[00:00:00] Speaker 00:
Eight two three and each side will have ten minutes Good morning your honors Katie Holbrink on behalf of miss meduino This court should reverse the denial of two suppression motions in miss meduino's case first Tobias holds that miss meduino's exact words Can I have an attorney are an unequivocal invocation?

[00:00:28] Speaker 00:
Thus, her subsequent statements should have been suppressed.

[00:00:31] Speaker 00:
Second, the government has waived any argument that the collective knowledge doctrine applies, and Agent Contreras's own observations are insufficient to give rise to reasonable suspicion.

[00:00:41] Speaker 00:
Thus, the fruits of her stop should be suppressed, too.

[00:00:44] Speaker 01:
So if you win, then what?

[00:00:46] Speaker 01:
You'll go back and she'll withdraw the plea?

[00:00:49] Speaker 01:
Is the sentence, though, almost completed?

[00:00:51] Speaker 00:
That's correct your honor and miss madueno has been sent to a halfway house But she would still have the opportunity to withdraw her plea and determine whether to go forward and challenge her sentence yes, your honor, so take it just a distant we have two different issues and It would seem to me that if you Did not prevail on the fourth amendment issue even if you prevailed on the fifth amendment issue I mean that would be up to her to decide what to do, but I

[00:01:20] Speaker 01:
It's not clear what that would actually get her in this case.

[00:01:23] Speaker 01:
Do you agree with that?

[00:01:24] Speaker 00:
Your Honor, I believe that she would still have a better opportunity to prevail a trial.

[00:01:32] Speaker 00:
Of course, her statement was pretty much a full confession to having smuggled drugs.

[00:01:40] Speaker 00:
We do, in cases without a full confession, we do win these cases in district court quite frequently.

[00:01:47] Speaker 00:
And so I think it really could make a difference

[00:01:49] Speaker 00:
For her but as your honor is saying it would just be up to her to withdraw her plea and then make that decision So starting with the statements issue Tobias versus Artega Holds that could I have an attorney is an unambiguous invocation under clearly established law Tobias also notes that could and can mean the same thing so it follows that miss Madueno's words

[00:02:13] Speaker 00:
Can I have an attorney are an unambiguous invocation under clearly established law?

[00:02:18] Speaker 00:
It's true that she made some equivocal statements after invoking but under Smith versus Illinois It's clear that those statements can't be considered to cast doubt on her initial invocation if I buy all of that and at least tentatively I think I do What about the practical question where she's really?

[00:02:38] Speaker 02:
Seems to me to be pretty clearly saying

[00:02:44] Speaker 02:
Am I going to be able to get an attorney she doesn't have an attorney and she seems to be saying if I've got to wait six hours I'd really rather talk.

[00:02:55] Speaker 02:
Is she not permitted to do that once she she makes the.

[00:03:00] Speaker 02:
Initial request and as I say at least tentatively I buy that sure so what?

[00:03:06] Speaker 00:
What what's what's the ability to solve that practical problem sure so I think your honor is referring to statements she made after she invoked and critically after the agent continued questioning her so Miss Madueno invokes the agent here

[00:03:26] Speaker 00:
Responds and tries to follow up and says oh, so you know you want an attorney So he asks her an additional question and only then do they start to engage in this back and forth about well When would the attorney come what we have him now do I get a phone call?

[00:03:41] Speaker 00:
Smith holds that when all of those sort of questions or Concerns that are raised come in response to police questioning as they did here as they do in Smith

[00:03:54] Speaker 00:
then none of those things can be considered.

[00:03:57] Speaker 00:
Now, if Ms.

[00:03:58] Speaker 00:
Madueno had herself invoked, and then the agents had done exactly what they were supposed to do, stopped questioning her, and then later on she re-initiated, there's a whole different line of case law that applies to that situation.

[00:04:12] Speaker 02:
So by saying, if she had said, how soon can I get an attorney?

[00:04:17] Speaker 02:
And they say, don't know, might be.

[00:04:19] Speaker 02:
Then maybe she says,

[00:04:21] Speaker 00:
At that point would it be okay for her to go ahead and keep talking if she had simply said how soon can I get an attorney I think that would pretty clearly be an equivocal invocation at best so then this as the initial statement though because I think you're saying once she says could I get an attorney it's done no matter what she says next you're saying if she had said that as the first thing precisely precisely Judge Friedland if that was is that if that's what she said instead of saying can I have an attorney

[00:04:49] Speaker 00:
That would be equivocal, then the Smith rule would not kick in.

[00:04:52] Speaker 01:
When she said, can I have an attorney, can I have an attorney, your position is they should have just said, yes, we'll get that for you, full stop.

[00:05:00] Speaker 01:
And then if she re-initiated, then it's a different situation.

[00:05:04] Speaker 00:
Correct.

[00:05:05] Speaker 00:
Correct, Your Honor.

[00:05:06] Speaker 04:
And what if she had said could I get an attorney how long would it take to get an attorney?

[00:05:11] Speaker 00:
I think in that situation we would be looking at the statement.

[00:05:16] Speaker 00:
You know potentially as a whole That second statement would not come in response to police questioning So we'd be in a different situation the Smith rule would not apply the same way Let me go ahead and add take you to the other point if you're ready for that.

[00:05:31] Speaker 02:
Yes, your honor which is your position with regard

[00:05:35] Speaker 02:
To the Smith information will call that the bolo as opposed to the alert is it that Agent Contreras should have simply disregarded it and gone on to lunch Or was it okay to at least read it and notice the car?

