because this is my whole problem with the case yes he provided a california driver's license and i don't think you object to that in your briefing but my understanding is they asked him or required that he wait and it wound up being a two hour wait and i think you license and then i have that and then the i two thirteen said the coast guard a could not verify his identity but that's the only thing i've got about to explain why the coast guard had him wait is there something else in the record i think that you need on the record because your home is the only reason why they detained him with you because of his appearance yes but we don't know that and no one else council we doesn't isn't that an assumption on your part that's the only reason what if they put his name in the computer and they got some kind of to create the record would your motion but i don't think there was the coast guard has ever asked the question well it's the it's not our motion to suppress but it's still the government's burden to prove that the  he is as an immigrant is immigrant status was all lawfully obtained not any of us if we had what i really want in a criminal case in a motion to suppress the government has the burden to establish that there that they had probable cause detention but this is they get his name there properly they can properly ask for his name and that leads them to the record but that's not what happened they detained him and then question him and then he's there well let me tell you what you don't know but you're not challenging the light driver he gave his driver's license and we've already covered that i think your position is that there was no problem with him giving the driver's license so they got his name but just the name alone as well that's just bias this point once they have a name and they put it in the computer they were going to come to this other document that was that predated any of this right by several years yes ok so via that doctor why is that if i waited the poisonous treatment because the only reason that they detained him arrested him put him into these proceedings that were it does it's not a result of the detention you got to go back a step earlier than that because before the detention he'd already given in the driver's license and you don't have any objection to that you've told us that the coast guard the port of long beach with my family i don't print passports i don't bring them so what immigration got some or what's your strongest support for your statement that the only reason they had to detain him was his apparent because assuming that the reason they attain detained him is because of his appearance and i'm asking you what is your strongest support for that and i haven't heard the answer i think it's your assumption i think my strongest argument to that is the fact that they don't cite any reason for the arrest for the detention ok so i think there's a lack of a reason for detaining a person makes it and put it in the computer and something popped up but i don't know that they didn't say that i too thirteen years you know i understand from reading your briefs in your argument and judge persons comment is your argument is really the only real basis for detaining them for that four hours for the possibility of checking with ins is that these guys were latinos yes that's it on a small boat out in the harbor the broke down the territorial water yeah within the united arab or that's your argument now they're not going to you know nobody's going to say that the only reason why they detained them is because of their parents i'm not going to say that i mean that's the inference you draw from this record because there's that when you go to that eye to thirteen there's no indication there's no other reason there's no other reason right now they could have they could now we don't know because they didn't call nobody called the coast guard officers into the immigration hearing at the hearing and questioned them why did you stop you may have indeed asked them do you have any documentation of your status in this country right it could have said no yes could've said no they had that they had asked that question and that question and that one if that was in the record of that kind of scenario was in the record you wouldn't have been because then it would have been proper clearly there would have been a basis to detain them to bring ice in to check their records but we don't have anything like that we don't know really is judge christensen we don't know exactly what happened because we don't have the we don't have the coast guard to version of what they did so so here's what i'm getting at and then i'll stop ok but your argument your brief reads to me like you're making a profiling case right yes that somebody was stopped and we've certainly seen those cases but typically i think what happens in those cases is that the arresting officer is questioned and then and then about why did you stop this person why did you pull them over you know so forth and then the argument is made that that's a pretext that i just did i'm missing that first then so then you get to the next if you want to move past because we've all heard but my question is when you get to justify it's this question right which is they've got the driver's license and they put it into the computer and they find a document predates what you're calling this fourth amendment violation ok so that when we don't don't so the question is why how is that a fruit of the poisonous tree no but that didn't happen though it was only after they arrested him they brought him in the question him that more information came out and then they determined that so when because the if the coast guard had run his name that his name if the coast guard had run it though before it turned him over to see b p and said look we definitely have a guy you don't know if they did by the way because didn't ask the question but anyway if they had run it then what we would have seen in the eye to thirteen coast guard reports they run this name we have all this information the officers would have written it up that way that's what they but it sounds like you're just assuming or wanting me to read that into the record and i will want to give you an opportunity to tell me what i'm missing counsel but that's the way i see this case i think that the way i am interpreting the case here in the way i want you to look at this that if any one of us had been on that boat and everything was lawful on the boat there was nothing out of place just our engine had stalled and we provide our driver's licenses because there's no requirement that show having international travel documents and i sayd that you're saying if that had been my boat i would've been detained for two hours you could have been detained and tomorrow filing that's the problem yeah we never ever see any any case of four white guys and their boat breaks down that they get arrested and detained or we have a possibly of four undocumented workers aliens that that doesn't that's my