appellant i think the question for the court in this case is how the evidence of the twenty six nonproductive stops of cars with baja california license plates in the months that surrounded the stop of chain and what do we do about the district court finding on that issue when this court engages in to novo review it's a finding clearly erroneous or even is her finding something that this court can discount and central your honor i think it's part of the mosaic what we have are two unambiguous declarations from agents that were repaired in response to the first suppression motion where they state it with a single key in the ignition there were no other keys and there was no key change what's wrong with the way the district judge handled that and her opinion she discussed or she did discuss it and then she said it had to some moderate moderate  and i think it has not even moderately yet she gave a moderate in and she but she first talked about how it made no sense that they would have said that so i just heard her her statement on that seems internally inconsistent and there is a picture of the key and key chain in evidence it's silver it's large and if we take that out let's just ok i have assume i'm just assuming are you window would take that out is there still enough i mean is that was that really not material i mean i think that i can see it in the briefing that if we don't look at the evidence of the non productive stops which i think was argued by counsel as a way to evaluate the credibility of the agents and also whether we should do the normal thing right the normal thing is we give deference to agents because of their experience and their training and their knowledge of the area the fact they've done this a lot and i believe judge ruled as you said invalid as the you know the controlling case case you know we're not going to second guess the agents but if we look at the evidence of the nonproductive stops i think that gave the court a reason to second guess the agents and the problem is she didn't even consider it so i agree with the court that if we don't few ways one is we're interstate five which is the traditional you know busy interstate highway as opposed to both of them are on interstate five i mean the they were both on interstate five they were both  dealt with the car with a mexican license plate right will still set about seventy miles outside of the border there was still a lot of common and there was no eye contact it was you know a ford pickup truck that you know  s had large it was hard to see into and in that case the court found that the facts were not clearly erroneous and that the factors that the district court weighed were also found relevant by this court it also found that the driving behavior was the most important factor right the speeding up and changing lanes and all of that and i think what's important in that as vega i mean if we don't look at the evidence of the key chain which showed that the agents were not always as accurate as one could hope that agents would be and if we don't look at this substantial evidence of twenty six out of twenty seven nonproductive stops cars with license plates well then i think we fit into all those  go but i think this you know we're we're here for argument and i think that the distinguishing features in this case are proven erroneous statements by the agent under penalty of perjury and this evidence of nonproductive stops which suggests that if the agents are relying on the factors that they are relying on maybe they know that they shouldn't be because twenty six times when they stopped cars they didn't find anything and so we do have a situation where the facts that agents are relying on are applying to a large segment of the population who is not engaging in criminal activity this court has recognized is the kind of thing that you know we shouldn't what profiling evidence if that's it tends to do is capture a large segment of the population that is not engaging in criminal activity counsel for school if i could interject a question please tell me because i don't remember everything we s belters vega but did we address the issue of unproductive stops in that case no your honor well that wasn't part of that record it was not i don't know or other or the your client relief it would be accused of first brush i mean i don't think it would even so much be a question of giving him relief i think i've argued in the alternative in the brief that the problem is and it's at footnote six of the district court order the district court discounts it entirely if the district court had weighed that factor and come to a conclusion in this court on you know in overview had then weighed all those factors i mean i guess you know this court could either way it now and an over review but i can imagine the better course would be to allow the district court after being told it is a relevant it is relevant to the totality of circumstances analysis to reconsider the issue because the court does give deference both to the agent's experience and training and to the district courts the local courts experience and obviously judge phillips now the chief judge has a lot of experience with riverside cases and so she was in a good position to have that kind of experience with the local situation what do you think the district court should have done with respect to the nonproductive of review the methodology  already found reasonable position suspicion and i'm saying no she should have included that as part of the totality of the circumstances the second argument has to do with the fact that she did not accept the proffer the further proffer by defense counsel that you know not only is the government's own list showing a twenty six out of twenty seven nonproductive stops that there was you know additional evidence