[00:00:00] Speaker 03:
24-1418, United States versus Munoz.

[00:00:04] Speaker 03:
Mr. Jackson, you may proceed.

[00:00:07] Speaker 02:
Good morning, your honors.

[00:00:08] Speaker 02:
May it please the court, Robert Jackson on behalf of defendant appellant Miguel Munoz.

[00:00:14] Speaker 02:
Mr. Munoz and his wife were traveling by car from Colorado to the wife's aunt's funeral in Kansas City.

[00:00:20] Speaker 02:
Highway Patrol troopers Rule and Ranieri conducted a traffic stop on eastbound I-70 in Kansas.

[00:00:27] Speaker 02:
Contraband was found in Mr. Munoz's vehicle.

[00:00:30] Speaker 02:
The evidence flowing from the stop must be suppressed for two independent reasons.

[00:00:34] Speaker 02:
First, Mr. Munoz did not violate any traffic laws such that the stop was justified from inception.

[00:00:41] Speaker 02:
And second, the officers unreasonably extended the stop.

[00:00:45] Speaker 02:
The trooper's vehicle had a dashboard camera, which recorded the stop in a few minutes beforehand, and that was exhibit two to the suppression hearing, and that's in the record here.

[00:00:54] Speaker 02:
However, no violation is depicted in that video recording.

[00:00:59] Speaker 02:
Next, the troopers unreasonably extended the traffic stop.

[00:01:03] Speaker 02:
Mr. Minos was issued a warning.

[00:01:05] Speaker 02:
but he was not informed that he was free to leave.

[00:01:08] Speaker 02:
Eventually, Mr. Munoz consented to the search of his whole car.

[00:01:12] Speaker 02:
A pistol and suspected fentanyl pills were found.

[00:01:15] Speaker 02:
The extension of the traffic stop was neither consensual nor was it supported by a reasonable suspicion of criminal activity.

[00:01:23] Speaker 02:
Next, following his arrest, Mr. Minos was interviewed at the station.

[00:01:27] Speaker 02:
He consented to having his cell searched.

[00:01:30] Speaker 02:
It was likely a more invasive search than Minos anticipated.

[00:01:33] Speaker 01:
Before we get there, it looks like the license tag violation was pretty cut and dry.

[00:01:42] Speaker 01:
Am I missing something on that?

[00:01:45] Speaker 02:
You know, I think so, Your Honor.

[00:01:47] Speaker 02:
I don't think that it was cut and dry.

[00:01:49] Speaker 02:
If we talk about

[00:01:50] Speaker 02:
that first alleged violation, the TAG violation.

[00:01:53] Speaker 02:
The law is clear in Kansas.

[00:01:59] Speaker 02:
The Kansas Supreme Court and this court have had lots of opportunities to construe the statute 8-133.

[00:02:06] Speaker 02:
And the law is that the TAG has to be visible from a safe following distance.

[00:02:12] Speaker 02:
And that's the critical question, the tags visible from a safe following distance.

[00:02:17] Speaker 02:
So we got to think about Trooper Rule and Trooper Ranieri's testimony at the suppression hearing.

[00:02:23] Speaker 02:
Rule testified that as he pulled into the highway median heading westbound, he observed Mr. Munoz's vehicle at a perpendicular angle.

[00:02:34] Speaker 02:
headed eastbound and the paper tag was sticking straight out and flapping.

[00:02:41] Speaker 00:
I mean, I don't think so, Your Honor.

[00:02:45] Speaker 00:
State versus Jurgen Charles from the Kansas Supreme Court.

[00:02:51] Speaker 00:
It said there's four things that the statute requires and failure to comply with any one of them is a violation.

[00:02:58] Speaker 00:
And the first is that that it's securely fastened to the vehicle.

[00:03:04] Speaker 00:
And so if it's flapping in the wind, it seems to me it's not securely fastened.

[00:03:09] Speaker 00:
And that would be enough under the Kansas Supreme Court's interpretation of this very statute.

[00:03:16] Speaker 02:
Your Honor, I respectfully submit that the tag was fastened securely enough here to comply with the statute.

[00:03:23] Speaker 02:
And the reason I state that... Well, do you disagree that it was flapping?

