order the driver back into the vehicle of his patrol car to question him is our position that that practice is is illegal under rodriguez which prohibit any extension of a stop that measurably extends the duration of that stop absent some additional finding a probable cause there are two facts that the officer relied upon to extend the stop in this case st of all he said he smelled cologne which he testified is commonly used by drug traffickers to mask the scent of narcotics and then secondly the officer testified that both passengers were nervous based on case law from this court we don't believe either one of those facts individually or in conjunction is sufficient to rise to the level of reasonable suspicion to extend the stop under rodriguez first of all with respect to the cologne i know the record says cologne but the officer didn't really say what kind of cologne it was or what it smelled like i think there was a male driver there was a female passenger the officer did approach the car on the passenger side and then that is when they smelled the calm that is not an entire that is not uncommon presumably a large number of innocent presumably innocent travelers would be wearing cologne especially a female to counsel are you taking the position the the stop entered into a room of questionable  when the driver was requested to sit in the officers vehicle while he did the license registration yes cases that what case says that well at i think rodriguez stands for the proposition that the stop has to be limited to the basis for the infraction well at the point that officer is investigating the stop he's doing the normal checking the legitimacy  driver and the and the vehicle how is that extended or how is it some heightened imposition to have the driver present with him while he does  telling the driver to have a seat in the vehicle takes time and if you look at the record the specific reason for that occurring was so he could question the driver more extensively so he could separate the driver from the passenger the officer testified he wanted to see what his nervousness was with get more calm to get more nervous he wanted an opportunity to observe his body language so all of those things are related to additional investigation and i 'll concede this is not a extremely significant extension of the stop in terms of time we're probably only talking about minutes at best however under  rodriguez it prohibits any measurable extension oh no you already have only already recognized and maybe are going to say this is different and a case called brown we actually say that the officer even in a routine traffic stop can check driver's license registration and insurance and quote request that the driver sit inside his patrol car so i don't know what you can get around brown i don't know that i cite that the rodriguez case i believe rodriguez did abrogate aisle a lot of those cases based on that language that says any measurable extension is illegal absent some additional reasonable  suspicion and prior to rodriguez i think this court has as well as many other courts of appeals did allow what was referred to as a dem in a most extension of the stop the idea being that hey if you have a basis for a traffic infraction such as speeding that's going to allow the officer to extend the stop briefly maybe fifty one thousand and fifteen minutes to perform like a canine sniff so our position would be that rodriguez significantly changes of the lead changes the landscape regarding the discretion of forded to police officers and what they can do even when they do have a legitimate basis pull for the initials and for what it's worth the brown case is three hundred and forty five f three thousand five hundred and seventy four thank you thank you judge strauss would you say that the officers not permitted to run these checks even if he leaves the suspect in the suspects own car i think the officer can run the chip i think the officer can run  rodriguez creates a litany of things that an officer can do then i was there an extension of time here if the only difference is where the driver is sitting well our people are what we're what we're claiming and what we think the record  suggests is that the act of removing him from the vehicle placing him in the vehicle would would increase the amount of time necessary for the officer to do the checks that that officer needs to do well i would be of the officer has to walk back either way softly drivers walking back with him out of sight extend the time he's going to place him in the vehicle also this part this record itself talks about the officer wanting to engage in additional questions wanting to observe his body language wanting to see to gauge his nervousness all of those things would be unrelated to to the to the basis for the stop that speeding speeding infraction so and also rodriguez clarifies that it's not a question of ok well what's a reasonable period of time for the stop is it fifteen minutes is it ten minutes it's what does the officers do so the fact that this officer maybe could have done some other things that were within the purview of rodriguez it is not a basis to extend the stop what matters is what the officer actually did what did he do here to extend it i mean you can observe nervousness without  extending and i think the question is does a call on the smell of cologne or perfume and nervousness does that provide any basis for the extension of the stop no i'm saying what actions did he take that extended the time you're saying just the fact of bringing the driver back to the car extended hours yes and having him sit in the car and then whatever amount of time he spat questioning that the driver and observing his body language gauging feedback on the computer yet it doesn't extend the time right if you have to record doesn't to see whether the fellow's nervous while they're waiting the record does not establish that particular aspect of it when the observation occurred when the questioning occurred it occurred while he was waiting in opposition would be the burns on the government to prove any warrantless stop is reasonable so where was the st point in time when the officer smells marijuana  was i believe once he was in that the driver was placed in the vehicle that is when he st did smell marijuana and the officer did draw a distinction between marijuana and ra or green marijuana at that point with the officer have the basis for further investigation we would concede that that would be sufficient for further investigation well then how could that create an  extension for him to follow up a little bit and welcome back to the truck and then at that point things go downhill the record does not establish that that observation occurred prior to the extended duration are extended to detention that what they were alleging i do see employees to thirty seconds i would like to reserve whatever time i have left may please the court david wagner on behalf of the united states i think i'd like to start by addressing the this question of whether rodrigues changed to this court case law saying that as part of a traffic stop an officer is entitled to ask the i quote once a driver makes a traffic stop the officer may lawfully check the driver's license and registration ask the driver about his destination and purpose and request that the driver sit inside the patrol car that's post rodriguez and in nothing about rodriguez calls that that that was standing holding up in court and into question i think one aspect of road rodriguez that it's also important not to overlook is that rodriguez makes clear that there's two missions of a traffic stop the st mission is to address a traffic violation which i think was the gist of the discussion that the court just had with the nd the nd mission is to attend to related s and asking the driver to sit in the patrol car with the officer where the officer can observe the driver and make sure that the driver isn't posing a threat i think is in part an important part of an officer safety during a traffic stop and under rodriguez it is perfectly  permissible as part of a traffic stop to take that seat i'd also like to address the premise mr barker's argument in this case which is that asking him to sit in the patrol car measurably extended the encourage the court to view the video of that which i believe has been submitted to the court in which we can see that when off work will do to act in mr parker get into the patrol car will do to ask him a number of questions related to the traffic violation such what state his license plate is from why he wasn't wearing his seat belt where he had come from where he was going all these questions related to the draft a violation which if they had been sitting in the patrol car together or pulled you that probably would have had to walk back and forth in order to get answers to those questions which i think would have extended the duration of the traffic stop even longer parker's car and then once he went back to the car to get insurance information passenger he smelled green marijuana again which further heightened his suspicion and even further based the probable unless the court has any other question and with regard to the question of safety i think right who just stands for proposition a safety related to the vehicle driving ability of the vehicle i don't think there's anything in rodrigues about that safety issue pertaining to all for sure say you know no off safety is another issue but rodriguez does not speak to the safety of the vehicle as being a basis for extending the stop i think the question of whether or not the officer actually shorten the stop is speculative  certainly the purpose of that him coming into the vehicle as as it's undisputed in the record was to gauge his demeanor and to figure things out and learn a little bit more so that's our basis for claiming that it was measurably  that's our basis for arguing that