[00:00:00] Speaker 03:
Okay, we're here on United States versus Robbins.

[00:00:05] Speaker 03:
This is 24-7067, and we'll start with Ms.

[00:00:12] Speaker 03:
Shen.

[00:00:12] Speaker 03:
Thank you.

[00:00:14] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 01:
Again, I'm Kathleen Shen, and I represent the appellate, Mr. Tian Robbins.

[00:00:21] Speaker 01:
The order denying the suppression motion should be reversed.

[00:00:24] Speaker 01:
Although the District Court was right that there was a Rodriguez moment after Trooper Koch received the rental agreement,

[00:00:30] Speaker 01:
it was wrong that the subsequent dog sniff was justified by reasonable suspicion.

[00:00:35] Speaker 01:
The only factor that the district court relied on to find reasonable suspicion was this, that Williams told police after a pause that they had been to Yukon, Oklahoma, whereas Mr. Robbins told police that they had been to California, New Mexico, and Arizona.

[00:00:52] Speaker 01:
That is not enough for reasonable suspicion.

[00:00:55] Speaker 01:
Oh, go ahead, Judge Robbins.

[00:00:58] Speaker 00:
Please, Judge Becker, go ahead.

[00:00:59] Speaker 03:
No, you go ahead.

[00:01:01] Speaker 00:
Council, I'm trying to understand what we're supposed to look at to review, to do our de novo review of the ultimate Fourth Amendment question here.

[00:01:13] Speaker 00:
And to that end, I'm struggling to better understand how the district court's credibility determinations factor into our review, because typically, even if the court narrowed its focus,

[00:01:29] Speaker 00:
On our de novo review of the inquiry, if there are other facts presented in the totality that would support reasonable suspicion, those wouldn't be off limits to us to review for the ultimate Fourth Amendment question.

[00:01:44] Speaker 00:
But here, it feels to me like we may be limited because of the district court's emphasis on how it read or how it understood Trooper Cox credibility

[00:02:01] Speaker 00:
how it made a credibility determination with respect to Trooper Koch.

[00:02:04] Speaker 00:
So if I'm being clear about my question, how do we think about the district court's consideration of the trooper's credibility in our analysis of the Fourth Amendment question?

[00:02:18] Speaker 01:
Your Honor, I understand the question.

[00:02:20] Speaker 01:
And I think the negative determination about Trooper Koch's credibility is a factual determination that this court defers to.

[00:02:27] Speaker 01:
The government hasn't argued that that determination is clearly erroneous.

[00:02:30] Speaker 01:
And I think with good reason, I mean, that's basically an unreviewable finding that Trooper Koch's testimony wasn't reliable.

[00:02:36] Speaker 01:
And the district court himself was careful to say that he was relying only on the video to find that these statements were made because he wasn't relying on Koch's testimony.

[00:02:46] Speaker 01:
You know, it's true that this court is on de novo review.

[00:02:49] Speaker 01:
And so that does give it a little bit more leeway, but I still think party presentation principles matter as far as

[00:02:54] Speaker 01:
what factors this court considers in assessing whether reasonable suspicion exists.

[00:02:59] Speaker 01:
And I point this court to, for example, Lopez, there are factors in the record that the court doesn't consider because they weren't presented by the parties or considered by the district court.

[00:03:07] Speaker 01:
And so I think in this case, it's very clear that the district court only relied on the inconsistency in the statements.

[00:03:14] Speaker 01:
And this court has never found reasonable suspicion based on these kinds of inconsistent statements alone.

[00:03:20] Speaker 01:
On the contrary,

[00:03:22] Speaker 01:
Go ahead.

[00:03:23] Speaker 03:
Could an inconsistency in travel plans ever create reasonable suspicion?

[00:03:29] Speaker 01:
Your Honor, I think that because reasonable suspicion is fact bound, I'm not going to say that there's no inconsistency that could never, you know, that would ever support.

[00:03:38] Speaker 01:
Maybe there could be a lie that's so egregious.

[00:03:42] Speaker 01:
But I think in this case and with this kind of relatively minor inconsistency, I think this case is almost never.

[00:03:49] Speaker 01:
This is never going to support reasonable suspicion.

[00:03:51] Speaker 01:
And to begin with, I don't even think these statements are inconsistent.

[00:04:02] Speaker 01:
Again, it could be true that you stopped in Yukon on the way back from a longer trip that involved California, New Mexico, and Arizona.

[00:04:10] Speaker 01:
And that's especially true when you take the context that the statements were made into account.

[00:04:14] Speaker 01:
You know, Williams gave this response about being in Oklahoma or in Yukon as part of a conversation where Koch asked him, how are y'all doing today?

