rights are being recorded for the purpose of assistant us in writing the opinions of come out of these proceedings and they are available to the public as well so you need to know that and you need to know that also because you got away from the panel from the podium we lose your voice and i know you wouldn't want that to happen and i also would mention to you the rebuttal is for a bottle only and we don't patrol agents course of the spare tire mounted on mr martinez his vehicle was a search within the meaning of the fourth amendment and under the supreme court's opinion in the united states versus jones the answer to that question must be yes the smack of the tire was a search jones applied a purely property based analysis to hold that the installation of a g p s device on the exterior of a car and for the use of that device to track the car a search under the fourth amendment and the rule that emerges from johns is stated in no three of that opinion when the court says that where the government obtained information by physically intruding on a constitutionally protected area a search has occurred so there are three three things that must be present constitutionally protected property second and physical intrusion by the government and third and investigative purpose and i would also note that this is the exact same standard that the court applied just a year later in florida vs star games when the court held that a dog sniff on the porch of a house was a search within the meaning of the fourth amendment and stated again that when the government obtains information  physically intruding on the person's home papers or effects protected by the fourth amendment for the purposes of gathering information and a search has occurred is there really an expectation of privacy in that tire that you can see and a checkpoint crossing i'm glad you asked that because it's a very important point underneath but go ahead i'm sorry privacy rights analysis the reasonable expectation of privacy analysis is not necessary to consider at all under jones as property based analysis the court makes this very clear they say it is absolutely unnecessary to consider privacy rights because the fourth amendment protects property rights independent of whether or not a person has an expectation of privacy in that property will you address whether there was probable cause regardless sure there in this case first i have argued that he and i do continue to rely on arguments and prefer that the government waived the probable cause issue in the district court but nonetheless even on the merits there was no probable cause here the only facts that the government can point to are that mr martinez and his passenger took drinks of beer as they approached the was no contradictory testimony that that was calm and the agent said it was unusual but it's not indicative of drug trafficking and the only other facts were that all that is and they give you the fact that they were trying to distract the evidence that something was being concealed in that tire spare that the drivers of that car did not were trying to conceal from the agents so then i think really suspicious but the bumper was dirty and the spare tire was dirty i think the issue the issue that i have with that is that is that is perhaps one factor that piqued the agent's attention perhaps he wanted to ask more questions to discover whether there was something going on but i don't think that rises to the level of probable cause for your best case if that doesn't rise to the level of problem so i don't have a lot of cases about these stops and some would criticize this to say our cases are too lenient on probable cause so i would wonder what your best case it actually would would i believe a lot of these cases deal with reasonable suspicion and not probable cause and indeed some of the cases that the government discusses deal with a reasonable suspicion which is a lower standard than probable cause but i would which is actually fairly factually similar in that there was this kind of pattern type evidence where i believe it was the verse that the i think the truck was dirty while the spare tire was clean in that case and there were  fingerprints and tool marks on the tire the tire was the spare tire was bigger than the other tires on the vehicle which indicated perhaps it was not not being used as a spare but for something else and it was i think a different brand than the other tires and there were protected property so jones states very trespass and the way that it was used interpreted correctly because the other effects are specifically listed in the fourth amendment the personal property the car that the tire and and i agree with you but the probable cause it in i've conducted in as a trial judge a number of suppression hearings and probable cause is generally not the end of this and it's a process and we have this and that and i'd like to do the scenario as i understand it there was an agent had been working at this as a border patrol agent for a years obviously was experienced and obviously was looking for things that were different they were out of the ordinary the dirt dirt on the car the mud how it related i think he articulated a very good case maybe not that was not probable cause when you look the back of the car is dirty going to carry just dirty in the in the front is not that that's probably not probable cause but what he did and i don't you to address my what i think is is what happened he went from a vent to a vent to the end things that he saw and it worked his way up to the slap which in my opinion i think is a search but up to that point he had these other things had evolved things that he had seen the things that are articulated before the lower court and it worked up not from just a