and articulable suspicion that the person has been or is engaged in a separate crime such suspicion was entirely lacking in this case the time when police issued to mr byrd a written warning for the traffic violation and the stop concluded and the police nevertheless continued to detain and certain stripper that police lacked any articulable suspicion suspicion of another offense is made plain by their own testimony in fact they testified that at the time of the st they had quote no idea and quote whether a crime at been committed or its nature and they could identify nothing about mr byrd or his behavior that suggested that he was engaged in a crime rather they cited only a list of so called indicators quote unquote that they claimed pointed to a guilty state of mind none of the indicators however is actually suggested of a crime much less any criminal behavior in fact he was nervous but that's to be expected given that had been stopped by police is license the temporary was perfectly valid he explained that he was travelling to pittsburgh because he would be moving there and although he had a criminal history was subject to an arrest warrant the war supreme court your client never challenge to whether there was d reasonable suspicion to detain him after the traffic violation warning isn't that the was the case that there was a reasonable suspicion for the continued detention i don't believe so your honor i would agree i think that reasonable suspect the reasonable to suppose suspicion determination regarding the prolonging the nature of the stop was certainly law of the case at this time and that is the traffic stop itself and that's what the court addressed in the prior decision in this case that was what was challenge was the traffic stop itself was unreasonably prolonged or whether it was justified in the st instance by reasonable suspicion so on that i agree fully with you yes that is  not challenging that what what is the under review now is a separate question and it links quite directly into the decision on social arrive at the supreme court and that is the probable cause determination and that determination was course not addressed by this court this particular instance is going to be the prolong nature of the defendant up until the point at which the traffic stop concluded that was what was challenging in the prior case and the nd tension that is where and this is the critical point on this that nd attention is where mr burr mentioned a blunt and that was the critical support for probable cause so when we had we had the rain and after the supreme court decision that probable cause determination can sharply into focus as the principal issue in this case and that link directly to the nd detention rather than the st one there was no basis really or reason for us to challenge that nd attention because probable cause was not previously at issue now since it is on remand we are raising it and i think with preserved fully over the case of course of this case and again i think if you get to that particular issue that is if you're assessing whether that nd detention is permissible there's really no basis to find based on the officer's own admission that they had no idea of whether you can been convicted and after that st detention and  is that is after the traffic stop concededly concluded on that basis they told mr burke that he was not free to leave and they proceeded to conduct a search without probable cause and without any other basis for doing so and therefore if you get to that point where that  g that the blunt statement is probably admissible and even assuming that probable cause existed on that basis the district court determined based the police did not have probable cause to search the marijuana cigarette that mr byrd would keep it in the trunk and nothing was found in the park passenger part of that would suggest any other criminal activity and that was not a case with what would put the police on notice that they were not permitted to search the trunk which with casey says ok you must stop at that point well i think there's two answers to your question but the most direct one is a case that has united states versus richesse and which is specifically recognize that point that i just made which is a search may only be conducted in those areas that is likely to contain the controversy and then you also have pieces from outside of the circuit if you want to look at those from the supreme court as well and those well i think again i think that rick it does actually in fact state the point that it's permissive in the sense that here is the rule that we are starting with that is a search may be conducted only of those areas of the car or wherever in which evidence is likely to be discovered and then it goes on to say well in this case we do have a situation in which evidence it's likely to be discovered because of the burglary tools we're seeing in the passenger compartment and that's why it was authorized to have not only a permissive circumstance in which there was an application of but i would say that they also have to have you know a reason to believe that the passenger compartment contains that if they can look in the passenger compartment that's the same limitation that applies to the trunk they just have to have another reasonable suspicion that there's one of the evidence in the trunk but it has to be limited and based on the actual evidence they're searching for and again if you get to that point where again i don't think that i think ricketts places a clear limitation on it but what it doesn't do to my mind is provide authorities some sort of good faith authority if you want to for the for the police in this circumstance to conduct any search whatsoever and i don't think the illegality of the stop and subsequent search in this case can be of excuse kind of because they exception for a number of different reasons and there's i mean you get to be good to like to narrow down it's a question about the truck that the cases say that if you have probable cause you have probable cause to search the vehicle there