please the court the government doesn't dispute the trooper way caster sees brian by men when he told him to remain in the patrol car question alvarez the passenger rather than contesting that a seizure occurred the government relies on its theory that bowman gave consent to the seizure when he said ok after the trooper said i'm going to go ask him a question if you don't mind ok but the correct standard for determining whether i'm sorry i'm so confused by  seizure consent thing in modern everybody is arguing what your position is when was when was when did this seizure occur when he told bowman to remain in the car and before that it was a consensual encounter there was like a forty second consensual encounter ok so the traffic stop and then there's a forty second consensual encounter and then your position is that when he says sit tight that transforms what had been a consensual encounter into seizure through the i guess i take it the two words sit tight well that's really the combination of the two things of him telling him that he's going to question our us which is what the district court found the trooper way caster informed when he was going to question happens during a consensual encounter who cares right it's a consensual encounter on the officer says no i'm going to question that guy that wouldn't transform it into a seizure not that alone but the fact that he's in the car and he's told to remain in the car so it's a sit tight you hang tight ok right because the correct standard for determining whether when a police think counter becomes a seizure rather than consensual is whether a reasonable person would have felt free to leave or not and the government's argument that the seizures consensual if he consented to way castors questioning our eyes in the first place but that wouldn't even make any sense if your theory is that thing it's a consensual encounter that becomes a seizure at the moment the officer says hang tight the fact that he had said ok before then you think it just makes no difference it was consensual right up to the second when he said hang tight right i agree with that and i want to point out that under the government's theory you know once a person voluntarily engages in any encounter with police he's consented to any seizure that happens afterward and that's simply not the standard the standard is whether a reasonable person would feel free to leave or to otherwise terminate the encounter and the supreme court explained in royer that any consensual aspects of a police encounter evaporate when a person's so the district court correctly recognized that a reasonable person would not have felt free to leave one way caster told him that he was going to question alvarez and directed berman to stay in the patrol car so so mike and i'm sorry i'll let you move office in a second was i thought that desser court was sort of asking the wrong question and coming to the conclusion that colloquy about questioning alvarez was not enough to transition what had been a seizure into a consensual encounter but that's not the right question right it's whether a transition what had been a consensual encounter into a seizure i think it could be either really but i think that the i think the better argument is that that questioning transformed what had been momentarily consensual encounter into a seizure but i think it could be either i mean the traffic stop it clearly ended when the when the trooper gave him back his documents and they shook hands at that point the traffic thought was a very good area good for group like a signal is over with well that in giving that the documents i think that signals that clearly the traffic stop actually see the officer and bowman while they're sitting in the car you can only hear the exchange but it's pretty clear from the exchange that bowman understands that the traffic stop is over because he you know apologized and said he won't do it anymore in the future so it's clear that that purpose is over and from that point if way caster is going to continue the discussion he either has to have consent or he has to have reasonable suspicion and you think he did have consent for that forty seconds or argue well i think the other argument is well first of all the district court found that there wasn't consent the district court's findings are completely inconsistent with there being any consent because way caster informed them and this is what the court found that way castor informed bowman that he was going to question alvarez and directed berman to remain in the patrol car without giving bowman an opportunity to say no so absent some demonstration by the government that this is clear error and if you watch and listen to the videotape you can see that that is supported by the evidence in the videotape there is no consent to begin with so the trooper did have to have reasonable suspicion in order to continue detaining boman at that point anyway caster didn't have reasonable suspicion when he told them and to remain in the patrol car because in their totality the factors that way caster articulated don't serve to eliminate a substantial portion of travelers and he didn't demonstrate a connection between these factors and criminal activity instead what he did was to make post hoc rationalization attempting to make bowman's behavior look suspicious and the messiness of the car is an excellent example of this what he said was there was fast food trash on the floorboard there was a large suitcase in the