a push to court good morning my name is kevin mccoy i'm with the federal offenders office in anchorage and i'm here to represent mr solomon to this case brings us to the intersection that exists between the entering provision and the being found in pursuit provision of the u facilities at the port of entry then even though they are within the geographic limits of the united states they're not found in the united states and when i was surprised that was their own seem to be any precedents one way or the other for people that drive across the border on the road and as opposed to this taking over the fence all right but she goes a pita right and go right to the customs office and  i resent their identification is that right i have not found any judge i think this is a case of first impression but i think the concept is it's the same i think that a person cannot be found in the country unless they have successfully entered the country putting it another way being found in the country presupposes a successful entry our view is a person who approaches a port of entry regardless of where that port of entry is whether it's in an airport or fixing a border if  it's the united states mexican border or the alaska canada horder if that person approaches the point of port of entry to submit to inspection and submit to inspection and then is arrested they've not entered the country and are rationale for that is that the arrest  as occurred at the functional equivalent of the border and the person is not having been arrested at the functional equivalent of the border it has been officially restrained and it's not free to move about the population of the cases talk about the matter or will offer to persons just be charged with attempting to enter i think that my own view is that this case should have been charged as an attempted reentry because that's what the you know who knows how would you would respond to that but that's where the facts are you have a man who appears that the agent just sees him at the stop sign right in front of the inspection station first time he notices him there's no evidence other than that the only evidence that the government presented was that he stopped at the stop sign they were they were directed to appear there was some contact between the driver and the and the border agent and based on that contact they were referred to secondary inspection and when he was a first inspector secondary inspection mr solomon as truthfully identified himself and he was arrested i mean where the confusion comes from my perspective is it is the concept of border or a fenced border or anything like that or a person who engages in a vase of contact at a port of entry a person who does those things is said not to have entered the country because the notion of being free to mix with the call it that doesn't apply unless there's some effort to avoid inspection like i said going to foster our opportunity i mean probably taking part in effort or opportunity i would say effort or evidence some some what we have it's i don't know it's just the one border case that i've had i'm familiar with we're talking about according to the testimony took twenty to twenty five seconds to drive from the border to the inspection station there's no evidence that there was any delay and i don't think it's opportunity intent to do that or no evidence that that he did that at all and i just don't think it's the fortuitous placement of the port of entry that should define it otherwise you're equating being found in with entering the country as was i think all our inspection stations are probably inside the u s just this one is because the foreign countries might object to our putting them in an armed border station in their country i would think so you know i can't i mean it's just it's a practical it's a practical so always put them right at the border for a geographic reasons and that's why i say and i'm that i said that the inspection station in this context is the functional equivalent of a border particularly when there are signs that direct you to do those things you're right there was can still tell you to go there and so so so i mean it's our view that it shouldn't you know whether someone has successfully enter the country should not depend on the placement of the inspections station so long as the person general's perhaps that you know you can match make some charlatan on the border and that you know if we know that they exist then you know we can give you the papers that you need to go in and this perfectly legal and that individual would have a good faith belief arguably that he or she could testify that's correct i don't know why only reason i can think of was he was going to testify that he could see the headlights the whole time even though the car was actually that's an inference that you can draw the government chose not to present that ever evidence what inspection station they sneak across or under or over the fence and while they're sneaking around in the brush unbeknown to them they are select product detection and they haven't y the margin that we keep along the mexican border that has electronic detection devices are cases hold they're not found in the united states because they haven't gotten out of the surveillance it just strikes me as bizarre that if you drive just the way you're supposed to drive down the highway for the inspection station no sneaking around preparing to present yourself at the inspection station that then you are found  even though the person that sneaks across the fence isn't found this i don't get it what sense would that make well the person who speaks across the handsomest and that line of cases makes quite clear can be found on yes at any time after surveillance although they don't know it so are cases full that they cannot be found in the united states right and the reason is that they are under official strength but that only applies if in fact there was the surveillance and they were official restraint arose in response to a series of early cases in the last century in which the supreme court held that an individual who arrives at the border and is immediately turned back has not enter the united states for purposes of the due process protections and statutory protections that would otherwise apply this court held that the same concept would apply in the case of of illegal entry cases and that i someone never entered the united states but was well it's quite at the border now in return if you come to the border station present yourself at the border station and then you're turned back then you're never out of  restraint so you can't be charged with found in correct that's the case if the border station is at the border there is not a single border station and never will be where you don't have to cross the border before you are within the border station and there never will be that that's my my understanding although your sister understand that because that i think canadians and mexicans don't like armed american forces that's right within their countries and ordinarily when you when our presence and all of the what what i'm getting at here is if it's true that every border station the u s has if you present yourself with the border station and you turned back to your dean never through left official restraint then you cannot be charged with found and then it would seem to follow a force you already that somebody who was approaching the border station and has not yet gotten to the border station cannot be found in the united states after all he'd be deeper into the united states once he had gotten to the border station no because the issue is not whether you've approached a border station and then turned back the issue in every case is whether you're under official restraint from the time you cross the border in most cases the border station is literally a border station it is on the border and there are gates and walls that direct you to the inspection station you are physically well all of them have some finite amount of space between the border so that after crossing the border and individuals on long and that's going border where most of these cases have arisen as they approach the inspectors is never outside of official restraint the situation is completely different at the at the alaska highway crossing where for a substantial period of time after the individual crosses the border they are completely free from an extremely actually i wonder about that i was really struck that you didn't present one of the through eyewitnesse whole lot easier to sneak off into the woods fifteen below there between token beavercreek than it is around the mexican border the if you want or i not the physical conditions at the border that would make sneaking difficult or specifically challenging the issue was whether there was a special restraint imposed by the government on the individual from the time they crossed the border the being found in prong of the statute that whether you enter by approaching the inspection station or when he went or by by climbing over the fence at any point along the border or what you enter by walking through the woods on the  properly approaching the border station the inspection station there are so there are cases in which an individual entered the united states through the inspection station and then was later found that's all i ask you know i don't know i understand  away no i don't think so i think both of those cases are fully consistent with possession of the united states in this case and both of those cases the individuals arrived on a commercial flight and that the cases don't give us many facts along those lines but but but certainly i think that the court can take judicial notice is that when that when international travelers arrive at an airport ordinarily they are detained in the sense of their being locked doors and gates until they actually pass through customs and immigration and then they are free to go at that point they become free to go within that within the  and then they are within the united states until that point they're not thank you can