the district court used an appellate standard of review and view the evidence in this case in the light most favorable to the government the government agrees that a district court should decide disputes of fact without applying a presumption in favor of either party this would not harmless so that the district court can make the requisite findings and this case i'd like to distinguish our situation from three recent decisions of this court on a similar topic opal shelton and madrid mendoza a recent decision and by this court that do address the issue asians where district court used the wrong basically the wrong standard but our piece is different in our case both the historical facts and inferences drawn from those facts were disputed and the example i'd like to start with is on page five of the district court's order and it is is the fact that it relates to the issue of the standard of review but that also relates to another issue that we argued which is was there justification to expand or continue the t raffic stop in this case based on the actions of the passenger in the vehicle this was a disputed fact you know even whether or not the passenger approached the the duplex whether she went into the duplex and the district court judge here just adopted a magistrate for endings and i think you can see what what the issue is when we when we look at these findings her testimony from office early on who was conducting surveillance in this case was that he could not see which of the two apartments in the duplex the passenger approach and that the other duplex what is on occupied that's his testimony it doesn't mean that she entered an apartment the testimony also showed that there were at least nine of their residence residences on the block in this case and the district court went on to state these facts of record fully support the conclusion that the passenger entered or at least approached the target apartment dealing the evidence in the light most favorable to the government accorded up the magistrate judge is binding and overrules the defendant's objection that critical fact is case and the miss at the wrong standard essentially prejudiced mister torres and place the burden on him which which was impermissible the district court should have made its own findings should have made it own credibility determinations in this case rather than simply viewing the report and recommendation from the magistrate court judge and viewing it in the light most favorable to the government adopting all those findings we had numerous  facts that were in dispute in this case were resolved in our paper by the district court but another fact that i think those is critical especially to the issue of the extension of the stop and to show sort of how the wrong standard  officer crouse was the officer who initially performed the traffic stop in this case and obvious or frias is the officer who was initially interaction interacting with the passenger on the other side crouse had been aware i believe it was officer cross was aware that this house was under surveillance and he had been asked to perform traffic ups like this all right but this particular the evidence for this particular stop was not stopping stop them because of the drug suspicion and it wasn't that he didn't know about anything he had observed the traffic offense he was not told anything to the contrary some of the obvious support th actually an officer from house tells his colleagues showing that he was aware that the passenger had at least exited the vehicle at some point he tells his colleagues you know basically after he says i got nothing and less you want to push the issue about her coming and going for that short amount of time so i think there is evidence in the record that that she knew that really the reason for this stop was was not for him to give a verbal warning on a  busy street there was traffic on the street officer crouse lost the s u v the st some point of time you know it certainly wasn't a minute but he did lose it for several seconds and had to rely on directions that were released to him from another officer telling him where he had noticed an s u v turning and eventually officer crouse caught up to what he believed it's the same s u v and initiated the traffic stop and the record also search to a bentley have occurred if they want to thank you your honor this is a critical point and it goes to credibility and also just brings us back to the issue of the district court using the standard officer cro e engaged in quality police work with respect to the marijuana while i i have to acknowledge that oftentimes an order of for marijuana has could lead to probable cause to search a vehicle in this case officer  dispelled any suspicions that would have been related to the odor of byrd marijuana and he's clear enough about that in his communication to the officers on scene which you can see in the video and we highlight some of those quotes in our briefing he also did not seem to have any sort of reasonable suspicion that there were that there was marijuana in the vehicle so this is what the couple about linked to the passenger with respect  swear use marijuana so they didn't know that they didn't ask her if she had a valid medical card and that's additional police work that the officer certainly could have been gauged in during the st six minutes of this stop when they were you know conversing with her at the same back clear so when mister torres was handed his documents back and told basically you will be free to go everything's over but i need you to hold on here for a nd all the officers knew at this point was that the passenger in the be a colt walked in the area of the duplex that was under surveillance and they lost sight of her for approximately