question counsel i mean what i think you're arguing and you confirming it is a profiling case and typically what we do is we get information from the coast guard about why did you do this why just stop them what did you do when you did to put the name in the computer what popped up that's my only that's  and i don't want to belabor the point but you know i just didn't i guess i think there is a legitimate concern that you know you have four latinos on the small boat in the harbor appearance yes and the nats would lead them to check with us that will help them because apparently they didn't do the checks themselves again what they radioed in is there's a possibility we don't have a reasonable tied a rope to the boat and towed it in they probably went into the boat afterwards after the respondent was petitioner in this form it was arrested but we don't have any because it was a very small pleasure craft here but is that subject to the code of federal regulations pertaining to immigration authorities is in that line of questioning yes well now out of questioning they are not to find immigration authorities coast guard members so what and there's nothing in the two one three that talks about this being a border search or that they were had any reason to think these folks are returning from international waters so is that the government's position really that is justified as a border search yes and this is what's discussed in th before sorry i don't mean to interrupt you but just to complete this thought because my question is really by what authority where they detaining these people and your answer is as a border search they needed what no suspicion as border searches do not require suspicion to ok what it's not a border search what if we don't agree with the porter search because we think this tiny little boat is it's not reasonable think that it possibly could have made it was in the harbor  think he's questioning our challenging that that the coast guard could ask for the driver's license is there anything in the record that would tell me whether the what the coast guard did with the driver's license whether they had recent to that there was some suspicion because the face of the driver's license or putting in a computer or something when might be in response to what you were mentioning prior impishness argument were in his motion suppress he did not submit evidence showing or anything from the coast guard saying why they stopped him where he would go go ahead make your point discuss his driver's license he stated he showed the coast guard that's first it's worth noting that he's been twice convicted for not having about a driver's license in the state of california has to go back to what they knew at the time he some place just to help us because we have a lot of cases today we want to keep them straight they given the driver's license and in is it your contention that was something on it that would have told them that he had been convicted previously but then she was an invalid driver's license license subsequent his testimony says i did show them my driver's license we don't know what that was you could have someone else's driver's license if you're now really arguing that that this is an international border search and taking the position that they didn't need any reason  there are other cases where a small vessel could link up with a larger vessel at sea and then switch contraband from one boat to another that is the reason why there is this rule of supreme court stated that it is a functional equivalent of border search because you simply do not know what happens on anybody in any boat anywhere between the beach and three miles out could be boarded and seen by the coast guard for no reason is that your government for a routine border search yes for identification check the cargo of the boat cloven of a border well yes these vessels are open access to the ocean and they could meet up with any other vessel they could and coming from anywhere is making a difference here that they towed him into the harbor i think makes a difference they are and they didn't really begin any question from what i can tell until they got him into the harbor and out of the boat makes a difference when you're in all these cases and for the medications you're balancing the interests involved so it's always this report substantial government interest in preventing the entrance o contraband the people who are not permitted and can stay from entering it states well that's why it's so difficult i think you just put your finger right on it that's why i'm struggling with this case because we do have to balance and this record is very undeveloped well it is who let me ask you this you know in a normal criminal case when you have a motion to suppress like this but the summaries are detained or arrested without a warrant it's always the government's burden to establish probable cause in a criminal case in a criminal case this and i realize this is a civil case but why position that those documents where wrongfully obtained but nevertheless obtained and they admitted and they establish your burden for alien and that then the burden for shifts to respond to sorry petition government's burden to come back and explain yes but as the government argues it was a reasonable search and seizure to oh yes but now you're relying slowly on it being a reasonable search and seizure because you didn't need any reason right that was the government as a first order search has observers who disagree with you that it's there it's not that this was not a border search ok just a second argument which has to be an egregious unreasonable search and seizure in this case and the court has courts case law that means that the coast guard had a reason we've known still some of our problems in this country we got plenty attention all over the place we don't need this and the cases of said that guard targeted well it seems to me but that's my whole point and i hadn't really thought this through completely but if he if he made his prime official birth then it's really the government's burden to come they talk about the minimal intrusion on the private a lot of border for brief detention which could be two to three hours and in this case particularly where he contacts the government he calls nine one one a request their assistance i would say the interest is even more minimal on the private side and second of all the court has a citations in the twenty j letter that the government brought they appear in applicable in this case because those cases involve the legality of searches of vessels one was in foreign commerce  buy nothing wrong on the boat they don't find any illegal activities and again that goes to the point of if the coast guard had found something illegal on my client's boat then yes arresting him detain him that all makes sense that's not agree just violation of ease of violated the law somehow but when they arrest someone who has an id who has no need to have a passport thank you for your arguments this morning