back seat and clothes spread around the back seat and there was an energy drink can in the console but someone on a drug runner in a hurry as officer interpreted this to be wouldn't have a large suitcase and loose clothing in the back seat and in fact police generally say that not having luggage is evidence that a person is transporting drugs so for the defendants in a lose lose situation he suspicious of he doesn't have luggage and he's suspicious if he is in the presence of the fast food wrappers is simply too common to be suspicious i cited the court a number of cases where courts have said that that is just way too common to lend any kind of reasonable suspicion so the only reasonable suspicion reasonable evidence that can be drawn from the suitcase and loose clothes along with the food trash is just that and doesn't keep his car clean and also he explained to the officer that he stated  girlfriend's house a lot which is another in not in that context but just explaining where he lived and that's another reason why he would have had a suitcase in the back seat trooper way kauser also focused heavily on what he called  the nervous behavior of the two men but this court has repeatedly warned against overplaying evidence of nervous behavior because most people are nervous when they're approached by police and that would have particularly been the case in two thousand fifteen when this stop happened because at that time deadly force used in police encounters had been in the news quite a bit after the shooting in ferguson missouri and what's more this stop was in the middle of the night on a rural highway in the first thing that the trooper said when he walked up was can i see your hands so those circumstances would increase most people's nervousness about the encounter and the government itself recognized that berman seemed calmer as the stop went on which is how innocent travelers normally respond to a traffic stop and finally with respect to alvarez's nervousness the court should keep in mind that he's hispanic and the news circulating at it at the time would have made somebody who was a racial minorit particularly harvest during a traffic stop and furthermore alvarez's nervousness should not be a factor in determining reasonable suspicion about bowman seizure because that's not because it's not particular it's the middle of the night and it seems like there's something funny going on in the car you can kind of assume everyone's involved joint so i'm not sure i'm not familiar with that case ok but like a good fit or whatever  he was i guess i could money of the was staring straight ahead well again that the issue of whether someone is suspicious by looking not looking at the officer or looking at the officer passenger was acting in this case i think you have to take into consideration his race and the the facts of the time and and the fact that racial minorities would be more nervous when being stopped by authority is the think it can depending on what the opposite are see but many most people travelling at three am on the road are not engaged in illegal act that's true but i was wondering whether it kind of if you put it together with the vagueness about what exactly is going on that that might be more unusual at three am vagary i'm not and there was some vagueness about where the girlfriend lives and what exactly which state she was in and that when you put that together with it being three am i think it can cut the other way as well though because it makes more sense that somebody would not have a good memory at three o'clock in the morning because he's tired and he's gone to pick up his friend i mean who knows maybe had a fight with his girlfriend and he had to leave right then  think it still could go either way and what about all the business with the craigslist cars which did seem relevant to me both really in two respects one that it is a little bit unusual to keep buying cars on craig's list and then this officer could kind of tie that to criminal activity but also if you just read the whole colloquy it really sounds like keeps trying to explain i just bought this car i have no idea what's in this car don't come looking at me if you find drugs in this car like he's eagerness to get out what is going to be what sounds like it's going to be a defense for when they find the drugs struck me as a little actually i don't think that's what he was doing at that point i don't think that came out until after the seizure but before the seizure i think what he's saying is the reason i was weaving is because the scar i just i'm unfamiliar with the scar that's what he was saying at that point and i don't think that was particularly suspicious but still you know what the officer is trying to say is having more than one car is consistent with being a drug dealer but i thought i was buying cars off craigslist so it wasn't particularly buying cars off craigslist it was just having multiple cars and most people who i mean i have three most people have multiple cars that's just really that's really common and then the other thing i think  were about to allude to was the fact that he had been laid off at the time but you know way caster said that he thought that was suspicious but he never asked bowman when he was laid off and bowman said it was just laid off so he doesn't know whether he bought the car before or after and also it's an eighteen year old car i mean it's a cheap car someone who's been laid off it was an old lexus it was a very old