this case the ice only got involved because it was called by a state trooper after an improper stop so everything that happened after the state troopers improper prolonging of the stop is out the door so they could not i suppose or if he were if our petitions were picked up for some other suspicion of crime in some other way and during the course of those proceedings there was a question about immigration status perhaps but the they can't just sort of  let him go because we haven't to suppress here and then pick him up the next day because they know who he is what what's the analysis under locus mendoza when you have the state officials who are the ones who whose conduct is being questioned how do we reason through the application of clerk as mendoza so we would argue that lopez mendoza doesn't apply but if it does you would say it doesn't balancing test that was developed under janice and then adopted as mendoza was specifically aimed at federal agents who had specific training who had specific rules and regulation of the deterrent effect wasn't that great because there were other deterrent but with a state official what it is is there really any deterrent effect because the state turns these petitioners over to the federal government and they really have no stake in what happens to them as compared to federal officials who make an arrest and then the case goes south because they can't use the evidence because they're bad conduct how how is the deterrent effect here in any way weightier then it would be piece of the federal officials we would actually argue that is actually stronger here right because if you assume that a state officer in this case is interested in detaining and investigating potentially you on lawful means that folks unlawfully in the united states he's got no other restrictions on his conduct there's no criminal proceeding where the evidence is going to be removed he's not sub a lawsuit brought by a sort of a deck action that could be brought against one specific agency as it would be with the federal government two eighty seven agreement with the states officer then it would be different it would be different but we didn't have one here so now you're asking us to find a general standard that might apply even in that circumstance why why do you think it hundred four things are different now when justice o'connor wrote that opinion merely being in the united states unlawfully was a crime and that was part of her balancing analysis and that's no longer the case right so now she was worried about fact she didn't think was very strong and the cost to society was that we now are sort of letting a guy go ahead and commit what we know is a crime to the bought the playing field is totally changed now because merely being in the united states unlawfully is not a crime on the one hand and on the turn side for seat troopers the determined argument is much stronger than it would be for foot pedal to get that i mean it's one thing to say that and the federal situation there are so many other things to deter him that this is not that big a deterrent but why would a why would a state official be deterred at all at all by exclusion of evidence because it is a deterrent why would he be deterred why does he care because then if he's going out of his way to look for illegals and hunt for illegals as we found out then he gets no reward for that conduct if he behaves improperly and the evidence is exclude philadelphia article philadelphia inquirer investigation into the top pennsylvania state police including specifically trooper mackey and i would submit that if you look at the statistics regarding trooper mackie's arrest records and the number of  hispanics he's arrested and the number of aliens he's brought to i still see it goes up and up and up we think that's precisely because there are no guards on his conduct there's no two we seven g arrangement there's no there's nothing that there's no punishment there's no it understood we view officers such as trooper mackey is looking specifically to go outside the bounds of their job description to go before we go on the other hand if we want to disincentive eyes the state officials because they don't have the training and they're getting involved in the in the federal scheme a comprehensive scheme that treated with a notice to appear rather than have her arrest i mean that that's another perhaps that's another policy issue that we would say ok apply it because we don't want them doing this because it it gets into the federal scheme in a place where they really don't have the training exactly right and if they do want to participate in federal enforcement then they can enter into to eighty seven and freeman get the proper training and work cooperatively with ice rather than going up on their own and doing this without supervision without guidance and without any sort of check and balance on their behavior let's assume for the moment with deciding that we level and the b i a that's not what we're talking about we're talking about the prolonging of the stop that's what we argue is egregious the stop was for speeding so you understand we would challenge are you challenging the fact that after the owner of the vehicle gave his license to the officer mackey and then officer mackey was understood that at least somebody was in the car who owned it even though the driver didn't have currently have his license  opening the door without a constitutional violation we would say yes right so after the trooper asked the driver for identification doesn't have it but offers to call his wife then the passenger hand over his license and registration one would expect the trooper to return to his cruiser plug in the computer and do a little background check he