reasonable suspicion but as it stepped up as he ratcheted up it became probable  slap was the least intrusive way he could have checked the tire out noticing all the things he knows that the other judges have pointed out about the tire what do you think about that that that it was a cumulative effect of these things that he articulated that worked its way up other things that have been articulated by the i just got i was not a babe in the woods he'd been doing this eight years and he understood that this was a drug smuggling is just a common occurrence on our borders unfortunately i understand that and  experience is relevant factor but here i think the facts are simply too generalized there was nothing specifically indicating john topic the agent did not even think he had probable cause because he he they referred to secondary and bottom said he did not then think they have it in his testimony but i do i would also i do think it is still important that there was a drug sniffing dog that does not and that did not occur which is part of the totality of the facts that you're looking at when you determine whether or not there was probable cause that's correct consider the facts that were present that were not incriminating and that i think is a very is very important fact that indicates there was in fact nothing in the tire and i do understand there were some facts on the other side but it also have to consider the facts that were there that were that indicated vehicles at immigration checkpoints for drugs and spare tires which is completely outside the purpose of an innovation checkpoint simply if there's a clean vehicle and a dirty spare tire i think that's far beyond what the supreme court h specific probable cause i have two questions first of all have we had occasion to reconsider munoz milch or following jones have we ever you know we have a strict rule that we have to keep following our precedent and let's it's very clear that the supreme court over defendant the defendant did not know that that happened and felt something suspicious and then requested i have a question about that because martinez did not challenge the voluntariness of the consent or argue that the consent was not an independent act of free will the issue on which it bears the burden for that i mean i might that would be waived if the government had an opportunity to address it the first time and did not raise the argument i don't believe that they get an entirely case is talked about as a physical intrusion and they used a patient property co opting right private property and so the trespass in that case was so egregious it wasn't necessary to consider what is the privacy interest in this object which if they had i'm sorry why did he slap the time this is an alternative basis on which this court can find even if this was a search it was supported by probable cause all of the circumstances that the court has already addressed in terms of drinking beer as you approach primary privacy not on trespass so you're saying that this case survive our case survives the disc lap because it's such a minor technical trespass as opposed to jones which is such an intrusion of rice that so so that jones doesn't definitively overrule our case law that's your first argument and his wife and then your second is that there's probable cause do you think you need to go along to that one short that probable cause first of all probable cause a legal determination not a factual one so there's been no concession by the government below the government may not have pressed it or argued it but it was not conceded and it is the record has been well developed there was an evidentiary hearing where the agents came they could the jet trial judge was allowed to make credibility determinations and what the agent the canine handler primarily in this case what he testified to was a series of of of observed facts that to him based on his experience  volumes you have the drinking in the pre primary area you have the dealer plates and then most importantly you have the appearance of the car which given that the tires and the under carriage were clean along with the body which have a very dirty spit and spare tire to him that appearance said this has been an intentionally dirty area and he knows that spare tires are used to carry drugs and that mud is used to mask the smell so he puts all of these things together that in isolation may not rise to the level of probable cause but they present a picture that allows him then to dispel his suspicion his probable cause by hitting the tire to attempt to dispel it and what he learn a there's contraband in there you work your way up to that and he articulated the facts that did that but i still owe you are you saying your case stands or falls only whether there was you know enough to not be a probable cause issue but whether or not it should it's supreme court cases did not overwhelming as melkor and this is just like when a smoker or this was a search but it was not an unreasonable search because of probable cause do we need to provide clarification for agents in the field by in whether or not this was a search it was i mean if this is a technique that used if this was an extensive police search to find if this was something that was coming up a lot in the courts if this was something that had given agents a lot of concern or if you were presented with a case where someone was one tunne least flapping tires but in this particular case you have the all of the observed facts that spoke volumes to the officer  it's clearly within the court's discretion how they want to approach it but there is a way to approach that narrowed to the particular circumstances of this case and can be affirmed with the ruling below would you wave the probable cause