when two police officers from the healdsburg illinois police department boarded the train in the fields for train station they went to ms bradford sleeper car it was the smalle sleeper car that amtrak offers which is about three and a half by six and a half feet they asked ms radford what they described as security questions they told her that they were investigating for people transporting narcotics on the train they were uniformed officers wearing khaki and nine unit hats and one of the officers identified himself as affiliated with the  officers asked ms radford if she's carrying any drugs or guns for money she said no the officer then asked miss radford would you mind if officer wars fold at all and i checked your bags to confirm everything that you told us is true this radford said i guess so you're just doing your job the officers then search the bag and se heroin from the bag we are arguing that it is radford was seized for purposes of fourth amendment understand that they had three they had reason to suspect that her to confirm that what she was telling them was true that at that point a reasonable person would not feel free to refuse the officers request given the circumstances of  cross country train travel that she was in and isolated rural illinois train station four hundred miles from her destination and fifteen hundred miles from her point archer and that the officers had already suggested to her that she was the target of their investigation action deed she was then and so whether there was reasonable suspicion or not is one of the issues in this case the district court didn't address that issue i think the district where they didn't say you're the target of the investigation is just since said we're investigating trafficking correct i think a reasonable inference is that a person would think that they were a target and that's when they were actually doing well if asked whether you were carrying drugs guns or money and you don't see any other passengers asked the same questions i think it's reasonable now it's a completely out of the see any other passengers question because the officers did not question the other passengers they they testified to that so one of the issues is whether the officers had reasonable suspicion to season as radford but they didn't seize or well and police officer asked a question of someone there's incriminating answer and there's a harmless answer and they give the incriminating i don't see what that has to do with seizure well we believe that the seizure really the case crossed the line from a consensual encounter to a seizure when the officer asked her to search the bag to confirm that what she was saying is true and given that reasonable people at this point know that complying with security regulations when they're traveling as a condition of continuing on their journey we believe that a reasonable person at that point would not feel free to say no and that's the that's why we're just looking at because i think a reasonable person would not feel free would not believe that they could continue on their trip if when precise answers rather to be arrested well i think i mean she knows what's in what's in their bag whatever it is and that suggests that she didn't feel that she was free to say no because a reason a person would say no knowing that what was in their bag if they thought that they were free to say no when you mean frida saying no what does that  that she was going to slap her if she says no that she would otherwise be allowed to you on her trip well what do you mean you mean they're going to stop the train and take her off she says now i think a reasonable person could wh i thought you're human ones that just as you'll be denied boarding an airplane if you don't consent to the search of your carry on luggage a reasonable person which is the test of for the record in the have she would have thought she was going to be dragged off the train if she didn't say yes because the officer said it was you it was  compelling her to answer yes well i don't think it's any different than the situation you think nobody would have answered no i think there are we  the evidence was that some people do answered yes some people will answer no i think so they're free to answer no and they make a decision yes or no i don't see where caesar after i think under ms radford circumstances where she is in the middle of this long train trip and she's been on the train for a day a reasonable person would not feel free to say no aside from that issue but if she says yes you know she going to be arrested how can that be a superior choice from her stance she doesn't know what'll happen if she says no she knows with certainty what will happen if she says yes it's not a spirit or choice but it and i think that's why it's it's just it's an extremely inferior choice right you know used to be arrested versus you choose maybe to pick other told to leave the train and that's why i think it suggests that she didn't feel that she was free to say no because it wasn't a right what does this mean not to feel free to say no what it's you think would happen to or if she said no that she would not continue on her trip what i mean they drag her out of the train i think that's a reason because she said no i think that's what a person could think i mean if you're in your story but but the police wouldn't do that because they would be totally squelched by her loss cases support reasonable suspicion to have seized miss radford now aside from the whether i would see it with that but there seems to be room for date for government for her in case aside from whether she was seized the court could find that she was not seized but still find that her consent was not voluntary and that's our second issue and that's based on whether  that it was not a product of her free chose what you're saying no that's not what you're saying you're saying any time someone who's asked a question by the police and gives an incriminating answer that person is not everybody in her situation would say would say the same thing that no one would say no but what we know is what she did say and when you're looking at whether that doesn't help you problem i have mr mullins here is you know essence the fact that she didn't testify we don't we we've got a good argument by counsel on the sort of thing but i don't  she doesn't suffice to say and i says yes i was intimidated by the authority i didn't think i could leave it such of should and shouldn't should i be troubled by that i understand on the first issue whether she was seized that's reasonable person tasso it i don't think her a subjective but by completely them into the of the officers testimony about the circumstances right yeah i think the facts are undisputed as far as what occurred as on the consent issue her statement to the officer i believe just enough for the court to find that her consent was not voluntary i think that statement speaks for suit well it could be enough but this district judge found other cracks feels like a question but that this and that's the district judge did not indicate that it was applying the government's the burden of proof to the government there's no statement that the district court said i think there's just no indication it doesn't appear that the court applied out that standard why should the government have the burden of government has the burden of proof to show that they seized  think i understand the court's was issued on seizure the court can also find that she did not consent voluntarily whether she was seized or not and i'll reserve any time i have left the bottle thank you the morning your honour's may please the court second to let somebody have united states honors the facts and in this case as found by the district court demonstrate that we have a consensual encounter that ended with ms radford voluntarily consenting to the search of her