lexus yeah so someone who's been laid off still could or could afford to buy a car like that but the last thing i want to mention is forgetting the recent destination put in the g p s that really doesn't distinguish him from a substantial portion of innocent travelers because now that people are so reliant on g p s almost everybody has it in their phone and you actually don't even have to type a whole address to get it in there sometimes people just text you an address and you click on it so you really might not know what the address is and as far as and not knowing for sure where the state line is located i think the court can take judicial notice that this is a border county caster testified he wasn't very far from the border and the court did make three right above the border but i think the court can take judicial notice of maps that show there are a lot of secondary rural roads in that area that criss cross the border so it's not unreasonable for a person to not realize which side he's on in any particular time so considered in the totality the court left with two men here in new nervous when they're stopped in the middle of the night on a rural highway in two thousand and fifteen and ask but their hands with a trooper can see him and the hispanic passenger seems more nervous than the white driver the car's masti the driver can't remember the address he's just been directed by his g p s and he's lost his job although it's not clear when that happened and he has a cheap car he bought on craigslist and has bought another cheap car in the recent past those factors together just don't distinguish berman from a substantial portion of innocent so you start off well the problems you go have to deal with in your argument is the situation where the officers tell their drugs in the car but he's got to come up with his own reasons and that was some reasons to justify a search of the car which is not exactly your normal situation where a trooper stop someone for speeding and then these things come to light i mean he's looking for stuff so with that preface we're right here your i appreciate that you it please the court and the man right for the united states all address your question head on your honor i think this court should basically simply put the big ship to the side and the reason is because we told the district court we're not going to rely on it we told the court the court did not have to make a determination whether that tip was reliable and i'm not going to come up here and say that this court should affirm based on reliability of the tip so i think the role that information plays in this case i forgot the tip and so the question i have is do we do we think the way he was processing these factors what he found suspicious when he would he always find a messy car suspicious or did he find it suspicious here because he happened to know from the tip these guys were meth dealers that they did it if is he a reliable narrator at the point at which he's already assuming because of the tip these guys are criminals your honor to answer that question if you don't mind the first i'd say is that he probably is a reliable narrator because he explained why each factor was suspicious without reference to his prior information the second and i think probably more important answer is that it's that the reasonable suspicion inquiry is an objective in so whether the officer in that  which he was aware of or was considering that tip is something this court can ignore and look at the remaining facts and determine whether as an objective matter an officer in the position of the trooper way caster occupied would have had reason to have more than a hunch of ongoing suspicious activity or of ongoing criminal activity sufficient to warrant spending an extra minute to ask a minute and a half to ask alvarez a question but we don't even know that he would have stopped these pardon me i don't know that he would have stopped these people absent the two no your honor and i think it's fair inference from the record that he was out there there were several police officers out there waiting for bowman to for looking for a traffic violation and stopping this car of the yes john is this car goes by regardless of whether it's there's any indication that it's violating the law at that time they go who pulled out to true your honor what i think the supreme court has made pretty clear is that the subjective motivation for a stop is irrelevant if the if it's an officer observes a traffic violation he has probable cause to initiate the stop and i would also acknowledge that the defendant se were drug dealers might that explain some of the nervousness in the car perhaps he approached them with berries or that kind of attitude one might bring to a style of drug dealers rather than one might normally bring to a traffic stop and that might account for the unusual nervousness so what i'm saying i see that your honor you know what i think with the dispels that probably most clearly is is probably the tape itself i would certainly encourage the court to look at it if it has friendly the also you know aaa kester did it pretty much by the book he didn't accuse them of having drugs in the car he asked when he went to ask alvarez questions he didn't ask about drugs he specifically asked about the question that was suspicious in his mind where you've been limited to that question came back to the car i do want to talk about that because i do agree we hear we have a seizure when at the