that he proffered that of all those stops the entire list of other stops first the case law defines totality of circumstances to be limited to the stop it is shoo in aren't we straying when we're looking at other stops and i take it this would be with other officers as well not necessarily the ones who were testifying and who by the way the trial judge would have had the better position to judge credibility especially as you know and i think as the other side will concede there are some credibility issues here because of the differences of testimony the number two is how do you how do i look at that is it properly authenticated is this really a judicial notice issue isn't there are sufficient grounds of say that even if it is appropriate to consider it it wasn't properly established for taking judicial notice so as to number one the exhibit itself exhibit one twenty three which i apologize that i only provided to the court last night is fundamentally similar obviously to what the government submitted in their excerpt i thought it was the same i apologize the that exhibit itself was admitted into evidence by the judge so that part is part of this record and i think that how it fits in is that these are all agents who are stationed at the marietta checkpoint and you know part of the argument about the proffer goes to there should have been more development but just standing alone i guess there's just standing alone the nonproductive stops themselves by agents who are all working at the same checkpoint i think there's an inference that would have been available to the district court had she considered that evidence that those agents would obviously have known about that i mean it's who they're working with that's what they're doing every day and out of twenty seven stops that those agents made in a month only one of them was productive i c m out of time  the morning your honour's may please the court for hamilton for the united states i'd like to start with the issue of the nonproductive stops because i think that's a very serious miss characterization of what this document actually shows hearing the fence counsel quote proffered that this list of approximately one hundred eighty border patrol stops in the month period surrounding defendant stops all reflected that there were no other federal criminal prosecutions resulting from these stops does it appear on the face of the not at all your honor in fact when defense counsel was asked how he arrived at that conclusion he said that he went on to the central district of california c m e c f system he ran unspecified case numbers through that system he looked at unspecified filings and in some unspecified manner determined that those filings did not have to do with interdiction stops or border patrol cases the district court judge and i would hope this court would fact would find that that was establish that this document should anything then a single border patrol agent was questioned about this list of stops and defense counsel elicited from not border patrol agent that he did not know whether any of the other stops on this list actually resulted in federal criminal prosecutions but as the government pointed out the fact that one agent did not know that doesn't establish that they didn't result in federal criminal prosecutions it doesn't establish that they didn't result in seizures of contraband that then were part of a larger prosecution were part of a larger investigation or simply in the exercise of prosecutorial discretion resulted in no prosecution so to call these unproductive stops is just deriving from the document something that it does not remotely establish and in addition to that i would like to address the teaching issue and i will concede your honor that there are credibility issues given that some of the testimony from these agents was muddled or perhaps even inconsistent i do think that as judgment judges you are you pointed out district court judge took that into account she had these agents testify they were cross examined they were impeached to the extent that this evidence had impeachment value and ultimately she determined that she would still give the key chain evidence only moderate wait let me ask you about that though because it does look like the credibility of the agents was put into question regarding the key chain testimony and so i guess my question to you is why why should that shade their entire testimony so your honor i would say that obviously under this court's standard of review the credibility determination that the district court made looking at their entire testimony is something to which this court give substantial deference and the district court may indeed have found that that key chain testimony did shape their entire testimony but ultimately she determined in the exercise of her discretion that despite the inconsistency is or muddled the nature of that testimony that she still found the agency quote more credible on balance so i don't disagree that it might very well shape their entire testimony but the district court took that into account over the course of two have been cherry hearings so ultimately that finding should be something that this court respects and we shouldn't scrutinize that she gave  moderate weight when look like there are probably some judge might have given it she wrote way so she actually said that it was questionable and that she would give it moderate weight i think if this is uncomfortable with the notion of it being given even moderate weight that it absolutely discounted entirely because even if that one piece of evidence is discounted from the analysis there is still ample evidence to support reasonable suspicion which of course as this court judge gould writing that for the court involved as vega said is not a particularly high