morning your honour's my name is craig whereas i am a deputy federal public defender of the district of arizona in the phoenix division and i represent and miss king in this matter at the risk of appearing as though i'm remember her making that admission but if that were the case it would have been after the seizure and i think she said it to the introduce question her and that in that would come court first the government presented no evidence evidence no testimony that the district court or this court for that matter could consider in making the fact intensive determination as to whether or not this king seizure well i believe the fourth amendment itself your honor requires that when someone is seized when their person is fees without a warrant there's a presumption that it's invalid unless the government comes forth and it's their burden to establish an exception to the requirement of a warrant and in this case the exception would be probable cause to arrest established before the court or under terry v ohio a reasonable suspicion that a crime had been speculation that there the record does not specifically conclude or indicate that the car was stolen we have officer shade testifying as to why he was acting the way he was but no officers came into the court and no affidavits were presented that stablish him that the current fact was stolen in fact no testimony was presented whatsoever as to what makes mr king's connection to the car was other than what your honour's just want to state a few moments ago which was subsequent to the seizure and officer shea contacting her as to what ms king's connection to that car was she could have been a passenger she could have been approaching the car she could have been one foot from the car she could have been twenty feet from the car in fact on this record there's no indication that she had any connection to the car whatsoever on this record it's quite possible and i admit that i'm speculating but i'm doing as much as i suggest the government has and is going to have to do and the district court did it so it's quite possible that whoever arrived at the hotel complex in that car went up to the hotel room met mrs king and miss king was coming back to the car to to get something one of her belongings or whatever and then she was immediately seized and what i think it's aliens here is no one no one ever asked her in the context of the seizure even if it's just a minimal feature for you to you know just an investigatory detention no one came up to her and said how do you know you know the driver what's your connection to this car what's your connection to this person did you know the car was stolen and under the road case which i cited my brief simply being a passenger in a car is not sufficient for an arrest to establish an arrest there has to be additional she was getting out while ago the second segment of this which i think should permit us to succeed is even if we assume and i don't think this court can do so given the lack of evidence but even if we can assume that this was a cherry detention it was pro detectives say was the only officer to confront miss king she he testified you open the door gun on his knees there she is in the car with cops the first words out of his mouth according to his own testimony is up until now this has been a car theft investigation implying that from this and has not been what he said is up till now this has not been a drug investigation implying that from that point forward it would be and then he said you you no longer being considered for that you are under you're still being detained you're not free to leave at that moment that terry detention has become prolonged and was unlawful and then the third segment is even if this court were to say you know let's assume for the sake of discussion that the seizure was  warnings but within minutes you know she was asked to to give the consent there was no intervening circumstances whatsoever and although the officer did not as far as we know because very little evidence was presented that's correct your honor well that's correct that that's what it states and that's what i wrote and when i brought the omission or the failure of the government's prove to the attention of the district court judge  prepared by the government or police officers that fully accounted for this encounter and we were we were not unable to interview the witnesses they refused to grant us with their in resilience check the registration in the  agree and one of my point is that i was prepared to address this issue had it been raised by the government or even alluded to by the judge in his ruling there are cases from this court that address when  it's the reporter's transcript of the proceedings ok and where we address this issue  leave it's this issue or my argument starts at page forty one of the reporter's transcript and then the specific issue that your honor just noonan is raising is that page forty four line eleven even noonan's brought up assuming that you can you can undo or dopped my statement of facts and emotion and the here's a statement which i did not object to but those hearsay statements i suggest as i did in my in my brief that that's not sufficient for this court of the district court to make that fact intensive determination as i said in my brief we don't know we don't know how they treated her we don't know how many police officers were there that they swam or to the ground they don't know i'm just talking about the point where she was detained and what happened i agree that in the abstract that if that if if miss king was a passenger in the vehicle and the court finds that that has been established however it's established that that would give the officers reasonable suspicion to detain her but that doesn't get the government over the hump because simply because they simply by having this the right to detain her does not mean that that's what they did you know we still have to establish whether or not the seizure was in fact limited to a terry stop or did it convert to an arrest and they presented zero evidence as to that and i think in order for them to meet their burden they have to do more than simply saying well we had some suspicion and therefore we have the right to detain or it's fact intensive and that's that's why a moment ago i got into you know something that went beyond your hours question i guess right maybe i missed you but i thought you said page forty nine eleven  and the government did not address that when it stood up below to respond and then when judge martone issued his ruling he did not say he was taking facts from my motion and therefore although i was  saying look i don't want to i don't want to be strung up by my motion fair enough but what basis do you have saying that that she was a passenger or they didn't have reasonable suspicion still restaurant last place i see your point and  i guess it in my view if he really doesn't affect my argument so i stand here today if it's appropriate i can conceive for the sake of this argument that she was a passenger but my response figur figuratively would be so what you still have to eat that what it does is as your honor indicated a minute ago it raises a suspicion for me in the government the officers rightfully to at least question her but that's not what happened and well i can even say that's not what happened because the right to interview the officers i tried to interview the officers and so i quit forth what we had i see from the reports and i felt that was