[00:04:24] Speaker 03:
And then Robbins, on the other hand.

[00:04:26] Speaker 03:
I'm sorry.

[00:04:27] Speaker 03:
I keep talking over you this again.

[00:04:29] Speaker 03:
But don't we have to, and I realize this isn't a popular view of the defense bar, but we do have presidents saying that we do have to view the evidence in the light most favorable

[00:04:42] Speaker 03:
to the ruling, right?

[00:04:45] Speaker 03:
And so if there are circumstances in which an inconsistency in travel plans, and I think we can all imagine, you know, I say I'm traveling with Judge Murphy, and we get stopped in Yukon, Oklahoma, and the policeman stops me and I say, well, we started in California, we were going to Maine for a football game and

[00:05:06] Speaker 03:
Judge Murphy says, no, we actually started in Portland and we were going to Florida to see a Miami Heat game.

[00:05:12] Speaker 03:
Well, those are such extreme examples that I think anybody would say, well, that's very suspicious.

[00:05:21] Speaker 03:
And here, maybe it's not as extreme, but we do have to view the evidence in the light most favorable to the ruling, don't we?

[00:05:29] Speaker 01:
Your honor, I don't think the light most favorable to the ruling language really does any work.

[00:05:33] Speaker 01:
I mean, the Supreme Court's clear on Ornelas that the ultimate determination of reasonableness is a reasonable suspicion is a legal conclusion that this court makes.

[00:05:41] Speaker 01:
You know, my theory about the light most reasonable language is if it's in conflict with Ornelas, it's wrong.

[00:05:48] Speaker 01:
And on the alternative, it could just be an expression of the clear error standard.

[00:05:51] Speaker 01:
But we're not challenging the district court's factual finding.

[00:05:54] Speaker 01:
that these statements were made.

[00:05:56] Speaker 01:
And I think it's actually really notable that if you read the district court's order, he's not even finding that these statements are very suspicious.

[00:06:02] Speaker 01:
He says, if I were writing on a blank slate, I'd be inclined to agree that these statements aren't that suspicious.

[00:06:08] Speaker 00:
But the inconsistency is a factual finding, isn't it?

[00:06:13] Speaker 01:
I don't think it is but regardless, under either standard this court can look at the statements and the context in which they were made to determine whether they're inconsistent or whether they rise to reasonable suspicion and as an example, I would point this court to its decision in Leon, where it actually does review the district court's finding that inconsistent statements were made.

[00:06:34] Speaker 01:
There, the defendant had made multiple statements that he was from Arizona, that he was transitioning to Minnesota.

[00:06:40] Speaker 01:
And this court on appeal looked at those statements and said, they're not actually inconsistent.

[00:06:46] Speaker 01:
So I think it's clear that this court can make its own judgment both about whether these statements are inconsistent, but even accepting that they're inconsistent, this court can conclude, and I think should conclude, that they don't rise to the level of reasonable suspicion.

[00:07:00] Speaker 01:
And that's because,

[00:07:03] Speaker 01:
As this court has recognized, there are just so many reasons why innocent travelers might make statements that are different along these lines.

[00:07:12] Speaker 01:
They could be tired, they could be distracted, they could be on the phone with somebody else, or they could just be really private people.

[00:07:20] Speaker 01:
You know, as this court said in Santos, many motorists, even innocent ones,

[00:07:24] Speaker 01:
just don't think their travel plans are any of the troopers' business.

[00:07:28] Speaker 01:
And, you know, reasonable suspicion requires that the articulated factors together, and here we have just one factor, but taking everything into account, it requires- Well, counsel, can I stop you for a second?

[00:07:40] Speaker 00:
I want to really drill down on my question because I'm still a little confounded about how to treat the credibility determination in terms of defining the universe of factors that are relevant to reasonable suspicion.

[00:07:53] Speaker 00:
In getting to this place where it's a totality of one, so to speak, where it's just the inconsistent statements, the other factors that the district court recounted in reviewing the magistrate judge's reasoning were the nervousness, and then the over-politeness, gym bags, the dashboard photo, and then these inconsistencies.

[00:08:19] Speaker 00:
Is it your position that we should attribute the rejection of the nervousness, the politeness, the gym bags, the photo on the dashboard, all as a function of rejecting troopers, trooper Cox credibility, and sort of deal with it that way?

[00:08:39] Speaker 00:
Or is really only the nervousness attendant to the credibility determination?

[00:08:46] Speaker 01:
I think that the credibility determination does have some relevance as far as the idea that some deference is owed to a police officer's testimony about what is suspicious.