[00:03:29] Speaker 02:
I disagree.

[00:03:30] Speaker 02:
It's not depicted in the Iowa Patrol troopers dashboard video camera.

[00:03:38] Speaker 01:
That's not what the district court found, though.

[00:03:40] Speaker 01:
I mean, are you saying it's clearly erroneous what the district court concluded?

[00:03:47] Speaker 02:
I believe it is.

[00:03:48] Speaker 02:
And I think we have to look at the courts, at this court's rulings.

[00:03:52] Speaker 02:
I think we look at the case of Adjerton and McSwain.

[00:03:58] Speaker 02:
And in those cases, there were some temporary tags that were taped in the rear windows of cars.

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And this court held that once those traffic stops were initiated and then those officers confirmed that those temporary tags were properly displayed, the stop should have ended there, right then and there.

[00:04:19] Speaker 02:
Those officers should not have even asked for ID.

[00:04:21] Speaker 02:
Here, once the- Excuse me.

[00:04:23] Speaker 03:
Are you suggesting that even if it was flapping,

[00:04:27] Speaker 03:
There was a point in time when the officers could see it because it had quit flapping.

[00:04:33] Speaker 03:
Is that enough in your view?

[00:04:36] Speaker 02:
Well, when the officers get out and then they give pursuit and they find themselves at a safe following distance, there was no flapping.

[00:04:44] Speaker 02:
They never observed any flapping once they were behind Mr. Munoz's vehicle.

[00:04:48] Speaker 02:
And they agreed on that at the suppression hearing.

[00:04:51] Speaker 02:
And then we have many minutes of footage from this dashboard camera along the shoulder of the highway there in Kansas.

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And the wind's blowing.

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You can hear it through the microphone.

[00:05:02] Speaker 02:
You can see the vegetation on the side of the road blowing.

[00:05:05] Speaker 02:
And this tag stays right where it's supposed to be, right on the back of the database.

[00:05:08] Speaker 03:
So if it's moving down the highway, so if you're driving down the highway at 60 miles an hour and it's flapping so no one can tell what your license number is, that's not a violation because once you're pulled over for something,

[00:05:22] Speaker 03:
It's no longer flapping, and you can see it.

[00:05:25] Speaker 02:
Your Honor, the tag also wasn't flapping during the pursuit at highway speeds, and the troopers agreed to that.

[00:05:31] Speaker 00:
That's not what the district court found.

[00:05:33] Speaker 00:
I mean, the district court found it was, and that's what the officers said.

[00:05:40] Speaker 02:
And the officers observed it flapping at either a perpendicular vantage point

[00:05:47] Speaker 02:
or traveling in opposite directions, both at highway speeds.

[00:05:50] Speaker 02:
And that's not a safe following distance I'd respectfully submit.

[00:05:54] Speaker 00:
Well, it's not an issue of whether it's flapping.

[00:05:56] Speaker 00:
I mean, it's an issue, according to the Kansas Supreme Court, of whether it's securely fastened.

[00:06:02] Speaker 00:
And, you know, they saw that it wasn't.

[00:06:05] Speaker 00:
And you can see on the video, he takes Mr. Monos to the back of the car and he shows him that the tag is not secure.

[00:06:17] Speaker 00:
Right?

[00:06:17] Speaker 02:
That's officer rule, and he physically lifts the, lifts the tag.

[00:06:25] Speaker 00:
That doesn't mean- Well, if it were secure, could he, I mean, it wasn't taped down, so he could lift it.

[00:06:32] Speaker 02:
It was fastened at the top, and I don't know how, and he could lift it.

[00:06:38] Speaker 02:
But the video recording shows it staying in place.

[00:06:42] Speaker 02:
I do need to make an argument about this element of whether the tag's securely fastened versus whether it's visible.

[00:06:53] Speaker 02:
In the district court, at the time of the suppression hearing and in the briefing in the district court, the government made the argument that the tag was not clearly visible due to its flapping and it only became visible once the vehicle came to a stop.

[00:07:07] Speaker 02:
this alternative argument of secure fastening, that's being raised for the first time here on appeal.

[00:07:15] Speaker 02:
And so with that being raised for the first time on appeal, I would suggest that the court should not consider such an argument.