thirty seconds that mister torres was not suspected of dui mister torres was not suspected of having marijuana in the vehicle because they would have asked to search at that point and again there was there were no follow up questions with the passenger with respect to the odor of marijuana  to keep saying that there was no information suggesting that the marijuana was in the vehicle i found it difficult to square with the fact that the officer smelled birds marijuana would suggest that they were smoking marijuana or somebody was smoking marijuana in that the lastly with regard to the past year maybe the officer was negligent in not asking the passenger why she didn't you know if she had a medical marijuana card but based on the information that was available based on that to tell all the information that was a why would that have not created probable cause to believe that the passenger was guilty is a signal one i'm so with respect to the odor of marijuana in the vehicle i officer crouched would have investigated mister torres as dui if you believe mister torres was smoking in the vehicle he had the opportunity to look at him up close it is you know it's a happening within a few feet of him and he couldn't hear radio traffic that was over his radio and it's clearly audible through the video so even if the score is concerned that the marijuana or believes that the marijuana could have been an  issue that could be used to develop some reasonable suspicion the officers on scene did not have any concerns with respect to the marijuana and it would only be a federal crime if they actually had a reasonable suspicion that there was possession at that time and this is just their interpretation of whether he approached the stakeout house or not but she did visit us but it was also gave false information to the officers what do we do about that so that was not known and still after mister torres had been cleared and we are arguing that the stop should have ended so with respect to the information she gave down the line that that was not to the officers all they knew about the passenger was approaching the duplex area and that the name she gave was clear and valid and that in officer free s's opinion an adult not knowing their social security number was suspicious and that's the credibility because it would look at what we do in a case where completion of the passenger investigation or committee he be permitted to drive off and leave his passenger behind with what's a reasonable police force to do we would argue that mister tomorrow should have been free to go if the agents wanted to continue discussing things with the passenger or they could have done what they did here asked her to step out of the vehicle we want to ask you some questions mister torres you're free to go the stop itself was valid for two reasons st officer luan and officer craft crouse both observed tourist commit a parking violation which gave probable cause to conduct a traffic stop to issue a citation nd the officers had a  this court has held that probable cause to believe a traffic violation occurred is enough to stop a vehicle i don't i do not come across case law that restricted that in any way i would assume that it would and but in this case the misdemeanor and you from iran because m r moran they were conducting an investigatory stop on the traffic on the misdemeanor here they were officers were not investigating the traffic citation they were the traffic stop would have been probable cause to issue a citation there wouldn't have been a need to investigate it this case is more in line with mcgee he where officers observed the brown lexus parks just like mister tourist and by the time the officer turned around to issue the citation of the vehicle it moved  and this court has found that the traffic stop was valid it is in its inception because the officer observed the illegal parking and was entitled to conduct a traffic stop to issue the citation i think in this case it would be kind of contrary to common sense credibility that's the whole purpose for allowing magistrates court to conduct the evidentiary hearing and hear the testimony and and i think well i couldn't find case direct case law directly on point i think it's important to note that  in johnson be fanned out of the th circuit there's at least the understanding that if a district chart a district court were to reject the credibility finding a magistrate they would have to hold a new evidence year hearing to do so so i think it's reasonable to assume that absent some sort of rejecting of those crying rejection of those credibility findings then just her court is relying on the magistrate judge's viewing of the evidence there's not an explicit credibility finding i would just argue that he made a number of factual findings that were based on either live witness testimony or the video recording so there had to have been some sort of credibility finding driving those factual findings so going back to the stop assuming not assuming that the officers st had probable cause to conduct a traffic stop based on and that they observed traffic violation but they also had a reasonable suspicion that someone in the vehicle had just purchased drugs at the target apartment officer lou hunt testified that he observed the vehicle pull up in front of a known drug house which this court has has held that that's certainly a officer lu han testified that he had a free clear unobstructed view of the due flight duplex and that he knew only that target apartment in the duplex was occupied he testified he was most certain that she didn't enter another building she entered the target apartment he said he had a clear view on three separate occasions he only lost sight of her for about thirty seconds his