parking lot in the evening he was sitting in the passenger seat they were in they were in and you're constantly in touch with this particular car and unknown to him both men they arrested both men immediately i had the driver vincent chavez and del yarrow who was in the passenger seat i was arrested immediately and that's very clear in the  record i think it i record on appeal to eighty five and they immediately searched all your own take out the contents of his pocket incident to that arrest lot yes sure on or it does because they were led to the other vehicle by what they obtain from the unlawful search of del hero so that debt is  information about vincent chavez the driver they lacked or as your honor pointed out specific information about delhi hero he was a passenger in the automobile i was surprised that investigative detentions in which perhaps probable cause may or may not arise during the course of that detention but there's no question that the agents and the testimony was very strong on that point ok some pretty specific information about the driver that he had been involved in a possible pick up of some smugglers actually some agents posing as smugglers of of highway ninety that he had abandoned for the evening because he detected too much of law enforcement activity in the area and so he had  waited for the other agents to arrive to effectuate the arrest and that's what they did immediately and i think they were surprised to find del euro in the passenger seat there had been an observation by the surveilling agent the one who lost sight of charges at a gas station and marfa texas about twenty six miles away and the testimony is very important and very clear that that surveilling agent had charges and charges his vehicle under surveillance for about fifteen minutes in a well lit gas station and he had an opportunity to see into that vehicle and he saw when hispanic male and from the description that that was charges he didn't see another vehicle so even though the agents might have been expecting a second  vehicle there was no evidence that the surveilling agents saw no other vehicle at that time or saw a second individual at that time again as of surveilling agent was following the person his friend correct and there was a period of time i think the testimony it record on appeal to forty four is the most specific as far as the amount of time that the surveilling agent lost sight of child does and so is some point during those that amount of time i deal yaro joined charges in the vehicle that was some thirty to forty five minutes that's correct that they were obviously expecting a second vehicle they had only been given the description of of one vehicle and one man the man who had picked up these these backpackers earlier in the preceding days there is no it was to get the government's burden obviously to establish probable cause for this warrantless arrest there was no testimony that they saw a second vehicle parked right by this p r call that would have suggested that del yaro got out of a second vehicle and got into charges his vehicle there was no testimony that they that they saw second vehicle driving along with child eyes and so while there might have been a reasonable expectation based on what they had been told there was no evidence to suggest a delhi arrow there were a search and see if it wasn't for us for officer safety which one might expect regardless of whether it was an investigative detention or a probable cause arrest it wouldn't give the office reason to take a key fob that's clearly not a weapon out of somebodies pocket and activate that key fob so that was not there in time to take his cues or whatever it is to really know what they're dealing with search wasn't a weapons for us that was in the government's position not that that would prevent the court from finding that but it wouldn't be it when be within the scope of a weapons for us to take a key out of somebody belly please the court elizabeth berenger on behalf of the united states now it's uncontested in this case that agents had probable cause to believe that a crime had been committed obviously did or he seized the drugs in the backpacker's and they reasonably believe that that explorer was involved in the crime now the disputed issue is whether and also again it's uncontested whether that officer is reasonably believed that more than one person was involved and i know we had some discussion about thought one other car was involved but i direct the court's attention to agent werner's testimony that made hundreds of arrests similar arrests in this case and he testified that sometimes there are multiple vehicles and sometimes there are multiple people in each car so whatever it was the officers had reasonable belief that more than one person was involved so now the district court correctly concludes that the officers reasonably suspected that the occupant of the explore that was parked in the parking  lot was involved in the drug trafficking offense and i'd just like to because there's a little confusion about the timeline briefly go through what what the officers were seen in their experience they're very experienced agents that had been there for a long time agent wright had been there twenty five years in the same station so they pick up this explore in marfa and see it filling up and at that point hershberger lays eyes on that car and he begins following not car as it's going along highway ninety which is if you're not familiar with the road a very desolate middle of nowhere place two lane road in west texas he's following this car as it's looking for these backpackers along the road he has eyes on he says he's loosely tailing loose once on the vehicle to eighty one is the reference for that two seventy nine three zero nine so yes lou surveillance on the vehicle he realizes that that car didn't pick up the backpackers that passes the spot so we're only fifteen miles outside alpine at this point and he still has the surveillance on that car now when you hit the way up spot all the way to alpine there's this really windy mountain pass as the district court found and it's two he said that he realized he still had blue surveillance on the car as it passed the way up spot in the testimony is that the lay of spot was fifteen miles from alpine so that is from the record three twelve is the distance from our for the alpine three thirteen to three nineteen is the distance from the layup spot to alpine and he still have the surveillance on the car as it passes and that's from two eighty one he realized it never stopped he said he had a long i on it that's the testimony from agent right so then with they're going through the mountain pass he's still following this