decided that actually we hadn't really raised below which has to do with the so called terry stop and in the so in the court below we had pursued the search issue as a  lack of consent and when the district court ruled on that issue she said that she hesitated to find consent but then justified what happened saying it was a valid valid brief investigatory tension supported by reasonable suspicion so and she proport to do that without decided the issue of consent which really i think is probably the wrong way to look at it because on the issue of consent the government had the burden and the district court said that she hesitated to find consent which basically means she didn't find consent and so but turning to the terry issue the question is whether plain error the first question is whether plain or applies in our submission as it does not apply and the reason is there's no the purpose of the plane or rule isn't served by applying it in this case the plane or rule i take it is to give the district judge a first chance to get the issue right and so even though neither side raised this in the court below the district court directly addressed ok so assume that we're not applying player ok tell us why there wasn't at the time the purse were searched reasonable suspicion she at that point she's already told police who the officers that there's contraband in her purse right so surely at that point they have at least reasonable suspicion there's no question about the stalker so this it seems to me  reasonable suspicion argument is predicated on some prior error in the in the police procedural well so my reasonable suspicion argument is that at an earlier point in time chronologically that the thing had approach or she's in the line i think we diagram this in the you know reply brief so she's on the line to get on the plane there's people in front of her as agent jones and can hook approach or i think joan says other passengers filter what that word means but when they get in line behind terrorist seems to be the plane meaning and then on her left there's a window wall and  all he has at that point is is a tip that it seems like everyone agrees and book are you saying that it's all for the jury stuff not quite tell yet ok not yet but soon and so he tells her he displays his badge he tells you jennifer has him self he tells her she's free to leave all those not even clear what could that actually mean in this context she's about to board the plane or she's free not to get on the plane may be a terrible economic think so i think so because what does it mean that you know she's from coal why they know she's getting on the plane to go to call wife and tell him it's free to leave so we don't know what it means but that doesn't give rise to thought not yet so he asked for her boarding pass a dedication she provides those he retired last fall is a record indicator is the line still moving forward at this point are she stepped out of it or is the line just frozen it's not it's not clear ok actually  says i read the record and maybe i'm wrong there when they just say that line is not moving there you know they line up i think that is the better reading of it but it's not one hundred percent clear it's i think if no one says that the line was moving forward and she was pulled out  ve and apparently not a southwest flight so they're not all standing next to next to a number you know hawaii and used to be like that but now they're given assigned seats so this will light up so they ask for her boarding pass right and she shows it they  so the next thing she does is the african sent to search her purse to make sure she didn't have any drugs and she says you don't need a warrant for that she says i'm just asking and then and he told her that he could she could refuse you she  you did so the next thing that happens is he cycles through this kind of monologue and he says i explained to her this is a quote from his testimony that i understood that i don't like people going through my things also so i can understand her hesitancy and then at that point in time at that point i was at that time i was dressed in a t shirt might have been a tank top i don't remember shorts and slippers it was a little after nine o'clock at night and so i asked her do you think we walk around in the airport like this and just randomly come up and talk to people at that point i stated that i already knew that she had drugs and i needed her help to be able to catch the people she got the drugs from and the people inquired where the drugs where they were going to she responded i want to go home by this point this has right into a terry stop but at this point it's also  and at that point we all agree he has reasonable suspicion right so the question is why was it why was she why was her freedom restrained in any way except by the airline up to that point because she's in she's been accused of a crime she's been asked to consent which she doesn't consent and he's doing all this and clearly he no reasonable person particular this day and behind blocking eager as a convened to defend it was a target that constituted terry to go and see what i'm trying to find here and why those cases are not entirely is something that prevent that restricted her movement  or she wouldn't let a reasonable person to believe their movement was strictly think any reasonable person in the united states at this day and age thinks that when you're directly accused of criminal activity you can just responding officer with you know more or less i'm going home she respond after then she said i'm going home i want to go home i'm in the i'm getting on the airplane so i'm having trouble finding a case with the officer statement that doesn't have to do with restraint but has to do with his belief that you've committed a crime turns what wasn't terry stop up until that point into one but i think that the harris decision we discussed in our opening brief it twenty two concluded a consensual encounter right into terry detention when an officer convened called the defendant a suspect now if i remember that case correctly the officer on the radio calls the defendant a suspect but this shouldn't be any real difference between you're this you're the person you're a citizen and you hear the officer say on the radio you know talking to a suspect what we have here is you have a citizen who is directly accused who's already denied various things and that is directly due to agent jones who has no reason to believe this is true i know your character of some reason is just as he admits is not much of a reason right it's not enough to constitute reason suspicion under terr and so you have that direct accusation who who who thinks that when that happens you can just walk away from the guy maybe your point is then if we go with you that at that point  being accused of a crime and being somewhat confined that what you would in sort of like detention not free to leave right and so what you said afterwards in these circumstances we have we have held they would feel free don't you most reasonable people would not at all feel if there really were so i mean i'm already off into some sort of legal world that pretends to be the world of reasonable ordinary people but but ordinary people so i take it that you're right i don't want a