlled substance offense under the guidelines and the and painfully really as i could have which is in here's how i got to this when i started thinking about a rico conspiracy a conspiracy charge itself is kind of a cipher you don't know what it is a person has conspired to do with legally into your conspiracy to do what and so that's why you have to drill down from nine hundred sixty two through the definitions of nine hundred sixty one and then when you see the the racketeering acts that are possible you have to drill down using the modified categorical approach is that the only way to get there to see what the actual charge predicates were in this case but think that's so unique right because forty one point one allows us to look for the the crimes of conviction and he was not convicted of the underlying drug crimes but he's convicted of the rico conspiracy and an element of that is the racketeering act which is the underlying crime all right so that's what the so now it's all the elements versus means that yes or no the case under mathis right according to the supreme court it isn't if you look at it i would go back before mathis to the scamps because the court says you use the modified categorical approach when the government has to charge something as an element as to prove a charge it and when a jury has to find it unanimously beyond a reasonable doubt that's right out of matheson that's exactly what we have with the rico statute jury has to find these records during acts unanimously to reasonable doubt that's why he had plead to that all right but the jury didn't have to find did it that he was actually dealing buying or selling right wouldn't the jury have been instructed with the entire laundry list the ms bronson mention and the only have to find one of those and in theory the jury could have found receiving  concealment note would have been instructed with the eight forty one c that's why i use kind of the metro should all example because you begin with the outer but which is the rico offense and you go down through the definitions and when you get to a forty well off the top of my head i don't but it tracks the language of the statute and that's why i took the pains to show that the forty one statute is no broader than it is in fact merrill rather than the generic offense has to be why the guy would be the same instruction given sort of trying to get around yeah well yeah yeah well the way the court framed issue was is a hot zach robbery committed while brandishing a firearm a crime of violence here it's similar it is a rico conspiracy committed while violating  forty one a controlled substance offense i got it all right if we didn't have the guilty plea call it quickly you have a problem right because there would be a chance that he was  which incorporated forty one's so at no point i understand that the defense is trying to make it sound like well the definitions in a sixty one or two broad but that's not what you're comparing you drill all the way down to this forty one and then whatever that universe of possible axes you compare for that line so because a forty one maps onto all predicate offenses probably doesn't have an escape hatch correct that's why such pains to try to map out step by step the analysis here to my knowledge there was a much case law about this in the hobbs act context either so i don't know that it's we should necessarily be afraid of that yeah we're at the edge of a brave new world  when i'm reading this and going why am i not find says i mean i began to doubt my research abilities and then but the more i did this the more it confirmed there really wasn't much there was a night circuit one from twenty thirteen  they could you have this is more than just an alternative but everybody can't believe both of these to be true and in point of fact neither of them is because we we have one comment that you can hear on this tape where he says i've been out here half an hour man about fifty one minutes into this search then he also testifies in the court credits him to to this extent that he is said it various times twice i think he said you know you're holding me up and i got to go at once again i don't have third circuit authority about this but i found ample authority from the eighth circuit of all places that interpret this that say this could be construed as impatience now keep in mind your honor standards is that you have to decide whether the dish report clearly erred in finding that a reasonable officer in trooper holds a position could construe these statements assuming that he heard them as ambiguous it's my position that really if you hear those comments such as i've got to go you're  holding those actually could just mean hurry up i mean they're actually more likely to mean hurry up and finish what you're doing rather than stop what you're doing entirely and we know that this man was not too afraid to stop to tell them to stop because as it in point of fact he said after trooper brad again asked him is it up your ass he then said when he saw them messing with his speakers he said you need a warrant to search my speakers and then to my speaker and then he said when then stop searching the speakers i couldn't i couldn't quite tell yet when he stopped so what happens your honor is it is a lie hard to figure out exactly how this fits in with his testimony but what seems to happen is he gets upset when trooper pulled his own screwing what looks looks like a subwoofer or something in the speaker and then when he says that full stops it just starts kind of looking around the back of the speaker and then and then after this no i think it twenty one fifty three around there when it when you know this to be twenty one forty eight is when brad again comes over to him for the cell phones and he claims that's when i told him you need a warrant to go through my cell phone he didn't at the time but he did tell him that so it's clear that mr williams knew how to revoke consent to search the whole car he could have simply said at any point you need or want to go through my car now or he could have said stop he could have said can i leave now those would triggered i think some obligation on the part of the opposite of a finding of impatience i think would be clearly earliest right we would be a finding of impatience would be clearly erroneous i suggest i mean i used the word exasperated earlier i mean this quote parking brake cover i'm not