[00:08:57] Speaker 01:
I don't think any deference is owed to Trooper Coke in this case because the district court found that his testimony was not consistent with the video evidence and it was within the district court's discretion to choose not to credit

[00:09:08] Speaker 01:
his other testimony about, for example, the photograph being suspicious or politeness being suspicious.

[00:09:13] Speaker 01:
I also don't know that it's necessary for this court to get here because I just think even taken on their own.

[00:09:19] Speaker 01:
Those factors simply are not suspicious and I'm happy to address them if this court has any questions but I think whether it's because of the

[00:09:27] Speaker 01:
Judges credibility determination or because they're simply not suspicious.

[00:09:30] Speaker 01:
Those other factors don't matter.

[00:09:32] Speaker 01:
And I don't think our need to be addressed by this court.

[00:09:36] Speaker 04:
All the factors that have been mentioned so far, exclude the factor of the rental agreement.

[00:09:44] Speaker 04:
Now, in some of the cases,

[00:09:51] Speaker 04:
is one of the little items you put on the scale of reasonable articulable suspicion.

[00:10:01] Speaker 04:
The consideration of the rental status here is even different than that.

[00:10:08] Speaker 04:
I mean, if you look at the transcript and the recross examination of the trooper, it's very clear that

[00:10:20] Speaker 04:
until the other officer brought the physical evidence of a rental agreement.

[00:10:29] Speaker 04:
It was uncertain whether there was a rental agreement.

[00:10:33] Speaker 04:
It was uncertain whether these people were properly using the rented car.

[00:10:38] Speaker 04:
Now,

[00:10:39] Speaker 04:
None of the questions have addressed that.

[00:10:43] Speaker 04:
So that's a factor, it seems to me, that exists that the magistrate judge didn't talk about that being dubious.

[00:10:53] Speaker 04:
The district judge didn't talk about that being dubious.

[00:10:56] Speaker 04:
And if you have that factor, along with some inconsistencies in travel plans,

[00:11:08] Speaker 04:
Under our case law, isn't that just in and of itself enough to say that given all those circumstances, we have to affirm?

[00:11:20] Speaker 01:
No, Your Honor.

[00:11:21] Speaker 01:
And I think for several reasons.

[00:11:23] Speaker 01:
First, by the time the dogs have occurred, and I think this is clear from the record, the rental agreement had been produced.

[00:11:29] Speaker 01:
And so there, to the extent that an outstanding rental agreement could raise a question about whether they're lawfully operating the vehicle, once the agreement is produced, that question is gone.

[00:11:37] Speaker 01:
I think it's also in this case, it's not even a third party rental, which this court has said might minimally contribute to reasonable suspicion here, Mr. Robinson self rented the car.

[00:11:46] Speaker 01:
So I don't think the fact that he rented the car contributes nobody.

[00:11:49] Speaker 04:
Nobody has this agreement till to look at the other officer hands it to coke.

[00:11:57] Speaker 04:
And then the other officer leaves and starts his little routine with having the defendant put his hands on the vehicle and stand back and then make room.

[00:12:10] Speaker 04:
I mean, it was almost instantaneously.

[00:12:13] Speaker 04:
After the agreement is delivered to Coke in the car, in the vehicle, and the search by the dog, it's almost instantaneous.

[00:12:25] Speaker 04:
It's a matter of seconds.

[00:12:27] Speaker 01:
Your Honor, the timeline is not correct.

[00:12:29] Speaker 01:
It's close to two minutes until the dog sniff occurs.

[00:12:33] Speaker 04:
There's never been any... Two minutes from when?

[00:12:37] Speaker 01:
So he receives the rental agreement at around 1130 and the dog sniff, and I don't wanna say exactly how long it was, but I believe it wasn't until around 1330.

[00:12:49] Speaker 04:
What's the other officer's name, Craig?

[00:12:52] Speaker 01:
I don't recall his name off the top of my head.

[00:12:55] Speaker 04:
Whatever his name was.

[00:12:57] Speaker 04:
He has the phone that has the agreement on it, correct?

[00:13:04] Speaker 01:
Our honor coke receives the phone with the agreement at approximately 1128, which I believe is two minutes or so before the dog alerts and this is a factual question that the district court found in Mr. Robbins favor there's never been any argument or suggestion that they were unable to read the rental agreement or that any question regarding.

[00:13:26] Speaker 01:
the owner or the ability to drive the car existed after the rental agreement was received.

[00:13:32] Speaker 01:
And, you know, your question was also like, haven't we found reasonable suspicion?

[00:13:37] Speaker 04:
I want you to go on before I go there.

