talking gallagher a federal defender for the district of montana for a defendant appellate rene del toro good to know the right of the people to be secure in their persons and effects against unreasonable searches and seizure county deputy sheriff because he was one of two hispanic looking transients males let me ask you a couple questions yesterday the supreme court took in a case called people  i do i absolutely do not let me ask you about something else even if the stop was what the cases would call agree just as assuming without deciding that just for purposes of discussion why doesn't the principle that identity cannot be suppressed control this case i don't think that that is the principle first of all i think i get it it can be and should be cases that support what i just said i have no case this is exactly what i just say where  cited in my brief and discussed in both my brief and the government's brief outline but it's civil police not great is indeed an ins case and it's not a criminal case but my argument is that it's even more important to be applied to a criminal case because the constitutional issues that are involved and when we're it is indeed a continuing crime and the fact that he is here his presence makes that a criminal event but his the discovery of his identity should be suppressed that doesn't mean he can't be deported but what he just can't be well why can't he prosecuted five minutes later because of the fact that it is a continuing because they came upon him by an egregious violation of the united states has a future if you does not get to stay here deportation proceeding that we're talking about that may come five minutes after renee deltora getting you know was arrested on a criminal offense is his continuing presence in the united states is against our law he cannot stay here  think they're chinese trancing i'm not saying that at all you are but i have included with the excerpts of record of the police report that was submitted by deputy sheriff osberg and that only reason anything was the only reason it looked to me like he had three things that were reasons for questioning him for getting out of his car and talking to him one of the spanish which in this circuit will carry the day  two o'clock in the morning actually it's almost three i almost three of us are playing around for more of a business so guess what prevents a deputy from getting out of his car to say who are you guys and what are you doing you and what are you doing here and the answer is i don't have any identification and they start responding in broken english at that point we don't even know if they're able to communicate with them but at some point he runs a record check and finds out that the other fairbanks at three in the morning even though i don't suppose i look for ancient and i would expect a cop to ask me you can't get out of his car something wrong because i don't look right and you know it's odd to be sitting there that's not what that the oscar and that's probably a reasonable thing to do if you will i mean it's just the policeman responding to something doesn't look right he was responding to something that didn't look right from his own words because they were spit a hispanic looking males who were trans and yes they were sitting on the sidewalk what i asked the court to consider here is even if you're not going to find that this was an egregious violation based on this record what i ask you to find is that if there was an egregious violation of the united states constitution that his identity is the pre two thousand and three if he's still here i don't know if he is or not he is still in violation of the law it is a continuing offense the law says you cannot remain in the united states without permission of the attorney general if you previously been the former your honor i don't mean to be glib but he's here now because he's serving thirty months on a criminal violation and i believe that that's a violation of his constitutional rights he is a person ok but what's bothered me about this crime is on the day that we release them from the bureau of prisons he'll be deported he can be arrested again but he'll be supported still in violation of all but what i'm saying is that on this particular event he can't be arrested again but he can be deported and that's fine if he's deported he's no longer in the united states in violation of the criminal law i couldn't be arrested again you're saying because that would be all right now he's in custody there would be a  mexico that he could be forced to stand trial in the central district of california on the indictment for the murder of the dea agent because the district court did not lose jurisdiction over the person having i did not read that case but i believe that that is an accurate description of what what happened there well and that is they've always said that if there's a violation house by the united states that enough case for the supreme court of the united states to order the doctor returned to mexico instead of being forced to stand trial and how could we possibly declare because this that are fa as it is i understand that once again i would not this particular issue did not come up during the briefing process but as i understand it when you commit a violation outside the united states once they're in the united states legally for the make make the violation of someone's rights go around look as windows so i think that's what mr gallagher is saying when he says the answer here is not just to remind you develop the record whether it's agree just because you have to first get to the issue of whether it is as a matter of law can never be suppressed and it was the government's position with regard to her prior view we took the position you're out of that the identity can never be suppressed we didn't address the whether or they are described as hispanic but how else are you going to describe them i think if he just money is developed i think police officers patrol officers all of the country would say that if they find people sitting around especially in have in montana where there's not that many people sitting around on the curb outside a convenience store three o'clock in the morning they're going to stop and inquire as part of the serve and protect mission of the police force they're not always out looking for criminals sometimes they're actually stopping just to see if something's going on that they should know about as a matter of law following the supreme court's opinion in goostman brunow decision and various other decisions that seem to reaffirm that supreme court maxim that it can never be suppressed until this court has ruled to the contrary or saying with the exception is that they need to apply that is why i believe that she had and was not responsive to having the unpublished decision when it was placed in front of him responding to it because for his this court knows for all intents and purposes and then published decision doesn't serve as a rule of law so could be but the problem is you've got a fellow spending mr gallagher will quickly remind this thirty months in prison and if we wait for the supreme court to rule on an issue that's not directly in front of them i think that would possibly be a disservice to the united states versus the dino was submitted