find his testimony would support this finding even if you didn't know preferable light if it didn't oval review were conducted  and could have put on evidence to contradict this this officer launched testimony he didn't all we have is his test phone testimony and mister torres had the opportunity to cross and confront him with a map which he did and his testimony didn't change he was should be cured at this level at the appellate level even if this court were to remand this case to the district court the district court would still be looking at the cold record the same as this court would be and it's much more efficient for this court to go ahead and do root review of the entire record in this case there were thirteen disputed material facts of those one hundred and thirty five or five were sustained in favor of the defendant so we're left with eight of those eighty three of those were overruled on legal grounds so there's no evidence that the district court overruled are applied any sort of wrong legal standards so those three fast can be set aside and we're left with five material disputed facts that all relate to officer luan statement about the passenger approaching the target apartment so it's not like this court would need to conduct a total review you know review of the entire record it's a very narrow case it's not like the case in fine frock where it was a close call at the district cross that he saw the passenger approach the target apartment that that's not disputed he would admittedly didn't see the defendant entered the target apartment but he also testified that he knew of the two apartments in the duplex only one was occupied and it was the target apartment so cheer got your honor's question his testimony was clear so even if the court looked at just the the cold testimony there's really nothing to suggest that he didn't see the defendant or excuse me the passenger approach the target apartment and that would have been enough for reasonable suspicion he admitted he lost sight of her for approximately thirty seconds i'm confused so you're saying we can evaluate this is an implicit credibility finding but putting that fact aside even if you took that fact out and said you know it's too close to call we do not think that's the case but say that's what the court determined that they wanted to do and there stairs other factors the officer still had probable cause to conduct a traffic stop the minute they approached the vehicle they had probable cause to search the vehicle based on the smell of marijuana off of skis mean definit tourists gave consent for the search and both testified consistently that they had a number of factors to believe that mister torrance was armed and dangerous both of the officers were clear that they knew who mister torres was and the minute that they approached the vehicle they recognized him he had been involved your honor the officers testify that that really isn't consistent with their routine that they did keep an eye on him they had an officer station where they could see mister torres and his hands and his movements in the vehicle at all times and that they were kind of watching him and keeping an eye on him but until they took him out of the vehicle to conduct the search there wasn't any reason it had him down but they both both officers testify that the minute he left the vehicle the danger increased because he'd have more mobility their backs would be to him while they were searching the vehicle there were a number of reasons but they had all of the information from the outset it just kind of changed once they removed him from the vehicle don't you know any of that removing them from the vehicle if  understated they were booted from the vehicle because of consent to search yes your honor and so then they say well since you're now outside of the side of the beagle down that we have you know in order to conduct a vehicle search we need to pat you down because we can't look at you and the vehicle at the same time we seem to be a chicken and the egg situation he might not have considered a source of the vehicle if he had known that as a corollary that he's going to be ordered out to be hagel and then be personally searched you know he's got the gun in his pocket presumably he was saying you can search the vehicle going that there was no gun in the vehicle but he wasn't consenting  had the officers didn't need his consent for the search of the vehicle or for the pat down and they could have searched the vehicle as i said based on a probable cause from the smell of burnt marijuana i see i'm also a time i finish  answering your question and if you're ok the other thing as the officers knew he was armed and dangerous from the outset of the stop and they both testified to that effect but the minute they got out of that vehicle and it was important to think you with respect to the issue of whether mister torres was armed and dangerous officer for us as credibility is paramount and so i just highlight again at the lack of credibility findings with respect to officer three i specifically who you know testif a completely different scenario that was not based in fact under oath in a state court hearing that becomes problematic when we're relying on his his beliefs about mister torres and whether or not he was in fact i'm dangerous court we challenge his credibility in the hearing in front of judge were met then we thought that we had made objections that made it very clear that there were serious issues with his with his testimony and so now we're in a position where neither judge even addressed credibility as as to this officer and more as was not involved in a gang shooting he was an unarmed victim who was shot and it's being investigated as potentially gang related with