[00:13:40] Speaker 04:
It will be clear if I look at the sequence events that it is clear that there were two minutes that pass between the time that Coke had the phone with the rental agreement.

[00:13:56] Speaker 04:
And when the dog sniff started that that's to at least two minutes.

[00:14:02] Speaker 01:
Your honor, I don't want to, you know, I don't know if it's like 90 seconds or two minutes or two minutes and 30 seconds.

[00:14:09] Speaker 01:
You know, I noticed in the suppression hearing people call it.

[00:14:11] Speaker 01:
Okay.

[00:14:12] Speaker 04:
It's more than a minute.

[00:14:14] Speaker 01:
It's more than a it's more than seconds.

[00:14:15] Speaker 01:
It's well more than a minute.

[00:14:17] Speaker 01:
I think it's around two minutes.

[00:14:19] Speaker 01:
And just your honor asked about other cases, I think this case just falls really short of what counts as reasonable suspicion and other cases in Simpson you have numerous inconsistencies.

[00:14:30] Speaker 01:
which only contribute in combination with bizarre travel plans, a criminal history of dealing drugs, and extreme nervousness.

[00:14:38] Speaker 01:
And there, this court said it was a close call.

[00:14:41] Speaker 01:
Here, there's nothing else.

[00:14:43] Speaker 01:
And I don't think it's that close of a call.

[00:14:45] Speaker 01:
I think there's no reasonable suspicion.

[00:14:47] Speaker 01:
And I would point out this court has never found reasonable suspicion based on a single factor.

[00:14:53] Speaker 01:
let alone a factor that's equivocally suspicious as the statements here, which again, I just don't think meaningfully indicate any connection with drug dealing.

[00:15:01] Speaker 01:
It doesn't eliminate any substantial portion of the innocent public.

[00:15:05] Speaker 01:
And so if you look at the inconsistent statements or in the record, there isn't reasonable suspicion and therefore we'd ask you to reverse.

[00:15:11] Speaker 04:
Let me ask this, do we view this from a subjective perspective of Officer Koch?

[00:15:19] Speaker 04:
or from an objective perspective of the reasonable officer under these circumstances with a roadside stop.

[00:15:29] Speaker 01:
So reasonable suspicion is a legal question that this court reviews de novo, viewing the evidence objectively, to the extent that there is sometimes deference owed to an officer's interpretation of evidence as suspicious.

[00:15:45] Speaker 01:
The district court didn't accord Officer Koch any such deference in this case because he found that Koch's testimony was not credible.

[00:15:52] Speaker 01:
That credibility determination is a factual finding that this court must defer to on appeal.

[00:15:59] Speaker 04:
I understand.

[00:16:00] Speaker 04:
I think the dubiousness stuff from the magistrate is much more limited than you say it is.

[00:16:07] Speaker 04:
My question is different.

[00:16:09] Speaker 04:
Do I view this from a subjective perspective of Officer Koch or from an objective perspective of the reasonable officer in this setting at

[00:16:28] Speaker 04:
Which one?

[00:16:29] Speaker 01:
Your honor, I believe it's a legal question.

[00:16:32] Speaker 01:
This court reviews de novo.

[00:16:33] Speaker 01:
And I believe the question is whether there's particular and objective circumstances from which to conclude there's reasonable suspicion.

[00:16:40] Speaker 01:
So I believe it's an objective standard.

[00:16:43] Speaker 01:
And again, if there's no further questions, I'd ask this court to reverse the denial.

[00:16:50] Speaker 03:
Thank you.

[00:16:58] Speaker 03:
Sorry, I keep muting myself.

[00:17:00] Speaker 03:
Judge Murphy, did you have any other questions for Ms.

[00:17:02] Speaker 03:
Shan?

[00:17:03] Speaker 03:
I have none.

[00:17:05] Speaker 03:
Judge Rossman, did you?

[00:17:07] Speaker 03:
No, thanks.

[00:17:08] Speaker 03:
Okay, thank you.

[00:17:09] Speaker 03:
Ms.

[00:17:10] Speaker 03:
Williams, we'll hear from you.

[00:17:13] Speaker 02:
Good morning, Your Honors.

[00:17:15] Speaker 02:
Nice to appear via Zoom.

[00:17:17] Speaker 02:
Lisa Williams, representing the United States of America.

[00:17:20] Speaker 02:
I would like to pick up kind of where we left off and nail down this timeline, because I do think it is very important.

[00:17:27] Speaker 02:
So the district court, the video evidence demonstrates that 1152 is when the phone with the rental agreement is handed to Trooper Cobb.