[00:07:23] Speaker 02:
Second, the recording of the trooper's vehicle in pursuit of Mr. Munoz after he was stopped.

[00:07:30] Speaker 02:
Again, it shows the tag to be visible and legible, which confirms that it's secured good enough for statutory purposes.

[00:07:38] Speaker 02:
If we want to talk about secure fasting,

[00:07:42] Speaker 02:
I would suggest we look at the Lopez Estrada case that's cited by the government in its briefs.

[00:07:47] Speaker 02:
That case is very helpful.

[00:07:48] Speaker 02:
This court included a photograph of the tag in that case.

[00:07:53] Speaker 02:
It was dangling by a wire from the frame of a pickup truck.

[00:07:58] Speaker 02:
And that gave a reasonable suspicion that that tag wasn't securely fastened.

[00:08:02] Speaker 02:
We're a world apart from Lopez Estrada and the dangling tag in that case.

[00:08:08] Speaker 02:
Here we have a tag that's covered in cellophane and it's affixed by its top to the lift gate of the Jeep where the manufacturer intended it be mounted.

[00:08:18] Speaker 02:
I'd like to move on to the second alleged violation with respect to the fog line violation.

[00:08:24] Speaker 02:
First, Mr. Munoz denies traveling outside of his lane, and even if the court finds that he did, this touch of the fog line was the sort of minimal and in breach would not violate this law.

[00:08:36] Speaker 02:
Again, we have to look at the dashboard camera recording, and that recording doesn't appear to show Mr. Munoz ever driving atop or crossing over the highway's fog line.

[00:08:47] Speaker 02:
Trooper Rule testified that he couldn't even see in the recording where Mr. Minos traveled on or crossed the fog line.

[00:08:53] Speaker 02:
But he testified he recalled the crossing.

[00:08:56] Speaker 02:
He was very clear, and this is helpful to Mr. Minos, that the Jeep never drifted all the way over the fog line.

[00:09:03] Speaker 02:
And this quartz found the drifting over all the way over the fog line critical, like in that Angeles case.

[00:09:11] Speaker 02:
Trooper Ineri, he testified somewhat the opposite of trooper rule.

[00:09:16] Speaker 02:
He could not recall the Jeep ever crossing over the fog line, but he asserted that he could see the violation in the video recording.

[00:09:23] Speaker 02:
He said that occurred at a minute 31 seconds into the recording.

[00:09:26] Speaker 02:
I'd respectfully request that the panel review that recording.

[00:09:30] Speaker 02:
It sounds like you all already have.

[00:09:32] Speaker 02:
And even the government takes the position that it can't be seen one way or the other on the video of Mr. Munoz cross the fog line.

[00:09:40] Speaker 00:
Let's move to whether they unreasonably extended the traffic stop.

[00:09:46] Speaker 02:
OK.

[00:09:49] Speaker 02:
When we have a traffic stop, it only can be extended on two bases after that stop is concluded.

[00:09:57] Speaker 02:
One, if Mr. Meno is consented, or two, if the troopers developed a reasonable suspicion criminal activity was afoot.

[00:10:04] Speaker 02:
As argued in the opening brief, the extension of the traffic stop, it wasn't consensual.

[00:10:08] Speaker 02:
It involved this very controversial Kansas two-step procedure of making it appear that Mr. Camino is considered to further a question when in fact he didn't.

[00:10:19] Speaker 02:
In that case, that Shaw versus Jones case is currently up on appeal in the court.

[00:10:24] Speaker 02:
It was a 1983 case.

[00:10:26] Speaker 02:
Anyway, the government doesn't defend the extension of the stop as being consensual.

[00:10:35] Speaker 02:
It's not defended in this brief.

[00:10:37] Speaker 02:
Instead, the government argues that this has developed a reasonable suspicion of criminal activity by the time they issued the warning citation.

[00:10:46] Speaker 02:
And I'd submit that that assertion's undercut by the fact that the troopers engaged in this two-step charade to give the interaction the appearance of consent.

[00:10:55] Speaker 02:
That was completely unnecessary if the troopers believed they had developed a reasonable suspicion at that time.

[00:11:01] Speaker 03:
Well, their subjective thinking is irrelevant, is it not?

