to give their attention for the court is now thirty that they be united state and th paul martin the st issue that i would like to address today is the district courts there and denying the defendants motion to suppress on two separate grounds st from the district court was wrong on was finding that the officers question as to whether there was anything illegal in the car was related to the mission to stop specifically the district court thought that it had to do with officers of the nd find that we dispute is that that that question  the district court found the question did not prolong the stop since it was passed concurrently with other mission traffic related mission activities and specifically the district which ruling is contrary to the supreme court's finding and rodrigue forces united states as well as the other post rodriguez cases that we've cited in our brief specifically and in rodriguez judge ginsburg held that any police caught that extends the time this reason we required resolve a traffic stop in this case writing a ticket or having a defective brake light will violate the th amendment in rodriguez the court specifically rejected the government's position an officer can incrementally prolong that amount of time to run traffic stop so long as the officer made recently diligent about pursuing the reason for the stop specifically of the the court and rodriguez said there is no on room for any de time i any any extra time that add to the stop will consider will be a violation of the th amendment now that doesn't mean officers can ask questions during a traffic stop the recorded rodriguez said that  in this case the allegation is that the stop was extended as a result of the request for backup by the officer which i understood to be a matter of policy that when  stop occurs late at night as it did here that this particular police department had a policy that the officers would wait for backup whether or not called because a as a matter of policy that also would inevitably show up as backup and that's exactly what happened here so why is that not related to the purpose of the stop here and there unless you're making an allegation of some sort that there was bad faith on the part of the officers here and i don't see that here in the record so can you explain that to me i have yes your honor i think that the problem here if the government wants to say that they need it wait for additional officer show up i think that would also be a separate rodriguez fall ation because looking at the facts and circumstances of this case we had an officer that did not decide to wait for the backup to show up before he approached the car we had an officer that did not run license plate check of the car to see who he was possibly dealing with or to see if he had if this was a possible stolen vehicle instead this officer the reason he pulled this car over was for a defective brake light and he had  stop and the problem is is that he asked a question over mr gard i don't think you can dispute that even the most innocuous of profit stops can turn on a dime and become dangerous in an instance and there was record evidence in this case that at least the from the also expressed specter of the passenger was acting a bit squirrely he looked like he might want to be making a run for it at least that's the way it was described by the officer and it was the middle of the night and so why wouldn't it why wouldn't it what is what is unconstitutionally suspect what is constitutionally suspect but asking a single question i think the problem in this is what rodriguez addresses is that an officer cannot go into an on scene actually made a finding that wasn't back related to the stop because the question of be a praying broadly could be interpreted to be a from the office perspective of be a concern about weapons but let's put that aside for the moment and say that that question was unrelated to the purpose of the stop and we still have the problem about the fact that the officer testified that and fact he was awaiting backup before you complete the mission of the stop and if we accept it as true why what does it matter that he has one single question during the interim while he was waiting for the backup to arrive you are out there i would say that the facts of this case would show that it is his testimony about w that it happened the way he testified well the way the way to back up officer testified at trial and actually he was a witness at trial patrolman messer he said that he showed up at the time he showed up mr bowser was already out of the car in the tank so this officer or went ahead and did things without waiting for the backup to show off he got mr buzzard out of the car and him out by the side of the car and had him detained before this the nd officer showed up so that's where my required to take the facts in the light most favorable to the government right i mean that's that's the standard that we must apply and help me understand how i can do that  in light of just diaz's questions and still d sort of you know reject the officers statements is as false you know find the district court's findings unsupported i mean you know your arguments might well have some some purchase in a district court be given that we have to accept the facts in the light most favorable government which would suggest that the question was asked while he was awaiting backup  per the policy of the department i have trouble with the argument in that framing can you help me there again i think there might be circumstance and there may be certain instances where in white be appropriate to wait for backup but in this case i used on the information of that officer at i think the facts of the case would show that he wasn't merely waiting for back company but instead launching into a new investigation and how do i reach that conclusion taking the light taking the evidence in the light most favored of the government right that the officer acted unreadably in a waiting back i mean after i mean i just i mean i don't i mean i get no argument before the district court right or not you know but we have sort of a little bit of a different standard here  help me understand help al that's not living that burden i mean it seems like to me you're asking me to take the facts in the light most favorable to your client and maybe that's a plausible reading of what happened but certainly is not the reading in the light most favor the question based on the time of night the high drug area of high crime area mr morris and all that all of that goes to the question that judge d m has assumed away here whether it was related to the purpose of the stop and not again i think maybe you have an argument on that maybe not given the light most favorable to the government standard that you're faced with but that doesn't affect the awaiting backup point  well again i think i go back to what was in the officers it what was in this officers mind when he asked the question and i don't think it was officer safety i that was trying to fish and we need in your position to prevail we i would look at it this way in west virginia we have are a lot of rural areas and what's to say an officer are says he needs backup and it takes two thousand and thirty minutes for another officer to