reasonable person would or would not do this is a tricky case because she's in a situation where she is already for reasons quite independently she's not free to leave because she's waiting to take an airplane and she leaves she doesn't take the airplane right then and is that does that have i would want to say that didn't the case well i think it it's simply an important factor because agent jones i mean he only works at the airport if you believe his testimony i mean well a couple years in his eighteen years he worked downtown which i mean he's taken home but all the rest of his time his whole job is interdiction at the airport and he's exploiting the obvious thing that he knows  everybody knows when it's time to get on the airplane you have to get on the airplane or you're not going to get on here but the other thing that we didn't brief it is not really really relevant is there's a reason why these cases are in federal court all the time as opposed to a sticker and the reason is just over a decade ago the way supreme court said these are consensual encounters unless you tell the person that they are free to leave that they don't have to answer any question they have to do anything and so that resulted in all these interdiction cases being federal cases you know see they're here they're there but the facts of this case although a lot of this in this case the officers seem to have complied with whatever the high supreme court requires at least formally they said you're free to leave you don't have to consen you know them and they may not have done given the exact hawaii five zero indication but they did seem pretty close to right but the point where he accuses her with no reasonable  i know you have are carrying drugs i mean i think that's a ploy he's probably been successful here in the past it was successful in this case but it that's not reasonable suspicion and if everything beyond that point is tainted matter the search could take place right before the arrest it's pretty clear here that the arrest actually takes place at a different location in their office at the airport after a couple has been moved there and search took place while she was out of the line but seated in the area that you're with the line was and so we think that that's not a strict use for rest because it's removed from the place and move on the pla reasonable suspicion the defendant was twice warned in a five minute period when that she was free to leave when did you become a tears so i i don't believe it was a terry stop at all but let's take the defense position at face value now that it there is not a single case with a stop this short a five minute stop where the defendant is twice warned she's initially said she's not under arrest you're not in trouble she's free to leave and then within two minutes she's again warned this encounter is consensual you can agree or disagreed with search of your person that is two warnings in five minutes that in tandem with the fact that there is a tip directing the officers to this person it might not be the most reliable form of tip but there is no evidence that the temper is unreliable did try to take on trying to take your assumption on if i understand you don't think that's what you said at worst this was a terry stop after the officer accused or let's take the worst case so if that worst case occurred did he have reasonable suspicion at that point he absolutely did here's the evidence of reasonable suspicion at that moment your honor there's the tip the defense really makes it seem like the unreliable or that the police have some knowledge that they're generally not reliable that is not what the record reflects this is simply a new person the record is consistent with this being a fresh tip that they've just never worked with this person before not enough it on its own to get out enough on its own to trigger reasonable suspicion but certainly enough to allow you to walk up to the person and ask them if may we ask you some questions and that's what they did they asked permission to ask questions in response she says sure she consents to the encounter secularized the reason that doesn't give rise to reasonable suspicion but it's a brick in the wall she is a nervous wreck out of she's nervous you're on her when she hands over what i want to know what i don't know is what facts give rise to reasonable suspicion surely not the fact that she's willing to talk the no no no  can't remember the name of the hotel she stayed in the night before and that's actually what agent jones explained on the record the agents are trained to do there's they ask simple questions and when people have trouble answering those simple questions that gives them suspicion and the standard is the court has to defer to the instincts and expertise of the agents in making this very fine judgments in addition to not recalling the hotel name she's in town for one night and then she puts her hand in her head in her hands and says i want to go home the standard is a reasonable innocent person the moment she puts her hand head in her hands and says i want to go home after he's twice warned her she's free to leave that's her digesting the gravity of the crime but she knows she's been caught in she knows she's got drugs and she's probably waiting should i cooperate or not this is overwhelming this is serious that signals to him that absolutely gives him reasonable suspicion at least to ask a follow up question at that suspects or quite so the question is whether at that point he has reasonable suspicion that would justify a terry stop whether or not he asks the next question or not and i take it your position is that this confluence of factors is enough to meet fairly slim burden to terry but it absolutely is your honor and that it doesn't matter that he then lied to or with an ex question it absolutely does not matter ruses are permissible under the law and i understand that your honour's might not agree with the policy rationales underlying that law and that the law well markley for the government side we have a whole series of fictions here about and we have to follow rather you didn't after a long pause she says don't you need a warrant for that she's clearly thinking about what to do the let me ask you made question because you started off by saying we don't agree that there was if if in fact the terry stop was not until some point later after she's surely at that point there was reasonable suspicion why do you get to search the person that way why don't you take the person way you she's told you there's drugs in the purse why do you need to search it why not just take it away but so as a think there's two answers to your question the first answer is as a matter of law at the moment of the confession amendment rights have not been violated up until that point which is the question i think the only question actually the owners really need to answer if their fourth amendment rights have not been violated that point by saying there are drugs in my purse she gives them reasonable suspicion but not only that she gives them probable cause to arrest her and probable cause to search or incident to that arrest the timing of the arrest is irrelevant i believe that the arrest happened when they so they moved her to a site area and then they moved i