[00:11:07] Speaker 03:
Their subjective thinking's irrelevant.

[00:11:11] Speaker 03:
Yeah.

[00:11:13] Speaker 03:
That's irrelevant.

[00:11:14] Speaker 03:
Even if they thought that the consent was not valid, that's irrelevant.

[00:11:25] Speaker 03:
The question is whether it was valid.

[00:11:27] Speaker 03:
Just similarly, the question is whether there was reasonable suspicion, not whether the officers didn't think there was reasonable suspicion.

[00:11:37] Speaker 03:
And I question whether

[00:11:40] Speaker 03:
We should say if the if the law enforcement uses belt and suspenders, which is not unusual to think they have where they think they have reasonable suspicion, but just to be safe, they'll ask for consent that that should not under undermine the claim of reasonable suspicion should it.

[00:12:01] Speaker 02:
I think the officer's actions in this history of this two-step in Kansas, I think it does somewhat undermine the reasonable sufficient analysis.

[00:12:10] Speaker 02:
Let's get to the reasonable sufficient analysis.

[00:12:13] Speaker 02:
Let's talk about the totality of the circumstances here.

[00:12:19] Speaker 02:
These officers run record checks on Mr. Minos.

[00:12:22] Speaker 02:
They find out he has no prior drug history and his criminal history consists of two prior misdemeanor arrests.

[00:12:29] Speaker 02:
And then the officers fought Mr. Munoz for being physically nervous.

[00:12:33] Speaker 02:
His hands were shaking, and he had a nervous voice.

[00:12:37] Speaker 02:
But this isn't the extreme nervousness that this court relied on before.

[00:12:41] Speaker 02:
Also, they chalk up to nervousness, this statement that Mr. Munoz makes about traveling to the wife's aunt's funeral in Kansas City.

[00:12:51] Speaker 02:
But how is that?

[00:12:51] Speaker 00:
He just kind of blurred it.

[00:12:53] Speaker 00:
I mean, he immediately blurts it out.

[00:12:57] Speaker 00:
He does, and I think for, I think, give me your, can I see your license?

[00:13:02] Speaker 00:
He sort of blirts it out.

[00:13:05] Speaker 02:
He blirts it out, but anyone who's been stopped by law enforcement officer fully would expect to be asked for your plans or where he headed the officer to.

[00:13:15] Speaker 02:
To ask him the question.

[00:13:18] Speaker 02:
The district court and the officers faulted Mr. Munoz for giving unspecified travel plans and that they weren't tied up or didn't know where exactly in Kansas City.

[00:13:29] Speaker 02:
he'd be arriving, but this is somewhat inconsequential as his travel to Kansas, it may have been unusual that he didn't know what address he was going to, but it wasn't implausible.

[00:13:41] Speaker 02:
It was his wife's family member who had passed and they were on their way to Kansas City.

[00:13:46] Speaker 02:
These weren't implausible plans like in other cases where a vehicle stopped 200 miles away from a city that the driver tells officers they just left an hour ago.

[00:13:57] Speaker 02:
Also, if we look at other reasonable cases, like maybe the sports decision in Frazier case, I would submit there's less factors supporting reasonable suspicion here than even in Frazier.

[00:14:12] Speaker 02:
In the Frazier case, we had air fresheners, we had evasive responses from the driver.

[00:14:18] Speaker 02:
The driver produced two identification cards from different states.

[00:14:22] Speaker 02:
That driver was in a rental car traveling cross-country.

[00:14:25] Speaker 02:
He was unable to produce the rental contract.

[00:14:28] Speaker 02:
And even there, the sport found that there wasn't an objective reasonable suspicion of criminal activity.

[00:14:33] Speaker 01:
How long, how many minutes was this stop prolonged that you found objectionable from its inception?

[00:14:43] Speaker 02:
Well, it's my position that there was no reason to stop the car to begin with, but it took about 10 minutes from the beginning of the stop until the warning was issued.

[00:14:58] Speaker 02:
After that, it was all extension and it was all an unreasonable extension.

[00:15:01] Speaker 02:
How long was it?

[00:15:03] Speaker 02:
How many minutes?