have been some cases which is almost gone to that extent but i don't think that's the case and what you see in cases mcsweeney's like other ones is that you do have other evidence of illegality and there might be a general smell of marijuana that raft past the passenger compartment or it might be that viewing records of burglary tools within the passenger car compartment which suggest there's something more to be found in the trunk so you do have to have it may be very minimal in certain cases doesn't need to be much but here the point is you didn't have anything you didn't even find a marijuana cigarette year to say that i had applied it just isn't it just as reasonable been the trunk as in the console because maybe wanted to smoke a blunt when he got to his destination i don't believe so your honor i think that would take a kind of the picture ordinary view of how people normally conduct themselves and that's especially the case because he said had a trunk if if probable cause is limited as you are advocating what would happen if it was an s u v with a back gate how do you go about how do you say to please you can look in the st you can look and as we've indicated in the cases if you do have probable cause to search a passenger compartment you generally have the opportunity and authority to search the entire passenger compartment wherever that may be said to extend to where you draw the line is where you have a separate compartment whether that be a separate product a separate area something like that and here we definitely have a separate trunk which is not connected to the passenger compartment so i grin your hypothetical the answer may be different but in this one the cancer is quite clear i think on the record which is you did need to have some additional belief that there was going to be evidence of a crown time in the truck and again i don't think in this case there was that evidence and if you get past that point and you find that there was no probable cause to search that the only question becomes again whether you herring hudson and davis i think make clear that chords are two of why the exclusionary rule only when it can pay its way in other words would serve to be turned function would you agree with and kennedy said that mr byrd had no standing to challenge a search of the vehicle so in light of that extant precedent which was overruled of course  when the supreme court addressed the issue in this case what function deterrent function would be served by excluding the evidence here well i'll make two points by man tenets of a rental vehicle that was being driven by someone other than the signatory based on the lack of standing or that individual's lack of a reasonable expectation in the car what that meant that the officers were doing were perhaps not under the kennedy reasoning you might be able to get to a point where ok the defendant cannot object not succeeding in the section but that does not mean that the constitutional violation did not occur and even if you get to the point where you don't want the constitutional violation of the driver's rights that constitutional requirement and despite the unconstitutional conduct the supreme court of hudson said we're not going with the evidence should not be excluded because there's no deterrence function i think in that circumstance what the officers have for other reasons under the law on for their own purposes in terms of executing the search the way they did in this particular situation and if i had a reason to believe that they for violating anybody's constitutional rights whatsoever that's when you get to the point where deterrence is no longer served here at the officers knew that they were at the very least violating the constitutional rights of the rd party signatory and so they went forward and yet conducted the search knowing that violation was going to be occurring and i think this is precisely the circumstance in which deterrence is properly and best served which we have officers conducting a survey knowingly violating the rights of another party just because it allows them to give evidence against a defendant that's not challenge the search so i think this is very different from those cases and provides a basis for deterrence but yet think clearly believes they have probable cause for the search i mean the fact you give it some mission actually i have probable cause because you told us what's in there gave really was the lack of standing and that's what they explained to mr barrett and as you said they did testify later at the hearing and in fact the mention of a blunt did in their view provide them with probable cause but i think there's two reasons why that was that probable cause existence if it exists if they believe that would not stand as a basis because they think section and one is that they didn't think it just didn't rely on that doctrine on the automobile the exception at the time and it cannot be the case that a circumstance that a police officer relies on a different line of authority refuses to acknowledge another case or authority and later come back and say well i was in good faith on this other authority on this other case even though i never mentioned it reasonable reliance requires that you actually rely on the line of authority and to this that i'm looking at the fact that it was at one thousand eight hundred and fifty five that is six fifty five in the evening they said you gave us permission actually i have probable cause you told us what's in there and then they added gratuitously if you will you're not on the level of frame so it's not just later testimony that's what they said in the video it's six fifty five in the evening  medicine i think i think and i think they they relied quite specifically on the lack of standing and not on probable cause but even if you get to the point where you could be saying that they relied in some form or fashion on probable cause it still wouldn't provide basis for the good faith exception and that's because probable cause itself does not render a search constitutional without more in the without