[00:17:38] Speaker 02:
And it's Trooper Craft is the other trooper involved.

[00:17:43] Speaker 02:
And then the district court finds that at 12-11, so 19 seconds later,

[00:17:50] Speaker 02:
Trooper Craft is asking the defendant to exit the vehicle.

[00:17:54] Speaker 02:
Now, that's part of the SNF process.

[00:17:57] Speaker 02:
So Trooper Craft initiates the process to conduct the free air search immediately after handing the rental agreement.

[00:18:05] Speaker 02:
Part one is getting the occupants out of the vehicle, securing them, and then he gets his dog and he runs the dog around and does the search.

[00:18:13] Speaker 02:
The dog begins the search at

[00:18:18] Speaker 02:
I'm sorry, I had it right here.

[00:18:20] Speaker 02:
Here we go.

[00:18:21] Speaker 02:
At 1320, and then the district court finds that at 1336,

[00:18:32] Speaker 02:
is when the dog alerts.

[00:18:34] Speaker 02:
And I think everyone agrees that once that dog alert happens, that's when we move out of reasonable suspicion territory into probable cause.

[00:18:42] Speaker 02:
And so what we have is a period of time from 1152 to 1336.

[00:18:48] Speaker 02:
So it's less than two minutes.

[00:18:51] Speaker 02:
But again, the process to initiate the search happens instantaneously as soon as he receives the rental agreement.

[00:18:59] Speaker 03:
And here's the thing.

[00:19:02] Speaker 03:
Yeah, I don't understand why that would cut in your favor.

[00:19:06] Speaker 03:
It seems to substantiate Ms.

[00:19:07] Speaker 03:
Shin's point.

[00:19:09] Speaker 02:
I'm not sure I agree with that.

[00:19:11] Speaker 02:
Because when Trooper Cox is in the car and receives the rental agreement, he has to review the rental agreement.

[00:19:18] Speaker 02:
He has to finish writing the ticket, and he has to print the ticket.

[00:19:23] Speaker 02:
Receiving the rental agreement does not end Trooper Cox's involvement in the ordinary business of the traffic stop.

[00:19:33] Speaker 02:
So he's still doing the ordinary business of the stop, while for the next minute and a half, Trooper Craft takes the dog around the vehicle.

[00:19:43] Speaker 02:
And that's why it cuts in the government's favor.

[00:19:45] Speaker 02:
It's not so much with the reasonable suspicion argument, right?

[00:19:47] Speaker 02:
It's whether or not there's this Rodriguez moment.

[00:19:50] Speaker 00:
Aren't you on clear air for that?

[00:19:54] Speaker 02:
Well, Your Honor, the government's position is that the finding of a Rodriguez movement isn't factual.

[00:20:00] Speaker 02:
It's illegal.

[00:20:01] Speaker 02:
And so we would say we're not on clear error because it's not a factual decision.

[00:20:06] Speaker 02:
It's a legal conclusion whether or not it ended.

[00:20:13] Speaker 02:
And even if we were on clear error, the court has the video evidence.

[00:20:19] Speaker 02:
And it's clear that when Trooper

[00:20:24] Speaker 02:
cock receives the rental agreement.

[00:20:27] Speaker 02:
He's not done writing the ticket.

[00:20:29] Speaker 02:
In fact, after he receives the rental agreement, he continues to ask the driver of the vehicle what he does for a living, which under this court's precedent, questions about employment and what you do are proper purposes for the traffic stop.

[00:20:45] Speaker 03:
So this moment doesn't I mean, they could have taken place at any moment when

[00:20:54] Speaker 03:
Triple Coke, whatever his name is, when he stops the vehicle, I mean, it doesn't have to be at the end, at 11, at 1320.

[00:21:08] Speaker 02:
Well, it has to be when the business of the traffic stop has concluded, or when you divert away from the business related to the traffic stop.

[00:21:18] Speaker 03:
And that could have started at any time.

[00:21:19] Speaker 03:
In other words, if he, you know,

[00:21:23] Speaker 03:
Let's say when he contacted the K-9 officer, if he put down the warning pad to contact the K-9 officer, that could be a Rodriguez moment, right?

[00:21:38] Speaker 03:
It doesn't need to be at the end.

[00:21:40] Speaker 03:
It could be at any time if, as you point out Ms.

[00:21:42] Speaker 03:
Williams, if he diverted from the mission of the traffic stop.

[00:21:48] Speaker 02:
Yes, I would absolutely agree with that.

[00:21:50] Speaker 02:
But in this case, the government's position is that he didn't divert from the mission of the trash.

