then after he drives around the block he sees the petitioner mr really on no standing on the corner of the building looking at him for three seconds and then when mr really on who gets back on the highway he sees the black mercedes touch the white fog lines on the side of the highway three times may i ask a question about that yes when he said he saw the defendant standing on the corner looking at him for the second the record indicates a little bit more than that i think and i want to make sure got it right i understood that he reported that the recall that the defendant was sort of peeking around a corner is that right that is how he describes it but he also explains that mr really on he was standing on the corner and the amount of time  that he was kind of looking at officer bundy was about three seconds so here's my problem standing on the corner i think means standing on a street corner but but but but peeking around a corner makes it sound like the individual was positioned right next to a building which was my understanding the records that he was positioned next of the building that i think it was officer bundy's testimony indicated that he was standing about twenty feet away from the door and i think either during director cross think there was clarification about him standing on the corner of the building thank you do we have any evidence that tells us how much time you lapsed between the time the black mercedes pulls into the gas station and officer bundy's your client looking around the corner peeking around the corner standing around the corner he says that he's driving around the corner for about a minute so his testimony was that he really on who's standing on the corner and he says that driving around the block takes about a minute so one may possibly infer from that the your client didn't fact did not invent any gas at the gas station he is gets out of the car and he comes to look at look around at the corner instead of getting into the gas station and putting gas on the car that is correct and in fact he also parked at the side of the building so he didn't even park at one of the gas terminals however there was testimony that came out during his girlfriend strecche examination indicating that they were they were kind of lost and that they had pulled into this gas station so that he could get food now officer bundy when he pulls across the street after he lotsa blocky he pulls across stream pulls into this parking lot where he can see the gas station you can see the entrance and the exit of the gas station but he can't see mr really on or the like inside of the gas station so he doesn't see what m doing while he's waiting at this this trailer park across the street right but so he's if if the testimony is truthful that they did to the guesstimation to get food it still doesn't sound as though given the time it would have taken to drive around the block for your monday that he would have gone gotten food and come back out again sounds as though he got out of the car and came to the corner and then we had that exchange of looks that sounds accurate there's nothing indicate he went to the gas station first me i couldn't hear that there's nothing to weigh into it that he went into the gas station before he went to the corner to look around in his girlfriend's testimony is that he said he didn't want any place i and i understood he didn't go get any food in fact is that right that that's correct ok thank you but her testimony was also that he went and looked at what the options were came back out reported to her and then she indicated that she did not want any of the food the other aspect of this looking around episode is that misc eat this particular exit that he would have been getting off of on the i fifteen has this roundabout that's somewhat complicated  multiple exits and as you're getting to the roundabout you have to kind of look at pay attention to science you know where you're turning off and the trial attorney during the cross examination of officer bundy sort of asked like is it possible that he was looking at this this road next to the gas station to see that it see whether it would connect up with the i fifteen and given how close the eye fifteen is on the fact that the i fifteen at that part kind of runs parallel to miss he pull of art it's not an unreasonable thing for mr really a new to have been doing particularly given that his girlfriend testifies that they were having trouble with the g p s they were trying to figure out where they were going can you describe what immediately preceded your client turning into the gas station because we had some testimony from officer monday that he was already suspicious because of what preceded moving the black mercedes turning into the gas station officer bunny is driving eastbound on miss he pull of art and he's coming up to the same intersection where this gas station is and he can see the black mercedes approaching him because it's riding westbound what he decides to do because he's actively being proactive as he decides he's going to pull u turn and sort of see what the black mercedes is up to aside from the fact that he saw a black mercedes there was nothing for him to be suspicious about although he sort of implied that at this point  he had a hunch or something like that so then he makes his u turn and as he's making his u turn he sees the mercedes is already turning into the gas station and by the time he's finished as you turn the mercedes already into the gas station from this officer bundy infers that the mercedes was avoiding him