more that is required is judicial authority a judicial finding that probable cause existed and that's in exception would not apply here in that case you had a federal statute which authorized the search of confidential location information and not only that but you have investigators secure a judicial order approving of the search in advance and in that situation this court quite properly i think but since you have a valid then valid federal statute then valid order authorizing search there is simply no way that th without having acted without a good faith belief in the legality of their conduct and that's quite different here for a number of reasons which we've already gone over in this case you had no order had no war and had no express authority and you know and i think you would draw distinctions between the concept of the legality of their conduct versus reasonable expectation of privacy i think you can and i think there's also a nd component of goldstein which is in that case i mean i'm not sure if the analogy is being drawn that that was a situation in which the court held that the good faith exceptions could apply when officers acted because they did not believe defendants had a reasonable expectation of privacy i don't i don't think that's the finding of goldstein i think what occurred is old saying is that you did have this prior precedent which held that individuals don't have a reasonable expectation in this line of this is information and therefore the statute is constitutional constitutional with the time and isn't that what we have here no i don't believe so your honor and i believe that for two reasons one as i mentioned before i think what they were doing here is acting under a belief that the individual wouldn't have standing to challenge the search and to if they were if they can be said to provide on probable cause at that time they were still they still knew that the search was presumptively valid unless and until a court approved it and found a probable cause objective lee existed so at the morning your honour's may please the court through syria behalf the united states please let me know if any difficulty hearing me at any point during the argument very quickly i will i will look st at the issue of whether the stock was u stop was unlawfully extended page twenty to twenty three of their opening brief and not appeal and if the ultimate decision in that appeal this court as laid out on page eighteen of my brief in this appeal explicitly said that there were as there were these number of factors that resulted in their being given five to two additional suspicion of other criminal activity and all those additional factors happened before the end of the  traffic stop portion of the tension right towards women you get all over that hurdle then you've got to tell us why there is probable cause to search the trunk right sure that that's certainly an argument that has been raised obviously the position of the united is when you look at ross and the court's decision and wreckage the very language that you were asking mr sorenson about which is once you have probable cause to search the vehicle you have probable cause to search the entire vehicle or at least those parts of the vehicle that might contain the contraband or what it is that you are looking for and in this case you think that there are though that a blanket would be in a trunk i mean if it were you know a box of blondes you know maybe it would be in the trunk but a single blunt then would not be something that would typically be right where the driver's sit welcome to eighteen teeth teleconference service please enter your access code followed by the pound sign there are six participants on the call including you and your joining your conference at the host for a menu of available commands press star pound king of this and saying well this guy doesn't doesn't have standing we know that under kennedy but we also believe that there's probable cause here based on you know rick it's and losses i just discussed and so if you've got police officers doing this and they are then told that's wrong what kind of guidance are we as prosecutors supposed to give them when they're operating in this kind of situation where there is clearly something suspicious they believe they have an admission that that is contraband in the car they believe that the case law says that this person does not have any standing to challenge the search that seems like it is it is a very small interest it's being protected at the cost tremendous cost to society turning specifically to goldstein and you know there's a number of things about gold standard that i like the st one is kind of the general idea that you don't have a th amendment search if there is no reasonable expectation of privacy clearly at the time no no longer but at the time the  st rudy let me just stop you right there before you get into the explanation of gold stain and the reason that the panel brought goldstein to your attention is the fact that the  the case that that's the that's a position where we're interested in your position on goldstein very well and i understand your honor you were on the panel for that decision so therefore have much more and footnote two i don't think that there is i understand that there is a separation the idea that it did not work and that standing to object to the server reasonably rely on kennedy big part of the same and i want to still be part of it and so when you when you look at what these troopers have going through their mind to at the time artifacts liberation it was this guy doesn't have a reasonable expectation of privacy and i want to get you much not you would agree with you not that goldstein really had to do with the fact that the search that was authorized by statute statute that them found under in right application be constitutional was a constitutional search that was a valid search and that was the issue and goldstein validity not whether someone  could challenge it and isn't it the case that good faith really applies when you have a good faith belief in the