[00:05:56] Speaker 00:
So your honor I'd like to distinguish between two different things Agent Contreras was of course a

[00:06:02] Speaker 00:
Perfectly free to consider subjectively whatever he wanted to consider including the alert And you know it's not surprising that he did consider this alert from his colleague The question your honors have to answer is whether they're objectively was reasonable suspicion for this stop I understand that but I wanted to get over that first point so that from your point of view it was permissible to notice the car and at that point

[00:06:31] Speaker 02:
I take it your issue is if you don't give some weight on the scales to the Bolo, you think the rest of it, what Contreras found himself, the driving, and all of that doesn't rise to the level of reasonable suspicion.

[00:06:51] Speaker 02:
The government, I guess their position would be, well, they'd like to consider the Bolo.

[00:06:56] Speaker 02:
But even if you don't, you know,

[00:06:58] Speaker 02:
The thresholds here, we're already up here.

[00:07:00] Speaker 02:
You go to our VZU, you know, our VZU takes a whole bunch of individual things, adds them up and says, this is a totality of the circumstances.

[00:07:10] Speaker 02:
So as a conceptual matter, are we kind of on the same page?

[00:07:14] Speaker 02:
It's just you think they don't add up this high, the government's going to tell us that it does, even if you ignore the substance of the BOLO.

[00:07:23] Speaker 02:
Is that all fair?

[00:07:24] Speaker 00:
I think that's all fair, and I would just add for clarification, we don't think that the BOLO can be considered for the objective reasonable suspicion analysis in whole or in part.

[00:07:32] Speaker 00:
So the BOLO is just a non-entity as far as reasonable suspicion.

[00:07:36] Speaker 02:
Even though Smith is an analyst in this area, they know who he is, he's not anonymous, they're not saying, I think, that it's enough alone to make the stop.

[00:07:50] Speaker 02:
But why isn't it worth something

[00:07:52] Speaker 00:
Because Thomas holds that these kinds of conclusory law enforcement statements cannot be considered in whole or in part.

[00:07:59] Speaker 00:
And your honor points out that here, Agent Contreras knew who Agent Smith was.

[00:08:05] Speaker 00:
That's exactly what happened in Thomas.

[00:08:07] Speaker 00:
The agents who effectuated the stop in Thomas knew that they were receiving information from the FBI.

[00:08:17] Speaker 00:
Nevertheless, this court held that those

[00:08:21] Speaker 02:
Law enforcement tips these conclusory law enforcement tips must be subjected to the same standards as civilian says the information must be based on reasonable suspicion That's kind of an odd phrase because usually reasonable suspicion is a standard The basis is usually indicia reliability for example where an anonymous tip has less indicia

[00:08:45] Speaker 02:
than an analysis by a known analyst, right?

[00:08:49] Speaker 00:
That's correct, Your Honor.

[00:08:50] Speaker 00:
But what Thomas ultimately actually held was, and this is in the final paragraph, they cite Florida versus jail, which is a case about civilian tips.

[00:09:00] Speaker 00:
And then they say the FBI information here lacked any indicia of reliability and was too vague and generalized to play any part.

[00:09:08] Speaker 02:
Because there they're just saying we heard from somebody something that might be something that might be something.

[00:09:15] Speaker 02:
a bit less indicia of reliability than here, isn't there?

[00:09:19] Speaker 02:
That is, Smith is a known person.

[00:09:22] Speaker 02:
It's his job.

[00:09:23] Speaker 02:
You know, he might be right, might be wrong, but it has some indicia of reliability, doesn't it?

[00:09:28] Speaker 00:
Your Honor, I disagree, because it's not that in Thomas they heard from some unknown person.

[00:09:35] Speaker 00:
They heard from the FBI.

[00:09:36] Speaker 00:
And they told the court, we heard this from FBI agents.

[00:09:41] Speaker 02:
But what the FBI agent heard was pretty vague.

[00:09:44] Speaker 00:
Well, we don't know what the FBI agent ultimately heard, and neither did the person who received the tip.

[00:09:53] Speaker 00:
Likewise here, Agent Contreras did not, when he received this email from Agent Smith, know what Agent Smith's basis was.

[00:10:01] Speaker 00:
In fact, Agent Smith did not even accuse Ms.

[00:10:04] Speaker 00:
Madueno of a crime in this email.

[00:10:07] Speaker 01:
I think part of this is just the context of what we're talking about, which is the border.

[00:10:14] Speaker 01:
there's an understanding that when there's a photograph of a car that's been through the border and this is then circulated automatically based on Smith's, we'll worry about the time later but hopefully, based on Smith's review and analysis that that does mean something in the context of the border and the context of the agents who are patrolling the border.

[00:10:38] Speaker 01:
Now it doesn't necessarily mean he could have

[00:10:41] Speaker 01:
pulled her over right then as soon as he saw the car, that would be a totally different case.

[00:10:45] Speaker 01:
But it's something.

[00:10:46] Speaker 01:
Even so, though, I don't know how much this really matters to the overall analysis when he then goes and does the computer check and sees the same history of crossing the border that led Smith to put the Bolo in place in the first place.

[00:11:00] Speaker 01:
So why would that not matter quite a bit in the analysis?

[00:11:05] Speaker 00:
So your honor, I see him over time, but if it's okay, I'll go ahead and answer your question.

[00:11:10] Speaker 00:
So I think your question has a couple of parts.

[00:11:13] Speaker 00:
So first, your honor said that these Bolo's, you can sort of assume that they mean that this person, that Agent Smith has reasonable suspicions.

[00:11:23] Speaker 01:
I'm not assuming them.

[00:11:24] Speaker 01:
I'm just looking at the testimony of Contreras and what he had to say about what the Bolo meant to him as an agent who works at the border.

[00:11:32] Speaker 00:
Right, Your Honor.