doesn't do that he peeks into the back and sees that there are nine brown skinned hispanic men sleeping in the back he goes over opens the door and he mutely starts to question that he has permission to open the door that's not clear from the record how would you distinguish miller versus mena where that the supreme court said that there is no need for reasonable suspicion to ask someone for their name date place birth  immigration status so it i think it sort of the landscape has changed in the onset of rodriguez so you don't need reasonable suspicion necessarily to ask for identification if there's a  concern or you're otherwise doing an incident to the stop in the course of the stop the difference after about regas is that if you're proceeding on us traffic stop to get a speeding ticket and then you take a right hand turn a detour from the mission of the stop to ask not just for id because you want to know whether these guys have a criminal background but your first question is let me see your immigration papers that's a different story that under under rodriguez is an improper detour into an asked someone on a civil matter now because it's not a crime so the question is do you really need even need probable cause can i see your papers but allow you to be in this t it's so it's a it's a stop and he maybe heard something who knows and he opens a door we don't know if we have permission to open the door or not what is what is the constitutional violation just at that point be it a constitutional violation here is because he only opened the door and he only asked the questions because he saw that the men had brown skin and then when they went to answer him they spoke spanish and then he continued there's been a bunch of white guys in khakis in the back of that band i don't think you can see the door so when you when it's totally race based and the evidence here is that he immediately went from the license and registration to opening the thank you so the difference here is that it goes right from licensing straight registration without even checking it to opening the door because the guys in the backseat are hispanic and they're sleeping by the way so there's no threat there's no perceived danger to the safety him some questions and then he says go drive to a rest stop down the road right so the initial stops at between seven forty eight o'clock he asked them a few questions go drive a mile down the road he follows them block up now this begins the detention he's interested in ice not the traffic ticket and he's interested in immigration status totally detours from his mission of running the ticket calls ice and then only after that does he go back and finish the speeding ticket so your view  checking the license and checking to see if there are any outstanding warrants he's he's done that that's correct he he needs to be issuing the speeding ticket not investigating and i think that's right and shocks the conscience so how to how do you fit it into egregiousness so locus mendoza gives us a totality of the circumstances analysis and give some factors that may be examples one of those factors and this court cited to the second circuit one of those factors is race if the stop is race but the detention is race based that's agree just period full stop we would argue the second reason for egregiousness is that the officer knew or should have known that he had absolutely no authority to enforce the immigration laws on his own but don't because we need to have a should there been a suppression hearing here where the facts are developed on the officer could testify that maybe they were nervous or there was something else going on and also the timeline is unusual and i mean the evidence  not clear so there should have been a suppression hearing and our clients sent up subpoenas and requested a hearing requested testimony none of that was granted but that brings us back to the question of whether the exclusionary rule applies  civil this was a tax matter but in the civil proceeding exclusionary rule doesn't apply janice was different your honor because in that case there were criminal matters under lying and then there was a civil tax proceeding and the reasoning there was well  exclusionary rule has already served its deterrent purpose by excluding the criminal evidence from the criminal proceedings now we have a separate tax proceeding maybe the deterrence factor isn't a strong over here because the officers already sort of took a hit on the criminal side and they kind of weighed the cost of society different in that case because to society they do and again as we see as time goes on lopez mendoza reasoning gets a little bit outdated and now we're in a new new ball but it's never going to apply and i think they use the idea of a hazardous waste dump to keep out evidence hazardous what they have done visa be an ongoing violation and here we have  not a crime we have an ongoing violation not of not of past crime and a temporal standpoint wouldn't it be quite a leap to say that this is the situation that lopez mendoza might have anticipated would use exclusionary rule so i think you've put your finger on the issue as we see it in that lopez mendoza justice o'connor is comparing weaving an unlawful immigrant in the country with an ongoing hazardous waste violation right so times have changed i don't think i mean you're saying the criminal nature had a lot to do with it that it was exactly right and that is different now that is no longer bill law so there's we're no longer allowing a crime to continue by immigration judge here they've only offered their speculation because there's nothing in the record about any race based motives from the officer so you're assuming that we have a lopez mendoza situation