show off we for fo it for a traffic stop that has to deal with a defective brake light that surely would violate a person's th amendment rights to have that issue addressed promptly and not have to wait for the nd officer to show up i think in this case the facts that were presented before the district court show that this officer was not concerned with officer safety initiated a stop on his own even after he asked the question he got the driver out of the car he didn't wait for the officer to show up before he did anything  else so i think on up for the from from the facts this case i don't see where officer safety is is or is a standard that the government should be able to do the argue here because of because it did in time that it adds sto wasn't an issue where he was not on his radio right then and there and said hey i need help here i'm concerned or gave a code he went ahead with up as he into anyway regardless of well it would give him a difference if he had made a call rather than this being the procedure that they used to have automatic backup i think you would i want you to say yes to the circumstances the case whether or not that was needed or not is no different but if he knows he's going because of their standard procedure get help help me with that i don't think i understand them well that make a difference i think one of the things that rodriguez said the facts rodrigues were the officer waiting for another officer show up with a print dog and reasonably extent of this thought because that was going to go into an investigation of the car for other wrongful activities in this case here calling for another officer regardless of its color for its a policy here without reasons without a reasonable suspicion or reasonable concern for the officer safety of the facts of this case just don't short shored up with reason why this officer stopped this  car it was not a case whatever the driver was driving a radically had been speeding under miles an hour and pulled him over for the act there was nothing and initially where this officer felt threatened as he approached the ranch the the vehicle he noticed the driver did not do anything counsel but i was doing this positing to you exactly the same facts would it make any difference whether he had had to call for backup or whether he relied on this policy of having backup automatically come i think you did but then you go to change the facts on me i don't think it would given the circumstances of this case so we have hearing that was the whole focus of the government's argument was that that this officer asked this question but he had reasonable suspicion to ask it based on what he sed up and based on various factors and this court has said that i don't or for an officer to be able to articulate why someone's behavior was suspicious has to be indicative of some others type of sinister activity if you look at the specific factors that are involved in this case that  stop the fact that it was late night few of the fact individually that in of itself is not necessarily inherent of any suspicious activity someone out driving at one thirty in the morning the officer trying to say that the sheets gas combination of somebody having a past record a recent release from prison and perhaps moving around in a car would not support a reasonable says case the reason suspicion on ending to war and any additional time being added to the s period he asked this question of whether or not something illegal was contained in the car now addressing specific facts of this case which i think are very good even he cannot get asked a question just of your understanding and i question asking this this question that was what they were challenging but an argument today it seems to be and i wrote it down was that he was not  is that do you understand that to be a different issue or do you think that was income is obviously i'm asking you is not true read all this information is is that part of the claim that was raised or is that a distinct claim in your in your mind from the the question related arguments that seem to be the focus of the brief i think you're on point the issue of whether or not be waiting for backup was extending the stop was raised or is come up this morning with a question by judge d produce identification proof registration for the car proof of insurance none of which ever took place quite frankly because they didn't have it so they were able to produce it and while he was waiting for the documents to dos he was also waiting for backup to arrive sort of similar to the one at your cali the distributed and just trying to understand this sort of oddity here the district court here just calling to find it when this question was asked right the question and and yet we are required on appeal to take the facts in the light most favorable to the government which seems a little odd right because that suggests that we have to find that the question we have to assume i guess the question was asked not at the beginning but during the course of the stop because that's the light most favorable to the government even in a case where the district court right refused to make that credibility finding  that was omitted from the court's memorandum pinion and whether or not it's odd or not i suppose i'm young enough to not be able to play night or day there and i don't know but i will say that i agree with your decision or your opinion that drug addiction and all of these things together put this stop based on these facts outside the realm of a normal traffic stop which is what reasonable suspicion is when an officer stops a car afoot which is exactly what happened this case council could circle back to judge richardson's question about sort of what we are on review take to be the record here and with respect to what the district were given which was not make a finding when this question was asked whether it was during the interview or initially i gathered from what you were saying is that you agree with the district where that doesn't make any difference for purposes sustaining with the district did here and that may be true but if it did make a difference what would we be credit right is that if the discourse made a finding we would review it for clear or right but if you could doesn't make a finding then it at least as our case law stands we must take the facts in the light most favorable to the government it's almost by not making a finding the district court like it's more deference to me not i'm not sure that makes sense but i just this is i think just much as it did about exactly this sort of nks that i've got here is that by not making a finding the standard is almost better for you then if you disregard it valid the the question was asked in the middle of the stock we could review that for clear that it's in the middle of the stop i mean that was the question i was asking your colleague and just might fit a better job of teasing out that idea but if you strip i mean that it's not you know i think you said you just don't know but that that the that is sort of a concern given given what our standards ours should have been i think i agree it is and ought to be this case however i don't think it's necessary or make a ruling on that in this case specifically because as