threshold to reach and consistent with valdez vega as well as  been sent to secondary inspection at least four times in the preceding two weeks is that consistent with maybe a commuter from mexico coming to the united states it may well be your or and as this court in the supreme court had pointed out even innocent conduct can be part of the totality of the circumstances one factor that i would think is entitled to extreme weight here is the fact that on the very day of this stop the defendant was not the individual who drove the car across the border which i think is not consistent with a commuter coming to the united states and this car was stopped less than two hours after it crossed the border and if i understand that correctly because i think that is not insignificant  that morning just to make sure i understand that there was on the records that that car had crossed the border is that right yes or on earth approximately nine forty one am and there was a name given when that crossed my understanding is that there was actually a photograph of the driver who had driven that car crossed the border that morning the agents before they conducted this traffic stop saw that photograph because of course there were two agents in the car agent rivera is driving a generic why i was looking at the records before conducting the stop they looked at the photograph of the driver who drove the car across the border and they looked at defendant driving the vehicle and could tell from that that that was not the same person so prior to the stop and this is of course at approximately eleven thirty am so because of the way i read it i want to clarify i thought there was no photo of that car the driver that morning i thought he got a name and you looked up that person's name and that person was different look different than the person he identified as driving the car it may be your honor that they looked at the name and  person who had driven the car on previous instances but my understanding from their declarations was that they and did did indeed paul up a photograph and if you would let allow me just a moment and i see my time's running out but i think that this is an important point i would like to just look back very quickly  so in their testimony during the hearing at the r one forty seven which i preached to my colleague points out here the witness said that they were able to compare a name based on the previous crossing and it matched the same person however i think that there is also a statement in the declaration which the government included  twenty eight would be the first declaration photograph from one of the neons previous border crossings i saw the person who was driving the neon and the person who had previously crossed the border and it were not the same person so my understanding is that he had looked at the name matched that name with a person who had previously crossed pulled up a photo of that person and then used that he didn't see a picture that morning of cross i don't believe he saw i saw i believe your honor that the record says that he saw the name of the person who cross that morning matched up that name with a picture of that same person and not yours appreciable difference but i do want to clarify that i guess my my trouble is with the sieve sort of description that is given by the officers in light of how their credibility challenge we have them that they were holding the steering wheel tight  from their car they were trying they could see i guess somehow the pressure that was being put in this kind of behavior is what i think any other commuter i mean even if they things that are pointed out in a number of cases as factors that can weigh in favor of every reasonable suspicion finding and that of course the totality of circumstances has to look to everything and if that factor doesn't convince the district court or this court alone that that was sufficient that is not a divide and conquer analysis in which that factor alone should be the deciding factor rather the court should look at everything and everything here exceeds if not meet certainly meets the kinds of factors that this court and the supreme court have held to satisfy the reasonable suspicion standard and i think that management is not going to follow up  met with you and what does medea just tossed at you many of the facts relied on by the police here do seem to be quite general and general such that they could cast suspicion on large segments of the population such as the fact that the vehicle crossed the border if you call had mexican license plates and the defendant appeared nervous driving past a law enforcement i mean that last one i always find interesting because i suppose most of the people in this room take their foot off the accelerator or hit the brake when they feel patrolmen off the interstate that might be watching them so considering the general observations of the officers and also as you point out there are some credibility issues and some specific observations should we be concerned that this particular case is watering down the reasonable suspicion analysis or encouraging one could take it a step further ethnic profiling by deferring to call in for instance that officers make on some standard observations now your honor and the reason i say that is because i actually think this case exceeds most of the other cases in which this court has held that reason is reasonable suspicion was satisfied the reason i say that is because there are actually a lot of  factors in this case the fact that this car had been sent to secondary inspection multiple times and that the agents pointed out that smugglers will often drive a car with empty compartments or that doesn't arouse officer suspicion across the border multiple times in order to make border patrol agents