row who was convicted of conspiracy to distribute cocaine in part based on two incriminating statements he made in the back of a locked patrol car somebody told  somebody told us those statements should not have been admitted that trial because they were the product of a de facto arrest without any probable cause for that arrest there's no other constitutional basis for statements and because of that if who was told to maybe make a probable cause stop and the woman elected on on her own to to wait to make the stop until she thought there was a traffic violation now we have kind of a two pronged beast here that's right your honor so let's go but the but the probable cause to stop change if if there if there if the collective if there was collective probable cause that's exactly what your your you analysis based on what can't can and can't be done after a valid traffic stop doesn't doesn't answer this case and your brief your brief just assumes in making the extended the tension argument among others that this is nothing but a traffic stop it seems to me that that's not that's not true and was on less they didn't know enough from what was the government says was a reliable confidential inform nt that he specifically described karr was bringing drugs at that time yes your honor let me clarify that point because if that was the point the court took away from my brief it was unintentional the issue that the court that the court identified two potential issues there one being whether there was probable cause to stop based on a traffic violation i don't think there's any dispute that if there was probable cause to stop based on a traffic violation excessive window tint that is a petty misdemeanor in minnesota is not an arrestable offense so the real question is whether based on the collective knowledge theory of all of the officers involved including trooper thought who made the stop there was probable cause to believe that mr roe was in possession of a large quantity of cocaine now the issue the i was not trial counsel in this matter but as i've read the record i did not find evidence at the suppression hearing or at the trial which  course was admissible to determine whether or not the motion to suppress was appropriately denied i didn't see any evidence in there of trooper thaw indicating that she had any more information about this matter than just far as the stop goes that would be sufficient that doesn't automatically get and because that would rise to level of a centrally terry stop stopping the vehicle at the side of the road it does not automatically get probable cause next step is that after officer fool the other officer arrives and she says i've done some questioning you question some more while i go do the traffic stop paperwork so we don't delay this and he did some more questioning and then they went back and somehow conferred with the investigators who said impound the car that is we've got a record in this case and we also have two videos we have the coming together of the two as i'm reading the facts knowing them less well less much less well than the lawyers who were involved honor i believe that what happened is that it was trip arthel and officer waving or who did the questioning then told mr rowe out of the vehicle because they had made the determination that they would bring in a drug dog and potentially to vehicle after that determination was made and this happens about happens very quickly at about time stamped ten ten ten eleven on exhibit nine in the motion hearing cause authorized not only the stop but the impound and the car to search it and probably to arrest without more anyone driving and therefore in possession of what there's probable cause to believe is there don't disagree with that your honor i don't believe i dasn't that and because i don't believe the record would reflect that at the time mr rove was brought back to the car at which time they'd already been handcuffed and brought back to the squad car by four uniformed officers and put in the back of the car that the officers who did that had that collective knowledge the question is really when the officers glean the collective knowledge just as there has to be communication to have collect communication is sufficient to to give the officers probable cause i think it's no i know well of course that's that's the fighting issue because that is the officer in this situation which i don't think that common where the drug investigators want want to uniform to do the to do the stop the arrest the impounding they don't have to tell the officer everything that's being done that say you know i don't forget i don't know but in cases that this typically happens and there's a stop by a uniformed officer and then that there's a detention until the investigating officers arrive and sometimes if that is if it takes a long time for those investigating officers to arrive the investigating officers will inform the arresting officer of the facts that they know them for instance and that this has been somebody who had gone over the border that there were secret compartments in a in a trailer here we don't have any evidence of that suspect that happens but is it constitutionally necessary that under the collective our brief in the footnote of our reply brief footnote to and i'll find it for you on when i come back why does it make sense as a matter of first principles i mean if the drug investigators have solid probable cause and they call uniformed officer and say we've got solid probable cause that this car is loaded with drugs and the driver knows about it and the uniformed officer based on that arrest the person why does it make sense to say  there's no probable cause because the drug officers didn't go through chapter and verse as to why they had probable cause if they in fact did have probable cause well here we didn't even have that much i know i know but your legal proposition you're arguing is that unless the drug investigators communicate chapter and verse the collective knowledge doctrine doesn't apply some asking why that makes sense if in fact there is probable cause why isn't enough just for the drug investigators to say we've got probable cause please execute the arrest for us i mean i suppose it's the whole basis of the constitution or the collective knowledge theory in the first place that if the fourth amendment rights of the accused and defendants are to be respected but that doesn't disrespect the rights of the qs us from trying to follow why why is it an unreasonable search if there is in fact probably cause in the drug investigators communicate that to the arresting officer and the rescue officer acts on it why do you think that's a reasonable and i again i don't i'm not i'm not suggesting that the courts cases would require  specifically described by reliant on form and that will have drugs today so the investigators tell the uniform take it to the impoundment lot that's not unreasonable as that's they frequently have to do that because if things are well enough concealed they won't be discovered in a roadside search anyway that's right here they weren't there there were no drugs found at least the investigators don't do that they'll probably  work with the empower people to