and others have told you about about how to proceed and i'm not necessarily familiar with all of what those may be but nonetheless one thing i will say here is that is that as i'm sure all of you are fully aware this is a appellate argument it is to hear the law and the facts and dispassionate way to help us understand through our questions and through your presentations what is most helpful for us in deciding these cases mr clarence bass mr bass is th amendment rights were violated at every stop here by the arresting officers i believe to be helpful t and all he sees is there's a black gentleman standing next to an open truck that's what he sees particularly describe our mobility sir and he particularly described the automobile  n the timeline and i appreciate you handling it in that way because i think it's important the continuum of events this or that wasn't the only information they had there was was it i mean he had been seen there before do what was reported that he was selling bootleg c d s and d v d s at that location in that vehicle and they were aware of that as well one thing before they encountered him this time so that some of that is correct some of that is incorrect and  d s that's a lot and so then off superdad goes out there he doesn't later testify and in and on the cd and on his body came he says i've seen you i've seen or heard about i haven't seen you to factor not only that as a factual statement but also to consider the credibility or not of the initial officer when that all baked into the cake of the ruling that we're here for  and we can say that i don't i can't really judge lynn's mind at the time when i read her ruling i did the to the tip i don't i don't believe necessarily was part of her main concern and that was just do the question  which to me is what i primary i mean there's a have any relevant we'll hear from the other side too in deciding i mean that's sort of beside the point what happened as to your c the motion suppress there's nothing per se wrong with standing next to a truck so that now the initial reason for officer death being there for that reason the suspicion is based upon a live i'll certainly this or th there was some sort of interchange believe between them was or not and forwards as he gave it gave me a cd or d v d whatever when i was so whoever saw your client at the truck in this other person there actually was an exchange and that's supported by the record it is accurate that there was an exchange it's not accurate that mr b did it also excuse me off for that song exchange she admits he did not see an exchange but that was the yes or there was a transaction but trying to at the objective believe where the officer is when he st arrives is he does not see a transaction here debt admits he only sees mr bass and mr  floyd exchanging pleasantries so at that time he has to have some objective reasonable suspicion that that crime is afoot or some article facts in order to detain him he doesn't have that so now we have it is just a  black gentleman standing next to an open truck and then that in essence gets an officer there were he doesn't only now see his pleasantries exchanged between mr ford and mr betts now yes later questions within five minutes of questioning which we believe was on reasonable questioning to it's to try to expand the scope of the search or of the stock and just trying to ask you reject consistently asks he doesn't conduct any sort of investigation all he asks is can i have to answer to search the car can i have some consent to search the car and so under shar and whether why we believe th the court has those you can only see the top of the cd and so at that point he see sharpie written on one cd now granted there's i'm sure if you look underneath those c d s but now his his he's the op search trying to focus now on probable cause once that trunk is open and so big he sees granite binders fit he doesn't see c d s and binders or notes on the c d s and he sees sharpie written on one cd on top of the spindle and  in this arkansas statute the former definition of delivery is a defendant to be convicted if the defendant did not possess a controlled substance or the delivery never occurred so so that is and they are going about shepherd document even if you're right there which a government doesn't concede we do have the judgment from those convictions they indicated he actually did have possession with intent to distribute whatever the eyes and actually see what mr bass was actually convicted of however i just don't believe that here the court and i still believe that a court must imagine what kind of conduct an ordinary crime would prohibit and here and i just i don't see that that i just that statute is over the arc it's all such as from over brought up and does not take into account what aca and i do don't want to respond to this by the impression you don't see that the strongest part of your case nor your other right here may please the court riney to my own behalf the united states to me as something that goes to both counts are you are you hearing judge make about them are right was it distorted or anything like that when he was asking the question from counsel table it was a little suppress after conducting a two and a half hour evidentiary hearing chief judge milian found that police were responding to a tip from an off duty police officer that make your point on the other side saying that the initial report bast selling something out of his truck he didn't claim that he specifically said he was c t s he just saw a man standing next to a purple challenger with a red stripe appearing to sell something out of the trunk of his to him to be someone selling something out of a vehicle and that's district the district court also found that in its motion and you know i would point out that mr barrett in his brief did not claim that the district court committee clear  behavior that i would see and then bass took that binder put it in the trunk of his core and closed the trunk when he saw officer bidet and importantly when also bidet walked up before your argument is what a truck opened back up again they see these bootleg c d s and d v d s you've got to have some knowledge some probable cause to believe that's what they are do you think that the reason already when the offer was walking up to use them in bass his hands i don't think that's been d s admitted that he was he admitted that he were see these would be found