to russia good morning your honor robert russia for our mr foster lopez mr lopez takes issue with the district court's finding that the information that the officers had in this  case at the time of the encounter with mr lopez was actionable and i ask you a question this is one of those cases as often happens where things move step by step and it seems first  i stop the van short of the garage they talk to mr lopez who is driving the van maybe the informant has given them enough to allow that then there's a search of the garage how much time between the search of the garage and the conversation about whether he will consent to search of the house happens is that the record anywhere your honor i believe it's in the records and i think according to the testimony of at least agents oriya the search of the garage lasted a matter of minutes it was a small space five minutes thirty minutes judge i think i think his testimony was that it lasted about two to three minutes it was a small space there was a car repair equipment in there welding equipment clearly a garage that was being used to be pair cars i think the more relevant question is what happens the day prior on february th tenth when they received information from a person who is not of a volunteer who becomes a good citizen and decides to go to the police and say hey i have information about drug trafficking this is a person that's engaged in an encounter with  one of the same law enforcement agents in general riley no i preach that the reason i ask the other question you're not answering is because if you're to the extent you're siri is that after the garage served his detention mr lopez's detention was in appropriately prolonged at that point any consent that he may have given to search the house would be tainted by his having been kept in custody longer than  should have been so i was wondering you know does the question about consent come thirty seconds later do they fiddle around with paperwork for a few minutes and then ask him if the record doesn't show it that's fine you can just tell me that that if you are not some interest to me my sense of the testimony and the events that occurred is first of all there was no paperwork that was being filled out specifically there was no written consent to the search of the garage or the search of the residence keeping in mind that the very scant information the agents had only related to the garage and therefore it's our position that once that had been dispelled by the search and no contraband or any evidence whatsoever of illegal activity ha taken place there should have been a more pointed discussion with mister with mr lopez about continuing a further search of the house which had never been mentioned by the government source of information right then nothing on the particular case i think it's unclear as to whether or not mr lopez was actually ever told that that information never made it it made its way into any written report don't we have findings from the district judge that we do your now so well i think what i want to get back to the what i think is relevant to that same question is the totality of the events that lead us to that point we're dealing with the source of information who is not engaged in and in a consensual encounter with the police in the first place and more importantly the information he gives is not very detailed at all he talks about something that happened in the past doesn't put any time frame on it he admits he's part of the criminal law enforcement agents in separate vehicles box his car in the order him out of the vehicle they conduct a pat down search of his person this is clearly not a consensual encounter but what i think is most relevant in that much they said they were supporting by reasonable suspicion based on what the informant told them and we recognize you have your issues at the informant that there is a foreman who's identified him by name he's only identified identified him by name but most importantly and i think it's a point that was not properly addressed by the district court is at about eight o'clock at night on february the tenth the source of information and the law enforcement agents separate there's never any further contact with that individual that should have raised a high level of concern with law enforcement about the veracity of the information this individual gave most importantly this claim about him making a statement against penal interest well what he said was he was part of a drug trafficking organization but there was no evidence to support that claim the drugs that were seized that day and this should not go unnoticed this is a building that was a single family residence converted into three separate living unit this isn't some multi unit high rise building where they happen to find drugs in some unit that it's not likely this individual of known anything about he disappeared hours any knowledge of those drugs he doesn't admit that he has any connection to those drugs the information that he gave was not sufficient to be actionable by the law enforcement agents specifically because they never cooperated any of the information they obtained a picture of mr lopez on the eleventh but they never showed that picture to the source of information source of information was not present in the alley with the agents when the takedown occurred there's no verification that the person they're detaining is the person that this source of information is talking about clearly he was yes were they ever returned now were they ever offered to be returned no here basically it's your argument that he could never really think it was free to leave when this car is sitting there well at their point an agent had gotten you know and he keith well he never had control of the vehicle another agent got in the vehicle or moved the vehicle they didn't allow they didn't say don't hate want to drive back over to the garage we'd like to have a conversation with you that's not how this whole encounter  came into existence this is a forcible detention not sufficiently based upon reasonable information from a source of information this is not an average citizen providing information to the police this is a person that's part of the criminal mill you see he doesn't know that that's often the case and i have a little trouble you know if somebody says to the police and i'm part of the drug trafficking organization it may not be enough to convict on but it's certainly a statement against penal interest but but there are a number of stages to this and nothing compromising is found about mr lopez until the house is searched that's correct your honor but it's a good totality of all that events that taints the consent that the court found was it correctly that you've got two different theories here one is that the initial stop was unjustified for a second in essence is that it expanded in scope beyond what was reasonable and pretty darn close to them a full good morning your honour's may please the court the district court properly deny the defendant's motions for us so here's what bothers me about this case it's only the second theory that judge hamilton just mentioned even if we give you the informant informant it's speaking exclusively