thank you and good morning may it please the court sarah weinman on behalf of mr nava the evidence against mr nava as well as his statements should have been suppressed and i asked this panel to reverse the district court's denial of suppression motions first because there was no reasonable suspicion as a district court found at your three sixty one the agent's seizure of mr nava was infallible specifically based on the t circumstances as set forth by the record evidence the lane change that prompted the seizure doesn't provide reasonable suspicion and the inferences of allegedly suspicious activity flowing from that lane change were unreasonable and inadequately articulated why would you say maybe you're maybe you're right that the lane change by itself wouldn't have been enough but obviously there were things that kind of added together cast some suspicion on your client together all those things together be for several reasons your honor first of all the the reasons given by the agents in the incident reports didn't articulate any of those factors that later came out the nervousness the stretching the passenger mouthing words for the spanish expression no moments way fashion documents absolutely none of that was in any of the agent's incident reports which were written hours after the arrest and as a district court found you want us to conclude that none of those observations were were actually truthful is that what you're saying no not necessarily they were they were they weren't articulated at the time because according to the we have findings from the district court here that certain things did happen i don't think you're going to persuade us to just disregard so let's hear your arguments to why i consider collectively that wasn't enough to at least arouse suspicion on the officers that hey maybe we need to investigate bizarrely well as as the district court itself found there there was some suspicion here the question is was that suspicion reasonable and as a district court found it wasn't we have first of all the expression no mom this way so the agent testified that he was he saw the passenger he lip read the passenger make that expression he testified that he was viewing the passenger in profile from a distance of about eight feet with close windows the passenger had his hands to his face so even presuming that that lip reading was reliable the agent testified that the expression can mean many different things from quit kidding around to osha depending on the context and the agent also testified that he didn't know the context in which that statement was was made so we just have no way of knowing it's unreasonable to conclude as agent did that the expression was a response to seeing the border patrol vehicle stretching which the agent said was suspicious but as a district court found an extra hard stretch with hands clenched over head as it was described shouldn't be afforded any great weight particularly since as the agent testified he's fully documented that he's lawfully president the president in the us especially considering that he's pulled up and parked next to border patrol with mexican plates so together under the totality of the circumstances again that doesn't amount to reason suspicion and as for the nervousness the district court found in this court has has found as well that that's to be expected under the circumstances so in some way again as you know the district  ms one yes it seems to me you've left out two other two other circumstances one is they confirm that the car had just come from just cross the border and secondly that this rest stop was notorious as a way station for smuggling are second with the rest stop was a place no right to be so that something that appears in several places in the government's preset the rest area was a staging area but that actually mischaracterizes the agents testimony here r sixty eight the agent said that in his experience smugglers to one of four things they in this area and this agent had been at the center many checkpoint for something like six or eight years or longer so they'll either exit at the last full gas road and turn around southbound on i five they'll pull over out of the shoulder and wait for the checkpoint to become non operational they'll feign car trouble or they will quote pull into the rest area until the checkpoint is non operational so given the agent's testimony what we'd expect to see here is lad or delay or loitering on mr navas part but that's not what we have in fact most are not as a s just don't fit the agent's experience of the smuggler profile he he pulled into the rest area he he parked again next to border patrol he got out he stretched he used the bathroom he returned in short order and he went straight back for the driver side door as if to leave at that point he was intercepted so again under the totality of the circumstances we just don't have what suspicion we have just isn't reasonable that's what the district court found and that's what we would urge this court to find as and this court is reviewing to no avail but i would i would suggest that this court should credit the district court's conclusion there ok so what about the concern so regarding the consent the government has a heavy burden to to show that consent was voluntary they haven't met that burden here no reasonable circuit person would have felt free to terminate this encounter under these circumstances where the agents retained mr navas identity documents he wasn't told that he had a right to refuse consent he wasn't  mirandized the weapons that agents weapons were visible there's testimony that one of the agents touched the handle of his weapon during the encounter the only neutral factor here is that the agents didn't tell mr nava that they could obtain a search warrant so the heavy balance of factors weighs against voluntariness and the government simply hasn't hasn't met its burden to show otherwise moving on to the miranda issue here to the government's burden is to show that the miranda was adequate and they haven't done that here the miranda adviser was just a mess we have four different translations of the advise all submitted three of them submitted by the government  each slightly different with some material differences we have questions from mr nava regarding whether it was necessary to have an attorney here and the agent's response to that way by the the judge regarding the suspicion that would be existed here if we go just a paragraph down the court actually said the reasonable suspicion didn't exist based on the abrupt lane change and so if we go even before that statement there is discussion regarding the highly suspicious and i quote the district court judge in saying that the agent determine that it was highly suspicious that there was this exaggerated stretching on two occasions  in the record the district judge commenting about the very significance of discord or and how in fact in the district judge's mind location matters in this case so there were a number of reasons why that particular statement should not be taken in so with respect to the other issues that were not mention as far as reasonable suspicion goes we also need to remember what happened not just after the exaggerated stretching but there were a couple of minutes where the agents approached the defendant and had a conversation with them and there are at least fo reasons the reasonable suspicion arose just in that one or two minutes of conversation is the agents asked the defendant for his identification and even though he had just displayed it to the agent a couple of minutes before that he then couldn't find  once he finds an identification he pulls it out and it turns out to be that of his co passenger who then he characterizes as being dumb and that's the reason he couldn't hold it the defendant is also nervous at this point and adds yet another statement which is that he had been partying all night so there were a number of things that happened just in that one or two minutes that are