constitutionality of a search not a good faith belief that someone could could challeng e i think that there there is some truth to that absolutely and you should be concerned with the constitutionality of the search there's no question about that and i think that you know what we have here is we have troopers who did believe in the constitutionality of the search independent of whether or not mr byrd had any rights to challenge that's your point if we don't really need to do golfing you don't really need to do reason like patient privacy you well that's certainly part of my argument i do think that that is perhaps the most straightforward way of handling this finding that they either had probable cause which would be our initial position or that they heard ted good faith belief that they possessed probable cause based on precedents such as rec and i again i don't want to go too far down the rabbit hole but i also don't let it want to stand that it is clearly established somehow that in this particular factual situation that either the rental agency or the renter the author renter automatically has a reasonable expectation of privacy and that's a privacy entry to be protected and a trunk of a car that you know it is turned over for the use of whatever possible way that the renter or  the rd person who it is given to it's given i don't i try to look at see if there were some case law out there on it couldn't find it in a fairly short search but that that seems to be taking things a little bit farther than the idea that is espoused in actually the supreme court decision on bird hearing saying that an owner and possessor of a car almost always has that reasonable expectation of privacy well here the owner didn't have possession the author of the possessor didn't have possession so those that ownership and possessory interest is not there for any of the three parties that have been raised with regards to a potential reasonable expectation of privacy here randolph pointed out the question here that needs to be answered and i think that this positive one is whether the police have a good faith belief in the constitutionality of the search and i think that's the fundamental question and i think it's the one that has to be answered in the negative here for a number of different reasons one being of course as i've indicated before that they did not have a belief in the constitutionality of the search in the sense that they didn't believe that mr burke ject to it but rather just the sense that he did not have standing to do so whether or not somebody else to come in and do that to the underlying cause let me ask you one thing about that because in order for them not to have had a good faith belief don't we have to conclude the officer was lying when he said i have probable cause no i don't believe you do your honor i think whether or not the officer said he had probable cause is not indicative of whether the whether the search was actually constitutional at the no i don't believe so your honor i think the basis of the good faith exception is not whether the officers subjectively or even up to actively believe that their conduct would be approved player on or about the search would eventually be justified because whether there is a gives it to me that it had the object at least not because i have probable cause just because you know the man went over something you know would be object at least reasonable but here you're saying you need to have affirmative authority i think there's two ways to go about it one search in a constitutional manner the authorities to which you are referring that the automobile exception however are recognizing and do recognize that the search is going to be presumptively unconstitutional if conducted without a warrant and the only circumstance in which it may be approved at believe he had probable cause and time but until that constitutional determination has been made the search is unconstitutional and i think that's getting back to one final question that was asked and one point that mr cerruti made actually which is what kind of guidance  giving to officers if we reject a good faith exception in this particular case and i think the guidance is exactly the type that this court and others have consistently said should be crafted and that is to say that if you have an opportunity in this circumstance w do to get a warrant to obtain the information to obtain the evidence through other means and that is the appropriate approach you should not take it upon yourself as an officer simply to go into a car to search it just because you believe you can so i think in this particular circumstance especially given the circumstances preceding circumstances and situation of the stop which was which occurred the detention after the traffic stop and concluded elimination a lot of reference which i think should still stand after that point you do have the officers conducted any what was later determined to be here was later determined to be an illegal search and there was no exclusion so why is it done very similar to what we have here we've got an illegal we've got a search that appears to be legal under control in person at the time and then we've got a supreme court decision rendering it illegal and then go well i think you have a very different situation and it gets back to the point i was just making which in that circumstance at the time of the search you had a federal statute with which authorized the search and you had a judicial order issued pursuant to that expressly authorizing the search and at that actually yeah but if what i'm saying is that is kind of comparable if it's a census it's a judicial order authorizing the search in some form or fashion before it occurs that's precisely what you didn't have here and that's why we generally require a warrant and that's the critical that's one critical states in between these cases might not goldstein you've had prior judicial approval here you don't have it and in fact you have a presumptively unconstitutional search which is why good faith exception simply cannot apply