[00:15:06] Speaker 02:
The video is about 22 minutes long, I believe.

[00:15:08] Speaker 02:
I may be wrong on that.

[00:15:08] Speaker 02:
I think another 12 or 14 minutes go by somewhere in that range.

[00:15:13] Speaker 01:
before the consent was obtained?

[00:15:17] Speaker 02:
There were multiple consents obtained, and I want to answer this question.

[00:15:21] Speaker 02:
I see I'm out of time.

[00:15:23] Speaker 02:
Initially, the trooper asked for consent to search the rear hatch area.

[00:15:28] Speaker 02:
It's a Jeep Cherokee.

[00:15:31] Speaker 02:
And so he searched that.

[00:15:32] Speaker 02:
And then as Mr. Munoz and his wife were standing on the side of the road, then he says, well, can I search the whole car?

[00:15:37] Speaker 02:
And I think it was just a matter of minutes before they requested to search the whole car.

[00:15:41] Speaker 02:
And they turned the car inside out, they removed the spare tire, bounced that, searched all through it.

[00:15:46] Speaker 02:
It took many, many minutes.

[00:15:50] Speaker 03:
Your time's up and I don't want to extend this much, but you didn't address the Jesus statue, the Jesus Malverde statue.

[00:15:59] Speaker 02:
sure i'd like to talk about that very briefly very briefly i'll give you sure there's other reasons than the protection of drug smugglers why someone might have that in their car here there's indication was for religious observance the malverde was displayed next to the virgin mary so it looks like that was a religious symbol also if we look at the lopez gutierrez case from this court that was cited by the government in that case there were

[00:16:24] Speaker 02:
multiple Malverti images in that car, there were hidden compartments in that car, there was air freshener, and there was not enough luggage for the long trip claimed by the driver.

[00:16:35] Speaker 02:
We have much, much more attenuated circumstances here in that loop as Gutierrez's case.

[00:16:41] Speaker 02:
Thank you, Roger.

[00:16:42] Speaker 02:
I see that I'm out of time.

[00:16:44] Speaker 03:
Thank you, Mr. Buckman.

[00:16:48] Speaker 04:
May it please the court Albert Buckman on behalf of the United States.

[00:16:51] Speaker 04:
I want to talk about the 2 independent bases for the stop and the extension of that stop.

[00:16:58] Speaker 04:
Kansas Statute 8-133 imposes two affirmative duties on drivers.

[00:17:04] Speaker 04:
One is to have a secure tag.

[00:17:06] Speaker 04:
The second is for that tag to be clearly visible.

[00:17:10] Speaker 04:
Here the troopers stopped.

[00:17:12] Speaker 04:
They both testified they saw flapping of that tag to reasonably believe that the tag was not securely fastened.

[00:17:20] Speaker 04:
The video does not contradict that finding.

[00:17:23] Speaker 04:
The district court found the troopers credible in that testimony.

[00:17:28] Speaker 04:
because the camera comes into play during the pursuit several minutes after the observations had taken place.

[00:17:37] Speaker 03:
Whether or not... Mr. Jackson said that the securely fastened argument was not preserved below.

[00:17:49] Speaker 03:
Would you address that?

[00:17:51] Speaker 04:
I think it was argued by the government in their answer to the motion to suppress volume one, page 90.

[00:17:58] Speaker 04:
The government states affirmatively, Muniz's temporary tag was not securely fastened at the bottom of the plate after quoting the statute.

[00:18:07] Speaker 04:
But even if it wasn't fully argued, this court can affirm on alternative grounds that are supported by the record.

[00:18:16] Speaker 04:
Here, that ground is supported by the record.

[00:18:22] Speaker 04:
The district court found the officers credible in the flapping of that tag.

[00:18:28] Speaker 04:
And the question isn't whether the violation was occurring, it's whether they reasonably believed that the license was not securely faceted.

[00:18:36] Speaker 04:
And they did, and that was the first basis for stopping Mr. Munoz's vehicle.

[00:18:43] Speaker 04:
The second basis is whether he drifted outside of his lane, whether drifting on the fog line was sufficient.

[00:18:50] Speaker 04:
And again, the district court found the troopers credible.

[00:18:54] Speaker 04:
The dash cam shows what it shows.

