an important question before the court today is whether the general alert of a drug detecting canine to the luggage compartment of a commercial passenger bus but not to the luggage itself under the circumstances present in this case provided sufficient probable cause to justify the search of all of the passenger luggage contained in that compartment i submit that it did not a related question in this case is whether the evidence that was discovered following this canine sniff should have been suppressed as fruit of the poisonous tree because in shows corporal goodman asked for consent to search the passenger bus after stopping it for a traffic violation received consent began to search the passenger compartment the luggage compartment underneath the bus saw what he what he initially believed to be an abandoned bag without checking with anybody on the bus as to whether anybody claimed that he decided to open it up and search it found what he believed to be a hidden compartment or a false bottom which ended up containing containing in my reading of the district court's order i did not see it a finding either a that he saw the tag before he opened the bag or be that he made an unreasonable look correct yes and an abandoned bag may be searched correct and that the trooper testified that he thought he didn't see a tag so he thought it was an abandoned bag so to speak right out so what's so unreasonable about about opening the bag as long as when he found the tag quit your honor i think the implication of the court's conclusion that he that he improperly manipulated and searched was that he i think the implication is that he should've checked with the passengers on the bus to see if it was a man and just seeing the bag it seems to me that's an implied negative credibility find and we don't court shouldn't do that while you're going to make a negative credibility finding they should make your i think that obviously would have made things a lot more clear well i would on this issue and you can go on but that that's with that's would travels me about about the predicate if you will for the for the court's analysis is i don't think the court got first step right i'm concerned about that ok your honor i understand i understand the court's concern there for sure again i would just i would just point out the circumstances i think the circumstances point to it being unreasonable especially in light of the relatively small number of people on the bus there were i think four passengers and the driver on the bus there were approximately seven pieces of luggage in the luggage compartment i think it would have been reasonable before deciding that that a piece of luggage that you know clearly had belongings in it that it didn't belong to anybody would be to ask the relatively few people there if anybody claimed it so that's that's what i would say about that again after after point from performing the search and finding what what he was almost certain contained contraband of some kind but the testimony of corporal goodman indicated that he he had he said he had he never seen anything legal and a hidden compartment before sometimes they were empty he i think in this case it would have been fairly obvious that this one was not empty i think you could tell that there was something in there and he was trying to get into it immediately thereafter he calls for a canine unit i think that that testified that he would at least one hundred percent certain that he was going to call for a canine regardless of what he found in his initial perusal of the luggage compartment that's correct your honor he d do we factor that in your honor i think the again that the district court mentioned that in its order it did not specifically credit that it did not say you know it did not find that he would have called for a canine regardless of his findings and again i think just looking at the circumstances of it he finds this he realizes that he's done something that he's done something he thinks he shouldn't have even by his own testimony he says is his brain started scrabbling as to what do i do next honestly that was that was what he said and then immediately thereafter he decides to call for a canine i think just based on the circumstances of it it's it's it's again it's very similar he's he's he's found this bag he sees that there's something in it he wants to get into it he's trying to find any justification he can to and so he then he basically uses that as a post hoc justification for you know for that for that initial illegal search  and i just i think that a search first sniff later policy is not a good policy for law enforcement to adopt and i think that a finding in favor of the government this case would could possibly encourage that but the district court must have  officers knowledge of the hidden compartment somehow influence the dog sniff your eye i think that there's that there is a possibility that it could have because after he did find an apartment he did call over the radio intel or body else there  is a possibility that the fact that they all knew that ok the goal is now to get into this you know to get into this bag i think that that taints things in some ways but again i we do have to concede there was no evidence of any you know intentional improper cueing of the dog there just the video just didn't show that we can't prove that all we can do is say that that they should have been that officer should have been extra careful when they had once they had this improperly gained knowledge they should have an extra careful and make sure that all of the rest of the circumstances truly pointed to probable cause to search this particular bag and that's the next one i'd really like to turn to is the fact that the fact that when the dog sniffed the compartment he didn't show any particular interest in the luggage that was there  he continued to return to what the what the trooper or the corporal raper the handler of the dog referred to as the back wall of the compartment he kept returning to the bus itself in sniffing  the driver side as well that would have opened but they were all close to the driver's side doors were closed all those three are open into the same common compartment that is that is a large a large portion of the undercarriage of the bus and yes it would have had enough and offering to store the luggage for an entire bus full of people must just happen to not be not be packed very well so and so again when the dog continued to search the bus itself i would say that you know i would contend that that may have provided probably cause to search some part of the bus but it didn't provide the specific probable cause needed to search every individual piece of luggage in that compartment again there were not very many on this particular bus but assume there had been fifty people on the bus and fifty or more pieces of luggage what the district courts you know w officers that how to warrant to search what they believe to be a single residence they got there and they found that it was divided into multiple individual residences and the what what what  when there's only probable cause to search the whole because there's not a fair probable probability that evidence of a crime is going to be found in each of those particular places i think it's very similar here is it is it undisputed then that the dog did not  what's the word we want to use not