and of itself is not a normal business you'd see twenty four hours but nonetheless it was a business that legal operated for twenty four hours and the st issue in the case were asserting it was the nature of the start of that of burglaries that had taken place in the area one was at a nearby carwash in the town of sloan which was near the car wash in question two others were at a school and church now both the reasonable suspicion the district judge was saying no it was a consensual encounter or both judges agreed there is no illegality in the initial stuff we would submit to you that both judges were incorrect this was a non consensual encounter and supported by reasonable suspicion in to break that down a little bit why was that initial stop nonconsensual or are going mr day actually continuing to wash the car to work on the interior of the car to drive a car i mean that doesn't stray i mean is that typical sort of restraint is a police encounter i mean the officers were there but these two fellows were basically going about their business while the officers observed why why isn't that an accurate assessment of what and if this wasn't you know as the government asserts just encounter wide open public on the street this was an enclosed space that three on him into two  any reasonable person since the point a reasonable person would not have felt free to leave or terminate the encounter if we believe that some were not for this party and else is going off later for the random part of the you know know there's no police lights no physical touching no threats or arrest however you know the other factors that play here the district court will try to explain away but didn't consider mean the ocean of weight a lot more heavily in the fact that this was a non consensual encounter again as i said the number of police officers enclosed space blocking the door we believe the balance of the factors weighs more heavily in favor of that it was a reasonable suspicion to support the stop or the detention in the main reasons where the dish district court said in its order you know it was the time of day the fact they were located a car wash in the recent rush but you know this isn't essentially breaking down ten factors and trying to eight you know identify them and do this piecemeal one by one why is there no reasonable suspicion here i mean there's simply two factors at play here the car wash the back these guys about a car wash laid in the recent rash burglaries and we assert the whole factor about being of the car wash late and that's enough rate there that there is no reasonable suspicion here is a twenty four hour car wash again as i said earlier not the usual type of business you'd see open twenty four hours but when there's a reason the twenty four hour it's open twenty four hours anybody can go at any time and nights in so just the bag somebody's frequency twenty fi business and each not factor in at all to the reasonable suspicion well is there something more than just the the merely this is the hour they approach him they know there's been some burglaries they know that it's kind of late and they know that you know the car wash is not the busiest place in town at that hour of the day and they kind of approach and say hey what's up guys and this party that offered up is hey i always wash my car when i leave the casino right isn't that what's offered up an isn't that a sort of like but not quite pass and the smell test i mean isn't that are an  you know again it's open twenty four hours for a reason if this was a gas stations open twenty four hours maybe it wouldn't be as big of a deal or a convenience store i think we get down in the weeds of deciding which businesses should or should not be open twenty four hours to determine whether it's proper somebody frequents those businesses again the government's argument essentially utilize the same as the district courts and you know these are the reasons  as reasonable suspicion and again the government's argument is misplaced here because there wasn't reasonable suspicion to conduct a stop getting into the actual  the odor d of marijuana that comes from the car and that gives the officer the reasonable suspicion probable cause to extend the stop or dog or search of the car because that to me when you have the order of marijuana that emitted from a car mean there is a sufficient connection between the car and the odor of marijuana as goes because they were pursuing that other alternative substantial line of investigation turning to the rand argument the district court and found that some   or alternatively it was just that terry stop where miranda wasn't required and its argument that he was sufficiently detained or not to the point where he was felt free to leave that miranda should have been read to him the defendant in this particular case mr lewis was with mr stephens they were in a car wash at two o'clock in the morning in sloane iowa this was a unusual experience i think deputy l that particular car wash in january just under a month before he's on patrol he sees the defendant or he sees someone i guess i think you see feet i can see through the car wash that's occupied he sees feet there he drives down he parks approximately one hundred yards away and it's able to see into the open bay of the adjacent bay adjacent to where the defendant is and at that point observes and sees someone come through the doors that join the two car washes look out and then go back again the deputy then comes into the bay with the reserve deputy walks into the open bay announces his presence as sheriff walks in at no point during the encounter that follows was a gun drawn at no point during the encounter that follows d were the defendants ordered to do anything and at no point i think  as your honor pointed out at no point with their movements restricted in any way in fact the defense continued to go about their business well the officers engage them in a colloquy and in a conversation i guess  no raised no raised voices and i think the testimony states that a deputy lance testified that he didn't raise his voice at any point and i think actually you can see it in the body camera video d from deputy monye who came on the scene at a later point so initially there's two officers that come in there's deputy lens and there is the reserve officer they walk in the only door that's open into the car wash and i know that there's been some discussion from defense counsel that you know they block the exit or they block the door importantly and i think the district court noted this they did not in fact block the exits there are two exits actually there's three there's bay doors at either end of  the of the carwash bay so the defendants would have driven in i think it's the south bay door and then there's a north bay door that was closed or almost calls where they saw the feet and then there's a doorway that they could walk in and out of to note here under the defendant's test or under his formulation law enforcement could never have a consensual encounter with the fence in less they were in an open street unless they happened to be out on the  street where they could walk in any direction when they were approached by officers and that just simply can't be the test if an officer spoke to someone in a in a store and he walked in the door and