however the timing is a little makes it difficult for her bunny because it also supports that this black mercedes was going to go to this gas station and coincidentally officer bonn made this u turn so by itself it sounds of the thought if that's all the government has they don't have enough but nonetheless that somehow arouses officer monday's suspicion because he says in his experience when he follows somebody they will sometimes not wanting to be followed and wanting to somehow evade detection or whatever they're trying to evade they will turn into a gas station or something so that it arouses his mis whether that by itself was enough is quite another question and i would know to sort of aspects about about how justified officer bunny was and having his suspicions aroused at this point misc eat is the testimony shows about ninety minutes from las vegas and it's really the first stopping point between las vegas and st george or zion national park or bryce canyon national park so it's very reasonable for people to pull off and go into the gas station so  traffic when new version in the mosquito about a go pulling into a gas station is fairly inane the other aspect i would note about this sort of nervous or base of behavior is that cases in which drivers are engaging in nervous or at this point i'd like to reserve the rest of my time for about on the bus there prashant if you're from the government and you had a chance to respond thank you and please the court peter levitt for the united states your honor judge fletcher is absolutely correct in asking a question that highlights the fundamental proposition that it's the totality of the circumstances filtered through the lens of the officers training and experience that must be considered no not in that regardless of the law that one could look at this record i think  say perhaps under the precedence the touching the white line might be in itself sufficient under ran perhaps to justify it and maybe under oath circumstances approach as you just mentioned everything that happened before the touching of the white line but i'm having difficulty putting those two domains together how does touching the white li contribute to the totality of the circumstances based on what the officer says was observed back at the gas station and before and thereafter what's the logical can that connection that joins those two separate time periods the logical connection your honor is that as officer bundy testified at the hearing when he saw the defendant after already having seen him peer around and quickly get off the road in response to being followed when he saw the defendant swerve into and touch the fog line three times within a quarter mile officer bundy believe this is clerk's record forty two of page twelve that really on it was quote possibly looking out for me which are what those what this touching the front line had to do with looking out for police officer i'm just having difficulty making that logical leap or inference less than was the notion that i am too and it was the notion that he was perhaps looking into the rearview mirror a that is correct that he believed the really on new might be intoxicated or quote looking in his rearview mirror knowing that i was following him this is clerks record forty two one thousand and twenty supplemental excerpts of record six and when all of these factors he quickly gets off the road then he's peering around the corner that he sees the officer behind him and he is swerving into the all of these three things come together to satisfy what this court has characterized as the not particularly high threshold required for a vehicle stop a separate i could i ask you forg interrupting but i see your minutes ticking away it is of course i appreciate that said to tally the circumstances test but but you see that the the ball keeps moving initially i think the police black pr sadie's and mosquito that if your honor is correct there's no particular basis for suspicion at that point ok then he sees the behavior that we talked about earlier writing for beginning the argument about peering around the corner and he finds that suspicious yes all right and then there's the and at that point do we know what he suspicious about or just it's suspicious that the man is peering around the corner i believe your honor at that point  suspicious about because i'm i'm with judge potter i don't think it suspicious just that there was a black mercedes driving into the town so i didn't see anything that justified but anyway the police officer did what he did he pulled the u turn then he sees the peering around the corner correct ok and then and then is there anything between there and the time that the this this crossing of the fog line was observed no your honor at the point of the seeing of the peering around officer bundy testified at the line coupled with the two prior observations filtered through the lens of the officers experience so the difficulty i have is that i can imagine a driving down the road and if i see a saw an officer pull you turn and start following me i might look in there every america too and that doesn't seem all that unusual to me but at this point in the action the police officers testimony is at that point he thought now is suspicion is dui and that's why it feels like a moving target to me i would respectfully disagree with your honor's characterization and respectfully suggest that what might be going on here is the precise sort of divide and conquer analysis that the supreme court creasing suspicion of different activity but i