it please the court katie shepherd for mr hay suit alvarez this case involves the warrantless and suspicion list detention of mr alvarez and his sixteen year old brother at an interior immigration checkpoint the first question for the court is how to analyze the constitutionality of that detention into published cases which go pereira and jaime the court has said that it will not scrutinize the questions that an officer asks and instead duration of two minutes or so is constitutional length of a detention but that approach has been overruled by the supreme court's decision in rodriguez i'd like to make four points about rodriguez in that case there's supreme court said that the reasonableness of a seizure depends on what the police in fact do the court also said that an officer must always be reasonably diligent in pursuing the purpose of the stop and that diligence is measured by looking at what the officer actually did and how he did it third the critical question regardless of the sequence of events is whether an officer's activity that is unrelated to the purpose of the stop adds time to the stop and finally the court rejected  eighth circuit had said that the delay in the case was constitutional because the delay resembled delays in previous cases that had been upheld as constitutional and the court rejected that argument the government had argued that a stop is reasonable as long as an officer is diligent and the overall duration of the stock is about the same as other stops made for similar purposes and once again the court rejected that argument and for sizing that an officer must always be reasonably diligent and that diligent diligence is measured by what the officer actually did so under rodriguez the length of time alone does not make a stop constitutional instead it matters what happened during the staff and it matters whether the officers activity during the stop was related or unrelated to the purpose of the stop and so here they were asking about the documents there were some strange things about the documents some questioning what was to tell us and agreeing with your framework you've laid out what was how did they go be beyond the bounds of questioning about immigration status right so in this case the agent did ask a couple of questions that are related to the purpose of the sto he asked them if they were citizens they produced some documents and he asked the sixteen year old for further documents but the agent also asked a lot of questions that were unrelated to citizenship and he asked them where they were going he asked them where they lived he asked them about this case the the my client and his brother presented documents saying that they were citizens and the bust in this case every time he didn't either brownsville or harland and i think that the officer wasn't quite sure about that and so the scope of the approved immigration suerte is a brief question or two about sort of staged and possibly a request for documents and this court has also said in masseuses that law enforcement has to possess reasonable suspicion before they can extend the duration of the stuff so you disagree that the documents were suspicious i think you raise more questions i think that the documents gave the agent reason to ask for more documents and that that was constitutional but the problem is that the agent didn't ask about the documents specifically he didn't ask a sixteen year old why was his passport hard to tyria did he didn't ask them why their social security cards were unsigned instead he asked them about travel plans and whether someone has traveled outside the country doesn't make it more or less likely that they're a citizen and also under rodriguez it's required that the officer is always reasonably diligent in pursuing the purpose of the stop and  officer has to take steps that would quickly confirm or dispel suspicions and in this case the officer asked about travel plans instead of pursuing reasonable lines of inquiry about the documents so your view is even  being collected and presenting it to the officer the officer can only ask questions that are related to a person's citizenship status or immigration status correct can talk wanted to say was that the agent and his partner got on the bus and announced that it was an immigration inspection and everybody should get out their documents and there was testimony that mr alvarez had to run the drowned in his bag for us tickets but there was no indication that they didn't have their documents ready to go for the agent and the agent himself testified that it took a couple of seconds to ask them if they were citizens and to get the documents you said the agent should have been diligent one of the ways that he could have been more diligent would have been to take mysteries off the bus and run the documents which were deemed to be suspicious which would have delayed the trip for everyone as opposed to proceeding in the manner that he did by asking questions and trying to expedite the stop as opposed to this other method so why wasn't he being diligent in pursuing the investigation the way that he was doing so he wasn't diligent because his questions were not related to the documents he didn't actually follow up with  documents or he would have been more diligent by taking mr alvarez off the bus yet running the documents in the laying the trip for the entire bus yes and that's because the actually using the computer program to run the documents on the passport card and check the social security number would be related to the justification for the stop so it's not about attack the length of time of a stop doesn't make a stop constitutional but it doesn't make it unconstitutional what matters under rodriguez is what the officer was doing during the stop and whether that was related to the initial justification for the stop i understood that a lot of the questions that you take issue with were being asked during the time he actually had the documents in his hand and he was this looking at them to review them so he was a not moving forward with his investigation but he was actually looking at the document and as he's looking at the documents he's asking these additional questions so you take issue even under that scenario i don't think that's the scenario in this case i think the officer testified that it took him a couple of seconds to ask are you citizens get the documents and to review the documents the agent has a lot of experience and testify that he's inspected twenty thousand or so bus passengers so he's able to he's very familiar with the types of documents that people provide and is able to quickly review them and the agent did say that the passport card was suspicious because it was laminate with the lamination was coming off but he didn't follow up on that by using the computer program that he testified was available to him he did ask for additional documents and that was ok but he also asked about travel plans which doesn't prove whether someone's a citizen and the agent himself testified that travel plans don't prove citizen you seem to be saying there is a better way to go about this investigation maybe you're right but as long as the officer i suspicion is trying to figure out whether anything is wrong what case is say they have to engage in the most direct or best techniques