luggage and i know there's a disagreement with regard to the voluntary consent about the standard of review that should have should apply but quite frankly under any standard of review the government wins because under either one the facts as found by the district court are given we are ever deference and so if going through what those facts of the district court found are this court found that the encounter here happened in the middle of the day officer means whose five hundred sixty five pound which is it's pretty much exactly my size did not block the door but stood to the side of it and just peeked in income that he gave the impression of just a thought that if i said no they'd go ahead and search that's right and that would be the best scene yes and interesting lee and i had a discussion about that same question why ever do people say yes there's the possibility that by saying yes they hope that that they won't search because they said yes or maybe that by saying yes they won't engage and maybe as thorough a search those are those are possibilities but either way the review at least that is the other alternative is that the entire encounter is structured carefully by the police in order to stay just within the boundaries or a little over the boundary said by the supreme court for these kinds of cancers but is designed to overcome the will of the civilian he's targeted for this and so i would agree with the first part and i would agree also that the officers intent in going through and certainly to get them to consent to a search that's true of any case where you ask for consent to search and there's no difference  they did stay within the law in this case they asked only for the to mentary questions that the district court found were my wife who i would not be appropriate to say that to get a valid consent to a search the police have to explicitly say you're not required to consent to this or so i think that essentially that has been what we look at is the totality of the circumstances whether or not that was said and it's certainly one of those circumstances but i think if we look at if we look at other cases there's no requirement for specifics right we've we've had we've been seeing the do the war on drugs in the damage it's done to fourth amendment rights interdicting supplies so perhaps it might be time to reconsider some of these standards and say look if you're going to if you're going to count on consent let's make sure it's really valid con t as opposed to the kinds of intimidation and in games playing that that the police can engage in to try to get people to consent to tell you don't have to and i think your hono point was discussed and i recognize that it's changed but it's something that hasn't changed are the countervailing issues or concerns that the supreme court dealt with in that case which is on the one hand you want police to ferret out crime we do and on the other hand there's a necessity for the security of a person and to not be bothered by the police and i i recognize those but even if we accept ok from now on we need well isn't the the assumption of the voluntary consent finding is that the person understood that they were not required to consent correct if you don't understand that it's hard to see how it's voluntary right so that there this is one of those interesting questions minds me of justice frankfurter statement of voluntariness is a is a salamander so hard to get my hands on but the  court dealt with this in law where they compare the voluntariness in the context of the fifth amendment in voluntariness in the context of the fourth amendment and whether or not the government needs to show as a matter of proof that this person this individual knew of their right and the court rejected that in the context of fourth amendment and obviously if we look at miranda and others the fifth amendment would apply that standard voluntariness no question let me let me try to ask my question again i understand the supreme court took that totality of the circumstances approach but would you agree that a finding of voluntariness necessarily assumes the person understood they could have said no yes ok so what would be wrong impractical about saying what's at least make sure that the person knows they can say i think the issue with that is taken into account the sort of rapid fire aspect that happen in day to day policing and that's that in fact what the court took into account  comparing they could ask again are you really sure and so are they could ask you again for the second time are you really sure you meant right and there's so that's why we look of course at the totality were she was in a box i don't think it excuses or at all but she knew she know she guesses that they didn't just ask her random that they picked her out to ask this question because they were suspicious knowing that she also knows that if she says no you can't talk to me or so well if she's when then when she arrives at whatever she's going she's go police asking questions about for other people what are you doing you know this person right then i don't think that has anything to do with violating the constitution but i think it shows as a practical matter why even the guilty may decide that the jig is up if they don't if i don't give up if i don't let them search now they're going to be following me around for you know until i slip and that's that's possibly right it's important to note that in the context of the consensual countered cell though what we actually look at is a reasonable innocent person and so whether or not  reasonable innocent person engaging in this communication with the police would feel that way i i no i wouldn't but i'm obviously very comfortable with law enforcement so that i may not be the reasonable person in this regard but i think a person who in this case the court basically went through the same analysis i mean the same facts instruct on both questions but here on a clearer standard if you look at the fact there was no intimidation no coercion no threatening or intimidating tone of voice the way the questions were asked of course as attempt to point out the questions are designed to gain familiarity and then ultimately to gain in something some situations maybe not this one but in some situations the individual figures it has to so well in they're not going to find yes and that brings up the sort of prior point which is maybe they figure that by consenting they won't do a deep search that they otherwise people in other cars but not necessarily in the hallway to answer your question that hamilton and i pod as i see i'm out of time but on page twenty five of the transcript officer m testifies that in fact people did say no and that when they did he said ok you have a nice day but it was not there was no testimony specifically about the frequency of that but it was clear that that did just to clarify the court's question ms radford was alone in the compartment to get at the other issue of police not informing suspects of their right to refuse consent it's not required we knowledge that but it is a factor to consider whether consent is voluntary and i think it's a factor that chords waived fairly heavily there's also this issue of what the standard of review is on the voluntariness of consent  it appears that there are some inconsistency in the case law on that issue we believe that the proper standard of review is the knowhow and that standard is consistent with  and it just makes sense from a practical standpoint where you have the district court in the best position to find what the facts are the historical facts and when you look at voluntariness you're looking at what the historical facts are and then weighing in weighing those against the legal standard of whether those facts mean a voluntary confession or a voluntary consent so we believe that the court should apply that ennobles standard under