into the stop when the audible tone sounds on the troopers system that's running record checks and he comes back clean nd pursuant to the berman case at the time of that extension of the stop the facts known to the troop were not sufficient to give rise to reasonable suspicion and rd the consent search given by a mr rivero more than twenty five minutes into the stop was invalid and did not grant valid consent because that your earlier unlawful prolongation of the stop now hor i get into those substance points i do want to address something that i wouldn't normally and that is to apologize to the court for some unnecessary language in our brief i was trial counsel or appellant be a between zero and unfortunately i didn't get to be involved in the drafting of the brief when i read it i was somewhat dismayed at some i think unnecessary language in that brief which i'm sure the court couldn't help but notice we do apologize to the court for that and we hope that this panel will not hold that language against our clients in this situation and i do hope to refocus the attention on what we think is a very strong argument that the wrong now returning to those three points that i mentioned earlier st we would argue to this court stop was extended beyond the time reasonably necessary to effectuate the stops mission which was a traffic violation for speeding on i ninety five just about eight minutes into the stop when you hear a very clear audible doppler on trooper weismann's vehicle that you can hear on the video and we have submitted to video files to the court that are now part of the supplemental appendix that was something that was done more recently after i became involved in the case we wanted to make certain that the court had access to this video because the video tells the story much more effectively than i would be able to  both her testimony and the trial court's conclusions of law which we disagree with would be that she was acting the you know she's an experienced trooper and  just i think that's an excellent question i think what we take issue with is much more the concision of law than the findings of fact the i think the fact is just never entered i don't have any particular dispute with any of those finding it's the conclusions of law which this court will will review place where just every disagreement this came up saddam in oral argument when i was having a colloquy with judge diver and he pressed me as he should on what exact point did i say the stop was being extended and i said to him as i'm arguing again today that it's when you hears an audible ping that's about the eight minute mark when those record checks come back yet yes to just counsel i've got a question because i understand there was an argument made below both about after the warning was given and then alternatively when this thing occurred and i'm a see in the trial record where you made both those arguments what i don't see is in the  that once the warning was provided that it's that point the stop was extended with the trooper when spoke with mr rivera to help me understand based on the b that you submitted and i understand it's not you personally but on behalf of your client was submitted what in that brief allows me to look at this this eight minute question amount i frankly have not looked at that very allowed now to advance the same argument that i made in front of the district court and that is part of the record that is part of the joint appendix in the motion that i submitted on behalf of my client in the district court so i would argue that that argument is preserved because we did advance it in front of judge ever and we did do to do so in writing and on the record in the district court but even if the court finds that we've somehow waived that argument by not advancing in our appellate brief we would still argue there was not reasonable suspicion even at the end of the encounter but i do want to spend some time briefly just going back over some of the facts because i think they're a little bit muddled in the brief and i want to make sure that there's a very clear pattern of exactly happens and when counsel book before you get to that and i appreciate your candor with the core on the what issues are being raised but before you turn to the general facts specifically with respect to the conversation with mr rivera after the warning has been provided to your client is it your position the trooper was not entitled to determine if the rint toll or was you know being possessed by by someone who had rented it or had authority to be driving the car given the discrepancy in names so at the moment he hands the warning over to the driver is he then is polluted from asking about the rental agreement from the person who at least is alleged to have rented the car though in a different name she's not precluded from doing traffic stop they can check things like license insurance and registration i take it from our case is that a rental for agreement is the equivalent of registration in these kinds of contacts and so what i'm just asking is and maybe the argument is that they did too much of it but wasn't this trooper entitled incident to the stop to at least ask about the rental agreement from the person who's alleged to have been in the car yes you are absolutely i think the problem is the utter lack of diligence in getting to that point there has been some acknowledgement in the d g of on a case and others that there's kind of more than one way to prolong a stop and one thing we really want to highlight to th today is that in this case it's not enough to just do this backward looking analysis and kind of