in the car and that those were the illegal things that would be found in the car in at that point officer began to have probable cause to believe that was selling pirated c d s in even in there was no problem because at that point there certainly was once he sold the mass amount of season the truck so let me ask you maybe this is  truck is closed and it seems like there's an inordinate amount of time where he's questioning you and i know you've watched the videotape a lot more than i have where he's questioning i guess you someone could even say if you want to be an advocate that he's  badgering and mr bass is why i need to call my wife because it's her car no no no you don't need to call your wife so there's this whole dialogue that extends i think counsel said something like eight minutes at some point before he finally relents mr bas relents what how would you classify that time in terms of being a terry stop or you mentioned probable cause at the outset of that time period how would walk us through that to the point where he opens the trunk and how is that  legally sufficient for officer to keep continue the encounter yes your honor at that point i still would classify the stop as a terry stop consent and as far as the consent itself goes the repeated questioning to gain access to be able i'm not aware of any cases that would say that that was course even the district court certainly didn't position but he's told he can't call as wife he doesn't try to get in the car drive off but it seems pretty clear that that would be not the right thing to do under the circumstances i have problems classifying that as said that that is not itself sufficient to conclude that he was in custody to the same question but in terms of categories when did the terry stop and when did probable confirm his suspicion i mean what is when do those efforts to continue questioning to try to get a better answer when does that time period and in this situation when would it have gone on too long give me some sort of sold c d s and that also bidet was still trying to get into the car that would that would be you know just badgering you not diligently investigating you're saying that terry that was what justified the stop until the at that point he has a previous complaint about mr bast selling c selling c d s out of the trunk of his purple challenger with a red stripe he has a tip that mr bass is selling something again and he the pistol for which he was federally charging convicted would have been found in his pocket so the automobile exception applies here just as well as the courts of the district courts original finding that the search in some to rest also  in as far as as far as the consent question goes the continued questioning of mr bast who did the vehicle is even if that were to be found and so does so does his knowledge that incriminating evidence would be found in his core however the other factor still weight in favor of finding voluntary consent was cooperative he volunteered information about his previous charges and he admitted having more seasoned offered to pop the trunk for for the officer he also was aware of his rights were fused consent in my posing counsel mentions mr wasn't aware of his ability to consent that he didn't know what was going on and so that's certainly not dispositive in this case in so whether it's under the automobile exception or search incident to rest after consent was given to search the vehicle  eight predicate for aca also if you look at the shepherd documents this court has said that that statute is divisible we can look at the shepherd documents in this case mr bast was charged with actual possession in arkansas  believe the government had submitted it at the district court level had submitted documents with with the information i apologize i can't recall exactly the number but i believe they were attached to the court in quick response to a few things that council government just explained if the court looks at the record one hundred and twenty two there was an examining trial where was testified and he testified that his supervisor that day i was having a meeting with my supervisor along with my partner officer williams my supervisor received a phone call from an off duty officer that was going home he testifies he only saw the pleasantries between mr bass and mr floyd so he does not see mr bass conducting any sort of transaction he admits that in fact i did not see a transaction i just saw pleasantries so they're basing this his conclusion that something is a legal basis upon a lot now i understand that they have some training experience but also be dead and i understand we're not supposed to look at the subjective intent of a boxer i understand that but he immediately says you're doing something illegal i mean within the st five minutes he tells mr bass there's something that legal selling c d s is not mr bass did not sell mr floyd c d s so there's nothing illegal that occurred at this point and granted this is after the trunk is open so here's what what the government wants this court under the automobile we can't take back that fact that is up but that is not per se illegal if he selling c d s if it's his own cd that's not illegal if it and ops are never tried to ask him all he in more than five times can i search your car now it's a little confusing because all superjet tells mr bass you're not arrested you're just detained but at the suppression hearing he says oh no i had enough probable cause to arrest him at the five minute mark when i saw what we don't have here is this high crime rate area that's known for selling c d s i think what we have here is mr bestselling i'm selling cities it's not for sale legal and then he actually was not selling that five minute mark of seeing a sharpie and not asking or trying to investigate whether or not those c d s were illegal or it was actually contraband it was one reasonable that that definitely exceeded th case the court said the common occurrence of a backpack in a vehicle and the multitude of innocent uses for that backpack make the presence of the backpack little persuasive value here the same thing as c d s while the court doesn't other officer doesn't have to dispel all uses of innocent reasons it's c d s there's many innocent reasons it could have been his own cd where he says mr bass is music and that's what he wrote sharpie that's not illegal and that doesn't give a probable cause over the automobile