[00:11:32] Speaker 00:
And so he said it was the assumed possibility of vehicles being involved in smuggling.

[00:11:37] Speaker 00:
The vehicle might be involved in smuggling.

[00:11:39] Speaker 00:
The vehicle could be involved in smuggling.

[00:11:41] Speaker 00:
Even Agent Smith himself said that he only usually places these alerts when he sees these unusual driving patterns.

[00:11:48] Speaker 00:
So that's the answer to Your Honor's, to the first part of Your Honor's question, is that these statements are just as conclusory as they were in Thomas in that way, in that it's simply a possibility of smuggling.

[00:12:01] Speaker 04:
I'm a little confused by your answer there because I thought your position was that They all knew that Contreras needed to develop his own assessment of the car So I thought that testimony really suggested that they didn't put really any weight on the bolo But you just gave an answer that suggested that maybe there was more your honor I agree with your honor that that

[00:12:27] Speaker 00:
Agent Contreras knew he had to develop his own independent reasonable suspicion.

[00:12:32] Speaker 00:
That's well supported by the record.

[00:12:34] Speaker 00:
But separately, the prosecutor asked Agent Contreras, well, what do you understand about these alerts when you receive them?

[00:12:42] Speaker 00:
And Agent Contreras said, well, there is the assumed possibility of smuggling.

[00:12:46] Speaker 00:
There could be smuggling.

[00:12:48] Speaker 00:
There might be smuggling.

[00:12:49] Speaker 00:
And again, Agent Smith said that he only usually puts these alerts when he sees these sorts of

[00:12:55] Speaker 00:
see these sorts of suspicious driving patterns.

[00:12:58] Speaker 00:
And so just briefly, I'd like to answer the second part of your honor's question, which is about whether Agent Contreras and Agent Smith looked at the same information.

[00:13:07] Speaker 00:
They did not.

[00:13:08] Speaker 00:
The record does not support that they looked at the same information.

[00:13:11] Speaker 00:
Agent Smith

[00:13:12] Speaker 00:
looked at a full panoply of records.

[00:13:15] Speaker 00:
That includes internal checkpoint records from Highway 86.

[00:13:19] Speaker 00:
It includes Ms.

[00:13:21] Speaker 00:
Madueno's sentry application.

[00:13:23] Speaker 00:
It includes her full crossing history dating back six months.

[00:13:28] Speaker 00:
Based on Agent Contreras' testimony, the only thing he testified to looking at was this high-risk alert from the port of entry and some

[00:13:39] Speaker 00:
individual crossings by this matter he said he looked at the crossing history but in terms of what he actually saw in that brief stop on the side of the road he says he saw her crossing earlier that morning he talks about being three other crossings in october november he says nothing about seeing the sentry application the internal checkpoints and that really matters because that was the basis well okay and then he he did see it's not as though he just

[00:14:05] Speaker 01:
Saw the Bolo and then followed her.

[00:14:07] Speaker 01:
He did go pause and see some information about her crossing history, including within some recent amount of time.

[00:14:16] Speaker 00:
Correct.

[00:14:16] Speaker 00:
He saw that she was a frequent border crosser who had crossed the border that morning.

[00:14:20] Speaker 00:
But then the question becomes, is that enough for particularized suspicion?

[00:14:25] Speaker 00:
And it's not, because it doesn't sufficiently distinguish Ms.

[00:14:29] Speaker 00:
Madueno from the mass of law-abiding traffic that also crosses the border.

[00:14:33] Speaker 01:
But then we get into some of the other driving, the moving in and out of lanes, not signaling, the bouncing.

[00:14:40] Speaker 01:
Then we get into a discussion about all of that.

[00:14:42] Speaker 00:
Yes, Your Honor.

[00:14:43] Speaker 00:
But just the crossing patterns alone, neither was Agent Contreras

[00:14:48] Speaker 00:
reaching agent Smith's conclusions about suspiciousness, nor was he looking at the same information.

[00:14:54] Speaker 04:
Could I ask you a different hypothetical?

[00:14:56] Speaker 04:
So say that the email from Smith had been generated by a process that this department used.

[00:15:04] Speaker 04:
So say these emails only got generated when a car crossed 30 times in the week or something.

[00:15:11] Speaker 04:
And so you know when you get it.

[00:15:13] Speaker 04:
That means that some system generated

[00:15:17] Speaker 00:
Notice this license plate 30 times could that be considered absolutely your honor because in that situation that is not a conclusory alert Agents know based on their training and experience that this alert triggers when someone crosses 30 times Therefore they can take into account in their calculus this car has crossed 30 times The problem here is that they had nothing to take into account because agent Smith did not provide any information about the basis for his suspicions

[00:15:46] Speaker 02:
So it's raw data versus analysis by the analyst.

[00:15:51] Speaker 02:
So you're saying raw data would be okay, but the analyst isn't?

[00:15:58] Speaker 00:
Not quite, Your Honor.

[00:15:59] Speaker 00:
If Agent Smith had actually provided his analysis in that email, if he had said, you know, I've determined that Ms.

[00:16:08] Speaker 00:
Madueno made too few long trips to match up with her sentry application,

[00:16:14] Speaker 00:
I've determined that her crossing patterns over the border and then back through the Highway 86.

[00:16:19] Speaker 02:
And the unmanned stations?

[00:16:24] Speaker 00:
If he had put all of that analysis into his alert, then absolutely, Agent Contreras could consider it.

[00:16:32] Speaker 00:
The problem here is that that email contained no information, not even a bare allegation of a crime.

[00:16:37] Speaker 01:
I mean, we've come up with some things that sound like they would create more reasonable suspicion.