time the that trooper wa hester told bowman to hang tight but when bowman consented to allow trooper wake hester to question alvarez he consented to remain in the vicinity when he did so i mean you get there well he was sitting in that he was sitting in the squad car at the time and drew a caster said you mind if i go speak to him for a minute he says i'm going to speak to him i have a quote i'm going to speak ask him a question if you don't mind ok and bowman says ok the scope of that that's consent and the scope of that consent is measured by an objective observer in the words of this court in smith the consent extends to its forseeable circumstances and the foreseeable circumstances are he's going to stay there while he asks the question because he can't get off and drive off in the car that contains the passenger he just consented to allow the officer to question and it's not reasonable to think he could just wander off on the road so opposite ends of the spectrum when you have a police officer and a citizen on the street and he asks them a few questions sometimes the case is described in terms of is it a consensual encounter or a seizure but a seizure is lawful and permitted by the fourth amendment if the defendant consented to that seizure and united states versus i thought the definition of a seizure was the person doesn't feel free to leave that is correct but the defendant and not you know i mean it's me sounds like just semantics but i just don't understand your argument because it's i don't understand how something can be a consensual seizure so i'm troubled by the fact that toppled it seems to me inconsistent for you to be saying there was a during that minute when he's sitting in a squad car and a trooper way caster is ahead for way caster said that when he communicated to type right there he was telling him he does have to stay so i think it is fair to say it's a seizure seizures consentual seizures happen fairly often although i don't know tight transformed what had been a consensual forty second consensual encounter into a seizure so your argument depends on us finding that there is a seizure that was consensual yes you're not giving us the seizure part now we have to figure out whether to was i'm going to stay put for a couple of moments while you answer the question because you have to stay put for that couple of moments it's a seizure and it was a response to a question was also did say would you it would try i'm going to ask him a question if 's consenting to hang tight yes then why is it a seizure he had well he had can say i'm sorry i'm saying he consented earlier to allow trooper way caster to talk to albert and by doing so he agreed to stay put for a few moments he agreed he would not be free to leave where if you agreed to stay put i don't believe that a seizure means that there is no consent and i perhaps i'm perhaps i'm wrong about that but i don't believe so the the the for the legal what makes it a seizure in your mind in the in the light of his consent to stay in the car what what is it that makes it a seizure seizure is the lack of freedom to leave under the circumstances he would have had to say way caster while you're while you're talking alvarez i don't want to sit here any more i withdraw my consent he couldn't of realistically just gotten out of that car and walked away i mean i think a reasonable person would feel that way under the circumstance but he consented to that and i think it's very low it's not different from when someone consents to a pat down search you consent to the few seconds it's go comes up in litigation your honor because i think usually you turn yourself over you don't then contest there's not usually a fight about whether you're arrested or not and here we have that situation i don't think it's uncommon but i do think the litigation issue doesn't rise in these under these circumstances that often surprise from the moment when he asked for that i think the police just officer just wanted to make sure he understood what he needed to do make doubly sure but the  way we cast a response to the weather whether you consider that us consensual seizure or it consensual encounter i think the ultimate question is whether he engaged in voluntary consent and the district court i think kind of skipped that question they simply said because there was a seizure could go and he did the district or did not contrary to what i think the defense said find that bowman didn't give the interior consent the district court found that we could not rely on bowman's consent and didn't engage in the question didn't go through any analysis of the factors and this court has found smith as one report didn't understand the theory of the consensual seizure i think what the district court said was this is a seizure because he didn't feel free to leave and i think the district court maybe had this case and thought as i had until right now that if it was a seizure it was not a consensual encounter you think it can be a little bit of both so it was  do i do and the district court i think i think the district court attach more significance to the term sit tight than we anticipated in advance of that whole i'm surprised you're not just arguing that sit tight was just kind of a  particularly want anything under these circumstances it was a consensual encounter as of forty seconds ago and when someone says sit tight that's just you know i think the what the language itself may well have that but i think the punch line is