is riding for a suspected violation of california vehicle code section twenty two one zero eight because that statute in itself doesn't prohibit an on signal turn before getting to the merits of that argument however i'd like to address the government's argument that the claim is waived contrary to the government's claim this this is actually an issue of first impression in the circuit how the amended version of rule twelve which elimi es the waiver language that previously appeared in that rule in or acts with this court's general case on forfeiture and waiver and plain error the decision or tease did not directly address that question and that's not surprising given that the appellate briefing in order to see these was completed before that rule change when even went into effect and ortiz was argued just i think ten days after it went into effect  court and as the party's briefing shows the courts of appeal have taken different approaches to that rule twelve waiver language both before and after the amendment and you know when there appears to be a deep split as to whether that amendment is substantive or clarifying but it depends in large part held the court had treated the language before and we would submit that this court side with the fifth sixth and eleven circuits which like this court had treated a rule twelve quote waiver as a true waiver in the sense of extinguishing the claim rather than some lesser form of  forfeiture as it was treated in certain other courts and looking at the fifth six and eleven circuits decisions like this court previously they had relied on that term waiver and said after the amendment we now have to reconsider it it's substantive in light of our previous case law and these court these claims are no longer waves well but did the ninth circuit made it plain  good cause requirement was in the rule twelve itself and it survived it preexisted and it survives that amendment we don't dispute that but there are definitely a number of cases cited by the government in which the claim is extinguished in the sense of being waived now good cause we would argue you don't even have to reach this rule twelve question if the district court in a case like basket as from this court actually passed on the merits of the suppression motion it's implicitly ruling that that motion was timely and the government noting that you are three the district court does in fact cite this other statute  you know in all candor it does not cite that part of the statute about other traffic being affected but the government says that this you know this invocation of section twenty two one hundred seven shows that the district court knew about that statute and you know tacitly passed on that question yeah i'm not persuaded by that argument so let's assume that we continued to think that the good cause requirement applied and we weren't persuaded by the argument you just mentioned do you have a backup i guess i didn't see anything else in your brief that suggested that there was good cause no that would be our primary good cause argument however we would then go back to the question that of whether rule twelve and its amended form should lead to a reconsideration of this court prior requirement we have post twenty fourteen amendment after the twenty fourteenth amendment we've continued in a couple of cases to cite the good because it's been the standard and i guess i mean there wasn't any discussion of the the argument that you've helped laid out for us here but i didn't see how we would just ignore the fact that even i think of cases recently as last year we said that good causes the governing standard when in the situation of this event has raised the particular argument below and i didn't see any way to avoid applying that standard here we agree that a good cause is the standard if it is found to be untimely but that those should be reconsidered in light of the change wording of the role as the others assuming your claim is subject to some kind of a review does it make a difference here whether or not  plane or you know just a standard review i mean i would argue it doesn't given that the california court of appeal had already construed these particular statutes and said that section twenty two one zero eight which is the hundred foot requirement doesn't itself contain any commander prohibition so as the plane ever verses to novo i don't believe it makes a standard of course if this court finds that it's completely waived as would have occurred under the prior version of the role that's a different question now maybe this is moving on to the merits but you say there is a court of a a decision about whether or not the statute itself you know contains some provision that makes it a violation to violate that statute but the then amounts to an argument that the another section that makes it a violation does it make a difference i think after high and we've argued that this is an unreasonable mistake of law and i think the the case the pretty high in case that's most similar to this case is merit scholar which involved the arizona statute with a similar if any other traffic may be affected clause in that statute and i think this case differs from maersk all in that the records unusually clear that the officers did make a mistake of law in their declarations and in the report they said you know section twenty two one away it is the only reason we pulled the car over in merit scholar that record wasn't it wasn't clear so this court sort of assumed that they had the correct understanding of the law and then moved on to the second question but here i think we have to start with the question of an unreasonable state of law and the government has an argue that this would be a reasonable mistake of law after carmona and the california court of appeal decisions and i see i'm into my rebuttal time so ok well thank you here from the government respon the morning may it please the court michael friedman on behalf of the united states this court should continue to apply its unchanged preeminent rule twelve precedent and find that any argument about reasonable suspicion under the california vehicle code was waived because it was not really weaved in the sense that we don't have the power to even review it at all i don't i don't regard cases of saying that before well your honor i think the question that the panel was interested in in the earlier question was the issue of good cause and i think that in my mind the question is whether the standard should be plain air or good cause that's the only issue i see before us there's not any scenario under which that's why i'm a little puzzled why defense