[00:16:43] Speaker 01:
But I don't know that that demonstrates that what we have here would create zero.

[00:16:48] Speaker 00:
So Your Honor, I would say that the reason why all of this doesn't add up.

[00:16:53] Speaker 00:
So I'm sorry, are you asking about the totality of the circumstances or about the alerts?

[00:16:59] Speaker 01:
Well, we can talk about the alerts, limited to the alerts if you want.

[00:17:01] Speaker 01:
But I think we could imagine a BOLO that has a lot of detail on it, all kinds of information.

[00:17:07] Speaker 01:
So we don't have that here, but there's a lot of people crossing the border, lots of cars, and so that may not be that

[00:17:12] Speaker 01:
But what we have here is something.

[00:17:15] Speaker 01:
And all we're thinking about is, is that something worth anything?

[00:17:19] Speaker 01:
And it seems to me it's worth more than zero.

[00:17:22] Speaker 00:
Well, Your Honor, in fact, in Thomas, when it comes to these conclusory alerts, they said it is worth zero.

[00:17:28] Speaker 00:
I mean, Thomas holds that it was that, you know, this FBI conclusory alert was too vague and generalized to play any part in the reasonable suspicion calculus.

[00:17:41] Speaker 00:
And elsewhere, they say that the agents' individual observations could be used, but that suspicions could not rely in whole or in part on the FBI tip.

[00:17:56] Speaker 00:
And so Thomas really does stand for the proposition that a conclusory law enforcement alert without indicia of reliability is a zero.

[00:18:06] Speaker 04:
Thank you.

[00:18:07] Speaker 04:
I'll still give you two minutes for rebuttal, so let's hear from the government.

[00:18:10] Speaker 00:
Thank you.

[00:18:18] Speaker 03:
Good morning, Your Honors.

[00:18:19] Speaker 03:
May it please the Court, Mark Rahe, for the United States to pick up on the Fourth Amendment issue.

[00:18:24] Speaker 03:
The government has a few points to make.

[00:18:27] Speaker 03:
First of all, we would cite United States versus Hensley and push back against the idea that an alert that's devoid of any information or that's conclusory cannot be considered.

[00:18:38] Speaker 03:
In United States versus Hensley, the Supreme Court reversed the Sixth Circuit on that exact basis, because the Sixth Circuit said, well, you had a wanted flyer there, and you didn't put the details in.

[00:18:50] Speaker 03:
And the Supreme Court said, that's not the question.

[00:18:53] Speaker 03:
In fact, all that matters is that the alert itself could be explained, or in that case, the flyer, by reasonable suspicion.

[00:19:01] Speaker 01:
What about Thomas?

[00:19:02] Speaker 03:
Thomas?

[00:19:03] Speaker 04:
Oh, sorry.

[00:19:03] Speaker 04:
Can I just ask you about Hensley first, though?

[00:19:07] Speaker 04:
Wasn't that flyer I may be remembering wrong but wasn't that essentially like an instruction to?

[00:19:12] Speaker 04:
Arrest the person though because it had the details on the flyer of the robbery that he's accused of and all this I thought that was more equivalent to a Direction where you know direction to arrest where then the knowledge is based on the person who gives the direction well And I understand that's and that's how the defense is characterizing Hensley, but I when I reread Hensley the other day.

[00:19:31] Speaker 03:
It's interesting that

[00:19:33] Speaker 03:
In the statement of facts, what it said that the, I think it was the police department, they asked anybody who came across this defendant to hold him.

[00:19:45] Speaker 03:
That was their direction, and at the end of- But isn't that even directing that to citizens?

[00:19:51] Speaker 04:
I mean, I would assume that means if you're a police officer and you see that, and I mean the flyer, they talk about all the details that are in it, about why this person's wanted.

[00:19:59] Speaker 04:
Isn't that a direction to an officer to hold or, I mean, maybe hold is the same as arrest anyway, I don't know.

[00:20:04] Speaker 03:
Well, the only reason I brought that up is because at page 235 of Hensley, the Supreme Court said, look, what was asked in that case to just hold him until they showed up, we're not allowing that or we're not approving that.

[00:20:16] Speaker 03:
That might violate the Fourth Amendment.

[00:20:18] Speaker 03:
But what they said is, if you get in a flyer, and if it's supported by reasonable suspicion, you can at least perform the limited detention that happened

[00:20:28] Speaker 04:
In that case, but even so sorry maybe I shouldn't have set a rest, but we're only talking about Terry stops here anyway I think so But still what you just said is the flyer was a direction to hold the person And that means that we look at the reasonable suspicion of the person who made the flyer and whether it was Had good basis, and whether it was enough for reasonable suspicion, so I think that's really different like no one is saying right now that the analysis is of Smith Right no, but you know I

[00:20:57] Speaker 03:
I brought it up only because this idea that, you know, if the alert itself, I mean, the question we're talking about here, and I think Judge Bress put it well, is like, it's more than just nothing.

[00:21:07] Speaker 03:
You know, he testified based on his training experience, which is always critical in this context.

[00:21:12] Speaker 03:
He knew exactly who Agent Smith was.

[00:21:15] Speaker 03:
And that his job was analytics.

[00:21:16] Speaker 04:
But Smith could have directed Contreras to stop this person.

[00:21:21] Speaker 04:
But Smith did not.

[00:21:22] Speaker 04:
So it's not the same as Hensley.

[00:21:24] Speaker 04:
And we're not looking at, I mean, I don't think, I mean, can you tell me any information, any specific factor that goes to reasonable suspicion that Smith communicated to Contreras in this email?

[00:21:35] Speaker 03:
Only based on his training experience that he knows that, you know, no, it's not because there are no words.