indicate that the word you're on it it may ground mid range attention to to a location so that undisputed that that didn't happen to any of the luggage and it was just the  if the luggage and the dog sniff the luggage but and the dog was generally was was excited according to the you know according to the handler from the time he got there but he sniffed it but then returned to the again i would just argue that that's not enough when you've got all these all these individual privacy interests of all these people that are on a passenger bus that's simply not sufficient just a general alert to the compartment shouldn't give the governor the right to search every single person's luggage in that compartment when they when they could have done something like pull the luggage out and this is what they usually do they usually pull the luggage out and have the dog go over it you know again more specifically and find a specific piece all the able to find on this issue the dogs do not alert to a general compartment they could they were to a particular piece of luggage or to purchase a particular passenger so that's the way law enforcement generally operates they didn't in this case and i would contend that again that shows that there was not probable cause to believe that just by searching every single piece of that luggage they didn't have probably cause to me that i mean it sounds does it doesn't matter in this circumstance that and correct me if i have this wrong with that the officer came to this with some knowledge that this bus line was being you used to transport drugs or there had been some intelligence to that aspect and then you got the the bus driver mis identifying his destination if i recall right doesn't that sort of factor into the totality you're not you know when you talk about fifty passengers and that sort of thing if you didn't have that knowledge your argument might  hold might be stronger than what do you think you're right i think again when you're when you're looking at a probable cause analysis you do have to look at the totality of circumstances you're you're correct and that is that's one of the circumstances again i don't think that is i don't think that is particularly relevant to the major points that i'm that i'm making because again when you're looking at this specific dog sniff that's that's the main that's the main issue there is whether this dog sniff provide a probable cause to search every single piece of luggage under that bus and i just i just don't think that they did your honor and all like to reserve the rest of the time for me thank you thank you mr wulf in my brief when citing the district court opinion of barrage of maldonado i did not state that the opinion was affirmed on other grounds from that which i cited before it was affirmed on the grounds of good faith reliance on federal circuit court precedent though your honor i'm asking the courts your honor so i'm asking the court to affirm the district court's finding that the officer had reasonable suspicion to expand the scope of the investigation and once he did so the ultimate discovery of the cocaine and mr toot toot toot toot ons bag was not through the poisonous tree the officers actions in conducting this were reasonable under the fourth amendment a traffic stop was supported by probable cause following too close which is not contested in this case after initiation the officer was permitted to make routine in driver under all of our mendez and he was permitted to follow up on those inquiries in light of his training experience under le bron the officer is at liberty to question the driver and passengers as to their destination and purpose under linkous those routine inquiries turned up the had received specific intelligence in highway interdiction in the form of how to summaries the high intensity drug trafficking areas that indicated that these particular this particular bus line was being used to traffic narcotics and he had received those inquiries prior to the stop in november sixth after pulling the bus over the driver appeared visibly nervous under questioning despite being a professional driver and having a c d o and this was not a generic or generic claim of nervousness specifically arc articulated that his hands were trembling in his voice was nervous and shaky while looking for his license and registration this was unusual in the experience of this officer who had had dealings with commercial drivers before specifically in the district court that hey these drivers often have experience with department of transportation they're more likely to come into contact with government they shouldn't be this nervous the driver  lot of this i don't i'm not sure it is contested because the driver did consent to the search crack to go i guess i was wondering if if in following up on judge grinders question two opposing counsel that your position is that all of those circumstances are relevant to the dog whether or not the dogs alert where it alerted in the luggage compartment whether these facts play into that somehow for the ability to search well after the real issue or question the judge's question is the real issue yes your honor if i may have judged winners question again i apologize well to what extent is the background information  including the driver's nervousness how does that affect the analysis of the dog alerted issue that the general alert to the back of the bus did not give probable cause to search the individual passenger luggage  some indication of drugs somewhere right oh that that that's absolutely correct that the to the extent i should add that to the specific information from the heightened alerts plus the corroborating nervousness of the driver absolutely when it comes is that the answer to the question yes your honor yes i would i would add what's the input what's the impact if the opening of the bag was not an unlawful search if the owner's not going on reasonable at the point when he he did see the tag and quickly shut the bag what's the relevance of that to the dog alert if there was nothing unreasonable about the officer reaching into the bag and finding the false compartment then there is no fruit of the poisonous tree analysis compartment on a car is enough to preserve the bags on the on the interior of the car but yeah and that's just it right i mean in those cases the dog is alerting fun the outside right and so then you've got probable cause to believe that there's something inside we sort of have the inverse of that we've we've already gotten into the compartment right and so the dog has an ability to distinguish isn't that distinguish these cases than sort of whether the dog is sniffing from the outside versus whether the dog's already gotten the end is able to discern the different items i see the courts inquiry the testimony in the district court was that the odor that had previously been present in the luggage that the dog was quote unquote in the odor of narcotics at the time that he was down there that the whole compartment was infused with narcotics and so to the extent that the dog was able to with the other and it was there any testimony as to whether that would have made the dog less likely to emerge on the individual bags yes your honor because the scent corporator testified given out of his nose or what well the scent of the odor of narcotics was strong had blown against the back luggage doors and