my name is robin arayan i'm in a usa in cedar rapids iowa and all the arguing on behalf of the government the appellant in this case is a case about an officer in waterloo iowa who conducted a traffic stop on july first of two thousand and sixteen that traffic stop led to the seizure of a loaded firearm that resulted in a federal indictment and after the two people in the car were indicted a motion to suppress was filed and what happened at that suppression hearing before a magistrate judge is what gave rise to this interlocutory appeal filed by the government what was at issue with that suppression hearing was the traffic stop itself the basis to pull over the car that mr macklemore and mr rohde were both inside that at that hearing officer deanna divide with the water the police department testified about the reason that she pulled over the car after that testimony the magistrate judge found that officer to vikram dibley testified she was unable to read what appeared to be a temporary registration card in the window of the b m w on that basis in this course decision and given the magistrate judge respect to officer devide without holding a separate hearing the district judge finally found that officer divide was not credible when she testified that she was unable to read what appeared to be a temporary registration card in the window of the b m w that decision by the district court led to at distinguishing this course decision and given and it led to the district court ultimately recommending that the motion to suppress be granted or granting the motion to suppress from that the government file  interlocutory appeal the two issues for this court to decide is the number one the legal question of whether in this procedural posture a district judge can reverse the credibility finding of a magistrate judge without first holding a separate adopt an absolute rule and it did include a carve out along the lines of what your honor just made reference to and that is that tom's court said that the district court abuses discretion when it reverses that credibility finding without reviewing evidence but it made one exception and the exception the thomas court noted and this is a page nine zero three of that opinion is that where the district judge find that the magistrate judge his credibility determinations had no legally sufficient evidentiary basis then they don't need to hold a separate hearing that would be a situation in which judgment as a matter of law would issue to the defendant and so that's the analogy that the tom's court made and that's the carve out that the times court made to address situations like that unlike you know it was the officer did not testify that she indeed knew that it was a temporary card she testified that she thought it was a temporary card determine that it was a temporary card after the stop but that at the time she pulled over the car did it was not a phony traffic stop it mentally the officers were looking for a reason to stop the car based on another investigation along that that the temporary car did turn out to be valid with respect to the iowa statutes that your honor has referenced in the government's view there are three that are relevant so section three twenty one ninety eight provides generally that whether we're dealing with a with a temporary card or a permanent plate that they must be valid  then sections twenty five point two five in point three eight provide different standards of readability for temporary cards and the entire region there's no language that has to be entirely readable that's correct judge so with respect to temporary cards the language is quote plainly stamper stansell and that's in section point two five and with respect to non temporary plates that would be the metal plate that you typically see on a car in the course of the quotation is clearly le that difference so it is an issue a factual dispute whether that the officer knew that or not the district judge agreed with your honor and found that officer knew that it was a a temporary the officer testified that she believed she had done a fight a traffic violation and pulled over the car not basis and so if the officer did not think that she had an affair the traffic violation i don't know that on this record we can say she would have pulled over the car anyway she so on the on this factual issue we've been discussing that the government believes that the key exchange occurs on from page forty three to forty four of the transcript involving off certify when she says that she did not know again we're dealing with the word valid and i understand your honor's point on that but the officer testified that she did not know the card was a valid until after she approached the card and then she says that when she pulled the car over you could not see that tag whatsoever you could see that it was a piece of paper affixed to her suspicion was that she could not see the tag whatsoever she thought it was a she knew is a piece of paper affixed to the portion of the window but cannot see the numbers or letters know right now she didn't testify that she knew it was a temporary registration card she testified that she thought it was a temporary registration card she testified but that when she was pulling over that reasonable m cars she doesn't have objective and objectively reasonable basis because she doesn't she doesn't believe it isn't the registration and she doesn't know because she can't read testimony found that she credibly testified she was unable to read what appeared to be a temporary registration card and to the extent when we go back over the transcript we look at the language and think what are the officer mean here the government's point is that we the person best