[00:21:39] Speaker 03:
You know, the email itself is just a picture of the card.

[00:21:42] Speaker 04:
So like, what information does Contreras

[00:21:45] Speaker 04:
Can you just say what we're supposed to say is the piece of reasonable suspicion that comes from this email?

[00:21:51] Speaker 03:
Well that instead of just out of the blue pulling over a random person

[00:21:56] Speaker 03:
which is what the whole Fourth Amendment is directed against preventing, he knows from his 25 years on the job that this kind of a tip means that, you know, you go look if you see this card, develop your own suspicion.

[00:22:08] Speaker 03:
And he knows that it's from somebody whose only job is on an intelligence team to do the analytics.

[00:22:13] Speaker 03:
But I agree, even Judge Huey, the district court below, this isn't an all or nothing thing.

[00:22:18] Speaker 03:
The case doesn't fall on, you know, all he said is like, I don't give it, it's not the sole factor, I just give it some weight.

[00:22:25] Speaker 03:
But, you know, another point that was brought up, if we just look to the actions, you know, I know that defense counsel had said that they didn't look at the same information.

[00:22:34] Speaker 03:
Again, we would disagree with that.

[00:22:36] Speaker 03:
The fact of the sanctuary application, sure, that might have been one extra detail.

[00:22:40] Speaker 03:
But if you look at excerpts of record, I believe it's pages 94 to 97, the defense, when cross-examining, pulled out exhibit B, which is an excerpt of record 164,

[00:22:52] Speaker 03:
and went over it for three pages.

[00:22:55] Speaker 04:
So I mean, it seems like you're now backing away from the Bolo.

[00:22:58] Speaker 04:
So I mean, I know you have an argument that the information they had was enough for reasonable suspicion, and we could discuss that.

[00:23:04] Speaker 04:
But I'm trying to figure out, if we doubt that, what piece of information comes from the Bolo that gets added to that that tips it over the edge?

[00:23:15] Speaker 03:
Well, just its mere existence and the fact that he knows that, you know, it's like there was also a CBP alert for high risk of narcotics, you know, it just goes to his objective indicium.

[00:23:25] Speaker 03:
My point is I'm not defending the Bolo doesn't stand on its own.

[00:23:29] Speaker 03:
I just wanted to say it could at least be reasonably considered here because

[00:23:33] Speaker 03:
You know, if there had been no testimony about where it came from or who Agent Smith was or whether Agent Contreras knew who he was, then I would agree.

[00:23:41] Speaker 01:
You know, I would have been... As a practical matter, it did arouse his suspicions.

[00:23:44] Speaker 01:
I mean, when he saw it, he was suspicious, naturally, because this is how it works down there, where we're going to send these emails out to people, and that's going to tell agents this is a car that

[00:23:55] Speaker 01:
that the analyst team is looking at.

[00:23:57] Speaker 01:
And so as a practical matter, it aroused his suspicion.

[00:23:59] Speaker 01:
He then followed up on that.

[00:24:00] Speaker 03:
He did, you know, and when, and, you know, sometimes I think at one point they made it sound like he was doing this while he was driving.

[00:24:06] Speaker 03:
He literally pulled over on the shoulder and he ran, you know, and I,

[00:24:10] Speaker 04:
Know that the defense counsel said well, he wouldn't have known about the checkpoint Crossings that's not true it excerpted now we're going back to just everything he learned other than the bolo right, but I was just sticking on the bowl for a second So I mean in my hypothetical To your opposing counsel I think if there was a specific thing like the bolo is only triggered when X number of crossings happen Then you know there's this piece of information maybe what you're trying to suggest is there's like

[00:24:39] Speaker 04:
a few different things.

[00:24:40] Speaker 04:
He knows it's either too many crossings or something else or something else, and he's supposed to take some.

[00:24:45] Speaker 04:
I mean, what is it that you're saying he learns, even though it's an experienced person who sent it, what is he supposed to think it means?

[00:24:53] Speaker 03:
Well, you know, and again, it may not be a ton.

[00:24:56] Speaker 03:
It's just something.

[00:24:57] Speaker 04:
But saying that it's something, what is the something?

[00:24:59] Speaker 03:
That an analyst in my agency whose job it is is targeting this car is possibly suspicious of indicative of smuggling.

[00:25:08] Speaker 04:
But does that mean and that doesn't mean that it is something are you saying he knows something about the options that could have been that triggered that I mean maybe.

[00:25:20] Speaker 04:
I mean are we supposed to know for sure that Smith didn't just have a quota and he had to do 100 a day or something I mean we have no idea right.

[00:25:28] Speaker 03:
But again, this is just by reasonable suspicion.

[00:25:32] Speaker 03:
The question is, we look at the objective.

[00:25:34] Speaker 03:
If a police officer pulls somebody over and sees there's a warrant from somewhere in Alaska, he's not necessarily going to know whether that's actually been a valid warrant or not.

[00:25:43] Speaker 03:
But the fact is, it shows to his objective state of mind.

[00:25:47] Speaker 04:
That gets back to Hensley.

[00:25:49] Speaker 04:
Someone thinks you can arrest this person and is almost directing you to do that.

[00:25:54] Speaker 04:
That's what a warrant is, right?

[00:25:55] Speaker 04:
We don't have that here if we did we could look at Smith's knowledge, and we'd have a different inquiry But I don't think that's what you're arguing here look.

[00:26:03] Speaker 03:
I mean the bolo.

[00:26:04] Speaker 03:
I mean it is bare-bones I'm not denying that I'm not gonna lose credibility by coming up here and suggesting otherwise all I'm saying is as the district court concluded It's not conclusive, but it's one piece.