do the search the uniform uniformed officers are there done when the car gets the impound lot probably that's right and this is where i think the timing is critical and unlike the  case the court heard earlier this morning we have good audio and video evidence of this and my recollection of that review is that the order to impound came after mr rowe was already placed an officer wait in your squad car and had already made those incriminating statement the court counsel i missed united states attorney leon bell and i represent the united states on this appeal i also served as trial counsel and was present at all of the testimony that took place in this case and so because of that i am fully aware of the facts and what the facts were both on the video and at the trial or most of the hearing and i would let the court know that a review of the video would show that in fact prior to mr rove being removed from the vehicle trooper school was informed via officer wagner who had spoken with investigators on the scene that in fact they had probable cause to tow the vehicle and search it and that mr rowe should be removed from the vehicle that's contained within the did you believe you had sufficient information to impound the vehicle and she said impound the vehicle based on their information they advised me they had probable cause so in terms of the timing of the information provided the trooper through all there was the bulletin at the start of her shift to be on the lookout for this particular vehicle and then while she was on the scene and still completing her peeper work related to the tinted windows officer wagner communicated with officers on scene who were the investigators of the drug case and were informed specifically that there was in fact probable cause and only after that point was mr rowe removed from the vehicle and placed in the back of the squad car and so i think the court  following the government's brief in realizing that if there's probable cause which there was there's really no question about it the defense isn't moving or objecting to or appealing the district court's ruling if there is probable cause to stop the vehicle itself as opposed to mr roe detaining mr roe in particular because of that and because of pringle there is probable cause to detain this defendant given the facts and the information that was communicated to this officer additionally if the court were to reach the issue of the prolonging of the stop i would just point out to the court that the stop wasn't recently prolonged i think the defendant indicates in his brief that the that traffic stop for tinted windows of twenty five minutes is just per se and reasonable but of course that's not really the question the court's looking at the totality of the circumstances for this particular stop and what was taking place in this particular stop and the magistrate judge and then the district court made very particular factual findings about what was taking place during the stop and found that  will was in fact still doing her paperwork at the time that mr roe was removed from the b m w and placed in the squad car and so because she was still of working on window tint portion of the stop i think the court's right to point out there are two avenues taking place here simultaneously because she was working on that portion that she was focused on and was doing that expeditiously no question from the factual findings from the court and from the video there's really no i think from the parties brief there's no dispute about what happened because it was captured on video including troopers tools comments we don't want to delay i don't want to delay this any longer than necessary i'm still completing my paperwork and working to complete my paperwork and because that was captured on video really  referred to it as her people work and so because she was completing that and moving along by her own words in a way so as not to detain him any longer than necessary were the court to reach the issue of the duration of the stop the factual fi by the court which are clearly not abuse of discretion in light of the video more last necessitate a result in under the law the conclusion that the stop was not prolonged for an impermissible divided up the the p s r's divided up the drug quantity is that the two individuals green and williams who mailed the packages were held responsible for the two kilos well four kilos total because they mail them together so they were held responsible for the four kilograms that they mailed and mr rove was responsible for the six kilograms of cocaine in the vehicle houston oliver was becoming to be sentenced on a separate case who is the leader of  government can object correct in this case that would have made any difference to the guidelines because the amount four kilos would the addition of the additional six kilograms would not have changed the guideline enhancement so we talked about the total conspiracy there was also money that was taken to arizona and a number of other things that happened that the government argued affected what his role was in his sentence from a guidelines perspective it made no difference to object or not object last i just like to point out with respect to the issue about the magistrate judge's reliance or i would say a legit reliance on the earlier hearing i have spent a lot of time going through the transcript and the government's kind of running away from it now frankly and saying well he wasn't relied on at all so that raised the question moment what was the point of offering in the first place so as an initial matter mr rowe was added in the superseding indictment after two already had their motions hearing and originally myself and counsel for mr rowe thought we had worked out a plan for how we would proceed because the scene magistrate judge heard the same testimony they have the transcripts and so we've sort of tried to work out an abbreviated way of getting through this just for efficiency's sake ultimately we could not reach an agreement about what the ground rules for that would be at the motions hearing and so it went back and forth the back door for a fairly extended period of time until the judge said look just have the testimony a look at everything and we'll just move forward at this point at the conclusion of the first witnesses testimony sergeant biederman at the first hearing she asked defense counsel to measure it judge said have asked this witness everything you want to ask them anything that you would want to cross examine them about related to prior testimony the prior transcripts anything because i might rely on this the earlier testimony at in making my decision here it was that suppression hearing evidence the prior turns group the transcript was not admitted it was if we all referred to it on the record it was on the docket so we didn't actually make it a separate exhibit we just simply referred to the prior hearing the magi made a ruling based on evidence not on the record no your honor the magistrate judge did not make a ruling any rulings based on the information from the earlier hearing referred to she did refer to it but she didn't need to so as she noted in her she noted in her footnote argued is here and strikes