argument in the district court or intentionally relinquish it or somehow forfeit it no and the cases that are cited by mr martinez are all very different there are three supreme court cases or two actually jones and but jones then cites to a case called mercury marine versus brits and all of those cases the argument that was considered waived was raised in supreme court merits brief literally the last stop when did you read is the probable cause when was that specifically raised before the district court it was raised in the district court by mr martinez himself it was part of his argument he had both to say this was a search there was no probable cause so the probable cause issue was focused in the district court it just wasn't the basis of the district court's ruling because he that you were enjoined you rejoined that issue in there was argument about it well there was extensive factual development as to all of these observed facts extensive factual development below did you waive the consent argument it was not directed at you personally so it is i think that mr martinez has a stronger argument that that part and it's not exactly clear who brought that up the standing issue for it was something that defendant raised on me at the time vendetta raised obviously somebody was charging him with consent or otherwise i suppose he would not have raised the issue that might be it never progressed to the point where the discussion was about whether consent would dissipate if there was a to dissipate any taint from an unreasonable search but in this case the search was reasonable because of all of the elements all the visual  observed facts that spoke volumes to the officer and the search that occurred that this was indeed a search narrow narrow only tailored it was in the least intrusive way to investigate to dispel the suspicion that all of these instances and you you understand that it makes our job much more difficult if the government has all these arguments of presents to us that are clearly presented in the district court i understand the difficulty in and  the possibility of if it's appropriate to remain for the factual development on consent but in this case the government is pressing that there was probable cause for the search it's not an unreasonable search under the the circumstances with all of the suspicious circumstances the public exposure of private property i go back to the fact that bond was a private property case not decided on a technical trespass but on privacy interests and there are no privacy in a spare tire spare tire as opposed to an carry on bag as an bond is not going to contain your medicine your books your eyeglasses your papers spare tire contains a year and slapping a spare tire while it may seem odd doesn't infringe on your privacy and privacy remains important even when you're discussing the property test in jones injured genes that can't be completely search in that case the trespasses fairly minor given that a dog sniff in another context is not even a search at all so you have a minor trespass but you have an an area of heightened interests of privacy and trespassed there are interrelated concepts but it's around jones would not lead you to think that necessarily mean they're allowed so heavily on trespass and tried to excuse joined in together i think would lead to that and that conclusion if you think about it or dean they did discuss them not to talk approach when an officer goes onto a porch and knocks on a front door that is trespassing the sense that you're in turn private property but it is not a search in the sense you'd have to have probable cause to do it an officer can go out and often try to talk to the owner of that property so the technical trespass on its own doesn't do all the work it has to be but what about trespass with the fish for the specific purpose of gaining information about a crime that may be committed the feeling of the bag and bond was a trust fund a type of tactile investigation designed to get information it was not resolved as a trespasser in fact the dissent in that case is from the author of dissented in that case and would not have found that there was a search in the car in the textile examination of the luggage you know it's really sheli kind of thing we are going about of the ordinary person would think slapping a is not a search i mean how do we get to that point taken some principles and laid out in the supreme court to the point that exposed to so many different times of the scene washing for it on the back of a dirty window in your car gets times your car gets handled the outside of the car when you're in public and i think that's an important factor to keep in mind when you're thinking about car versus carry on luggage versus the curtilage of the home these facts it matters that this was a spare tire that was that was if there's unless there's anything  did not address their property rights but i don't see how bond would have could have come out differently if it were argued now under the jones analysis because it was a physical trespass on to constitutionally protected property for the purposes of finding out information about what was inside it even though the court didn't address the property in that case there's nothing indicating that they would have come out any differently if they had just property in that case but based on this agency experience at this border checkpoint in eight years w know as with border patrol wouldn't you say that the slapping of the tyreese i concur it's a technical trespass or a trespass but wouldn't you also say that it was he articulated that  investigative technique that as i said probable cause in is a process and not of that he works his way up to so at some point you get to probable cause and all these