that's where it was strongest so that's where the dog was it did they take apart the they've taken apart the walls of the bus by then so they knew there was more contraband there no you're are they they were they had not this is all hypothesizing after the fact well the that the testimony in the district court and what the district court relied on was that the dog had alerted to the general luggage compartment factually did the dog is counsel says after the general alert in the back of the bus was he then taken to each bag your honor he was allowed to run through the bottom compartment of the bus they did not remove the bags and walk the dog or the bags to each bag individual yes he was well off the record revealed that well what the officer testified to was that the dog was allowed up into the luggage compartment to sniff to try to locate the strongest scent of narcotics and that is when the dog went to the back wall and was i understand what the counsel says then then the dog was sniffing the luggage specifically and was not interested i have a read i could read i'll read the transcript i just individually sniff each bag after the general alert the officer would try to guide the dog through through the baggage and he kept going back to the compartment i believe that they i believe that the officer just let the dog into the compartment and he immediately went to the back bags and he would not alert to any specific piece of luggage the dog was off lead the dog was on on leave but it was not a deep it was not a very very deep compartment you're on the let me change the facts  this is a there was no heightened alert about this particular bus sign there's fifty people on the bus and a hundred pieces of luggage dagoes and gives a general alert can they search all one hundred pieces and that no your honor and the reason why i suggest that is because they forth and then to the constitution is a test of reasonableness and i think that one of the things that the court found in this case was that it was reasonable given the fact that there were very few bags i  mean the the fact that so this is no more bad when it doesn't become unreasonable at that tend bags at fifteen and twenty at what point does it become a reasonable yes your honor and i do think i do think that is a question for district courts and for courts to look at i don't think applying a bright line rule to common carriers or the number of bags or the type of of vessel or or wagon or car is necessarily something to do but when when in circumstances like these in judging whether or not the officer's actions were reasonable i think what we look to is that there were very few people in on this bus no more than would be in a minivan with a lie is that the well of them is that i mean because it's just more likely that one of the seven pieces is going to be the one and what i'm struck by a little bit with the just the pure number is that because it's easier you can just go through seven as opposed to one hundred or you're more likely to hit on it one in seven vs one hundred well i guess i can only say that the district court did rely on the fact that there were a very few bags here and i think the will of the wing of the specific question let me come at it this way what  in judge runners hypothetical what could reasonably be done in terms of a number of passengers your honor well in that situation you've got you've got fifty passengers and seventy five bags and a dog in the luggage compartment were a dog is alerted what can what can reasonably be done i would submit that would most likely not be the particulary that would be in any way let's let's go back to our airport cases they detain that can't they just say you know i'll have to wait while we while we process this on an entire airline or an airport ok they just detained a barrel of yes yes you're on there you're all free to go but your bags have to on the luggage compartment of the vehicle in this case and that's and that was all they project all the leg immediately yes your honor which the innocent passenger probably appreciated because they got to go on their way yes honor the one with drugs in his luggage so happened yes your honor and following up on that point there is there is no reason why a passenger in a bus should have a greater expectation of privacy than four or five people driving down the road in a minivan with your bag or one women don't forget the bag over the passenger that that's correct but especially when you check your luggage and give it in over into the specific portion of the bus is not reasonable but i do think a reasonable court could say fifty people one hundred people on a bus if a dog has a general u differentiated alert on a passenger airliner or a cruise ship that those think that that might be unreasonable given the circumstances but i think i think we go back to this it additionally as to the as to the defendant's arguments about the  alert i wanted to make sure to notify the court that in this particular case there were three levels of alert there is a profound alert an indication in a normal alert the lowest level the alert in this case it was testified to does not provide probable cause that something only the handler can detect the second level is a profound alert which exhibits a change in the dog's behavior that any reasonable person can conceive from the any layperson can see from the outset and then of course there's the final indication it's our argument that united states defense could have still have stablished hewing had they subpoenaed the bus driver who was standing outside to testify as to the dog's behavior and effective cross examination of course they had the opportunity to submit follow up briefing from their expert and they declined to do so orders just in in closing the district court found the goodman suspicions had already been raised before receiving consent and that he would have called for a canine unit even if he had not discovered the fault bottom this is a factual finding the court also found that henry's presence and alert was unaffected by any previous search this is also a fact factual finding that was based upon the complete lack of evidence of queuing and the interaction between the officers running the entire bottom  yes thank you hogan in that case the supreme court discussed the fact that in a normal vehicle a car passenger walking be engaged in a common enterprise with the driver and have the same interest in concealing the fruits or the evidence of the wrongdoing i think that specific point distinguishes that kind of case from this case where you have multiple unconnected people with no suggestion of common enterprise who all have individual privacy interests i think that is a reason to treat a situation with a commercial bus differently than a small enclosed vehicle where all the people may be in some kind of common and rise with it with each other or the driver or whoever the option has suspicion about has the opportunity to perk perhaps conceal something in a passenger's purse which is what happened and in that case there were i believe drugs concealed in the past year first in this case you just you have the multiple privacy interests at stake from all of the different people on the bus and a general alert to the bus or to a compartment the bus just simply does not provide probably cause to believe that you're going to they're going to be able to