[00:26:16] Speaker 03:
You know it gets the ball rolling.

[00:26:17] Speaker 03:
I mean I

[00:26:20] Speaker 03:
It's somebody, it's not just random, it's not anonymous, it's somebody whose job it was to come up with this information.

[00:26:27] Speaker 03:
And sure, it all goes to the weight, the fact that it didn't say all the options that you were talking about or spell the things out, it was just a picture.

[00:26:35] Speaker 03:
But he said we are trained and we have experience on this, and when we get these things to look out for it, so.

[00:26:41] Speaker 01:
We better ask you about the Fifth Amendment issue.

[00:26:45] Speaker 01:
Yes.

[00:26:47] Speaker 01:
I think the other side makes a fair point on that, at least under our case law.

[00:26:51] Speaker 01:
So how do you respond there?

[00:26:52] Speaker 03:
Well, the government's position, I mean, look, if you just pull out these phrases, sure, you know, the defense cites three or four cases where that phrase was held, but it's never been that it's talismanic or it's, you know, strictly by the words.

[00:27:07] Speaker 03:
Here, Tobias, that's the case that the defenses relied on most heavily.

[00:27:12] Speaker 03:
That was a case where the defendant had already waived Miranda and well into the interview was shown an incriminating video and that suspect said could I have an attorney because that's not me.

[00:27:24] Speaker 03:
So that's what we're talking about here.

[00:27:26] Speaker 03:
We cite the case.

[00:27:27] Speaker 03:
I believe Ramirez.

[00:27:27] Speaker 03:
We haven't even gotten to.

[00:27:30] Speaker 03:
a waiver yet.

[00:27:31] Speaker 03:
And this court has made clear that if there's any ambiguity during the advisal, that an officer has a duty to clarify.

[00:27:37] Speaker 03:
And so here, when they ask one, you know, she answers a question with the question, she prefaces it with the pause.

[00:27:45] Speaker 03:
The question is, what would a reasonable officer think in the circumstances?

[00:27:49] Speaker 03:
And I believe as Judge Boggs pointed out,

[00:27:51] Speaker 03:
You know, an officer could have thought, well, maybe she's saying I want one now.

[00:27:54] Speaker 03:
Maybe she's just trying to clarify whether she could have one.

[00:27:58] Speaker 03:
And I know that in the reply brief that the defense had said, oh, she had already twice indicated she understood her rights.

[00:28:04] Speaker 03:
All that's referring to is that she put her initials on the form when asked to do so.

[00:28:09] Speaker 03:
We would never defend a Miranda, you know, invocation based or a waiver based solely on that.

[00:28:15] Speaker 03:
She, you know, this had only taken place over a 30-second period.

[00:28:20] Speaker 01:
On the face of the transcript, it seems a little equivocal.

[00:28:24] Speaker 01:
When you watch the video, though, it doesn't seem all that equivocal.

[00:28:27] Speaker 01:
I mean, she seems shy and afraid, given the situation, but she did clearly say, can I have an attorney?

[00:28:34] Speaker 03:
But as a form of question, too, you know?

[00:28:37] Speaker 03:
And so it's like, if somebody asks something... Fairly, though.

[00:28:39] Speaker 01:
You know, it was... I mean, if you listen to the video, it doesn't have quite the intonation that... You can imagine that phrase being used in different ways, and it seemed...

[00:28:49] Speaker 01:
a little more definitive than the average question.

[00:28:51] Speaker 01:
I guess I'll put it that way.

[00:28:52] Speaker 03:
I agree.

[00:28:52] Speaker 03:
But then, again, if the question is objectively, what would a reasonable officer say?

[00:28:57] Speaker 03:
I think what's interesting when you look at this, they don't go ahead and launch into what were you doing, why were drugs found in your car.

[00:29:02] Speaker 03:
They said, hey, it's part of your rights.

[00:29:04] Speaker 03:
Is that what you want?

[00:29:06] Speaker 03:
Because you can have one here.

[00:29:07] Speaker 01:
No, I think that's a frustration by some in this area of law, that the officer's response to her question seems a fairly natural one.

[00:29:15] Speaker 01:
At the same time, I'm not sure it was

[00:29:17] Speaker 01:
We have other cases like that, and we've said that's not OK.

[00:29:22] Speaker 03:
The government, we did our best.

[00:29:23] Speaker 03:
Another one was Alvarez versus Gomez, where that person asked three times in a row.

[00:29:29] Speaker 03:
And the court made clear that it was because it was thrice repeated.

[00:29:32] Speaker 03:
Here, again, if it's a totality of the circumstances.

[00:29:34] Speaker 04:
Well, she actually asked several times, too.

[00:29:36] Speaker 04:
I mean, she brought up the attorney more than once.

[00:29:40] Speaker 03:
Well, right, but we're talking about the ninth minute.

[00:29:42] Speaker 03:
That was the first time she said it.

[00:29:43] Speaker 03:
Oh, yeah.

[00:29:44] Speaker 03:
And then when they were performing their duty to clarify, oh, yeah.

[00:29:47] Speaker 03:
And then it comes out, well, I want one, but I don't want to have to wait for one.

[00:29:50] Speaker 03:
Am I going to get one?

[00:29:52] Speaker 03:
Everything they said, it had nothing to do with the evidence against her.

[00:29:56] Speaker 03:
They were just trying to explain what the rights were.

[00:29:59] Speaker 01:
And so I think- Is there any relevance to the fact I saw that her father's apparently an attorney?

[00:30:05] Speaker 03:
I missed that.

[00:30:06] Speaker 01:
I saw that in the PSR.