which you say would be wanting these documents i don't think they have to engage in the best techniques but they have to be engaged in the purpose for the stop and the argument about even a single question about the weather being unconstitutional  approved of a suspicion less and warrantless detentions of people at interior checkpoints only because the intrusion was so minimal and the stop was so brief what the court said was ok was a brief question or two about citizenship and possibly a request for documents and so if that's the framework of what's approved even a single question can go beyond the purpose of the stop and as the supreme court said in rodriguez and officer always has to be reasonably diligent in pursuing the purpose of about travel plans there are some inconsistent responses given so it's a common law enforcement technique to ask about travel plans because when you suspect criminal activity because inconsistency in explaining travel plans is gives adds to the suspicion i think it's important to keep in mind though in this case that mr alvarez and his sixteen year old brother were presenting documents that indicated that they were citizens so in that case travel plans are not related to the approved mission of the stop if someone presented bisa or a board all comes back to whether the documents were suspicious in the first place right and i think the agent had a hunch based on the documents but i would argue that he did not yet have a reasonable suspicion to investigate generally without war and the agent himself didn't testify that he had reasonable suspicion that one of them was smuggling the other based soley on the passport card at the suppression hearing he was asked based on the entire encounter which included the story about where they were going and visiting their aunt based on all of that he thought and the nervousness that happened during the course of the stop that was what gave him suspicion so i don't think the passport card alone gave him reasonable suspicion and also if he was suspicious about the passport card he should have asked about the passport card or tried to verify it by using the computer program that he had available to him he said the officer had a lot of the experience in these types of stops looking at these types of documents so in the manner in which he was proceeding perhaps he thought that was the best way to conduct the investigation but i think that's possible but because of what martino suerte said about this stop having to be a brief question or two and a request for documents and that that minimal ness of the intrusion and the brief encounter is the only reason that a warrantless and suspicion last stop of someone is approved of under the constitution the agent has to be very careful about what questions he's asking and this court has to actually scrutinize what agents what questions the agent asked let me ask about the fact that this is on a bus it's not just a typical car going through a checkpoint let's say they asked the this defendant about his papers ok fine they move on to the other twenty passengers or thirty passengers on the bus that takes ten or fifteen minutes to check all them so your client still detained during that time and then walking back off the bus they just say oh hey can we search your bag and he says yes would that be a problem no i don't think that would be a problem at this court cases have said that you can ask someone for consent without any suspicion and that's not unconstitutional but i think that with under rodriguez the test is whether the off purpose activity adds time to the stop and in that scenario there's no evidence of any off purpose activity and in this case if the agent had finished with mr alvarez and his brother faster he could have moved on to the next person faster he testified that sometimes when he asked someone if they're a citizen and he doesn't even ask for documents he just moves on to the next person so if each of them are inspected only about based on citizenship and only based on the purpose of stop the whole bus encounter would be over faster but it depends if they're the first people  and ok it goes beyond thirty seconds beyond i mean they were they were going to be there an extra ten or fifteen minutes anyway because all these other people had to be checked right sure but i think that even an extra thirty seconds is unconstitutional under martino suerte and rodriguez if it's not related to the purpose of the stop so i think with this particular encounter the fact that it's only a brief question or two the agent testified that a typical immigration inspection last five to ten seconds so even doing the math on that and by fifty five people even if you do double that for one person then everyone's there for longer so it's still on but in this case you're not quarrelling with the length of the of that encounter you're talking about what the officer said during the encounter it that's what you're complaining about right it's both the office activity does have to add time to the stop under rodriguez so in this case if the agent had been running a computer check on the social security card or the passport card and that was happening simultaneously with him asking questions then perhaps that would be constitutional but the evidence is not that in this case but he says in this case that while documents were being produced he was asking these questions  him to what he was supposed to be asking but he says all this was occurring i mean my best recollection is he says the tyrant the entire encounter when we talk of asking these questions and exchanging and presented documents is less than two minutes right it was about that's what he said yes right and that can be unconstitutional because what's approved of in martina's fuerte is a brief question and to amend it a minute could be unconstitutional it depends on what the officer was doing if the officer had a minute's worth of questions about citizenship and about the documents that someone produced then that would be constitutional but here the agent didn't have a minute's worth of questions about the purpose for the stop he asked about travel plans and he asked for bus tickets and he asked where they lived and he asked all these other questions that weren't related to the task at hand of determining whether in fact these boys were actually citizens so the analysis is more complicated than just may please the court and then we'll think on behalf of the government the facts and the law support the district courts alvarez's motions to press the district court correctly determined that the immigration inspection impermissibly extended that agent harder developed a reasonable suspicion based on his experience and training the answers to questions the documents produced also that probable cause th established and finally that alvarez concern was legal the immigration stopped here was not unduly prolonged during the hearing agent carter broke down what questions he asked what documents he saw approximately how long it took and what he was thinking the district court as you know found that the minute and one half a minute and a half stop was and in permissible amount of time under existing law and that the diff tension wasn't in permissibly extended established precedent in the circuit dictates that law