great my my question is what about might harm a police officer or might destroy evidence already there are either of those circumstances present so i think the act the actual reason why they looked in the purses they almost had her signed up to cooperate at that point  cooperated and she made some phone calls because there was other drug deals she knew about she would have walked that night she would not have been arrested so you have to look and see if there are actually drugs in the purse in the context of the what actually happened afterwards which is  seems like she's going to get signed up it's only after she gets to the d a office at a different location that she decides not to cooperate so that's why they looked in the purse i don't get it where you have to see if there actually drugs in the purse before you can sign clear as long as it's contemporaneous i submit that it absolutely was contemporaneous she's arrested when her freedom of liberty is restrained when she's cuffed and taken from the site area to the d a s office at another location in the airport so i don't think you ever address that's a probable course correct right i don't think there ever was a terry stop i think was a consensual encounter up until the point she confessed i understand yours might not agree with that but i don't have a problem taking the defense facts at face value but i are there any cases that address what it means to tell a person in that situation you're free to leave respectfully your honor she in terms of you know in terms of the consent or you know lack of attention respectful i want to get on the plane he would have walked away and all but he didn't say he didn't say you know if you don't want to talk and we all leave he says if you don't want talk to me you're fully free to leave right that's the person so so happy jim jones walks up in line and he says this is the quote he says you are not under arrest you are not in trouble and you are free to leave any time about two minutes later he says i'm just asking this encounter was consensual it's up to you you can agree or disagree if you look at the cases they've been cited by the parties all of them involved stops that are forty five minutes an hour is one that's a half an hour this hour and a half these warnings happen within a very short period of time and her confession comes at the five minute mark it's eight minutes total but it's at the five minute not but i want to come back and stay with judge she was point this is not a you are free to leave she's out on the sidewalk she's been walking to the store she can keep walking she is in line for a purpose she's going to stay there because she needs to get on the airplane she is not going to leave in the age and the reason he says you're free to leave but you know other circumstance doesn't really need to be said because the person really is frequently when he doesn't say yes and if you want to talk to me you can tell me only he doesn't say that does not say that the law does not require him to respectfully i wonder because  have is a warning like the one in this case the vast majority of the cases that the defense sites there's no warning at all your honor if i could briefly discuss the standard of review the government detention issue or so and it found if there was a detention there was reasonable suspicion or if there were and it just records if there was a detention there was reasonable suspicion at what point at the moment before the can at least by the other side doesn't raise the issue below and here is why that matters your honor the government would have elicited more facts regarding the detention and the reasonable suspicion up until this point in the stop if the defense had raised that issue below the defense's rationale behind the plane error standard other than the one the defense is saying it is incentivizing the parties to bring their arguments by penalizing them if they don't wear the record would have been clearer here are the things that we would have put into the record had the defense raised this issue below is there actually someone standing behind her did she have room to step past the person of color for i take your point that you never had an opportunity to go to record what's making it more difficult for me is that the other side your argument when it wasn't the issue either side was argue the defense can't take advantage of that argument they didn't raise now the standard of review should be plain error the reason for that is the plane they were ruled is exists to incentivise parties to bring their best arguments first so that a full record can be developed was the hotel room name on the key exactly how much time elapsed i talked asian jones it was even five minutes was three minutes whether boarding had actually started or not think about how many times he said the records not one hundred percent clear on critical facts that you asked him i counted four times he said that each one of those is the reason why you review the detention issue at least which the district court did not reach for plain error only and i submit there's no plain error in this case and there's no error whatsoever you regardless of the standard review but if there is a case to apply plein air review on it's this one mr olson public defender shop as mr wolf and so we all talk of the trial defense counsel some of the finest defense attorneys in hawaii i would have them represent case based on the facts in the record and one of the reasons to apply different standards of use if they intentionally relinquish an argument i am sure that selena all tough fought about whether to bring this argument or not i brought a different argument instead and they can't now take advantage in the district court nobody was talking about reasonable suspicion or cherry stuff it was judge paul a who would raise that into written order the whole issue was litigated as a question of the search issue as a conceptual or not and just always who raised this issue just didn't happen sure so that's that and the other the only thing i think the court was on the right track with respect to the search incident to arrest me i think that's quite problematic the way it happened in this case but that doesn't the case law really cut the other way when the case law seems to say is these are the reasons we allow search incident to arrest but we don't require that the government show in each thing is you're at the airport everybody has gone through t s a so the notion that there's some weapons concern is completely bogus the idea that there's some confederate that she would hand off the drugs to were tossed the purse too or  were in federal court and your federal officers and you have no direct control over what local police might do but for me at least the reason this is a close case is that the phrase you're free to leave is a radically incomplete struction to a person standing in line at the airport this would be an easy case for me if the officer of said you are free to leave and your equally free to tell me to go away that would make an easy case for me but because in fact on the facts or standing in line waiting you know airplane no reasonable person is going to get out of line this is a hard case for me so if you want to talk a lot of folks out of the airport as to how