[00:18:56] Speaker 04:
The district court found it grainy.

[00:18:59] Speaker 04:
It shows gross details.

[00:19:01] Speaker 04:
It does not capture fine details.

[00:19:03] Speaker 04:
And the troopers testified to as much that it was older technology.

[00:19:09] Speaker 04:
The troopers observed Mr. Munoz drive twice on top of that fog line.

[00:19:18] Speaker 04:
If you think about it going 60 miles an hour, that would have been twice within 15 seconds, even fewer seconds if he was going faster.

[00:19:28] Speaker 00:
Would that state versus Marx from the Kansas Supreme Court, would that be enough?

[00:19:36] Speaker 00:
It relies on the language as nearly as practicable.

[00:19:41] Speaker 00:
And here there's no evidence in the record at all to talk about driving conditions.

[00:19:47] Speaker 00:
So it's hard to evaluate what was practicable.

[00:19:52] Speaker 04:
I disagree.

[00:19:53] Speaker 04:
There was testimony of what the driving conditions was and the dash cam also shows those gross details of the driving conditions.

[00:20:03] Speaker 00:
Well, the dash cam video,

[00:20:05] Speaker 00:
It's not going to win any Oscars.

[00:20:10] Speaker 04:
It is what it is.

[00:20:11] Speaker 04:
But the trooper rule did testify that it was light winds 10 to 15 miles an hour.

[00:20:15] Speaker 04:
There was no snow or ice.

[00:20:17] Speaker 04:
It was a straight road.

[00:20:18] Speaker 04:
It was hilly.

[00:20:20] Speaker 04:
And the dash cam does show other vehicles maintaining their lane assignments.

[00:20:26] Speaker 04:
I don't think the dash cam tells us one way or another.

[00:20:28] Speaker 04:
But the district court found the troopers credible on that point.

[00:20:35] Speaker 04:
It was not it's the district court found that the troopers were credible on that point.

[00:20:42] Speaker 04:
I'd like to address the extension of the stop.

[00:20:47] Speaker 04:
The troopers were.

[00:20:49] Speaker 04:
I agree that I believe the Rodriguez moment was the point behind the vehicle when Trooper Rule told Mr. Munoz, no ticket, just checking if you're awake and sober, and then continued questioning.

[00:21:00] Speaker 04:
That was the point when he needed reasonable suspicion, and I'm not arguing consent in this case.

[00:21:06] Speaker 04:
And that reasonable suspicion, that temporary detention, that needed to justify up until the point of consent.

[00:21:14] Speaker 04:
The trooper rule relied on four factors.

[00:21:17] Speaker 04:
Some of these factors kind of mixed together, but it's the Jesus Malverde observation of that pendulum.

[00:21:23] Speaker 04:
It's the physical nervousness that trooper rule observed of Mr. Munoz, the unprompted statement, as well as the unspecified travel plans.

[00:21:32] Speaker 04:
And looking at the totality of the circumstances here, I think everything needs to be viewed from the lens of that Jesus Malverde pendulum hanging.

[00:21:41] Speaker 04:
That informs the totality of the circumstances and why these troopers had reasonable suspicion that drug trafficking was occurring.

[00:21:51] Speaker 04:
Trooper Rule articulated that this was extreme nervousness, but he provided a basis for that conclusion.

[00:22:05] Speaker 04:
He said it was not a normal traffic stop.

[00:22:08] Speaker 04:
He testified that Mr. Munoz's hand was shaking as he was handing the paperwork over and even after he said no ticket before he went into the vehicle to do traffic stops.

[00:22:22] Speaker 04:
Well, backing up, he said no ticket, left Mr. Munoz in his vehicle to go do the traffic checks, returned, and he stated that Mr. Munoz's voice was still showing nervousness.

[00:22:35] Speaker 04:
That shows that this wasn't just nervousness as any normal citizen encounter.

[00:22:41] Speaker 04:
It was persistent, and it was extreme to the point that it was showing physical manifestations.

[00:22:47] Speaker 04:
And trooper role was,

[00:22:51] Speaker 04:
thrown off by how Mr. Munoz just launched into his story, not in response to routine, and I have your driver's license and registration.