[00:21:56] Speaker 02:
The things that he that trooper cock is doing are related all to the traffic stop, including the questions he's asking Mr. Williams in his car now trooper craft and the dog.

[00:22:07] Speaker 02:
have nothing to do with the traffic stop, right?

[00:22:09] Speaker 02:
That's the diversion.

[00:22:11] Speaker 02:
But that activity is going on at the same time that Trooper Cock is on mission with the traffic stop.

[00:22:20] Speaker 00:
This argument all goes to the government's position that we can affirm on alternative grounds, right?

[00:22:26] Speaker 00:
That's correct, Your Honor.

[00:22:27] Speaker 00:
OK, so if we could turn to the principal ruling that the district court made here, my question is, again, it's similar in quality to what I was asking Ms.

[00:22:38] Speaker 00:
Shen, which is trying to really understand what the scope of our review is when it comes to the factors that support reasonable suspicion.

[00:22:48] Speaker 00:
And the government, as I read your brief, narrows our inquiry

[00:22:53] Speaker 00:
by your choice of factors, you rely on the defendant's inconsistent statements, which is what the district court found as positive.

[00:23:02] Speaker 00:
In addition, you point us to Mr. Williams' nervousness and the dashboard photo.

[00:23:07] Speaker 00:
You don't talk about other factors that the district court considered and rejected.

[00:23:14] Speaker 00:
So my first question is, should we confine our review

[00:23:19] Speaker 00:
not just to the inconsistent statements, as Ms.

[00:23:23] Speaker 00:
Shen is arguing, but to these three factors that the government posits.

[00:23:28] Speaker 02:
Your honor, you don't have to confine your review to just those three factors.

[00:23:31] Speaker 02:
This court can affirm on any ground supported by the record, which is what you selected those factors.

[00:23:37] Speaker 00:
So it doesn't part presentation matter in our adjudication of a reasonable suspicion challenge, particularly because these cases are so fact bound.

[00:23:46] Speaker 00:
Right.

[00:23:46] Speaker 00:
So even if our ultimate review is always going to be de novo on the Fourth Amendment question,

[00:23:51] Speaker 00:
something has to direct the court's attention to what matters in a given case.

[00:23:56] Speaker 00:
And here the government has chosen, in its view, what matters.

[00:23:59] Speaker 00:
So why should we not confine our review in the way the government has advanced in this case?

[00:24:07] Speaker 02:
I don't think party presentation has ever been read that narrowly, Your Honor.

[00:24:12] Speaker 02:
I think that certainly the principles behind party presentation is that the court won't step outside of the issues to find a new legal theory that the parties don't present.

[00:24:23] Speaker 02:
But certainly in a case like this where the court has the full record for it, party presentation wouldn't consider this court from considering a factor such as the car was rented and that the individuals weren't able to immediately produce a rental agreement.

[00:24:37] Speaker 00:
What about the credibility determination, the adverse credibility determination?

[00:24:42] Speaker 00:
Does that impact every finding other than what the district report said in footnote seven of its order?

[00:24:51] Speaker 00:
other than the video, because the court said the video doesn't depend on the trooper's credibility.

[00:24:57] Speaker 00:
So is a correct way of reading the district court's order that the only thing that doesn't depend on credibility is the video and the credibility is discounted in this case, we defer to that finding and move on?

[00:25:10] Speaker 00:
Is that the right way to look at this?

[00:25:12] Speaker 02:
I do think one of the toughest or most challenging parts of this appeal, Your Honor, is what about this credibility finding?

[00:25:20] Speaker 02:
And so what I think the court has to do is really pick apart what was said and what was found.

[00:25:25] Speaker 02:
What the district court said is the magistrate judge expressed concerns about credibility.

[00:25:31] Speaker 02:
I agree.

[00:25:32] Speaker 02:
So the district court didn't make any new independent credibility findings.

[00:25:37] Speaker 02:
They just adopted what the magistrate judge said.

[00:25:39] Speaker 02:
So to really understand

[00:25:41] Speaker 02:
what the credibility issue is, I think the court has to look at the report and recommendation.

[00:25:46] Speaker 02:
And what the magistrate judge found were simply that many of Trooper Cox's stated bases were of dubious value as a foundation to form a reasonable suspicion.

[00:25:58] Speaker 02:
And in other instances, simply did not exist from a review of the video evidence.

[00:26:03] Speaker 00:
So does the government make any objections to the magistrate judges?

[00:26:07] Speaker 00:
Determination of the troopers credibility your honor.

[00:26:11] Speaker 02:
I'm sorry.

[00:26:11] Speaker 02:
I don't know the answer to that.

[00:26:12] Speaker 02:
I don't have the.

