good morning to your honor's from seattle mr hernandez my reserve three minutes model so i want to start with the government's waiver argument they complained that defense counsel the district court did not in the most press and the reason that the defense counsel didn't do that is because one defense counsel filed a motion to suppress he was not aware of the text once and the court may recall a trial the border patrol agent hagan explain where that was he said he didn't put that information in his reports because he considered law enforcement sensitive and also that he saw it as his duty to establish independent reasonable  which soley indicated that the agents relied on the slowing down and the failure to make eye contact which he didn't know about and because they weren't disclosed to him correct but the this judge me just decision in substantial this stuff about the the alerts so that was the st time it came up just to court judge and it came out at the hearing and said look even based on the alerts with the lurch included i was inclined to suppress here but i've looked at the nice circuit case on this area to me the things that jumped out at me is that cars b m w going ten miles an hour below the speed limit i've had for a moment i rented one in germany and they were caught magnets and it's hard to hold them down with the speed limit  they go and that jumped out of me and then the business about the weaving not such a big deal but taking five hours to drive one hundred miles in a b m w no well and then i saw the tech sorts and i thought was such a big deal so obviously written really broadly so that any terrorist will pop up plus ten people that aren't terrorists but so what you've got this little bit of text or stuff plus really weird driving writing and you could set the cruise control for nine miles an hour over the speed limit that are going to miles an hour or less i just thought it was really suspicious even if there were no alerts interesting i think with your honor's pointing out there actually plays into the district court's reasoning which is what the agent said is that the b m w was cruising along at some unknown speed and then when it got to them they started coming after it slowed down so i agree  nice german performance car is a cop magnet and having passed some cops you would want to slow down especially if you've been going fast so as not to be pulled over and as the disc or judge said at that point when you slow down you want to appear like you're looking for a home there's nothing going on here i'm following the law not speeding to someone with the sun visors pulled down so that you can't see your mirror but the cop can't see you know that was either case or as a case that's one roast which i was counsel want to slap and what you're talking about but no this is not that case that the car slows down after the agent pulls in behind and then doesn't the occupants don't make eye contact with the agent if i'm  right about all the other stuff being enough for suspicion and the text alerts are just kind of a little icing on the cake doesn't that mean we don't even have to get into all this tax stuff in order for us to approve of what the district court said based on his experience driving out there that the slowing down and the not making eye contact is nothing out of the ordinary nothing unusual so i think it would boil down to the fact that there is he's picked up three passengers and it's taken him five hours since he crossed the border but that would apply to anyone who comes across the border picks up some family members and then heads north on an interstate it doesn't meaningfully limit the number of people that can be pulled over you just need reasonable suspicion here you don't need probable cause i understand that but you know the law johnny thing i mean you said you could apply to anyone who drove across the border alone picked up family members on the american side and then kept driving slowly taking five hours for a one hundred miles how many people do that that sounds like an unusual occurrence well i would suggest it doesn't indicate taking five hours for one hundred miles have something to eat maybe resting and the problem is i think it would just create that's not the only and prints you have to make from that i think that's that it that could be that yes but it could be the other i think this is where i draw the court's attention to the logic india's warez which is that it creates such a broad brush if any time someone comes across the border and then it's found that more people in the car is driving north five hours later ten hours later a day later agents can stop them anyone going north to pick up stuff isn't theft big a deal assuming there's nothing there it's just a brief hello and goodbye well it's a bigger deal well you only need reasonable suspicion what's a bigger deal when it now i know that from the manager just to the ground it was i'm not suggesting that he would have been driving twenty miles an hour a century an average as the crow flies to get that point what i'm suggesting is that this indicates could well indicate a normally will indicate someone who stops for lunch when they cross the border you've been in line for six hours at the border stops to pick up family members stops to rest there are all sorts of explanations in the problem is if if this is enough for a stop it will apply to thousands and thousands of people it doesn't meaning limit the discretion for the stop and coming back to whether or not these other facts aside from the text alerts might be enough i would suggest that given that there's just a court relied on it's own experiences there which the government didn't object to that if nothing else the court should address whether the tax alerts are titled any way and then if it says that they're not we already disregarding authority that says they are entitled to someone who told me no i don't think i think thomas is the most on point in thomas dealt with alert indicated that the person had a prior child molestation conviction and if that the agent's then when they followed up on that before doing the search understood that that conviction related to child pornography the tax load also indicated that the person  frequently traveled in sex to sex stores and places the agents knew that the person is coming back from mexico which they identified is a frequent sex tourism destination so condiment has some objective solid facts not just like the text in this case that the person the specific point in this case which is that the tax alert did not have you know individualized objective facts rather than just cuckoos humans but even if it had address that it could easily have said well look these are the fact that the person has a conviction for child molestation relating to child pornography is a thing that happened rather than a statement of suspicion based on that they're being invested in that totality of the circumstances still applies here and it would seem that mark must and all situations fear the facts are filtered through the lens of the agents experience in detecting l a call entry and smugly right of course that's who i believe yes i can argue with the supreme court but the point is here i think thomas controls and steal which the government relies on came after thomas and affirms thomas and says look if whatever is being provided is just a conclusory statement devoid of specific such as this person is suspected of alien smuggling that's not an objective fact isn't looking objective fact and saying do these objective facts add up using that same th circuit doesn't have any authority about tex alerts i would agree that there's no published authority that addresses squarely whether the tac alert alone are sufficiently reliable but it seems to me that united states versus to razzo and united states versus program as they there's the cases have consistently relied upon tax alerts in analogous circumstances and unpublished cases and seem to give it some weight well that's correct i'd addressed present in my opening brief in both of those cases though the person actually had been arrested previously for