accustomed to seeing that car that's another one though where if they found contraband they'd say aha see that car here contraband so we're going to stop it and now they can say aha see that passed and didn't have any so we're going to stop it that's sort of i agree and all of the cases that this core and this and the supreme court have it's not if you agree then how is that how is that a factor that's reliable and one that should be considered i agree that it could be interpreted as innocent conduct or it could be interpreted as a sign of criminal conduct and this court and the supreme court have howled that the fact that something may in its discreet nature be innocent does not mean it's discounted from the reasonable suspicion analysis where a border patrol agent based on his experience or her experience how far do we take i mean because you can say that about the law i was if they look at the police officers and they don't look at the police officer sometimes it's like oh they have heard their eyes so that suspicion oh they looked at us so that suspicious the same thing is the key here in large response and i'm just these general characteristics are that their characteristics are reasons that can be attributed to the general public and i understand what our case law is i was on the original panel about this and i understand it went on b and you know there were some distinguishing things that were taken up there and the majority of the court but i still have some concerns about these characteristics a complete attributable to the general public to anybody trying in response to the police officer here there may be some additional things but you know to be able to use them both as a shield in the short is really a little bit troubling well i would refer back again to the things that i think are unique about this case the fact that the defendant was not the person who drove across the border that very morning in that vehicle the fact that it was close to the border which is not unique i admit but it is something that is part of the reasonable suspicion calculus and the fact that he didn't just slow down the way an average ordinary driver might but that according to the agents he slowed down three times alternately going as much as twenty five miles per hour below the speed limit and forcing other cars to drive around him if other cars were all slowing down in the presence of border patrol agents they wouldn't have been driving around the defendant's vehicle the fact that the car that he was driving had mexican license plates while that might be innocent it also is something that is part of the calculus the fact that he had a rigid upright prost are might also be innocent but yet has been helped time and again to be part of the calculus and ultimately what it comes down to is that these are experienced agents who are entitled to rely on their training and experience and if the notion is that anything that they custom see is quote boilerplate or somehow discounted that would be a rather kidding the rule that they should be looking into a pattern or practice of certain factors to determine based on their experience that those things indicates parents argument about unproductive stops and that question relates to whether there's anything in the record that would tell us in your district  what percentage of flops were contraband is found or are there actual prosecutions as opposed to some exercise of discretion where they're not  record as to that question there's nothing i'm aware of or thank you thank you thank you for the court's time well how much time you have but and then give you a minute request i don't think it's included in the ers it's clerks record one twelve at page eleven the court said defendant contends the modified historical data is material to enable him to determine whether border patrol border patrol agents at the station were doing stops just due to the license plate the court agrees and she ordered the discovery so that's where that list came from and on that list the number of arrests is apparent so that's the my argument about nonproductive there was one arrest out of twenty seven stops if we don't get to could you could you please answer the question i asked your friend on the other side of the case absolutely your honor is there anything in the record that those us and what percentage of cases in their district they prosecute when contraband is found the only thing in this record your honor is the statement by the agent agent rice at a r two fifteen to two sixteen that he as a one of the three liaison agents who worked between the myriad of station and the u s attorney's office that he was not aware of any other federal prosecutions based on any of the stops in exhibit one twenty three and then the defense counsel's proffer at the are two sixteen to two eighteen where he said he looked at the cases that came before this case and the cases that came after this case on the pacer e c f system and those cases were outside the time frame of exhibit one twenty three  the what what you're doing is talking about the number of cases where there weren't prosecutions my question is whether there's any data in the record that tells us in what percentage of cases where they find contraband they do not prosecute i understand your honor i apologize no there is no evidence in the record on that question and indeed see counsel said that it was an unspecified search by mr rafael but he did specify the framework of his e c f pacer search specifically at two sixteen to two eighteen and then you know the one key evidence judge phillips gave it moderate weight she called the driving behavior she gave that some weight and so i don't know how we compare and contrast those but she quite clearly had some questions about their credibility and opposing counsel