[00:23:01] Speaker 04:
Trooper rule.

[00:23:06] Speaker 04:
testified that this wasn't typical behavior.

[00:23:08] Speaker 04:
Most drivers, and this is based on his experience on those roads for 30 years, they typically ask, why did I get stopped?

[00:23:16] Speaker 04:
And Mr. Munoz launches right into a story.

[00:23:18] Speaker 04:
And Trooper Rule immediately felt that based on his training experience, which can be considered, that was, it was an attempt to evoke sympathy, which he had seen many times in his experience with drug traffickers.

[00:23:35] Speaker 04:
So that unprompted statement both showed the nervousness, but it also showed trooper rule that this may be an attempt to evade him, to evoke sympathy, and that's all building into this totality of the reasonable suspicion here.

[00:23:52] Speaker 04:
And he also found it suspicious, based on his experience with drug traffickers, that Mr. Munoz didn't specify where he was going.

[00:23:59] Speaker 04:
Where are you going to Kansas?

[00:24:01] Speaker 04:
They're already in Kansas.

[00:24:03] Speaker 04:
He didn't specify the city and he went so far as to articulate that drug traffickers often don't disclose their location.

[00:24:11] Speaker 04:
So some of the factors kind of blend together, but here there was extreme nervousness and trooper rule articulated a more than sufficient basis and the district court credit that testimony.

[00:24:22] Speaker 00:
Should we give any any weight to the fact that there was no hanging bag for clothes?

[00:24:30] Speaker 04:
I think this court, it's a consideration and it's something that Trooper Rule testified to.

[00:24:34] Speaker 04:
I'm not saying it's the strongest factor here.

[00:24:36] Speaker 04:
I think it's just a consideration in the analysis.

[00:24:42] Speaker 04:
Society may have changed.

[00:24:44] Speaker 04:
Maybe it is things that some people would do.

[00:24:47] Speaker 04:
Some people weren't going to a funeral, but Trooper Roll stops cars every day on that highway.

[00:24:54] Speaker 04:
He stops people going to funerals.

[00:24:57] Speaker 04:
And in his experience, he would expect to see dress clothes, and he testified to all of that.

[00:25:03] Speaker 04:
It's a consideration.

[00:25:05] Speaker 04:
It's not the biggest factor, but it is a consideration in the overall totality here, and how the story isn't quite making sense to him.

[00:25:13] Speaker 04:
And this is all in light of the Jesus Malverde pendulum that's hanging there.

[00:25:22] Speaker 04:
Going to the unspecified destination, it was

[00:25:33] Speaker 04:
Mr. Munoz just launches into that conversation, not in response to anything.

[00:25:41] Speaker 04:
Triparul at that point was surprised and he testified that he was thrown off.

[00:25:47] Speaker 04:
He started conversing about the funeral when he was trying to do his routine checks.

[00:25:53] Speaker 04:
And I already addressed that that Mr. Munoz said that he was in Kansas and didn't specify location, but he also didn't didn't have a good clear timing of that funeral.

[00:26:04] Speaker 04:
And here the.

[00:26:07] Speaker 04:
The consideration isn't whether each.

[00:26:10] Speaker 04:
Peace can be explained by his behaviors, whether we can rule out a significant portion of innocent behavior and here adding everything together.

[00:26:19] Speaker 04:
That was informing trooper role in light of of the circumstances.

[00:26:26] Speaker 04:
That that this may be possible drug trafficking.

[00:26:31] Speaker 04:
The Jesus Malberti pendulum.

[00:26:35] Speaker 04:
This court has used that as a factor before in the reasonable suspicion analysis.

[00:26:41] Speaker 04:
And both troopers testified that in their training experience that this is known as, Mr. Malberti is known as the patron saint of drug smuggling.

[00:26:55] Speaker 04:
That,

[00:26:57] Speaker 04:
Mr. Trooper Ranieri testified even further that he had seen roadside seizures with that image being displayed.

[00:27:06] Speaker 04:
And while there may be innocent explanations for that, that's not the sole question.

[00:27:12] Speaker 04:
And it can be more likely than not that it was innocent, but it's whether by a totality it's reasonable for officers to believe that that supplies reasonable suspicion.