[00:30:07] Speaker 01:
I don't know if that's accurate or not, but that's what it said.

[00:30:11] Speaker 03:
I guess to the extent that would go to her.

[00:30:13] Speaker 03:
The district court says she was a sound intellect.

[00:30:16] Speaker 03:
She was also a high school graduate and in school to be a teacher at the time.

[00:30:21] Speaker 03:
So she definitely

[00:30:22] Speaker 03:
You know how the intellect and so I think that was with the judge pointed that out, but I didn't know about the part about her father being an attorney Could I ask back to the reasonable suspicion how many times do you think she changed lanes without signaling?

[00:30:39] Speaker 04:
It doesn't specify maybe you know I think more than once more than once But I couldn't tell that it was more than twice really there's not really anything that tells us it's more than twice right right

[00:30:49] Speaker 03:
And I think the last thing, if I may, before I go, I did want to make clear on that reasonable suspicion point, I believe a defense counsel said when Agent Contreras pulled over, that he was, whether he was looking at the same border crossing history.

[00:31:02] Speaker 03:
Again, this is at Excerpt of Record 164.

[00:31:05] Speaker 03:
It has not only the Wednesday incomings from Mexico over the port of entry, it also has the border patrol Campo crossings.

[00:31:15] Speaker 03:
And in fact, at Excerpt of Record, I believe it was,

[00:31:18] Speaker 03:
86, he specifically says, I saw she was going through the checkpoint.

[00:31:22] Speaker 03:
So with that, the government would submit.

[00:31:25] Speaker 04:
Well, can I have another question?

[00:31:27] Speaker 03:
Sorry.

[00:31:27] Speaker 03:
We might still have questions.

[00:31:27] Speaker 03:
I would say, unless you have further questions.

[00:31:30] Speaker 02:
I'm sorry.

[00:31:31] Speaker 02:
Just when you said he went through the checkpoint, did that mean that it was the non-operational checkpoint?

[00:31:37] Speaker 03:
I believe so, yes.

[00:31:37] Speaker 03:
Because on there, too, there's a line for declaration that says, none was taken, which would indicate.

[00:31:44] Speaker 03:
OK.

[00:31:46] Speaker 04:
On that, I thought that it hadn't been non-operational continuously.

[00:31:52] Speaker 04:
Does it say that for all of her crossings through the one that you're saying is non-operational, that it was non-operational at the time?

[00:31:58] Speaker 03:
Well, there's an N under a column that says declaration, but there was testimonies to the general, I think at Excerpt of Record 62, there was testimony below that it's almost,

[00:32:08] Speaker 03:
always operational, so it's very rare that it's not.

[00:32:12] Speaker 01:
But it had in recent times not been operational?

[00:32:15] Speaker 01:
Is that?

[00:32:15] Speaker 03:
That's what they said at the time.

[00:32:16] Speaker 03:
You know, that wasn't any further specification beyond that.

[00:32:19] Speaker 03:
That was when the testimony happened in April 2023.

[00:32:22] Speaker 03:
The underlying events here, of course, I believe were in November of 2022.

[00:32:28] Speaker 04:
So we don't really know whether her crossings through it were when it was operational or not.

[00:32:33] Speaker 03:
Oh, no.

[00:32:33] Speaker 03:
Well, we know that from

[00:32:35] Speaker 03:
Agent Smith, but I'm saying that excerpt that.

[00:32:38] Speaker 04:
Necessarily had that information that was non-operational when she crossed.

[00:32:42] Speaker 03:
Well, I believe it can be inferred from that because there's that call and it says declaration yes or no, but he knew that she.

[00:32:50] Speaker 03:
Excerpt record 164.

[00:32:58] Speaker 03:
But even if not, the government stands by the testimony.

[00:33:02] Speaker 03:
And again, an excerpt of record, 94 through 97, defense counsel for several pages went over the same document with Agent Contreras.

[00:33:10] Speaker 03:
And at no point did he say, I've never seen this before, this is news to me.

[00:33:14] Speaker 03:
He answered all the questions that she asked about it.

[00:33:17] Speaker 04:
Could I ask, I think at least in the reply brief, the argument is made that Contreras never explained why the Lane

[00:33:26] Speaker 04:
Changes were suspicious or even really why this pattern of boarding crossings was suspicious Do you have a response to that only that it can be inferred from the record and if that's what agent Smith?

[00:33:36] Speaker 04:
He's an officer of 25 years that he would know that that also what he didn't know about the lane changes So do you have a response to the idea that the lane changes what makes the lane changes suspicious of smuggling?

[00:33:48] Speaker 03:
Well, only to this erratic driving, you know, and that if somebody, I mean, when they signal to exit and then don't, that could be, you know, they're looking to see if the person behind them is going to exit as well.

[00:33:58] Speaker 03:
Again, it may not be the most suspicious thing, and that's what the district court said.

[00:34:02] Speaker 03:
It said individually, I don't find this particularly, but that it added to the totality.

[00:34:06] Speaker 04:
And do you have an understanding of whether, so I think the argument is that she didn't know he was law enforcement because it was an unmarked vehicle, but there's something about an antenna.

[00:34:14] Speaker 04:
Do you have a position on whether she knew or didn't know about whether he was law enforcement?

[00:34:18] Speaker 03:
Well, yeah, that it doesn't count in her favor, that it's ambiguous.

[00:34:22] Speaker 03:
It's without question that the car wasn't marked.

[00:34:24] Speaker 03:
It's also without question, though, that he had his uniform on.

[00:34:28] Speaker 03:
She filed a declaration below.

[00:34:29] Speaker 03:
The only fact that she only mentions the truck when she says it pulled me over.