situated to determine what the government meant is the other magistrate judge with the permission of the panel reserved my remaining time for a bottle unless there is no question good morning your honor may it please the court my name is melanie kiper and i represent mr macklemore in this case i will have twelve minutes and mr swift who represents mr brody will have the remaining three minutes your honour's this district court properly granted the motion to suppress in this case based on the fact that the judge's indicated that there was no legitimate reason for the traffic stop no objectively legitimate reason for the traffic stop in this case as the judge indicated officer our officer device i knew that it was a temporary registration card the record is replete with examples of her indicating that in defense exhibit a which is the actual audio and some video recordings of the interactions she indicates she can see the plate but she can't read what's on it so at some point she indicates that the temporary tag is a plate but clearly she also indicates in the recordings that i can see the dealer plate but when discussing with sergeant richter her supervisor who told her to do the stop her first utterings when she is behind the vehicle to sergeant richter is no violations yet this is when she is behind the vehicle she's looking at the vehicle she's looking at what appears to be the temporary registration and sta there's no violations yet after that when there's a discussion with sergeant rector about how they can possibly pull this car over she indicates i can see the plate but i can't read what's on it meaning the date sergeant richter then says well if you can see the plate but you can't read it basically there you go that's what that's your basis for the stop officer device a also in her report in exhibit b and in her affidavit in exhibit  j also writes about the paper plate in the window meaning the temporary registration card the record of the transcript on page forty four as asked about the temporary registration and she says the question is ok and that temporary tag that was in the back window that's the normally normal temporary tag that i would part in a transportation issue correct yes correct but she was always indicated that that was a temporary tag she never indicated that she did not know whether it was just a piece of paper that was in the window which is the case in givens and givens as this court has decided and indicated that officer was familiar with temporary tags could normally read temporary tags in the evening in the night time and also it had issue with fraudulent temporary ta there's no such indication in this record that the same was true for officer in givens the officer approached the vehicle stopped the vehicle and approached it because he didn't know whether it was a temporary  tag at the point that the officer in givens approached the vehicle he also smelled marijuana at that point that he decided that the tag was valid so that's why the officer givens proceeded with the stop in that case in this case officer was unconcerned wholly unconcerned with the tag once she made the stop her testimony was that when questioned whether or not she could tell the tag was valid when she had the stop she indicates that the first time she could read the tag was when she was outside of her car standing at the trunk of mr rhodies car but when asked whether she looked it was valid she indicated i didn't need to i didn't even bother looking to see if it was valid because i had probable cause just because of the temporary tag that was her testimony so she said her testimony was that she didn't violation but there is not in this case your honor i another issue with regard to what first we would we would submit to your honor's that the government the court does not need to determine whether officer device was credible or not that the record is clear about the reason for the stop and that she could see a temporary tag however the record is also clear if your honour's go to the issue of credibility that officer devalue a was incredible just merely based on the record not even through her demeanor after divide and testified that she only followed that w for one to two blocks however when you look at defense exhibit age which is a map of the area and you look at officer devices testimony she indicates that she followed the car on logan street on congress street down sixty third in milan where she ultimately made the stop at sixty third and franklin that's approximately eight or nine long blocks so for quite a distance we believe that this case is directly an officer randomly was behind this vehicle follow the vehicle for a quarter mile to a half mile and determined that it was a temporary tag but that officer couldn't read  the date whether it was expired or not that's the exact facts in this case and the wilson court determined that as your honor indicated if you could pull over every car with a temporary tag  that wouldn't indicate that there's a reason military kills articulable suspicion the criminal activity is occurring the facts in this case simply did not establish probable cause that an equipment violation had occurred your honor turning to the next issue we believe that the mistake of law issues that the government raised was waived while the district court did mention in a sentence or the words mistake of fact or law we don't believe that that was properly raised below is not raised in the district court then the issue is waived however even if the court feels that that issue is not waived officer device was not mistaken about the traffic laws she recognized it as a temporary tag as i've already indicated the statute to issue three twenty one point two five