very significant also to the reasonable suspicion analysis turning to the consent if you i think the key here is to look at the two factors that i think are of most significant which are the custody and guns as far as the five doctors are concerned i would say custody is probably the number one factor from our cases but also the fact that the agents didn't tell the fandom that he did not have to concede that those two things together seem to be fact feature pretty significantly in our cases right i do agree  but i would point out that with respect to certain cases that were cited in the government's brief as far as nice work authority which is whether it's required to get you to notice the individual that they need to provide consent to mirandize there's a little bit of conflict in case law in fact in some circumstances it is better to not indicate the french don't you need a search warrant it's not what i'm talking about i'm talking about telling the person we'd like your consent but you of course have the right to refuse that's totally different from saying if you refuse we're going to get a search warrant which had the office said that here they were applied because they didn't have probable cause that your honor i would consider that none of the agents said that and that weighs against the government as far as dr tickler factor goes but i would then point to the other issues that exist here which are the custodial  whether the defendant wasn't custody which he was under our cases because the agents didn't return his documents and you have to concede that he wasn't going to leave without them he wasn't permitted to write your own or what i would concede is that he was seized for purposes of a fourth in the i would not concede that he was in custody for purposes of consent bill how do you distinguish washington because there we said that the defendant was seized was in custody and he clearly was not placed  arrest at that point it was very similar i think to the circumstances here i would look at the totality of circumstances i'm talking about the custody you tried to say that he was not in custody and i think that's flatly refuted by our cases so tell me why on that point  remember all the specifics now you just tell us it's really not distinguishable on that point so let's hear your argument as to why or to the to tell if you think it's what i can fall back on your honor since i don't remember the specific back to washington are the factors that the main circuit is articulated as far as what it takes to be in custody and those are just broad daylight whether the guns were displayed the number of officers and there was a distance there was a bit of a i think you're getting things jumbled together let me ask you this do you have a case for us in which someone was in custody was not told that they had the right to refuse consent and he nonetheless held  voluntary can you cite a case in which that was true your honor can you repeat those yes ok so i'm going to focus on the fact that the defendant was in custody let's assume that your we were to conclude that your that the defendant was in custody the agents did not tell the person they had the right to refuse consent and our court nonetheless held that consent was voluntarily give i haven't been able to find a case that fits that pattern and i'm hoping that you'll enlighten us if you have  i think your honor us born if i can take just a second here which was the case that followed chan the defendant cited if memory serves it was a case where the court was attempting to distinguish chan for custody purposes excuse me for consent purposes to different or whether consent was voluntarily given and they determined that that without the menacing show of force that existed recall ok oh certainly take a look at that and then with respect to the guns issue your honor there was some conversation in both of the briefs as far as whether guns were drawn i do want to point out that the district court sort of by negative implication absolutely found that there were no guns drawn much less even touched during this encounter in fact the district court went on at great length to say how casual the encounter was and how relaxed the defendant was even as shown by the fact that the defendant then went and put up his feet on the park bench afterward turning to the miranda issue i'd like to point out first that on the waiver issue it's not just that whether there was a new argument raised here or whether there was a new claim  raised here the point here is that even at the district court level the court made it explicit finding that that the free issue whether an attorney was free or not was not even an issue before the district court expert that testified agreed with two of the other translations that the term no brahman appointed so far as the district court was concerned this wasn't an issue at all at the lower level and that's why the government raised the issue of waiver at this level the sentencing colloquy judge burns flat out said i understand that this is an issue i'm taking these factors into consideration and while he didn't tick off the various factors i'm not aware of one circuit authority that says he's required to specifically take off those facts when he did say he's going to consider it so we should assume that that was part of the consideration thank you thanks very much what about the future what about the fact that the guideline has been amended don't understand what you just said he did the district judge denied a minor role is that right that's correct ok now after that happened the sensing commission amended the minor role guideline right yes ok following up on judge walker's question why shouldn't we remain on the case to the district judge to reconsider whether he qualifies for the minor role in light of the amendment because the district court took into fact the prospective changes in the guidelines that were going to be coming to the district court up front said i recognize that they're not law yet but i'm nonetheless going to take them into consideration in my analysis so that was all accounted for thank you if you're a minute for  just a couple of quick points your honor first of all at your three sixty one the district court explicitly said at that point the request for consent occurs they have no reasonable cause in other words a district court found no reasonable suspicion here and again we would urge the court to do the same what suspicion there was was simply unreasonable on the consent point as your honor pointed out we have reasonable cause to think of reasonable cause and then in the following clearly three factors here against voluntariness i would say that we have a forth under washington even whether or not firearms are just are drawn the display of firearms is enough to to at least way  toward involuntary ness and we have more than that here we have testimony that there was an officer touching the handle of the gun which under this course decision or us weighs against voluntariness so there was no consent here on the miranda issue the government contention apparently is that if only the right to counsel was discussed below the not so insufficient to preserve the claim  the the district court plainly said that and correctly surmise that trial counsel quote said we're claiming that the recital of his rights was sufficiently unclear so as to invoke a responsibility on the part of the officers to clarify what the rights were that's it you are three sixty five the claim was preserved our arguments on appeal granted are slightly different insofar as they go to one of the one of the trio of components of right to counsel and that's the right to appointed counsel but beyond that the is preserved the government's translations one of which translated the word number are as being designated instead of appointed that was approved by the government had translated before it was filed with court it just shows that th role guidelines that that's improper so we would also ask that th