the defendant or the person they wanted to speak to was was there necessarily the officer would be in the way of the exit but that doesn't mean that that all of a sudden turns the otherwise consensual encounter into into a detention so the officers come in they speak to th defendants have no restricted movements no guns drawn no pressure on them the officer asked the defendants voluntarily provide the id at that point the lens actually calls in on a microphone finds out who m once he has his card mr like excuse me finds out that mr lowe is previously dragonball he also finds out from the conversation that they had been at the winnebagos and this is a place that deputies know is a daily  source of calls for them where they have drug involvement or where they are investigating drug drug involvement so there's maybe a minute or conversation something along those lines the entire encounter last seven minutes at that point i think deputy simonian rives on the scene and deputy lens goes back to his patrol car when he goes back to his patrol car he calls in the i d s he finds out that finds out that luke is barred from driving and that stephens is valid so he comes back again provides the i d s back to the two defendants i think there's a little bit more conversation and then importantly the officers late now the officers probably have reasonable suspicion at that point to continue their investigation they certainly had reasonable suspicion to continue their investigation when they came into the bay so they probably have drug reasonable suspicion for continuing their drug investigation however they decide well we've accomplished what we need to accomplish we leave this goes even more to show that the initial encounter is a consensual encounter at that point they are exiting the  bay when they are near the near the doorway and i think you'll see this on the video your honour's when they're near the doorway d deputy lands received from dispatch hey wait a nd mr stephens the codefendant here may have a warrant so they come back in and they start to speak with the defendants again and at this point the defendants are still not restrained in fact mr lewis has the car door open and he is drying off the maps of the car door no one has been placed in handcuffs no one has been arrested no one has done anything other d than continue conversation so deputy lends a standing next to mr stephens and then it that point shortly after a little bit more conversation and importantly the conversation relates to where the vehicle was from i think mr lance or mr lewis stated that he had purchased the vehicle from a person by the name of jimmy merchant law enforcement knew jimmy merchant was drugs so i think that's your honor short hand that the that dispatch had in regards to the warrant what it actually was and i'm not sure that this is in the in the transcript of the detention  hearing but what it actually was it's he had a warrant for a supervised release revocation on he has a prior federal drug felony and there was a warrant by probation for violation of that supervised release and so probation just prior to the pat down within approximately thirty seconds is the only time that anyone has said we don't want to ensure questions are can i leave or anything along those lines and at that point the statement was by mr like can i leave prior drug involvement because they had learned that from dispatch they also know that they had come from a high trafficked drug area there is substantial reasonable suspicion at this point to detain everyone  for further investigation and in fact pursuant to the davis case and i believe but judge sheppard you authored that case there is probable cause to search the vehicle once the drugs are found in the pocket of mr step that point i guess for lack of a better phrase your honour's it's game over the drugs in the pocket of the driver of the vehicle and i think the goal is and i understand counsels argument that it's the odor of marijuana that really gets us there but the pocket there's likely probable cause to search the vehicle there's certainly reasonable suspicion to detain the vehicle which they did and then they ran the drug dog around the vehicle and once the grub doubler it's obviously there is probable cause to to search the  i think the district court did a thorough analysis in regards to this and i think the determination is that this is a consensual encounter based on all of the interactions no guns drawn no orders to the defendants no restricted movements of the defendants the only factors that way the other way on this scale are the fact that there were three officers a bench away but again when i was when i to the argument where you're at a place when i was studying this case where i can broken down is like what what's the deal with the word was searching the foam you know i mean it and i'm looking at that i mean and there's no real discussion by and by the and i don't think there is a warrantless search of the phone your honor and i were wrong maybe that i didn't see a search warrant for the phone right i don't believe there is a i don't believe there's a warrantless search of the phone and i don't believe that this is in the record  i'm happy to address this if the court would like i don't believe there's a search i believe there is a search of mr linux phone but i don't believe they could get into that so there's nothing in that phone that really pertains to this case in one way or the other i court that the phone was eventually recovered from the from the vehicle but i don't believe it was searched and i'm again this was not a part of the appeal i'm i'm fairly certain based on my recollection and my recollection only i have no records to point the court to that this was done any search was done pursuant to a search warrant beyond that your honour's i believe this to be a consensual encounter if it is not a consensual encounter i believe that magistrate court in the district court both correctly determined there was reasonable  and if the court house has no questions then i is there could never be a nonconsensual or sorry consensual enforcement encounter in an enclosed space s p out in public on the street and that's not the argument again we're going back to the factors of whether this can be consensual or not consensual it's based on all the different factors i mean encountering somebody in a store of course they could be a consensual encounter begin it's going to be based on the factors of the case league is the officer blocking the door or i mean are we dealing with a small convenience store dealing with a large wal mart or target means different factors like that and so our argument is all the factors in this case show that this was a non consensual encounter  so as far as the as far as that goes that's our agreement was a non consensual encounter the government's argument that you know just the fine in the drugs alone again going back to those kinds of cases the davis case the government said again it comes down to all the different factors this or whether there is that reasonable suspicion or there was only the drugs found in the pocket of the person  thank you counsel thank you for your arguments this morning the cases submitted in the court will render a decision in due course straught before you leave us what extend the thanks