alien smuggling or human unless my colleagues have other questions you're over time but i'll give you a minute for rebuttal or depending on what we have traditionally did you want to ask an additional i want to start with the defendant's st proposition which is the waiver argument and in fact the tx alerts were mentioned in the complaint affidavit which is on the district court's docket it's the st entry on the district court's docket and at page five of that entry the tx alerts are in fact mentioned so the defendant was on notice of the fact that the techs were lights were part of the reason reasonable suspicion calculus were to look through this again it's the st docket entry c r one i would call it but it's the st of three on the district court's docket at page five this is the complain affidavit which mentions the text alerts then the government put in in its opposition to the defendant's motion the affidavit from agent hagen who is the primary agent here and he to discuss the techs the defendant didn't file the reply brief and at the hearing on the motion only contested possibly the disgusted fully then there must have been a waiver must have been sufficiently brought to his attention and i yes you do your honor but i think in this case the tax alerts foundation and reliability was not something that the district cou waive some just because you don't make every argument that could be made but what happened here was the defendant never challenged anything about the tax alerts which deprived the government of the tax or you heard my question yes i basically want you to comment on the same thing they look like they're not much they're something they're not enough by themselves because they purposely cast a very broad net since i think they were designed to catch terrorists and but they're still something and they are to be considered in the circumstances what am i missing there i would agree with that analysis completely your honor it looks like you're trying to sell more than that are you trying to say it  is enough to justify a stop no your honor if there were more information in the texas lurch themselves that provided the necessary foundation that the government didn't supply because this issue  information in the text i do however think otterman does stand for the proposition that judge or a stunning articulated which is that tax alerts do play some role in the reasonable suspicion calculus regardless of how bare bones they are  that we are not prepared to say that there isn't there may be a tax alert out there that would be enough but here you're not taking that position that you're on so what about if let's say if we don't even consider it the tax alert h take the position that there would be enough to constitute reasonable suspicion based on the erratic driving which even if the district court didn't give it weight this court in conducting its to novo review should give it weight just as that was given weight in r v sue and will just slow down or do the idlers and stayed slow as the agents followed behind it it then was weaving within its own lane and veering within the lane one of the aliens actually confirmed and corroborate trial testifying that the defendant drove into the shoulder in addition to the erratic driving there was the fact that the four occupants of the car not one of them looked in the direction of the border patrol agents car there was also the fact that the car had crossed from mexico earlier that day and that as your honor pointed out that it took five hours to drive what was either a seventy or one hundred mile drive i know just on a you were asking about where the car came from some weight in the reasonable suspicion calculus as they were there i think the other facts that might distinguish katar men are facts that are analogous to r v so involved as vega which are the location of this vehicle on the i close to the border and that thomas put your point on thomas said that the appellant is says he considers to be his best case maybe three points i would make on thomas st it's a pretty obvious suit case that is what this court pointed out in fernandez chrystia where a point where it said thomas is a pretty obvious u k so that's a case before the supreme court has said you cannot entirely discount something from the reasonable suspicion calculus the nd point i would make on thomas is that this court went to great pains to emphasize the nature of the alerts in that case were quote equivocal and attenuated they get an ambiguous and by contrast while the alert may be  barebones it says specifically as to defendant that he was the subject of a current investigation for human smuggling or trafficking and that his car was a possible smuggling conveyance so i think the alert here was itself not so  and generalized doesn't thomas where does the information come from that he was alone crossing the border and then he had more people later that's also in the tech solar so the texel it comes from the a t f system the automated targeted system which means that when the agents are in their car following this defendant they see whether he crossed alone or with other people that you know we read this and looking at the pics or you know you see at the top it says possible smuggling conveyance and i don't see where this is the the driver was the only person in the car but it could be because they don't know how to read this so i think that's actually the next pa admitted by himself when he crossed the border and that is also in the agent's office gave it which is i can look at this system and based on my training and experience you know that this process alone and i'm looking at the car in front of me absolutely ok i was a little confused there was some a lot of discrepancies and these reports and sometimes informations in and sometimes information is out at the district judge credited the agent but there was talk about these things being sensitive and that's why they're not in there but you're talking about this a t s thing what is the sensitive thing that i'm supposed to who are you and if i did and if it's something you can't say hearing then i guess i have to get a piece of paper from you is there any think that we're supposed to avoid talking about in public or purposes of this appeal or this argument that is sensitive what i believe as sensitive as some of the law enforcement techniques by which they obtain information that goes into some of these alerts i think that is part of the light sources and methods like or something else your honor and i think that's and that is not in this and that's not in this record so i don't have to be concerned dollars this car had crossed at least ten times in the prior month preceding this stop and in the prior month and a half before the stop it was referred to secondary inspection four times so those facts were also known to the agents at the time and would have also added to the reason is that if he was with so many people live on the mexican side and work on the americans and understood certainly it's susceptible to innocent explanation but that is the kind of factor that basically everybody in heider crosses the border couple of times a day why is it suspicious in mexico in the u s where you can make so much more money in the u s you can live for so much less money in mexico why is that an ingredient that all because your honor there are so many people in california who do not cross the border every day such that if someone was engaged in illegal alien smuggling it is more likely that they are one of the people who crossed more regularly  enough he says if there are more facts that they might be to establish reasonable suspicion they don't have any facts what they have is a statement really that this person is being investigated if the nation got up and said i pulled him over because i was investigating i'm just a fine tell me the facts that give you reasonable suspicio and it weight and our point is under thomas they deserve no wait because all they say is that the person is being investigated which is really just saying i suspect i'm not giving any reasons ok unless my colleagues have additional questions th