sure that my automotive law and knowledge and skills aren't sufficient to tell me what a parking brake cover is but suppose the state policeman says i don't have the right tools here i'm going to have to take this car into the garage to be able to disassemble a couple of these manufactured parts to determine whether or not something might be hidden in one of them and he looks ronnie goes what you know i can't believe this i've been here for fifteen minutes you're going to take it into further disassemble the car i mean you know what does a person do at that point i mean it's like how much time can a search go on right before a a consent tour and wonders you know exactly what did i do right now i've sort of told them i don't want to wait anymore i mean what magic words have to be said well how about you need a warrant now to go through the same with this because if you say that though and it gets to the cell phone which was before getting clear of the parking brake go right he said both of those things may be wise and that's official why isn't why isn't that and that that was a revocation of consent to any further search well because he said you need a warrant he claims to have said you need a warrant said look at my speakers you need a warrant to to ascertain i mean it's not yes he says twice you need a warrant here and they keep on going on but he didn't say you need to if he just said you need a warrant that might have been something but he claims to have said in the court credit in his testimony for saying you need a warrant to look at my speakers you need a warrant to look at myself and since people can revoke searches on a piecemeal fashion that's what he seems to have been doing but there's meanness seems to me that the whole concept a reasonable necessity be applied to the circumstances here would be if you drive a stick especially down kind of in the center console you could pull it out is that word was his inside it somewhere yeah it was inside parking brake cover inside the car yes inside yes and other words if it's a hand brake yeah as if i'm states versus jayco this third circuit two thousand and five as a judge ambrose decision it's not a reasonable zn this standard you ask whether it's his will subjectively was overboard subjectively so it's not would have a reasonable person have construed detective ratigan is called comments as a threat or even a reasonable person standing out there that long since what do we know about this is you look at then if it's subjective do you look at the level of course in that existed  and so here so you have one comment from trooper brothy him is it up your ass trooper botting is plainclothes no weapon visible anyway he poses it a question he poses it in a normal tone of voice no search of that kind is done and then after he poses the question you have williams revoking in a piecemeal fashion consent to search stuff inside the car the speaker the cell phones why didn't he revoke the consent to search the car i think it's because from the very outset of the encounter he boxed himself in with his own white a troop trooper bowl because remember when told stops and he says well the reason i'm speeding is i'm good about to run out of gas i'm trying to make it to a gas station and then vocalism that little speech about combustion engines now he doesn't really have a place to be it's not like he can say i'm late for some important engagement now and you need to let me go he just has general concerns about being there that law and once he gives consent we're off the clock i understand undergrad we guess the time manufactor and i'm not saying you know i think spring court was trying to say something her hungriest they were trying to say something more than just it's up to the speed of the the state policeman and right not to take it right yeah and i don't think we can ignore what they said though and it may be a faster it may be a factor at that point but i mean i think when you combine the ambiguity of those comments plus who mr williams i mean we know he has extensive criminal background and you combine it with the fact that he feels comfortable enough revoking consent piecemeal about various other items he still asking even after this incident for things like i want my coffee i want my cigarettes i mean he's getting stuff from the car but it's just it's hard to say that a reasonable officer would have concluded that that meant that he was officially revoking his consent to search the entire car i see the racketeering act which was he forty one of the well the jury would have had to have found that he racketeering act insisting of that offense occurred and that he was employed by the enterprise or otherwise involved by the enterprise has the indirect conduct argument that you know the controlled substance offense definition in the guidelines requires that the you know that the condition before that certain activities involving controlled substances and this is only case is what i was saying before that that the whole purpose when we're looking at past convictions we want to know exactly what it was we don't want to speculate as to what that past conviction for and here as to race control substance events we can see in the racketeering acts exactly what offense was charged and found by the jury to have been committed we don't want to could be reasonably expected of a citizen and to require them to say the magic words i revoke my consent is not a reasonable test and again consensual searches are acceptable under the fourth amendment because they're reasonable because the person has consented when the person chooses no longer to consent that should be respected by the police in whatever manner as long as it's a reasonable revocation of parents in the circumstances that should be respected by the police officers you know that was not done here and i think that is most certainly evidence by the by the video and audio tape and i think it one last thing in the playing that clearly or any standard this court can rehearse if it's students our court tries to be active in the community even though we appellate judges lead rather monastic existences and we're we're very happy to see so many of you here i think my my existence is not in the monastery that we're happy to see so many of you here particularly on a day when we had such fabulous advocacy and the courts grateful to counsel for the excellent argument and will take this last matter