one paved highway to the north of the border which the agent described as being three to four miles from the border fence the border itself is a standard barbed wire fence running along the border and the government has graded and prepared a dirt road which runs right along the border itself just exactly north of the border fence in the area are a number of sensors and this area also had portable lighting systems the area in which mr munroe when you noticed her also was found was a low lying area or drop in on the hills on either side where lighting fixtures that night the agent testified at trial that he and his companion had been up and down the road on a t v s a number of times that evening they received a radio call of a sensor the in the area immediately returned to the area which they had passed just a short while before and found fresh human prints small group of prints going north from the border fence itself so the narrowing of the official restraint doctrine away from what it was intended which is constructive because we're not gone by that law well your honor i think checco medina speaks in terms of case your honor when when this group including when your sprawls across the fence they stepped into a trap from which there was no escape the footprints right at the border fence alerted the authorities in addition to the sensors exactly where they were the testimony at trial was that the prints were absolutely fresh they knew they were fresh because they've just been through the area before the government is in hernande argument well i states that this the facts in there think it is wrong with this that i think the facts in this case are more compelling actually because there is a whole principle your honor that i'm i'm seeking here is that this is a jury issue on an element of the crime not to be decided by the court independently if there's some evidence to support an official restraint instruction given but he wasn't restraint he wasn't he wasn't seen he wasn't in and in custody he he wasn't they didn't they didn't know when they didn't know when it the time he crossed over they didn't know he was aswell there's no evidence of precisely where he crossed the border well in this case there is no evidence of precisely where he crossed the border we know exactly where he did in the government that there's no evidence of the route from the border to capture so the court in  know well in this case there is exactly the route we know what it was it was like a neon sign file following when us perrault as he entered the country with his fresh prince absolutely crisp prints easily followed at medina quoting from us versus argue are the courts says the doctor and he is promised on the theory that the alien is in the government's constructive custody at the time of the physical entry and on going on at eleven sixty five the phrase is this will or physical grasp of the authorities that's why i say that i don't think that the doctrine requires visual all the time it is an alternative theory and physical grasp of the authorities is equally important and compelling when it comes to constructive cut custody here that's what we had there was no escape no ability to go anywhere the entry was evidence is overwhelming that if it was not under constant surveillance or giving rise to a special restraint from the times that the sensor was triggered which was two hundred to two hundred fifty yards within the border and show he was found three hundred yards within the border be on the part of the government i would disagree completely with that and looking at the cases in this matter that there has to be constant surveillance in this particular matter all the footprints were after the fact once he was already in the united states able to read the free air of the united states in this matter we don't even know if those footprints massed exactly of the front there was no evidence as to that during the time in which they did find the footprints he had already been in the united states for a the only thing that is that i would add is that the road maintained along the border the purpose of which was to again apply immediately entry and the importance of this is underscored by the fact that  they order patrol maintain constant up and back and forth of digital and so that is the functional equivalent as if they'd had video cameras or anything else where the purpose was to immediately it down to five within a very short period of time whether anyone had crossed the border and i think that that gives a constructive custody i think the fact that these this group including muoz that were in a trap lights on both sides they could not escape three or four miles from the nearest paved road that they could conceivably have stopped the tracking of the footprints and the fact that temporarily does happen very shortly i think is constructive