where she alternately ended up but we have to look at each step along the way and when you watch the video this really jumps off the screen or off the audio every thing she does she's taking far longer than an otherwise diligent stop should and really would take to do those things so by the time we get to the point of asking about the rental agreement for instance she doesn't ceo's license until they've already been inside that patrol car for four minutes so just to go back briefly to that overall recitation that i just really quickly want to run the court through because i think it's so vital to our argument and not so clear in the brief four minutes into the stop they get into her patrol car seven let me say four minutes just so i'm sorry so you're help me understand because the court made factual findings based o you know a clock time when i look at the video i see just like minutes and seconds yet can you just make sure that i'm consistent with you when you see four minutes into the stop what is the starting point that you're basing that on great so i can also refer them up the ct to the minute mark on the video the stop occurs about two minutes into the video so all of the times that i would be giving the court would be off by about two minutes alternatively i can tell the core six minutes at the six minute and forty five nd mark on the video is when they enter her patrol car at the ten minute and nd mark so roughly four minutes later is when she i'm calling eight minutes into the stop but the one thousand and fifty six mark on the video is when we hear that all the bl doppler tone that you know we find to be so important because that's when she says the record checks come back and there's no problem with them whatsoever and i think it's important to note you know there's only about a nd difference between when she tells them she's going to run his license and ask them if it's going to be good and when those record checks come back so a lot of times in these cases there's discussion by courts you know be sure i understand your position as to when you believe the stop was extended because i thought i heard you soon in response to richardson's questions that the trooper was well within her rights to after issuing the then what do you say the stuff was more at at the one thousand and fifty six mark on the video eight minutes into the stop when we hear the hobble dopplers on you know when i'm awfully prolongs the stop and that's really highlighted when you go back and look when you claim the record check comes back at one thousand and fifty six and alex said that as a given is it your position that the trooper was not then entitled to write a warning ticket or write anything so as soon as it comes back the troopers got to push him out the car and drive off may not be i don't think that's your position but you're saying it's unlawful extended at that point it seems like to me that you've got to agree that there was time permitted for the decision to write a warning ticket or write a ticket or you know whatever it is that happens in these you know traffic stops an area things don't happen instantaneously you get her records check back and you push the person out the car and drive off right now i agree with exactly the problem of your question no should she is entitled to a reasonable amount of time to affect the incidence of the traffic stop the reason it's so hard in this case to peg a precise time where it's extended is because every step that she's allowed to do she takes significantly longer than it should takes a cuz of this question questioning it is unrelated to the stops initial justification so let's remember she spends multiple multiple minutes i think about four minutes questioning him unrelated to the stop before she even starts to run his record so it is very difficult to peg a precise time i would say within a reasonable time after the record checks from south and she has time to write a warning take it is when the stop is prolonged and she keeps him long past that point in the summer so this is your position that the trooper was not allowed to ask any the previous de minimus standard so it's you know obviously a little bit more of a fact specific inquiry now than it might have been pre rock she's allowed to ask questions but what she's not allowed to do completely deviate from the mission of the by which this clerk would review the matter is that the courts factual findings are reviewed with the evidence construed in the light most favorable to the government rather just research the legal conclusions are review and the way in which we understand the facts within which we understand what happened a sequence of events from the moment that super weissman activated her lights and sirens to the moment that mr rivera signed the consent form and we believe that for this reason the standard for syria can't help so close our attention on let us most salient rather than engaging in speculation about what the troops could have done what should have done different ways in which it could have approached review and in what standard in light of the video is it the government's view that the determination of diligence you know the district courts as i've watched the video i've listened to the testimony and i find that the op is not infinite bill of gently is is that a factual determination that we review for clear error or is that a legal conclusion that we review afresh the district judges factual findings i think the two most important ones is to just suggest standings that trooper reisman was very experienced and that she was an extremely credible and believable witness stand