vehicle on a highway near a recreational area carrying a cargo weight that is consistent with innocuous recreation related cargo that can't be right this court's precedent tell that that isn't right there are two critical problems in this case your honour's first even if this court credits the district court fact finding in every respect those who challenge in the circumstances here do not rise to the level of reasonable suspicion  random stop based on a lucky hunch and that is exactly what this court's precedent says it's inappropriate and can't be right your honor was when i prepared for this argument i thought out the different cases this court has put out there the cases where they found reasonable suspicion in the cases where they did not and a very interesting pattern arose this court has found reasonable suspicion in cases like this where the stop occurred on a rural road where appearance of it looks like a two lane country road major interstate this is a highway that serves as a commuter route to a large state prison a sugar factory this is a highway that serves as a direct route to the glamis downton's which is the largest offered recreational area in the united states an area again i would point to the cases that i mentioned these highways do in fact run through rural areas but they are also highways that are used for many innocent purposes commuting moving from the border areas to the interior areas of the country it simply can't be right that just because a highway goes through a rural area the border patrol agents have license to stop whoever they pleased in this case your honor i would also point to the factors the district court found important in this case and the factors the agent found important and in particular the heavily leaning vehicle that the agent referred to in this case the defense went out to this area with the exact same car and performed an experiment that showed that at most this agent viewed  experience is an important factor that this right has to look at but i'm certain that the kind of experience those cases are talking about is the experience that's related to legitimate law enforcement in for instance the experience related to getting tips receiving intelligence from other officers it's simply defines belief that this agent from a car and a half away at the closest could have noticed a difference that the defense investigator who's an experienced mechanic the district court first of all ignored uncontroverted objective evidence to the contrary in reaching this conclusion and second of all your honor as i mentioned in my briefs the district court appeared to import a credibility finding from a prior hearing to bolster the every respect there simply was not reasonable suspicion here under the totality of the circumstances your honor is correct that i imagine that most campers and off road users have cargo in their vehicles that may lower it by an inch that may lower it by more that doesn't give the border patrol license to pull over of the akhil that's otherwise behaving lawfully in every respect exactly what terms of this was your honor this was five thirty pm on a monday and the record as events that there was a road that was used to commute against at state prison and again to the cigar factory we're talking about five thirty pm on a monday we can infer rush hour from those facts this is not one of the   now and then it would be five or ten minutes before he starts car and that ninety days were less busy than the weekends this is not compelling evidence that this is anything but what it was a highway monday on a five thirty  commuter route so in this case your honor is there simply wasn't the type of statistical evidence that we can glean that this was anything but a highway to the contrary the evidence shows this wasn't road that linked in any major areas and that link this highway to other highways in th good morning carlos for the way on behalf of the united states with respect to the issue of the area highway seventy eight and whether or not it's it's a well traveled road during the weekdays the record was made clear by the agent when he was asked how busy does this area get during the weekends are going to weekdays agent until he said it was it's pretty slow in fact he said quote it's not busy at all are largely going to consist of innocent activity it's going to be very rare the case that you have heads bobbing up and down add of the out of the s u v the or somehow or another some obvious screening factor that that is indicating that there is criminal activity afoot with that in mind in this case you have agent chiles who's pretty much an expert on on these cases because he's been out there for so long and on that stretch of roadway he's been there seventeen years in fact it's it's very difficult to find one can infer a more frayed and experienced trained and experienced agent out there and again to highlight as the the paradigms of reasonable suspicion is many observations can be meaningless to the untrained observer but with the experience of this officer which becomes significant you officers that entitle to make permissible deductions lessons that we learned from the from the case is that this court has reversed findings of reasonable suspicion is the government and the agency better be prepared to back these factors up to back up these observations with sufficient foundation other words are there are cases where the course said we're not going to accept the fact that you call this and the tories damien's smuggling route unless you tell us why you can make these bald face assertions unless you tell us specific factors producing a sufficient foundation to to make this reasonable and i did bring one of the exhibits to your honor if the court is and is interested in looking at  several photos of the area of the sand dunes area in the desert that have different photographs from different angles or not part of the record it's exhibits to your honor yes it's like to  suspect i went over my head but you know i think considering it was that the start of the baseball season this week and there was a concern about what the officer can see in that others can see it's not that we're saying this is najibullah or they have some special through to to this reasonable suspicion equation but much like a baseball umpire at the major league level can tell what a strike is when it hits the black of the plate the outside of the plate whereas if they were to put me or somebody else that's less trained couldn't tell the difference between and a ninety five mile an hour fastball coming at that area whether it's a strike or you know your honor i think about the same thing to you know i guess the only way we can maybe see if that's going on is my complaints in the area or matters are brought to our attention in terms of civil rights violations that may be taking place but going on with respect to the factors i'll summarize it as a court's well aware of the facts but the fact that highway seventy eight is the one lane going in each direction is fifteen to twenty miles north of the border the testimony was that many of these instances drop houses were aliens were dropped off in calexico or they're after brought up through this area to take them to larger highways used because it circumvents to other checkpoints that are in the area the fact that on the prior activity on highway seventy eight that there were in excess of twenty alien smuggling loads in that in the prior two months and that was just for the sector belonging to the the agent was a member and also from the el centro sector there were another twenty to thirty alien smuggling loads just in the previous month and the testimony was that it was almost every day that they were having that they were stopping a motorist where they found that aliant not to mention they're also contraband stops as well the appearance of the occupants of the weighted down appearance of the car the fact that a diplo or he had two and a that the officer relied upon that's really objective other than his prior experience of all this knowledge about all of us as judge wright asked earlier wouldn't any vehicle go into a recreation area that had two hundred pounds of clothing food or camping gear the subject of stuff to two answers to that are two parts that question are to the answer first the other objective factors were the appearance of the drivers and the or the fact that the vehicle was a rental p v holding corporation the subsidiary budget and  more tense that he was tight that he was looking straight ahead and that the passenger was slouched aware and his experienced he has seen this that it can be a factor consistent with persons that are involved but again he's not looking at as one factor and he pulls them out pulls this car over immediately it's basically an ingredient into the whole recipe of of its observations regarding reasonable suspicion but i forgot the second part preponderance of evidence and as a matter of fairness the court was asking about the the observations of the agent the government did try to call another agent to testify regarding the balance the governmental proffered that there was another officer or another agent that also had seen a bounce for had seen this car and made similar observations because i'm fairness of the defendant should be able to hear from from the other agents as well but the district court would not allow the government to call that extra witness as as it appeared to be in the court in the district court's mind  in appropriate bolstering thank you thank you thank you your honor so i just want to point out on this record the week before this same agent had been in the very same courtroom testifying to the very same factors that he used to pull over and other person at the very same area like this that this is the prefabricated or recycled profile of suspicious behavior that simply strains the fourth amendment beyond what it will bear we're asking that the court reversed the reasonable suspicion determination in this case in line with this court's precedent so that we don't stretch the reasonable suspicion case law in this district so far that innocent people are swept up stopped and detained based on a lucky hunch thank