as the court has pointed out has no distinction about legibility only that have it have the words registration applied for and has the date of delivery of the vehicles which the vehicle in this case did there is there was no requirement for the tag to be illuminated and the dealer tag in this case actually eliminated finally your honour's with regard to the credibility determination as the government has indicated they are relying on the thomas case from the ninth circuit that case was a he said she said case that turned specifically on the demeanor of the witnesses in the thomas case it was a frank's hearing it was a frank's hearing to determine whether the agent was truthful in his affidavit for the search warrant the  that hearing the agent testified one of the defendants testified and i believe eight other witnesses testified on that particular issue there was no video or audio recordings obviously the issue in that case was the smell so that wouldn't have been recorded and it video or audio either or however the reason why that court re mandated for the district court to decide the crab credibility issue was because it was a direct issue tag is all that is needed in this case that because she knew it was a temporary tag the fact that she couldn't read the actual date was not a legitimate reason for her to make the traffic stop in this case as and given if there had been testimony that normally she could read those dates and on this evening she could not read those dates if there was testimony from her that valid breath a temperate without this playing a temporary people pay for registration card amounts to a simple misdemeanor so does that or does that not that the fact that she knew it was a temporary registration is what this case turns on that whether or not she could actually read the date usually i mean objective lee reasonable basis that there's that there's a violation going makes a fairly important what is a violation correct your honor and i see my so so paulison all this appears to say is operating without a temporary paper registration card amounts to a misdemeanor yes your honor i see my i think you should and it cuts into his time yes your honor your honor with regard to the temporary tag but if if the officer believes that there is something amiss about the temporary tag then certainly that is a reason to stop in this case there was no citation of something being wrong with the temporary ta macklemore i would like to take maybe a little bit broader step back in terms of this approach i believe the issue here in front of this court is whether or not the district court made clear error in its factual findings i think the two standards of review that we're looking at is the clear are on the factual finding and the second one would be the you know review of any legal conclusion that judge strand made in this case i don't believe that there is any clear error that the government has identified in terms of the facts of this particular case judge bennett a judge strand conducted a lengthy well reasoned and documented findings of fact in this case and also his decision neither before his decision or after did any one of the three parties to this proceedings ever request the district court to conduct any additional further hearing on this matter there is nothing in the record i would say that he may have made factual and credibility determination but those credibility determinations were not in any way affected by the need to see an individual justified i suggest that we imagine or project what would have happened differently in this matter if this particular officer had testified again to the same matters that she had testified  to in front of judge grant does not suggest in any way that his ultimate fact by needs or legal conclusions would have been different and i would suggest the answer that is no and therefore i think there should be an affirmation of the judge's decision in this particular case maybe the court you may proceed your honour's the issue of the officers credibility was irrelevant to the question of whether there's reasonable suspicion of a violation of the validity of the plate or whether it was plainly stamped or stenciled and that's evidenced by the fact that as noted on page thirty the government's brief there are six places in the district court's analysis of the givens issue where it references its views on officer device credibility before it ultimately makes alternative finding regarding officer device credibility suggests that the district court did consider officer device credibility and its rejection of it in determining whether there is reasonable suspicion as to whether there was a valid tag or whether the tag was plainly stamped o this in that to determine whether or not the officer had reasonable suspicion of whether was a valid tag or whether it was plainly stamper sense of the credibility of her testimony when she says you could not see that tag whatsoever you could see that it was a piece of paper affixed to the window but could not see the numbers  in tom's are also relevant here is that the government does have an interest in the integrity of the fact finding process and to proffer its witnesses to a district judge before that judge finds that that officer is not credible thomas discusses the serious professional window which the magistrate judge determined to be credible testimony that she was unable to read what appeared to be a temporary registration card in the window of the b m w so that the magistrate judge observed the  simply pulling over a car after they see a temporary tag to figure out whether it's valid or not so that's what the reasonable suspicion is here i see them quite a bit over my time unless the judges have