the district a back up anyway so i don't think we need to make a determination on the credibility of if it was the st question that was asked or if it was asked as offered often testified repeatedly that it was during the course of what he asked for license restraints and the like regardless  he got up there and they were you know flighty and and that sort of things so it was the very st question asked can we really say that it didn't exist in the stop i think so because he testified specifically that you when you approach the car he immediately recognized that offended and so all the facts we've articulated he knew right away perhaps the base of behavior may have come in shortly afterwards but the reality is that his story that he told is only what makes sense with the timeline and the other at evidence that was presented quite frankly not to mention that well and i will get into that quite frankly regardless of when the question was asked officer dawson was waiting backwards he testified specifically because of the high crime areas late at night he was out numbered he recognized the defendants being a convicted felon so he testified he didn't go back to his car because he didn't want to  that and i know that is to make a question about the other part of the discourse ruling the district court also i think i'm remembering correctly found that the question itself even as phrase that it was at least reasonably related officer safety and so was a proper question regardless of whether or not it extended the stop do you agree with that i understand that asking if there's anything illegal of a car is somewhat distinct from asking if there's a firearm in the car but also wasn't specifically asking if there's drugs in the car or something to show that he was looking for anything other than  district court found something that was related to officer safety i think that the question is a little bit broader and more generalized than ask if there are firearms the car absolutely and if you further back the the things that are some concern about his safety let's assume that none of those facts existed i mean this was the most this turn to in fact one of the more most innocuous stops you can imagine and yet there's a that your friends will concern on the other side is that this could be a subterfuge for extending stops and gauging a separate investigation did you concede that there might be a set of facts where that notion of needing it's always going to do is going to look at the facts of the case in front of it i'm not going to say that there is not some hypothetical situation out there where it could be not necessary burden on the th amendment for some to wait for backup that's why i can't i don't know what  the scenario that mr positive that the backup in a small rural town small police department took an excessive amount of time you know half an hour an hour is that a problem it could be but at interesting question to me do you agree with your colleague as much as the question earlier whether it would matter if there was a call as opposed to a policy right i mean if you know i recently got pulled over in colombia know we talk about kinds of communicate taking policies inventory policies but we look at policies differently than we do when officer makes a choice to extend a stop for a drug dog to get there in an individual instance do you your colleagues seem to suggest it doesn't matter one way or the other i'm not sure it's totally implicated here but did you have a view and you can say you have none i'm ok with that but do you have a view on whether it does matter whether it's sort of part of a policy or whether it's an individualized choice by the officer to do a way to to get a drug dog there or to to get somebody back i don't believe there's any  government issue of bass to whether or not this falls off the officers can wait for another officer shot for officer safety the problem with that is that totally ignores what rodriguez essentially would give officers the opportunity to do anything they wanted to during the time period while they're waiting for that nd officer to show up and that's not what rodriguez says rodriguez says you cannot extend a traffic stop unless you or you have regional suspicion that that person is engaging in some other type of criminal activity and that this officer did not have reasons especially if either of these two gentlemen were engaged in any criminal activity when he asked the question is there anything illegal in the car if he was concerned for his safety he would either waited for an officer to show up before he initially approached the car or he would have asked a specific question you guys have any guns in the car are there any weapons  questions i'm related to the traffic stop in the kimball case that's before the th circuit the question was asked to the driver did he have any counterfeit c d s illegal oh marijuana methamphetamine or dead bodies and as he was writing the ticket the court specifically found there that that asking the question waiting for the answer from from the driver a lawfully prong just off where he where it was beyond car right so that would not include so counterfeit that right dead bodies things that are not dangerous i understand why that's just about investigating crime but if you asked the broader question which takes the same amount of time as do you have any dangerous items do you have any illegal i don't know d why and why is that broader question problematic when to when it in compass is a narrow question that would be permissible i think having drugs in the car is not is not in itself dangerous or to the extent that having a gun in the car would be considered something that's dangerous i think the question has to be specific addressed if it's going to be for ops officer safety it has to be something in the car that can harm your officer such as a weapon not just asking a broad question but the he knew that he knew the he knew that the passenger was a felon and so good or there you go items in the car in compass his boat dangerous and not dangerous right and so what i'm getting at is d if you just asked about non dangerous items right you have marijuana in the car i agree that's not related to the stop but if yes the broader question right do you have any illegal i don't which would include both dangerous and not dangerous items was the broader question in permissible when a more narrowly focused question would be permissible because that's the whole holding a broad reassure honor is that it order to conduct an investigation for him for an officer to ask a question of there's anything illegal during a traffic stop that is the whole holding abroad rigorous rodriguez says you can't get into starting a new investigation on something separate and distinct the reason is stop and last you have re basis of someone's private record if that was the case any person that had a criminal background to be stopped and asked that question so again i think the focus of rodriguez is that you have to have reason suspicion if you're going to ask a question other than related to the stock and that would include questions such as you have anything illegal in the car and my time is up your arse i would ask the court to reverse this case thank you very much