that when bowman said ok i don't mind if you question alvarez for a minute and a half he consented to that exchange and if it's a seizure consent makes it a reasonable seizure and if it's a consensual encounter then it also doesn't violate the fourth amendment so i think the question is if the record is clear as i think it is that when  ok he was consenting to allow way caster to interview bowman or speak to bowman for a minute his doing so wait castors talking to alvarez alvarez that he had just come from twenty five thirty minutes back after picking up alvarez from his girlfriend his house trip away castro had reason to believe he wasn't being entirely truthful with them he said he was he thought he was coming from north carolina even though he just crossed the border that's unusual because it suggests he doesn't know where he was and he said the address was in his g p s which is even more unusual because it's that he did that it can't he saw he heard those statements against the background of two suspects or subjects who exhibited unusual nervousness he testified their nervousness was unusual even for people who were the subject of traffic stops and heard this this repeated discussion of bowman's practice of buying cheap cars off craigslist and he said that is suspicious and it connects people to drug activity for two reasons first it's a regular practice drug users to use dealers to use regular cars that allows them to disclaim knowledge of what's in the car they recently acquired and the second it suggests he has an income stream from something other than his that had been employment because he said i was recently laid off but he's still buying cars now are all of those individual be consistent with warhol activity sure but together they warrant more than a hunch that reason like to be maybe a under the circumstances he wasn't trying to leave that suspicion right because he had the tip he did have the tip your honor but i would know that's what i asked him he articulated specifically my concern is you're not he wasn't telling the truth and asked alvarez not about drugs didn't go t honor i'm trying to confirm his suspicions he's thinking he'll get a different answer now and go and that is certainly true your honor but it is a it is a objective inquiry and in that case in that circumstance the  i'll start with the consent issue there's two reasons why the government's concert issue just doesn't hold water and the first one is even at the consent where the standard the government would have to show clear air because the government did make that consent argument and the district court and what the district court specifically found was and it's on page two seventy five of the joint appendix was the trooper way caster informed bowman that he was going to question alvarez and directed him to remain in the patrol car without giving him an opportunity to say no and the government's made no attempt to demonstrate that that finding of fact is clearly erroneous and it's not supported by the  video in this case and with respect to whether i'm telling bowman to hang tight is a seizure or not i'd direct the court to look at the case the richardson case which is cited in the jones case which i discussed in the brief and in that case the exact same language was found to constitute a seizure with respect to the smith case smith is not relevant because in that case that is a very peculiar case because the driver in that case was in a room a restricted area of a cia compound and he was subject to the customary security cautions that were required at that time of the night if they enter entrance to that kind of protected facility  applying smith to the facts of this case would be inconsistent with the supreme court's decision in florida versus bostic in florida versus war royer as well as this court's decision in latham or smith may also be wrong it probably the correct analysis and smith would have been whether a person has a reasonable expectation of privacy under those circumstances rather rather than consent but it says what it says but those facts are entirely distinguishable from the facts in this case  respect to the significance of what way caster had in his mind i think that the way to consider that is to look at the reasons that he gave and reconsider whether those are post  rationalisations meant to support what he ultimately found and i think that even in their totality those circumstances are seen are legitimately post hoc rationalization rather than something that would have made a person a reasonable officer the time be suspicious that these men were on a trip carrying carrying drugs judge harris you asked whether the  affected the nervousness of the driver and the passenger and i think that even the way caster was using a friendly tone of voice he did do things during that stop that would amp up the nervousness of the people in the car whether that was because of his pretext or because it was night time i don't know but he did two things that seem unusual for a traffic stop the first is to walk up and immediately tell the path the occupants of the car to put their hands where he can see them and the second thing was to take it out of the car and pat him down and then put him in the passenger seat of his car i think having been patted down would also make a person more nervous that would make a reasonable person feel like he was suspected of being a criminal basically so that is one way in which the pretext effected the men's reaction