[00:26:15] Speaker 02:
We did the government did file that.

[00:26:18] Speaker 02:
They didn't title it a rejection, but it was a response to the defendant's objection to the and the court, the district court treated it as the government's objections and I am sorry.

[00:26:29] Speaker 02:
I don't know if.

[00:26:30] Speaker 02:
If we address that in there.

[00:26:32] Speaker 02:
Here's what I talking about reasonable suspicion though.

[00:26:35] Speaker 02:
I think I really want to highlight that the defending conceded during her argument that there are times in which inconsistent travel plans standing alone would be sufficient to

[00:26:48] Speaker 02:
form reasonable suspicion.

[00:26:51] Speaker 02:
That was a concession.

[00:26:52] Speaker 02:
Now, the defense argues this is not that case, right?

[00:26:55] Speaker 02:
But there is that concession there.

[00:26:57] Speaker 02:
I think that they have to concede that based on the prior precedent.

[00:27:00] Speaker 02:
And so really what this court has to do is review, okay, what's the nature and substance of these inconsistent travel plans?

[00:27:09] Speaker 02:
And the government submits, they are very inconsistent.

[00:27:12] Speaker 02:
the Orcasio-Rivas case from 2020, which the government cited in its brief.

[00:27:19] Speaker 02:
It's unpublished.

[00:27:21] Speaker 02:
But there it found reasonable suspicion based on part by inconsistent travel plans.

[00:27:26] Speaker 02:
And the inconsistency there was that one person said they were going to her uncle's ranch to help clean up, and the other said they were visiting her friends to help build a fence.

[00:27:38] Speaker 02:
Like, that is not very inconsistent, right?

[00:27:41] Speaker 02:
They're both kind of maybe going to the same place.

[00:27:43] Speaker 02:
They don't understand.

[00:27:44] Speaker 02:
But the court found that was an inconsistent travel plan.

[00:27:48] Speaker 02:
Here what we have is- But wait a minute.

[00:27:51] Speaker 04:
In that case, I thought you said there were other factors for reasonable article suspicion, correct?

[00:27:58] Speaker 02:
That court, yes, Your Honor, found- Okay.

[00:28:01] Speaker 04:
All right.

[00:28:02] Speaker 04:
That's all I wanted to- Yes, but they noted- I understand.

[00:28:06] Speaker 04:
My question is,

[00:28:08] Speaker 04:
What cases say that travel plans alone in certain circumstances can be enough for reasonable, articulable suspicion, which is contrary to the United States versus Santos?

[00:28:26] Speaker 02:
Well, I think the Wood case would say that, Your Honor, because the quote from Wood is, as with unusual travel plans, inconsistencies in information provided to the officer during the traffic stop may give rise to reasonable suspicion of criminal activity.

[00:28:41] Speaker 02:
And that doesn't say inconsistencies and information combined with other factors.

[00:28:47] Speaker 02:
It is just point blank says inconsistencies may give rise to reasonable suspicion.

[00:28:52] Speaker 00:
So that puts that feels like it puts the appellate court in a quite an awkward position.

[00:28:56] Speaker 00:
If we're analyzing whether an inconsistent statement can give rise to reasonable suspicion, our cases generally look at that in the context

[00:29:05] Speaker 00:
of that specific case?

[00:29:07] Speaker 00:
Are there other things that also weigh in favor of reasonable suspicion?

[00:29:13] Speaker 00:
It seems that what the government is positing would require us to decide how inconsistent something is.

[00:29:18] Speaker 00:
Is it super inconsistent?

[00:29:20] Speaker 00:
Is it medium inconsistent?

[00:29:21] Speaker 00:
And that seems to me not to be the tenor of our scope of our review.

[00:29:28] Speaker 02:
And I'm not arguing that, Your Honor, and I apologize if that wasn't clear.

[00:29:31] Speaker 02:
What I am arguing, though, is that that is a sufficient ground to affirm the district court's

[00:29:38] Speaker 02:
decision that the district court found that that gave rise to sufficient reasonable suspicion.

[00:29:44] Speaker 02:
And this court's review of that order should be affirmed because it is a permitted basis.

[00:29:51] Speaker 02:
There's no clearly, it's not clearly erroneous that they provided different.

[00:29:56] Speaker 00:
Well, I thought just to clarify, I thought what you were saying is that it's not just we affirm the district court found inconsistent statements support reasonable suspicion.

[00:30:04] Speaker 00:
government's position is we can affirm that.

[00:30:07] Speaker 00:
I thought you were saying we also had to affirm because it was very inconsistent.