sufficient to get us in evidence for a hearing and as as i think your honor even even concluded in the in the which is not cited because you can this issue was not raised on united states vs but she sed it really doesn't matter because the judge has the ultimate discretion the district court to hold an evidentiary hearing and he decided to hold one indicating at least in his mind that there was some factual issue that had to be resolved right but here's the problem i mean you get all this when you give the evidence or here and you have testimony that says this person was arrested because she was connected with a strong car and detained now didn't pick up off the street but you know i clearly that's that's true but i guess it back to differ with the implication that as i said earlier by simply stating hey we have reasonable suspicion here that that gets the government what she could have been doing and from all of that at least the only evidence on the record we have is that she had a connection to the stolen vehicle that she was coming out of the room and either a passenger in the car in the car when this occurred  you know i agree with and i think earlier i conceded for the sake of this hearing this argument that she's a passenger in the in the officers have reasonable suspicion yes look i think it's they can make a terry stop but then but what they can question is did they do  district court are reviewed for clear error the record clearly supports the finding there is no error with regard to the factual determination made by the district court below the district court correctly denied the motion to it were an illegal arrest the fact that the consent was voluntary which the defendant admits in her reply brief page nine that the consent was voluntary this court can still find that the seizure was valid and  the issue there would be whether the consent was tainted and to determine that we would look at the test set forth underpass or were miranda warnings given they were in fact was there any intervening circumstances there weren't she was on handcuffs during this detention search or stop the search he asked her to accompany her at various points in the room for instance near the bathroom if there were personal items he did she did not want him to search near drawers so she was actually given more freedom patrol car she was on handcuffs she was allowed to go back up stairs she was allowed freedom of movement in the room i think those factors would cut in favor of someone believing that the situation has changed that they do have a freedom that there's there's references in the records to the fact that this is actually one investigation the defendants were seen coming in going from the hotel room there were coordination between this officer who testified and the officers on the scene over the radio prior was completely separate investigation that's what he said that is true your honor however he also said that he explained to the defendant his observations at the scene that this was not just a stolen car investigation that license plate tag that was on one of the cars and what he overheard by monitoring the radio that the people were coming in going to the room it was based on those suspicions and those observations i should say say that  he told the defendant at the time that based on those observations he thought that what was happening had something to do with methamphetamine he testified to that fact i would say that that those factors along with the fact that the defendant was  on at the scene and what he relied on while monitoring the radio traffic on approaching the scene to give him you know particular basis to believe that talking about the locations yes your honor and so the government the government source of this is part of one investigation and therefore the terry stop was based on reasonable suspicion of an ongoing criminal well the detective testified that in his experience the stolen cars when you go hand in hand with the methamphetamine crime and particularly in that area particularly with the fraudulent license plate tag all  that's true he wasn't he wasn't going to that scene by any means because of his involvement however on his way there he did monitor what was happening and because of that could knew what was going on as he arrived he knew that they were mar that's a different in this case as well you know the government feels that it's not that it's because of what he said because of his you know particular eyes for reasons that he set forth for why he felt that that's what was happening it is one investigation  simultaneous various instances in the record which make clear that while he was up in the room the investigation was still occurring in the parking lot when he heard a protective sweep of the room which took more no more than ten to thirty seconds  so he consented search of the room while more thorough would not take much longer than that the investigation was still going on in the parking lot he brought the bag which the defendant had abandoned down to the officers who were still there so it was a it was a situation where the defendant was on a bus it was not a consensual situation he was not given the impression that he could leave or that the compliance with what the officers were asking for appeared to be required where the circumstances as i said earlier are similar but even more egregious and here in that case the agency suspected that the people in the apartment that they were surveilling were drug dealers and then and they watched them for a few days and then when they saw them in the street somewhere gauging in contact said that to them seemed to be a drug deal they detained that they stopped them and then like this case one officer went up to the apartment did a protective suite came back down got the defendant's consent and then went back up and searched both of the activities of the two actually these were drugs and this court didn't see that the fact it was a single investigation that as a deciding factor the the issue that the government just stated about the consent was voluntary therefore the abandonment was also voluntary and respectfully is wrong the analogy is more to yes the consen to be accepted as fact where if the defense or the attorney later on disputes that in the hearing then it cannot be accepted as fact and clearly in this case when judge mark own asked me if it would be appropriate for him to rely on those facts i said   follow through with him with what he was thinking of doing and stayed in his order that he was taking the facts from from my motion as to you know we dispute that the  i said there is that miss king was in a room different from the one that the officers were they are surveilling totally different and that isn't so if your honor such that it actually works i suggest to to our advantage but i do want to say one thing you know quote florida versus royer which says that the scope of the tech detention and they're talking about the terry stop must be carefully tailored to its underlying justification in this case it was to determine her connection to the stolen car this much however is clear and investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop that wasn't the case here clearly not a single officer approached her to ask her questions about the cost on card is true that the i guess the judge pleasure that did the fact that she was in a stolen car came up when detective she was talking with her but none of it but that wasn't in the context of him trying to