enforcement can ask questions outside of this scope of a stop provided they don't extend  this court of voice scrutinizing the particular questions an agent asks provided in some they generally relate to determining citizenship and there are plaster of cases on there including these principles rodriguez did not change the law in this circuit and is factually irrelevant here in rodrigues the supreme court reaffirmed the role that the fourth amendment tall right certain unrelated investigations or inquiries that don't lengthen the direct acces mean that don't lengthen the detention and that comports with the law in the circuit we don't have a diminish exception like the eighth circuit there the eighth circuit did and in the fact in rodriguez but traffic warning was issued so in other words the purpose for the stop had come to a conclusion and despite the fact that the magistrate judge and the district court judge by doctoring the report did not find that the officer had probable cause or reasonable suspicion the officer extended the stop for seven eight minutes for a dog sniff the supreme court reversed and it remanded the case back to the eighth circuit to determine whether there was reasonable suspicion excuse me suspicion that justified detaining the defendant beyond the completion of the traffic violation and as i said that was not the case here and rodriguez doesn't hold that an officer must run certain tests or otherwise follow specific investigative criteria what it did  twenty specifically says that it says jenkins did not violate rodriguez by foregoing a check on bircham strivers license and vehicle registration nothing in rodriguez requires an officer to perform such checks the supreme court merely recognized that the fourth amendment tolerated the checks as incident to an officers traffic commission and in this case the facts are substantially or significantly different than rodriguez here there's the as the district court found aging harder develop reasonable suspicion to extend the stop but the testimony and the district court's findings establish the progress the progression of events lending and leading to the development of reasonable suspicion as everybody apparently agrees aging carter had extensive training and experience in immigration matters over nine years he added spect it approximately nine thousand for immigration reasons and twenty thousand people from the outset he was suspicious because the brother whom we call j f k handed over a deteriorated passport with an unrecognizable photo aging carter knows that alley and strictly used these types of documents to get through the checkpoints so he asked for more documents and his suspicions continued to grow social security cards were unsigned and the reason the aliens or the smugglers often do that is because the passengers or the people in their cars or what have you are unable to replicate the signature so that's why he assumed that the social security cards were signed and he began to believe that there was a packet a packet of fraudulent documents have been purchased his suspicions were reinforced by j s change in posture and the time of day they reached the checkpoint again there are cases from this court that have recognised that can be a suspicious thing because at the shift change the agents are distracted and based on this training and experience and his brother's answers to the questions the document provided and the change in posture he thought something was wrong he thought one of them might be smuggling the other and the district court in fact found that the immigration examination had not been a band th progression was such however as he was talking to them they were when they said they came from mexico and crossed through over the bridge that they did not were unable to name and then got on the bus ag harder knew that that's often representative of the type of things body carriers do body carriers being the people that have the drugs taped to them and it was only then that he started to think that the brothers could be involved with drugs and so at that point he asked for their concern the record shows that it was just directed to both of them and they gave it and the district court found that based on these facts and some others including the issue related to luggage which was mentioned before that the brothers did not have luggage that the aunt was going to supposedly buy them clothes and other things that agent carter had reasonable suspicion but not only that that there was probable cause for search that alone would have justified the search but here the next step they went the next step by asking for the consent and giving the consent and i mean to just report clearly apply the proper analysis before finding it was voluntary and based on free will and that's evidence by the fact that the court's findings were split the court went through the various evidence a set forth in my brief and in the they're also not under arrest and so what it but they can delete well that's correct but it's also an officer safety thing as he testified that people have to remain in their seats while the officer conduct for their safety but you're correct that he would not have been able to leave i agree with that but the fact of the matter is he weighed all these various facts and as this court well knows that the evidence has to be viewed in favor of the government and plus excuse me particular deference has to get be given to the testimony and to a certain extent agent carvers testimony itself i mean this court has there are cases out there that talks about particular deference to an officer in these situations now that's not to say of course the district court has to flat out believe them in this recent the law no way of a case in which judge cost was on the panel the district court found the exact opposite the office i mean the district court granted the motion to suppress which actually was reversed on appeal but here the court correctly concluded that consent was voluntary and a product of free will and unless the i have three points first in the bill of franco the court did not cite rodriguez at all and that case also involved a traffic stop where the license check was still running and so that's very different than what we have in this case where there was no on purpose check happening while the officer was asking off purpose questions also i would disagree with the government the drawbridge is irrelevant i think rodriguez is very relevant to this case in both traffic stops and checkpoints in both traffic stops and checkpoints there constitutional because of their limited duration as measured by the purpose of the stop and they are approved of under the constitution because of the limits on them and be as far as the issuing of the ticket in rodriguez the court said and i quote the critical question then is not whether the dog sniff occurs before or after the officer issue ticket but whether conducting the sniff prolongs i e adds time to the stop and finally as far as we diminish exception this court didn't have a de minimus exception in traffic stop about two minutes in duration but under rodriguez the court has to consider what the officer actually did which includes what questions the officer asked and whether those questions are related or unrelated to the purpose of the st