here and we're using egregious just and widespread violation doesn't fit into those civil immigration proceedings and they relied on janice in making that comparison and our position is that that's the that that applies even when there are state actors ok how about the balancing that your opponent talked about with the deterrent effect even being greater when it's a state official versus federal official and as you point zero that so that it would be a wide open exclusionary rule as compared to just agree over them that hasn't been decided for sex circuit is only one that has even applied the green just rule the state actors and sanchez a circuit has questioned whether it would do that so it is whether it would even apply the officers really are not involved potentially if they're committing these violations they could be sued in civil court for those violations but they're not subject to the jurisdiction of the immigration court so we question what effect that would really have on them they don't follow the proceedings many times have any any involvement whatsoever so what's the purpose of the two eighty seven agree but there was some admission because when he calls teach us at eight thirty he correctly identifies what countries are but more importantly he has been given the driver's license number of his wife to call his wife to get his licensing information and there were must have been a period of time where trooper mackey was tracking that information down and then discovered that the license was revoked or suspended because that's the second state haitian he issues eight fifty seven so for all we know that was a  reasonable extension of that lawful traffic for him to go about his law enforcement duties and ensure that he figured out what was going on with the driver who only provided social security card when he asked for his registration and his licen so yes even though the vehicle owner who was a passenger had his license registration the driver did not provide that and wanted him to call his wife so it's clear from the outset that the stop was not going to be a normal speed traffic citation they moved to the rest stop as opposed to just conducting this on the side of the road for a lengthy period of time what if he was profiling burden of demonstrating the suppression hearing is warranted and that that hasn't happened there are a lot of blanks in the affidavits which is supposed to be their best evidence that an agreed just violation has occurred but how about the fact that you after you have confronted the people in the front of the car you determine they're speeding you're looking into license suspension why would you even look in the back i mean maybe you look in the back and you see people are sleeping so that's fine you're not going to get accosted whatever but what what basis is there for that is there at inference an inference that it was because they were hispanic not necessarily because the case law says that a lot of course an officer during a lawful traffic stop can ask for identification he can ask for people to get out of the car many people in the back of a car nine nine people with brown  if we were if we were to adopt the sanchez approach that a stop or more seizure based solely on an abuse of this officer is legal authority and without reasonable suspicion of criminal activity will usually be egre then there's an a for hearing isn't there enough here that there's an inference that going back and questioning them and calling ice and detaining them not letting them go to the bathroom not let him have the air conditioner passenger side right and the other person you can call my wife and and he had a social security they have sources so security guard so there's no problem in the in the front seat here but he's constitutionally able to ask for id that he didn't violate the constitution by asking that question and as far as the eye to thirteen there's no evidence of misconduct on the part of my saying that asking for information was the problem well asking for advice and from the driver or the owner but if he didn't have consent we don't know that it opens the back door and sees people in there at the source asking questions and then does a detention there's a whole lot of complexity here this isn't so simple but that's part of the problem with their evidence i mean first of all they said that he asked for their papers well that was translated by someone in the front seat who didn't didn't provide an affidavit the burden is on them it's not the government and they're not even saying that the information i see thirteen is or an hour after being bowled over that we refused water food we have to go to the bathroom he didn't let us go officer parker packet hind us you couldn't leave because i mean you're basically arrested just to clarify a couple of points the record shows that he ordered the van to the traffic stop before he completed any sort of computerized check of the license so that the stop took a detour immediately but  t rodriguez and then again in the united states versus hark this court has decided that's point one point two create your arms we're asking about the deterrent effect on the state trooper if if the exclusionary rule  applies and then ice would know that it could stop it would stop responding to state troopers unless they called and said hey we have this guy on a reasonable suspicious of a crime and oh by the way we also suspect that he might not be documented so that would be another deterrent effect on the state officer number three the government keeps harping on the lack of evidence in the record well that's because we weren't allowed to present evidence garcia peano's one granted we had there was no hearing this was all done on the papers but