[00:27:21] Speaker 04:
And here the officers

[00:27:24] Speaker 04:
believed so in light of all the circumstances.

[00:27:28] Speaker 04:
So the government does believe that there was ample factors here added together for reasonable suspicion.

[00:27:38] Speaker 04:
So I moved a little quickly through my entire argument.

[00:27:43] Speaker 04:
I want to go back and address this fog line issue of whether being on the top or whether this was a minimal and incidental breaching of that statute.

[00:27:53] Speaker 00:
Well, if we agree with you about the license plate, do we need to even reach that?

[00:28:00] Speaker 04:
I don't think so.

[00:28:01] Speaker 04:
They're both separately independent bases, either affirming on either of those bases validates the traffic stop here.

[00:28:11] Speaker 04:
But it was well argued by the defense that whether this is a minimal and incidental breach, and it is a bit of a novel issue of whether driving on top of the fog line is sufficient.

[00:28:23] Speaker 04:
So I agree that to supply reasonable suspicion, it must be no more, it must be more than minimal and incidental lane breach.

[00:28:35] Speaker 04:
And we will do the two part fact specific inquiry of assessing the number of crossings, touchings, how far over the timing of that, as well as the adverse conditions here.

[00:28:48] Speaker 04:
And Tripper Rule testified that it was twice on top of that fog line.

[00:28:54] Speaker 04:
Even on the dash camp, he advises Mr. Munoz, hey, you were over on top of that fog line.

[00:29:02] Speaker 04:
And as I said,

[00:29:08] Speaker 04:
It was within a quarter mile.

[00:29:10] Speaker 04:
It wasn't within a mile, two miles.

[00:29:12] Speaker 04:
It was within a matter of seconds that Mr. Munoz was drifting, driving on top of that fog line.

[00:29:19] Speaker 04:
And there's more than ample evidence here in the district court agreed that the conditions couldn't explain sufficiently that drifting

[00:29:32] Speaker 04:
It was a bright clear day and the video shows in as much that much that it was a bright day.

[00:29:39] Speaker 04:
No obstructions, just a normal driving day.

[00:29:44] Speaker 04:
In this court, the government submits that that was sufficient.

[00:29:50] Speaker 04:
That was more than minimal and incidental lane breach.

[00:29:54] Speaker 04:
And the question, another I think somewhat novel question, is whether driving on top of the line or over the line is required here.

[00:30:03] Speaker 04:
I relied on two cases, Marks as well as McGregor, to argue that driving on top of the line is sufficient.

[00:30:12] Speaker 04:
In Marks, the court says, we interpret the statute as establishing two separate rules of the road.

[00:30:19] Speaker 04:
The first requires a driver to keep entirely within a single lane.

[00:30:25] Speaker 04:
That rule is temporarily suspended when it becomes impracticable to stay within the lane markers.

[00:30:30] Speaker 04:
So they do articulate that the lane is established by the lane markers, not the shoulder of the road.

[00:30:38] Speaker 04:
So the government, certainly the court needs to consider whether, how far he traveled, he drifted out of his lane.

[00:30:45] Speaker 04:
But there is authority here to support that it's that lane fog line marker itself that establishes the lane.

[00:30:56] Speaker 04:
So, I have 1 minute left.

[00:31:02] Speaker 04:
It's the government's position that that secure securely fastened element of the, or duty of the.

[00:31:09] Speaker 04:
The license plate statute is an independent statute.

[00:31:12] Speaker 04:
It's in the plain language.

[00:31:13] Speaker 04:
Lopez Estrada considered only that section of the statute in affirming the reasonable suspicion in that case despite a clearly visible tag.

[00:31:25] Speaker 04:
So that was an independent basis as well as the drifting of Mr. Munoz in that lane.

[00:31:34] Speaker 04:
I'm almost out of time.

[00:31:36] Speaker 04:
If there's no further question, I ask this court to please affirm.

[00:31:41] Speaker 03:
Thank you, counsel.

[00:31:42] Speaker 03:
Any questions for the panel?

[00:31:45] Speaker 03:
Thank you.

[00:31:46] Speaker 03:
Gentlemen, the case is submitted.

[00:31:48] Speaker 03:
Counselors are excused.