was one of his primary findings liason developed a reasonable suspicion of crimps criminal activity by collectively assessing the totality of the facts and thereby eliminating a substantial portion of innocent travelers and the district court specifically cited to the answer her question is does he understood them he pointed her to the g p s in terms of trying to figure out where was that he had spent the night in the hotel he said that there was a receipt that might identify either the really isn't nothing all that suspicious about somebody referring to a trooper or to other places where they might find the information necessary to spell a suspension thank you for the sheer honor and this issue of the language barrier describing her perceptions and i think the straight year does give credence to maybe one of the reasons why this encounter didn't transpire as quickly as it could have because there was a language barrier some of the sense she was able to understand her that well in the beginning but as the encounter went far even as she was speaking slowly interest pursing spanish words here and there to make sure there was understanding she perceived his nervousness to increase she perceived that he was not able to understand in ways that he was able to understand earlier  on do you do you also take this position that this sort of evasiveness determination giving the inconclusive nature of the video is is also sort of the language different drivers and this ties into the language and maybe some of the cultural barriers that that were happening during the stop under the sea cease blanched cision of  the maximum rights of it of an acceptable traffic stop so that it can be stated with with mathematical precision that the appropriate constitutional inquiry is whether the detention is length or the necessary given its purpose and a branch this court have that runs the driver has demonstrated that he's entitled to operate the vehicle and the police officers should the requisite running the driver must be must be allowed to proceed on his way and the thing here is that there are two different license which says isidro rivera now in her testimony she acknowledged the fact that hispanic names are so mad it differently she knows that she understands that she was so sad sometimes a person isn't doing anything wrong but the d m v just screws it up but we're battling she needed to make sure that rivera was december th on the on the rental agreement given the discrepancy between driver's license and the and the rental agreements and so it was entirely appropriate for her to prolong stop to go unchecked rivero we can see that that eight minute period after she issued the warning that the stock was for l lashes but you would agree and i think this is your colleague's point you would agree if he did nab reasonable suspicion that eight minutes of questioning was too long you go up and ask her doctor about the real agreement for some period of time but you agree at some point during that eight minutes she had to have reasonable suspicion either before she got out the car or during that conversation because confirming the role government didn't take the eight minutes and that's why the district court turned that on the reasonable suspicion finding you so you're not disagreeing with that conclusion that is correct your honor we're not multiple cell phones in and of itself is not necessarily something that of the vast majority of travelers would or would not have them in so there are a number of members of our court that i imagine would have multiple cell phones one for work one for personal use i'm just that's a that's a very fair point and i think that's one of the reasons where she kind of struggling over this and trying to understand kind of what were the points of reasonable suspicion the government's position is step when you look at the t reasonable suspicion that that was not certainly erroneous for the for the judged to make that finding and i think that really is the key point that i was starting out with is that each one of these cases the facts are served different they're so and so you are we talked about the discrepancy in the names between the driver's license and the rental agreement we have so one of the other points that i think  mean this was maybe are still on the high end but not not all that exorbitant and one other point to and i don't know if you know the answer to this or not but it's out of the trooper's experience you made a comment about hone in on where the i think the bulk of the questioning has been and that's reasonable suspicion to extend the stopping whether it exist and whether these cases are comparable to some prior cases i think just d s hit the nail on his head on the head with this question  there really wasn't even an attempt in the brief to distinguish berman and it's a very important very very similar case and yes anderson that these all these cases have their own unique facts but there are facts that are commonly seen in the body of cases and it just so happens to be those facts that the government is relying on to advance their case for reasonable suspicion counsel let me ask you about the socolow decision and if you don't know it don't don't rush into it the short period of time to give rise to reasonable suspicion that was of a flight from honolulu to miami and so slightly different but the court relied heavily on that not in finding and you know that's a fact not present in bowman but the court relied heavily as the just on i ninety five dollars or in that scenario this is not just a trip to miami but this was a trip to miami in the boehm and in the