the district court denied the suppression motion on the theory that the two deputies initiated a consensual encounter with the occupants of the s u v and then conducted a legitimate parole search of mr grissom that was wrong because the government didn't meet its burden under the fourth amendment as to either of those two issues in fact the only testifying deputy said unequivocally that although he and his partner got out of their patrol car with the intent to initiate a central encounter they had decided to initiate a detention instead by before they reach the s u v and their conduct after that point demonstrates that intent most importantly deputy garcia who had his gun drawn went to the rear of the s u v without asking for permission he opened the rear door where mr gross that was sitting and thereby startled him no reasonable person under that set of circumstances would have felt he was free to just ignore the deputy and go on about his business council on the question of of  intent to detain as opposed to intent to conduct of a consensual encounter with the with the smell of marijuana have provided them with probable cause for the for the detention or sufficient cause for the detention reasonable suspicion  think well there's a open question a factual question about whether there was a smell of marijuana and i think that under the certain circumstances the smell of marijuana could provide reasonable suspicion to initiate it didn't give the district or make any findings with respect to the marijuana no in fact quite the opposite your honor he made the express find decision that statement he wasn't making a finding although as he did so he noted that the fence made some very good points including that deputy garcia raised for the very first time in the evidence you hearing supposedly found marijuana roaches inside the car a fact that he never documented in his police report or in this photograph even though he photographed other things like the alcoholic beverage mr gross was holding at the time so that with some special we know why the other officer didn't testify that was the other thing that the district court found very suspicious there was no explanation as to why they didn't testify but the court in saying that it wasn't reaching the issue of marijuana but noting that offends reason good points said i also think it's a good point that the government didn't bother to call the other officer who could have either corps operated or refuted the other was that this was a bench trial is that correct well this is a suppression hearing followed by a bench trial so there was a bench trial just the question of whether or not the officer smelled the marijuana get resolved through the bench trial no well first of my position would be that the although we put the transcript in the record that the suppression hearing has to be based discretion it had to be based on the suppression hearing alone that being said i don't think that the trial adds anything deputy garcia testified again in general terms about signaling marijuana but i don't think it changed anything regarding his earlier testimony and although the other deputy was called in to testify in trial about finding the gun that deputy said nothing about the events leading up to the the beginning of the encounter namely whether or not nothing to buttress the claim that made by garcia about smelling marijuana the question of marijuana is not resolved in th issues itself it has to send it back to the district court we propose that it does what it did in the cazares case which is this panel really your stiction sends it back for a limited fact finding things specifically judge fitzgerald m when the car has tinted with windows and when they know from a brake light someone's in the car do they have reasonable suspicion to just open the door and say who's here you know to see who's there to make sure they they're not in an unsafe territory no your honor i don't think so i think that that there's two issues i think compass by that question first is the level of reasonable suspicion that allows the court to make a start think countering the for i'm sorry the loss of deputies to start the encounter in the first place then it becomes a question about whether the information they have at the start and other information that they gather as they proceed allows them to take the actions that they do at that point i wouldn't i would argue that under the circumstances we have here where they're purportedly investigating a  possible personal use of marijuana that without asking permission and just opening the door with presumed apparently guns drawn exceeded the scope of what  justified under the circumstances in council you said with guns drawn and you've mentioned that a couple of times does it matter i thought first of all i don't think the district court made any findings regarding whether guns were drawn or not and wasn't critical to the district court's decision but secondly does it matter one whether they were drawn into how they were drawn i would say no but to the extent the court thinks so that's another factual issue the needs of your dress by the discord so let me explain i think that even if the gun was holstered the the the other circumstances surrounding the encounter namely opening the door without permission was anough to communicate to a reasonable person inside that  do not i can't just ignore this officer and walk away and as we pointed out in the brief that's particularly true here where the defendant is african american this happened in compton where even the deputy was saying that they consider this a gang infested high crime area and given the pull the city of police shootings to think that somebody like mr gross is just going to say you know got in the way officer i'm walking away it's kind of ridiculous regardless of whether it's going to strong i think having a gun drawn and here's the situation current state of the record mr jones who was in the vehicle said the author said her gun drawn deputy garcia the only testifying officer testified you know i can't remember maybe it was drawn or maybe it wasn't so i think that given the evidence in the record i think we can retain jurisdiction while these factual findings are made but regardless of whether those that are orders of more traditional remain and i would request of the court instruct judge that gerald that the decisions have to be made on the existing factual record the government had honor and so the government's position is that this was consensual yes your honor could it be consensual they're trapped in a car they're sitting in their driveway in a car the officers without an ounce saying anything else no there's no knock and announce just simply open the door testimony from one of what at least one person in the car says the officer had his gun drawn and the officer doesn't remember whether he had his gun drawn but that doesn't sound like that doesn't like consensual encounter  door before they can talk to anybody then how does that make it consensual how do you get to that ultimate finding of fact any resident of compton should should worry about parking in their driveway and using the brake tapping the brakes if that's all it takes that any any resident of compton sitting in their driveway if they tap the brakes lights can be approached by the officers weston what's different here council from from anybody else in compton i think i'm going to be out would we not want people in compton to use their brakes and that's not ok i won so what is the government's position training and experience in this area and that points are not like you want the mining kong or for that analysis all that's a good general principles i'm just trying to figure out what the government's got here that suggests that there's that there's reason to stop these guys they're sitting in a car in a driveway and the brake lights have been tapped that's enough i think it's nothing to approach and ask whether any is that enough is enough with a gun drawn you know you're correct we can affirm one on the ground supported by the record and if the record only showed evidence that there was marijuana smell in there i think we could affirm that we should affirm that would give suspicion to what was done however my understanding was that there was evidence on both sides of that issue that is that and i have one question for you what what what your best authority on your the that supports your premise that if we choose to remain in this case then it has to  enhancement that it has the obligation and duty of that time to prove up that enhancement to the best of its ability and if it doesn't do that the government doesn't get a second chance on remand to do that at sentencing slice a neurotic reason else that feels like a little bit different situation than if we remained there should we remain at an open record to get this right you know i don't think so i mean the the court often criticize the defendants for wanting to do piecemeal of a geisha and i think unless the court emphasizes that the government suppression case has a very serious burden under the fourth amendment to prove up these acceptance of the fourth amendment it wants to invoke to uphold the circs then you'll have a situation like we have here well let's put on deputy garcia oh that didn't work let's go back  didn't have him file a declaration or put him on the stand or not but i think that the government certainly in this case the government put on a very weak case and it shouldn't now be able to  states versus chris that is submitted