about the garage they pat mr lopez down they find nothing they look in the car they find nothing they look in the garage they find nothing at that point they should have been done they did not have any reason to prolong the seizure of mr lopez beyond what they had and we have rules the supreme court itself has said and royer and in our johnson case that if a stop is being unreasonably prolonged than any consent that skill and during that extra time is presumpti invalid and this looks like that case to me there is absolutely nothing they have pointing to the house as a potential place of drugs or anything else for that matter your honor as the court mentioned this unfolded in stages they they don't really let him go they don't give him his keys back they're no objective signs that he really is now free to go they don't give him his keys they don't give him his phone he is completely in their control at the time they say oh by the way can we search the house and clumsy spanish your honor i disagree in the sense that after the defendant went back to the garage he started talking to another agent agent soria and agent sorious first started well thank you it nowhere in your brief did you mention the fact that the officers took his phone took his keys i mean if the police are holding on to someone's car keys and cell phone what recent person just walks off and leaves behind his car being able to go anywhere he can ask am i under arrest or the agent just told him he wasn't and since i'm not under arrest can i have my keys back and can i go on my way instead when i ask these questions he essentially agreed to continue the conversation with the agents and agreed to continue to allow them to search the garage and ultimately the house if the court is inclined to say that the house the search of the garage was consensual based on the sequence of event and the questions posed to the defended by agent soria then it makes sense that the house was also know there are two very different searches and there are reasons to question the consent to the garage as well given that i got to say this looks to me a lot more like a custodial arrest of a terrorist on your honor and there was the district court here heard testimony from the officers and from the defendant and the defendant's brother as well the district court made credibility findings i understand you've been under the government's version i'm sorry i'm not even under the government's version this looks an awful lot like a custodial arrest i respectfully disagree and that the defendant though he was surrounded by law enforcement officers he was told that he wasn't under arrest and that he was initial stop was based on reasonable suspicion actually i'm not so sure i'd like to ask about that certain there because the the information from the informant doesn't seem to fit with really anything that the officers or agents observed that day they had the person but they didn't have the pattern that was described by the uniform i understand that you might be curious and you might want to do a consensual walk and talk with this fellow but but i'm not sure i see reasonable suspicion justifying the full intrusions of a terry stop including the use of force if necessary to stop him from walking away and  him carry bags into that garage that while it could be innocuous under other circumstances here with the knowledge provided by the informant that provides reasonable suspicion provides a basis for the officers to conduct the invest justify a full blown search of the kharaj based on finding nothing on mr lopez they justify you justify with mr lopez's consent which the district court found was freely and voluntarily given with respect to the stop itself from the reasonable suspicion this activity of carrying something into a location where another individual says he has received drugs or money from and it happens to be the individual that the end of the informant identified provides that reasonable suspicion is the district court noted the officers stopped mr lopez a few city blocks down from that garage and they did the pat down this court has ruled on several occasions that knowledge that an individual is participating in their contacts trafficking justifies on its own the pat down frisk a problem with the pat down i understand that your honor i'm just telling you that what note you guys try to say well we don't really get and we don't your honor and it's an issue that's before the court because the pat down is raised by mr lopez on appeal with line six to seven the defendant on cross or during the examination by his counsel said that the search of the garage took less than five minutes and my i'm talking about start to finish from the the detention the stop of the van into any point you can give us along the way sort of like what i think the milestones that jumped out to me your honor are that i just shot frowned it was the initial stop which allowed for the reason those suspicions the informant provided specific in articulable facts from which the officers can conduct the investment or stop once that stop was inducted the defendant voluntarily went back to his garage in the consensus of the search  visit to the garage i was i don't know that he i don't know how recently he had been there when know the mr ross address the narcotics that were found in all right thank you very much anything further mr rus the forcible action that the police took to begin the encounter with mr lopez two vehicles coming in opposite directions blocking in mr lopez forcing him to stop his vehicle ordering him out of the car conducting a search of this person and then taking him hand in hand as they walked all the way back to the garage and then they conduct a search of the garage in the desert judge say nobody laid a hand on him after the first well even assuming that that is and i accept what judge shot said on that point but at the very least these are two law enforcement agents walking in close proximity to mr lopez they have his belongings they take his van he's clearly not free to go anywhere other than with these agents so anything that is couriers flowing from that is tainted by that primary illegality the timing of the events we have a quick search of the garage which at the very least dispelled the information they got from the source of information and your specific question regarding the recency he never said when in the any of these events occur he didn't say he had been the lopez's house last week he didn't say he was there last month he never told the agents  anything but the crucial blow to the credibility of the source of information and the lack of effort by the law enforcement agents to cooperate anything he said lied in the claim that the source of information gave the agents  telephone numbers by which he communicated with mr lopez they conducted no investigation of those numbers and more importantly they never asked the source of information to attempt to communicate with mr lopez to cooperate anything he may have told them that they wrapped up in all that is the informant which is the law enforcement agents within hours there's no further communication which should have signaled to the agents that he was not trust all right thank you