circle of decision where you know it was departure followed by a ten hour drive leading to a one night stay and a return trip the very next morning you know that seems like it's a one day you know sort of  adventure in north carolina this seems and also very expensive as we saw in socal oh why is it that sort of a better data point for us then the boat decision that lacks the key fact the government tried to illustrate and it's hard so i appreciate you breaking down some of the facts of that case because i have to concede i'm not all that familiar with that case however i will say that case of predates social media and dating apps like tender and the explanation given by the defendant in this case i find it reasonable when they came to see gross and in an era of social media and dating apps it is not i don't i don't think it's surprising or uncommon to think that someone would spend a bunch of money to come to north carolina to meet up with some girls and social media makes that possible the children understand that is that is a theoretical explanation although i thought tender had its geographic focus on it but maybe i'm wrong about that i'm not a technological guy so don't hold me to that piece the point is that yes there are you can always dream up a possible explanation the question is why the standard is so and that's the to me that's the the challenge that you've got the fact that's not present you know as you have a very long travel d d in a short period of time with four cell phones could add the other facts but i think that sort of the core piece of it that and it with a very expensive car that looks a lot like socolow to me although admittedly that's not a car it's a plane flight but i'm not sure that that's the distinction think a point that just yes made with his question was well made which is you know it is it's a higher end s u v and they were in it for three days i think six hundred bucks for hire and s u v for three days it's probably about a market rate i don't think they paid more than market and i think they gave a legitimate response during this extensive repeated questioning which by the way i never said that i mean it so i don't i don't read that many cars i confess is there a record support that would facts put in place by the government or by the defense to say this is market or this is not market we just have testimony with her saying she she thought it was on the high side but she didn't really indicate what she was basing that on and at the end of the day  what she's presented with you know you've got four cell phones she testified because i crossed her on whether any of them were berners she said no or she did not know them were so that's a fact this distinguishable from prior cases you know a garden variety amount of suggestion that his heart was beating through his sleeve or anything like that that we've seen in prior cases again i suppose it absence of luggage which she says she will live on and this is really important there were there was actually luggage in the car and we repeatedly questioned her on cross both myself and other counsel in the suppression hearing about the fact that whether the seams were raised and whether she would have even been able to see all the way into the back of the car to take anything from the fact that she couldn't see travel conference in a large s u v standing at at the passenger window and looking back and her testimony that's in the record was that she couldn't recall whether the seats were up or not but yes she's saying that she relied on this as one of her pride mary prongs of something that was unusual that she saw in the car but later we find out there is actually luggage in the car in the exact clothes but it's not behind it not to bring you back to socal again i think we're about out of time so i won't bring it back but you know so close a similar scenario where they relied on the fact that he had a different name its a phone number that he use it turned out later that that was his roommate's name and so it that wasn't real suspicion but the supreme court and socolo it was still reasonable for the officers to rely on that even if it turned out that subsequent investigation would have revealed that it wasn't true and so you know assuming that the dischord did that she was credible she didn't see the luggage she relied upon that it even if she turned out future you know subsequent investigation revealed that not to be true can't she still rely on that well in some cases the government advances the opinion that a lack of luggage is suspicious and in other cases the government advances understand that but not but isn't she entitled to rely on her perception even if that perception turns out to be mistaken seized on further investigation not not when she would have to when she had to concede that she couldn't even recall whether she was able to see through the entire car i don't think you can i don't think you can rely on that to advance reasonable suspicion i think i'm out of time you know for all yet extraordinary circumstances it is important that we continue to do our work as best we can and notwithstanding the difficulties that have been gulf our nation and this is part of that process that the left are meant continue to work and cannot do our work without you or contribution of more such as yourselves typically would come down from the bench and reach you personally we obviously can't do that here today but that's not in any way a slight against you all and your contributions to our important work so on behalf of the court my colleagues i want to thank you very much and cases submit thank you very much