[00:30:13] Speaker 02:
Oh, no, I think to the extent that the court would get into weighing the totality of the factual, of the facts behind the inconsistency, I am saying this is more inconsistent than other cases.

[00:30:29] Speaker 02:
But I do think that this court owes a degree of deference then to the district court that once you get past the legal issue of can inconsistent travels

[00:30:40] Speaker 02:
statement standing alone, provide sufficient reasonable basis.

[00:30:44] Speaker 02:
If this panel says yes they can, then at that point you should affirm the district court because then the deference to the... Can I push back on that in follow-up on Judge Murphy's

[00:30:54] Speaker 03:
point about Santos.

[00:30:57] Speaker 03:
In Santos, the panel did say that other courts have accepted similarly evasive or inconsistent accounts.

[00:31:06] Speaker 03:
We stress, however, that conversations of this sort is not sufficient in and of itself to warrant detaining or searching a motorist.

[00:31:16] Speaker 03:
And Santos was adjudicating reasonable suspicion as a matter of law.

[00:31:22] Speaker 03:
And so

[00:31:23] Speaker 03:
On this very uncomfortable inquiry they were confronted with to make this legal adjudication is characterized in Santos.

[00:31:31] Speaker 03:
Don't we have to compare what was on what appears on the video is these inconsistent statements to officer coke coke.

[00:31:41] Speaker 03:
in comparison to the inconsistencies in Santos, and we, the three of us, will say, oh, well, these are worse, these are more inconsistent than what was presented in Santos, or not as bad, and if they're not as bad, aren't we bound by the panel opinion?

[00:31:59] Speaker 03:
Because that's an adjudication of law.

[00:32:02] Speaker 02:
So Santos is easily distinguishable, Your Honor, from this case because Santos is a single vehicle occupant and the inconsistent statements were not two different people providing dramatically different inconsistent statements.

[00:32:18] Speaker 02:
And so it's one person over the course of a conversation having some internally inconsistent statements, which if you look at what was inconsistent about Mr. Santos's statements,

[00:32:28] Speaker 02:
The panel found, you know, and sometimes they are not even really that inconsistent.

[00:32:34] Speaker 02:
So I don't think that Santos applies here when what the inconsistency is is between two people who don't have the same story.

[00:32:45] Speaker 02:
Likewise, there's a line of implausible travel stories.

[00:32:48] Speaker 02:
Those cases don't really apply here either because this isn't an implausible story.

[00:32:54] Speaker 02:
It's an inconsistency between two people who should both

[00:32:58] Speaker 02:
know where they're going.

[00:33:00] Speaker 04:
And I see that I'm out of... So you are saying that a panel sitting like this, if they're faced with an issue of statements of travel plans, they need to dissect them and decide whether there are inconsistent travel plans between

[00:33:25] Speaker 04:
or whether they're internally inconsistent statements by a single person talking that was in the car, or I think he had another third category.

[00:33:38] Speaker 04:
So we have to do that whenever we're faced with these things and we apply different rules to the three different categories.

[00:33:46] Speaker 02:
No, Your Honor, I don't think that this panel needs to get that fine into the weeds.

[00:33:53] Speaker 02:
To me, the distinction is how this court has said, you know, nervousness by itself.

[00:33:59] Speaker 02:
does not give rise to reasonable suspicion, it has to be extreme nervousness, right?

[00:34:03] Speaker 02:
There's that line.

[00:34:04] Speaker 02:
And the distinction I'm drawing is just like it has to be extreme nervousness, there is a bit of a difference between implausible travel plans and inconsistent travel plans between a driver and passenger.

[00:34:21] Speaker 02:
I think it's just a different, categorically, it's a different type of evidence that enters into the calculus.

[00:34:29] Speaker 03:
I understand there's Murphy.

[00:34:31] Speaker 03:
Did you have any other questions for Miss Williams?

[00:34:35] Speaker 03:
No, I don't.

[00:34:36] Speaker 03:
Judge Rossman.

[00:34:37] Speaker 03:
Do you?

[00:34:38] Speaker 00:
No, thank you.

[00:34:39] Speaker 03:
Okay.

[00:34:40] Speaker 03:
Thank you.

[00:34:41] Speaker 03:
Miss Williams.

[00:34:43] Speaker 03:
Kevin did does machine have any time left?

[00:34:48] Speaker 04:
Uh,

[00:34:51] Speaker 04:
No, she did not.

[00:34:52] Speaker 03:
Okay.

[00:34:53] Speaker 03:
Sorry about that.

[00:34:54] Speaker 03:
She had like that was my fault again.

[00:34:56] Speaker 03:
So, but very well presented, but both sides is better is submitted and will be.