car but he loses sight and this district court found that it was just a brief period and that finding is supported by the record because it's just a mountain side he said there's only one way to go and  car yes he doesn't see the car but they're both driving in the only way to go is to alpine and the direction is they're traveling to alpine so then when agent hershberger gets to opine he sees this explorer the same explorer he's been following really the issue but i beg to disagree because they have been only a brief time where this car is honest ours is the instrumentality of the crime it's the it's the essence of this case is this car and so idea how many people were in that car i know that we said that there's the defendant said that they saw only one person but the actual testimony is that they weren't sure how many people were in the car when they saw the guy gassing up they saw one person but they couldn't see if anybody else was in that car and that's from two to two and three ten in the record agent warner said that sometimes there's multiple people in the car the car windows were tinted we know that from page to eighty four so we don't know how many people are in the car so once agent vacant parking lot at eleven pm at night in the middle of alpine texas he sees it there he sits on the car until the other agents arrive he's just sitting there watching the car and that is from record two to two eighty i mean  there's a brief break and under those circumstances now we're doing probabilities and in reasonable and probable cause we're not dealing with hard certainties where the police are not required to rule out innocent explanations that some man just happened to see his coworker at eleven o'clock at night in a vacant auto zone talking line alpine texas they're not required to rule that out what we have to look at is whether those agents had a reasonable belief that all of those circumstances amounted to probable cause and as far as in individualized suspicion when we did have some sort of similar situation that car has been traveling along for the past couple hours between march and alpine looking for backpackers the court agents were entitled to infer that there was a common enterprise among the occupants of that crime the car and its occupants were central to it the case jillian that i cited in the twenty eight j letter it recognizes that a defendant's presence in a car contemporaneously or in close proximity to when that same car is involved in a criminal and criminal offense can develop probable cause it's not his near presence to be a driver it's his presence in that car at the same time that car is involved in a crime another distinguishing factor from dereck i ray they had him they were able to single out one specific passenger i mean the c i pointed out that the driver and the driver only that's the language from director so in this case we don't have a singling out that the driver's the only person involved in this car agent werner's testimony establishes which was credited by the district court that there were more or more than one person involved in the car and that sometimes the car has multiple occupants also  drug dealers there was never any seizure of drugs here we had already had the seizure of the drugs the agents already had the drugs in hand they were looking for the explorer they're looking for the vehicles that were coming to pick up the drugs so  beliefs of the officers is really relevant is of course it's not their subjective belief but the testimony below in the government's theory was that they arrested those people defendant's right when they open the doors and i agree that there are multiple theories certainly had the right to go into his pants pocket and take the fog and use the car i this is not brief but there is also a recent seventh circuit decision showing that a house quicker that they can go around and use a house quicker to open garage i think they were clearly within the parameters of their rights under the fourth amendment when they click the that back to the pringle determined i did want to mention also as further evidence that they were suspecting multiple people and the way that agent wright describes going into that car and agent wonder how they were approaching it from the back opening the back doors to make sure they weren't going to be surprised by anyone in the back seat opening both sides of the doors to th was just the driver why would they go to all the lengths of opening all the doors to prepare themselves for officer safety purposes but ultimately under pretty goal it was reasonable for the agents to and for that anyone inside this car that  involve for the past several hours and arranging a pick up of drugs and backpackers it spent the past couple hours driving back and forth along highway ninety in the dark looking for those backpackers and then parked in an empty parking lot along highway ninety at eleven o'clock at night was part of a common criminal enterprise that satisfies a fourth member requirement for individualized suspicion of the passenger of that car and if there are no further questions  and it would be reasonable if the officer stopped and i'm sure this happens that there's a stop where there's not just a driver there's a passenger there on their way to pick up somebody  smugglers this is this happens undoubtedly and that could be part of what the agent with all of his years of experience is talking about that there often will be more than one person involved in this type of smuggling operation but in this case again they may have expected to vehicles but there was not specific facts to believe that del yaro was the and very powerful argument that they can push that button and see what happens in other words regardless of your and every government has this kind of back up argument if  only one person i think think they did say that they saw only one person the surveilling agent when chavez was at the gas station in marfa but this specific question was it was well lit there was an opportunity to see in that car and the agent said they saw one hispanic male in that car so i don't think there's ambiguity about the fact that the arrow e and the cases cited by the government like killing i did also tangentially relate to suspects in a car together i think they really illustrate how many more facts are evident when probable cause is found innocent gilliam it wasn't just that these suspects were found in a car together they were wearing clothes that the victims of the robbery had described having worn they were carrying plastic bags that had the bundles of items that look like the proceeds from the wrong bery i'm so again there there are far more facts that would form a basis of