me as error to refer to information from the prior hearing you're saying it was in there not in the record or is it in the record or not i'm you saying it's a public transcript on the docket sheet of the s of a different defendant's case or is this a consolidated case or what it was it was all the same case so same case number he was superceded after so different go to the docket sheet for all the defendants this transcript would be earlier in the docket correct but this defendant wasn't present at the hearing in his lawyer wasn't present and he was not which is why the magistrate judge i think noted the earlier hearing but then made the specific footnote in her r n r that the testimony at both hearings was nearly identical and i was at both and as i was the question i can tell you it was just literally almost identical and then she said even if there was a different critical witness on the probable cause your honor there was not a critical witness they were different and they were working to a continuation of the hearing to call the other witness because they work ok statements and have the same information to provide at the hearing and did in fact testify about the exact same set of facts because they were the coquet stage and together the court if you look at the  in every one of those circumstances the testimony was identical so let me give you an example that i can explain this to the district court when the there was an objection because it looks like the government was still pushing the prior hearing at the district court level because the dischord ruled that it was ok to use it the government's position was that the prior hearing was not necessary we had elicited the exact same testimony at the second hearing all the same facts that the court needed to make its decision and that well here state is permissible at a hearing the court doesn't need to in order to resolve the issue of the r and r of the suppression itself doesn't conversation with him and we showed up at the hearing with a plan if you read the transcript we started out saying i think we reached a plan to try to do this most efficiently and then we could not agree on the ground rules for a variety of reasons and  ultimately we put the testimony on and ultimately the court although made the citations i can tell you that the transcripts are literally identical and i'll give you one example that the only station of the four in the entire are in our that the defendant actually talks about the facts in his reply brief he says that the are in are found that the drug sniffing dogs alerted to the possible presence of narcotics inside the speaker trunk  and r found that the drug sniffing dog alerted and the defense points out in its brief that trooper sewell did not testify that the drug dog alerted because she said i'm not a canine handler i can't testify to the fact of the alert of the dog and in fact what she said at the hearing was she was asked a question so the trunk was open and the dog was searching the trunk correct and she said i'm not a canine handler so i can't say the trunk is open when the dog is present and as i can't tell you what the dog is doing because i am not a canine handler but then she said i page seventy of the transcript i was aware the dog alerted on the rear of the vehicle or the trunk of the vehicle so she said testified similarly at the earlier hearing when she was asked about what the dog was doing while he was sniffing and she said i can't testify about what the dog was doing i'm not a canine handler i was told the dog alerted on the vehicle so her testimony in the earlier and later hearing are actually nearly identical although the questions are phrased slightly differently and i'm not running away from this you i'm merely pointing out that there there is no reliance on the earlier hearing for any reason you brought it up in the first place was uvo more efficient was the government's because you would have to repeat the same direct examination of the idea here the idea was we're trying to narrow the issue under the meat and confer rules that we have for local rules now mr timmins that we're trying to nero what the issues were and so there were some facts that we didn't just agree about there was a traffic stop there was the videos there were some things we were trying to narrow and so the idea would be i think initially was well can we just admit the transcript as exhibits a sort of deal with those foundational questions and we just couldn't reach an agreement and that that's ultimately what happened we could not reach agreement like to focus for just a minute about the procedures used by the district court because they appeared to cause this court some concern it was very unusual in fact there's pending before the court now a motion to supplement this record to include the transcript from the earlier suppression hearing because it's as you pointed out it's not a part of this record it is extra judicial and in fact it's not really hearsay either because what it is is statements from separate witnesses at a separate hearing now of course under thompson in the circuit hearsay is sometimes permissible because we have relaxed standards of our constitutional standards at suppression hearings but at least when we're talking about hearsay the witness is available for cross examination about what the declarant might have said how things might have gone forward mr rove had the actual the clarence in this hearing no for that one is just the one agent who was not present trooper thought testified at both hearings case agent peterman testified at mr rose hearing and case agent evans testified at the prior evans is the only one the other two that's right you know there were how many other witnesses were cited by the again by pete by biederman and so well difference you know two things on that first of all the fact that the district court said i'm citing all of this evidence but don't worry i'm not relying on it i mean presumably as a matter of judicial efficiency matters are cited for some reason now even if that reason is just because that is confirmatory and therefore supports the credibility in the subsequent test and the subsequent hearing that's still important and it's the government's burden to show that this error was harmless if the court agrees with me that it was error to rely on the prior area which you what's your prejudice argument if the author of the things i guess the reply brief cites where's the prejudicial reference to the prior trends and in our initial brief we cited all of the areas in which the district court relied upon a prior hearing and that was prejudice probable cause not particularly enamored of the way it was handled i can understand why it came up and why it was a little messy but i don't hear anything that had it outcome affect and that and if the court finds that the error is harmless then that's another thing we don't believe that the government met its burden on that mention on the minor role just money your honor the reason we didn't identify the kilograms of cocaine for each race it is now that i know more facts if all ten kilograms had been attributed to mr roll as opposed to just the quantity was he was cured in the mine row argument becomes