[00:34:35] Speaker 03:
This whole idea of whether she saw him or not, there was no evidence to that effect.

[00:34:39] Speaker 03:
What we do know is that he said he only went to pull up alongside her once.

[00:34:43] Speaker 03:
Once he saw that the windows were tinted, he pulled back a quarter mile.

[00:34:46] Speaker 01:
But was there anybody else on the road?

[00:34:48] Speaker 01:
This is a pretty remote area, right?

[00:34:49] Speaker 03:
Yeah.

[00:34:50] Speaker 01:
What does the record say about whether there were any other cars on the road?

[00:34:53] Speaker 03:
Well, you know, I think it did say something.

[00:34:54] Speaker 03:
At one point, he found that the lane changes without the signal.

[00:34:57] Speaker 02:
It seemed suspicious because he's something to the effect of no traffic.

[00:35:00] Speaker 03:
He said, yeah, there wasn't.

[00:35:02] Speaker 03:
Exactly.

[00:35:07] Speaker 04:
Okay, thank you very much.

[00:35:08] Speaker 04:
Thank you have two minutes for rebuttal

[00:35:19] Speaker 00:
So I just want to make sure that I answer any questions your honors have about the statements issue.

[00:35:26] Speaker 00:
It sounds like your honors understand the arguments well.

[00:35:30] Speaker 00:
One thing I just wanted to briefly point out is that in Smith, the invocation also happened during the reading of Miranda rights and there was a back and forth in Smith versus Illinois about whether that was material.

[00:35:41] Speaker 00:
The defense said yes.

[00:35:42] Speaker 00:
The majority said no.

[00:35:43] Speaker 00:
Ms.

[00:35:44] Speaker 00:
Madueno was perfectly within her rights to invoke during the reading of her Miranda rights.

[00:35:49] Speaker 00:
And indeed, she indicated twice before she invoked that she already understood her rights, both when she nodded yes to the agent asking her directly, do you understand your rights, and when initially,

[00:36:02] Speaker 00:
So no reasonable officer would have thought she was asking a question.

[00:36:06] Speaker 00:
Turning to reasonable suspicion, I just want to be clear about the checkpoint, because I think some questions were raised about that.

[00:36:16] Speaker 00:
It is our understanding.

[00:36:19] Speaker 00:
I would say, I think the government and I have a pretty different reading of the record on this point.

[00:36:30] Speaker 00:
It was my understanding and I believe it was understood below that the I-8 checkpoint was generally non-operational at the time Ms.

[00:36:39] Speaker 00:
Madueno was going through it.

[00:36:41] Speaker 00:
So that means it was non-operational when Ms.

[00:36:43] Speaker 00:
Madueno went through it, but it was also non-operational for every other person who was using the I-8 at that time.

[00:36:50] Speaker 00:
So it really doesn't distinguish Ms.

[00:36:52] Speaker 00:
Madueno from any other

[00:36:54] Speaker 01:
law-abiding person on the road and when this court has looked to the I mean on that specific point maybe but but when you combine it with the fact that all of a sudden her traffic across the border is very high volume at a period in which the checkpoint is generally non-operational one can infer from that something your honor actually if you look at the very at the very

[00:37:20] Speaker 00:
ER site that the government was pointing to, it shows that the vast majority of her crossings, she was not going through the I-8 checkpoint.

[00:37:30] Speaker 00:
So on that sheet, there are about 10 trips memorialized, and only in two of them did she pass through the I-8 checkpoint.

[00:37:41] Speaker 00:
By the way, we agree Agent Contreras did have information about the I-8 checkpoint.

[00:37:46] Speaker 00:
He did not have information about the interior

[00:37:48] Speaker 00:
Highway 86 checkpoint, which was a big part of Agent Smith's analysis.

[00:37:54] Speaker 00:
But when it comes to this page, ER 164, you can see when it'll say I-8.

[00:38:00] Speaker 00:
And only twice in those 10 trips was she, did she go through the I-8 checkpoint.

[00:38:08] Speaker 00:
Those were not during her quick trips that Agent Smith flagged.

[00:38:12] Speaker 00:
They were during lengthy, you know, 12, 13-hour trips into the country.

[00:38:18] Speaker 00:
Is the number of trips suspicious though?

[00:38:21] Speaker 00:
Agent Contreras found the trip suspicious for, sorry, Agent Smith found the trip suspicious for two reasons.

[00:38:29] Speaker 00:
One, he looked way back past six months to all of her crossing history and found that her volume had increased over time.

[00:38:39] Speaker 00:
There is no evidence that Agent Contreras went back that far.

[00:38:42] Speaker 00:
This ER164 that the government gave us to illustrate what he was looking at only goes back through October.

[00:38:49] Speaker 00:
Second, Agent Smith took a look at the Sentry application, and he saw on the Sentry application, it looks like Ms.

[00:38:57] Speaker 00:
Maduenos working at T-Mobile.

[00:38:59] Speaker 00:
It is inconsistent with work at T-Mobile to be coming in for just an hour or two at a time.

[00:39:05] Speaker 00:
So in both of those situations, Agent Smith is drawing conclusions based on information that Agent Contreras just did not have.

[00:39:14] Speaker 00:
And so we should be unsurprised that Agent Contreras never expressed any suspicions about Ms.

[00:39:20] Speaker 00:
Madueno's crossing patterns, never talked about her short trips, never talked about it being suspicious that she went through the non-operational checkpoint, just really never expressed any of these suspicions at all because he was not looking at the same information.

[00:39:37] Speaker 00:
I think we've asked all our questions.

[00:39:38] Speaker 04:
Thank you both sides for the very helpful arguments this case has submitted.