cert well that that is the issue that there was that is it easy to get there oh i think so i think currently it is a lot of circuit it might be a newly articulated rule that might be a controversial rule but but it is a lot of circuit currently  free to leave if they wanted to and it's a crucial distinction that respectfully the government has not yet addressed in its briefing is there was no such exchange in order for the government's argument to be persuasive in this case one have to one have to believe that after a border patrol agent drives up in a market vehicle and steps out and identifies himself as a border patrol agent in uniform and armed and without any preparatory comments whatsoever says what are you doing here and what is your citizenship then the person under the refined objective person standards of discourse articulated a person and literally on his shoes with double speak english and who is in fact an alien would feel free to leave those questions and i would the way he described it at the hearing on the matter but even if you resolve it that way that they met in the middle the reason that i think it's important to have a press report comments is the signal to the person that it is in fact a consensual encounter we're comfortable  there were other high i was in the area but at the same time it was a rather remote location it was a public fire station one of them although i think on the other hand the officers also were the officer testified that it was fairly remote and i don't think there's testimony that there opposed to just a single officer whether or not the officer displayed a weapon whether or not the after actually did some physical touching of the people whether or not the officer used a loud language or something of that nature whether or not the officer actually escorted them into a private room or into a patrol car or took a plane ticket in that context or did something that's nature to manifest control i don't see any of those things in this particular case and so your focus is on the fact that the officer didn't initially say may i ask your question that's the focus of your argument if that's true what the court does that are all factors to look at but ultimately the test and the rule is what a reasonable person under circumstances feel free what are you doing here but they didn't initially spoken english then understandings and you find fault with that initial question apparently what he's doing here correct correct it it's somewhat accusatory particularly with followed up immediately with what is your citizenship followed up immediately with when did you last one of the country and then the fourth question after that being do you have immigration it's a little like this in english in english what are you doing here a realization that they didn't understand english and was a very unique situation with regard to the amount of force used by the by the agents and the language used by the court was on these facts alone which is what i know aside cited over and over again alone we would find a violation here but that court took pains of the very beginning of their of their analysis to say in order to the status of point amendment violation there must be a seizure or search and there must be and then very important well and a very important case in that regard it's united states versus kansas and there that i circuit this court said that where contact between the city and the citizenry and law enforcement officials does not ris in this case if we don't get to a fourth amendment event that is if there is no seizure and it doesn't matter what his motivations for arguing this case that there was a seizure but there was a seizure no you on the way that was proof below and i think there's something in the interesting line and well i think i think that there was and in that regard i think there was an opportunity for the first time again mr scott and correct me if i'm wrong but there was an agreement upon agreement for this issue and i think for example of these individuals were there were like six lawfully and perhaps one of the residents and the agent did testify below that he didn't know the residents of the area it's not as though he could identify these folks are strangers they could have said you know look we have an issue relating the fact that their residence or there's a myriad of issues of why you would want to contact the fire marshal or the fire station there absent a fire of questions things of that nature in addition to that they were free to leave in the sense that there was nothing  that the officer didn't do anything physically so any source of authority or anything of the like that would make them believe they couldn't go anywhere now it becomes one of these situations where if you or i approach the think three individuals in the middle of nowhere and we watch towards them and they walk towards us i mean a clue they're free to leave but there is that sense there's going to be a conversation it's different than if you approach someone say in the airport or on a busy street out here where it's sort of ok to sort of walk by with no conversation but the end that environment wasn't created by any police hostility wasn't created by the border patrol agent saying hey stop and i think what's important here and what your honor pointed out was there were no movements and no words by the agent prior to the individuals bridging that gap getting five feet from one another and then the agent saying what are you doing here there was no pulse stop you know the name of the law and i'm from alaska and so when i look at this picture it does not look like in the middle of nowhere it looks like a metropolis  and that's what if you use the phrase in the middle of nowhere when you're in the middle of nowhere there's not a fire truck standing by unpaved road in and those kind of friends so is it's not that i guess i use the term in the middle of nowhere sort  n they would be accused of trying to avoid the border patrol agent or of fleeing or of being abated in some way and that would automatically it seems to me convert to reasonable suspicion in the border patrol agent view or perhaps even probable cause like i can imagine how fair for the agent to ask what are you doing here based on the physical surroundings that it was a fairly remote but that goes to show is exactly what i was saying was that this was an accusatory encounter what are you doing here under the circumstances and then what is your citizenship that in more let's resolve the issue i agree that would be very difficult at that point and finally the reason that the government is no longer arguing that there is reasonable suspicion or that they sort of abandon the food that there was a see here is because it is not even close in terms of whether there was reasonable suspicion under this course case and morale is just an anonymous tip must have a range of details must direct i predict future behavior and thirdly the future behavior must be corroborated by an independent police investigation not one of those