counsel spent so much time trying to rebut this argument i don't see any scenario in which we have lacked the power to address the argument at all just a question of whether we were viewed under the plane or standard a good cause standard i think the standard is the opposite which is that if there is a good cause excused and it can be reviewed for plane air and i think i don't yeah and i don't agree with that but i'm just saying there's there are some threshold that show that the defense council needs to get over i just disagree that there's some double layer barrier to two us two are reviewing it but it's either it seems to me it's an either or choice why why do you think that it would require the application of both i don't understand not at all well rule twelve let me be clear that even if the court does review for plane air there was no plane there because there's a factual dispute and under this court's precedent when there's a factual dispute there is no claim there so at the very even if it's reviewed there was no error and it should be affirmed going back to the good cause argument though rule twelve's issue with good cause is primarily a district court issue and in this case there isn't any record of good cause for this court to review and that's one of the reasons why the merits if you can't be reviewed vasquez which the defendant cites illustrates the opposite principle in that case a motion to suppress was litigated before trial and then during trial new issues arose  within the district court the defense sought to raise an untimely suppression argument for good cause now there's a complete record which this court and then review but in this case there was several rounds of briefing both before and after the hearing there was an evidentiary hearing with four witnesses and it every single step of the way as the record makes clear the defense took its opportunity to frame its issue file this motion to rule twelve it said the only issue is was the signal on or off that was the only issue that was questioned about during the hearing it was the only issue that was really that aided in the motions afterwards and so to the extent that the core needs to find good cause under rule twelve to get to pla air there is not only no record of good cause there isn't good cause here and so on that basis the argument is waved but i'm also happy to address why there is no plane error which would get to them there i'm just maybe take another run at why why would we have to find you're saying that we would need to find both good cause just as a for in the first instance in our court and then if we found good cause then we would review the argument f a plane air standard yes but why would we do that that makes no sense if there is a good cause for her not having raised it below why would we then just proceed to address them or well the case like this there's no record of the issue below because it wasn't raised in it finally fact so there's not good cause i'm saying in a case where there are the person was able to show good cause in our court for not having raise a blot whatever the reason would be i'm sort of with you that i don't see it here right but if there were good cause and we error and that this case there is no player and this case really illustrates the difficulties of trying to conduct any sort of review of arguments that is were never raised below there if there could be a different story if there had been evidence here here had   before why would it change well i think it should do it the way that it has done before and find that the argument its weight can be reviewed well if there is a good course it can be revealed correct and i think under court want to apply here even if the court were to apply de novo review there is no clear error because there's a nuff in the facts to reach the merits even if the court were wanting to do that in the extreme situation which i don't think it should do or needs to do under its precedent but there is a view that under the mended rule there is no waiver just simply mean just subject to play in your view what's wrong with that rule well that's a minority view of only a few circuits and we would urge this court to follow the majority of circuits which have considered the issue since the rule twelve amendment the first circuit the perhaps the first circuit the second circuit the third circuit the seventh circuit the eighth circuit all of which found rule twelve is not a substantive change the deletion of the term waiver was to avoid confusion in other words it's essentially an instruction to continue applying the rule twelve precedent without it getting intermingled with the waiver doctrine which is come to mean something different under a law now in criminal law if the court would like me to address the merits i'm happy to do so you first of all as to what the standard of review would be if good causes showing the government at page twenty four of its brief says that once good causes shown it is to novo review and we would agree with that as to the existence of good cause we have argued that there was you know this is not a case where there was no motion to suppress it all there was a motion to suppress it was on reasonable suspicion is true that defense counsel below focused on the fact of whether the turn signal occurred however there was a motion made the government it's their burden to show that for a  it was a reasonable search and in doing so it cited only section twenty to one specifically and it's his opposition to the motions to suppress so we would argue that that also as far as the framing of the issues constitutes good cause for defendant not voluntarily you know preemptively raising section twenty two one zero seven when the government has never sought to defend the stop on that basis and as far as on the merits the fact of how the california courts have interpreted twenty two one o seven it's the impact and if you look in the statute itself it's the impact of the introduce evidence to satisfy that standard it is sort of a bait and switch you have argued the question of whether or not a signal was made so they did not they did not then introduce any evidence concerning the impact on  on the traffic now we switched to a new theory and we said well you didn't introduce any evidence over our new theory which we did not graze in the district court so how could that work well are you that the government  briefing is also framed by the police reports that already existed and the declarations which also say the only reason was twenty two one zero eight and you know the government's briefing was in line with what the report said that that