am trying to nail down what the record really shows the the ot the eye for fear of perhaps mischaracterizing the record i will let the record speak for itself on that point but it appears clear to me from a fair reading of the record that the officer believed he might be intoxicated he might have contraband in the car he simply wasn't sure and he was simply investigating further now whether the mere appearing around would have satisfied the constitutional threshold that seems a little bit light i would tend to doubt that but then seems like you're treating this as if the defendant was always a pedestrian a law enforcement officer can walk up to anybody who's behaving suspiciously and through guile or otherwise prolong the encounter in order to investigate her suspicions without having to specify what particular offense ordinance or regulatory requirement is under investigation but the stop a car because you think something might be up strikes me is going a little beyond even women because if you can stop a car because before the people got in the car they acted suspiciously then i'm not even sure you need grin and rim is about as far as the supreme court has gone in this we all commit traffic violations and so i'm having difficulty putting all of this together and that is  i understand what you're at your honor is grappling with i would merely urge your honor again to consider the totality of what was known to the officer at the moment he snapped on the lights if he merely saw a driver swerved into the fog line three times in a quarter mile whether or not and and he's seen nothing else that may or may not setting aside the does it violate nevada revised statutes traffic law that may or may not be enough to satisfy the constitutional minimum i would respectfully suggest that on this record after the exhaustive two day hearing the magistrates finding and the district court's adoption of those findings that it does let me ask you this we have some who have been dancing around and around and you just said well setting aside whether or not that violates the statute to the fog line are you arguing that it does violate any event traffic statute to touch the fog line three times in a quarter mile no your honor i'm not arguing and so this is not a simple round stop that is correct your honor so there's no basis in iran to justify this stop your honor is correct ok got it but the fog line may be relevant in the sense that he says well he is he couldn't quite manage to drive straight as he looked at me in the mirror which strikes me as odd or perhaps more plausibly he's intoxicated you can drive straight if based on the totality of the circumstances and the swerving into the far glowing three times led the officer to believe he might be intoxicated that would suffice and we have said when you answered judge potter's question you said based on the totality of the circumstances but i predict that that's the test that but if my hypothetical is just to be clear about your response to the question if nothing else had happened and this police officer had just driven up upon this defendant or your client and his client and it's seen just the touching of the fog line would that have been enough to stop based on dui if you take that last third of the red light or blowing it stops or in that now you've confused me because i understood that that was the basis for the officer to think he was dui but you think that's not enough i believe your honor the totality of the circumstances or to keep harping on that as it is what furnished the officer with a reasonable suspicion that some criminal activity was afoot now one of the officer suspicions based on that totality of the circumstances and didn't reinforced by touching the fog line was that he might be intoxicated but the officer also harbored a suspicion that their ultimate lee proven correct although that's constitutionally irrelevant that there might be contraband in the car ok but just to answer the question and then i'll let you go but if he had just seen this individual touch the fog line three times you think that would not have been enough i would tend to think no thank you i would think if you went over the fog l ok thank you very much but why don't we when the government went over a little why don't we put two minutes on the clock for you you your eyes i would just like to make two points follow up on some things that came up during the government's testified that the reason that he thought driving on the white line was suspicious is that it was possible mr whately on who was looking in the rearview mirror but at this point mr really on who has seen this police officer three times he saw him once try past the gas station  while he was on the building's corner and then once again when he's on the highway and this court in a number of cases has recognized that reacting to police officers on the road is not in itself suspicious because even normal people will see a police officer and address that they're driving behavior accordingly as to whether this was this driving on the white line served as a base to support a possible dui oxer bundy had already observed mr really on new drive out of the gas station pull a perfectly legal u turn drive about less than a mile carrying the testimony from that traffic light to the on ramp and then about a quarter of a mile and all he observed was th decision for the reasons i announced at the outset were put in hornbuckle to the end of the calendar the next case on the argument calendar this morning carlson versus centuries sirrah the company