[00:00:01] Speaker 05: Council, you each have 10 minutes per side, and if you'd like to reserve any time, you can watch the clock. [00:00:06] Speaker 04: Thank you, Your Honor. [00:00:08] Speaker 04: May it please the Court, Kara Hartzler, Federal Defenders, on behalf of Mr. Kumar. [00:00:13] Speaker 04: I'm going to continue the Miranda discussion that we are so interestingly engaged in. [00:00:18] Speaker 05: You do get to manage our questions in the prior case. [00:00:20] Speaker 04: And I think that whatever lines the Court is struggling to draw, [00:00:24] Speaker 04: This case clearly crossed them. [00:00:26] Speaker 00: If I could disagree with you in advance on clearly, I think it's a difficult case. [00:00:32] Speaker 05: But I am interested. [00:00:33] Speaker 05: What makes this case different? [00:00:35] Speaker 05: And I know you may not be familiar with the facts of the prior case. [00:00:37] Speaker 05: It's not your case. [00:00:39] Speaker 05: But I'm interested to know why you think it clearly crosses the line. [00:00:44] Speaker 04: Sure. [00:00:45] Speaker 04: So here, as Your Honor pointed out, this is about, is this something more than a Terry stuff? [00:00:50] Speaker 04: So what happened in our case is, [00:00:52] Speaker 04: The Border Patrol agent is parked right by the fence. [00:00:55] Speaker 04: He actually sees someone in the rear view mirror climbing over the wall. [00:00:59] Speaker 04: That person then runs north. [00:01:01] Speaker 04: The Border Patrol officer and two other cars give chase. [00:01:06] Speaker 04: They surround him. [00:01:07] Speaker 04: They stop him. [00:01:08] Speaker 01: We just stop there for a sec. [00:01:09] Speaker 01: Yes. [00:01:09] Speaker 01: Because this will make it easier. [00:01:11] Speaker 01: Did they have probable cause to arrest him at that time? [00:01:16] Speaker 01: Yes. [00:01:16] Speaker 01: Yes. [00:01:16] Speaker 01: They don't need to have any suspicion about his alienage. [00:01:20] Speaker 01: Well, the reason. [00:01:22] Speaker 01: Having seen him jump the fence and not come in through a port of entry, they have probable cause, in your view, to arrest him, even without knowing what his citizenship is. [00:01:32] Speaker 04: Well, the reason for that, Your Honor, and the answer is yes. [00:01:35] Speaker 04: The answer is yes. [00:01:36] Speaker 04: The reason is yes. [00:01:37] Speaker 04: And then the reason on top of that is it is a crime for a non-citizen or a US citizen to cross between ports of entry. [00:01:45] Speaker 04: And that's at 19 USC 1459. [00:01:48] Speaker 04: So when you see anyone crawling over the fence, that's automatic. [00:01:52] Speaker 04: You don't even need to decide alienage. [00:01:54] Speaker 04: That's automatically a crime. [00:01:55] Speaker 01: Is jumping over the fence [00:01:58] Speaker 01: because it is a crime and because US citizens can easily enter through ports of entry, some evidence of alienation? [00:02:06] Speaker 04: Yes. [00:02:06] Speaker 04: OK. [00:02:07] Speaker 04: I think where that lands in terms of all of that, but yes. [00:02:13] Speaker 04: I think this court has said it's some evidence of alienation. [00:02:15] Speaker 01: So now we get back to, I think, [00:02:19] Speaker 01: the facts of this case. [00:02:21] Speaker 01: And I think we've all read the record. [00:02:24] Speaker 01: So I want to ask you a hypothetical. [00:02:27] Speaker 01: If the agent did precisely what he did here but never moved the car, put your client in the backseat, left the door open, and then asks the fatal questions and gets the fatal answers, would this be a permissible Terry stop? [00:02:45] Speaker 04: If there was no movement in the car and there was no form, [00:02:49] Speaker 01: I just, that's what I said. [00:02:50] Speaker 04: Yes. [00:02:51] Speaker 04: I'm sorry. [00:02:51] Speaker 01: I didn't hear the farm. [00:02:52] Speaker 04: Right. [00:02:52] Speaker 04: So let's say that the agents surround him, they frisk him, and they ask him questions right there. [00:02:58] Speaker 04: No, no. [00:02:58] Speaker 04: You're changing. [00:02:59] Speaker 01: I'm sorry. [00:03:00] Speaker 01: You can't change the hypothetical. [00:03:01] Speaker 00: OK. [00:03:01] Speaker 00: I apologize. [00:03:01] Speaker 01: The only power I get from the judge is to pose hypotheticals. [00:03:05] Speaker 01: The hypothetical is exactly what happened here, except I'm taking out the movement of the car. [00:03:12] Speaker 01: So everything happens exactly the same way, except rather than move the car the 20 yards, the agent doesn't do that. [00:03:21] Speaker 01: He just puts him in the back seat of the car and says, OK, answer these questions for me. [00:03:26] Speaker 01: Is that a permissible underterry? [00:03:31] Speaker 04: No, because of the form. [00:03:33] Speaker 04: Because of what? [00:03:33] Speaker 04: Because of the form that he was filling out that was asking biographical questions. [00:03:37] Speaker 05: Let me ask you this. [00:03:38] Speaker 05: Judge Hurwitz, as hypothetical, assumes that sort of placing him in the car in the first instance is still okay. [00:03:44] Speaker 05: My trouble is that this case would clearly be like Cabrera if they had surrounded him and they asked him questions and he stopped because he absolutely stopped. [00:03:54] Speaker 05: I know you were on your way to kind of providing the [00:03:58] Speaker 05: chronology of what happened, and I'm happy to have you do that in a moment to finish sort of making your argument. [00:04:03] Speaker 05: But here, they see an individual cross over the fence. [00:04:10] Speaker 05: They follow him. [00:04:11] Speaker 05: Multiple border patrol agent vehicles surround him. [00:04:15] Speaker 05: He stops. [00:04:15] Speaker 05: He doesn't flee. [00:04:17] Speaker 05: There's no weapon. [00:04:18] Speaker 05: There's no threat of danger. [00:04:20] Speaker 05: There's nothing. [00:04:20] Speaker 05: They're around him. [00:04:22] Speaker 05: And if they had just stopped and started asking these [00:04:25] Speaker 05: few permissible questions, and let's put the form, let's set aside the issue of the form, we'd be in sort of the same facts of Cabrera. [00:04:34] Speaker 05: And we would say that that's permissible under our case law, they could do that. [00:04:39] Speaker 05: But here, they then did something more. [00:04:42] Speaker 05: They didn't just ask him questions. [00:04:44] Speaker 05: They put him in a vehicle, and then they moved him in the vehicle. [00:04:48] Speaker 05: And to me, it doesn't really matter if it was 20 yards for 60 seconds or two miles for half an hour. [00:04:55] Speaker 05: they did something more, they put him in a car and then got out of the car, stood at the door, asked questions. [00:05:02] Speaker 05: Why is that, you know, is that what you're saying is crossing the line? [00:05:08] Speaker 01: Put aside the form, put aside the form for a second. [00:05:10] Speaker 05: Yes, that is exactly what I'm saying. [00:05:12] Speaker 01: Okay, so my question was now meant, because I understand this is the issue in the case, to try to figure out what [00:05:20] Speaker 01: What turned it into custody, in your point, in your view? [00:05:24] Speaker 01: Was it merely putting him in the car and the movement doesn't matter because if those were the only facts, you would still say he was in custody? [00:05:32] Speaker 01: Or is it putting him in the car and moving it? [00:05:34] Speaker 04: There is absolutely no case law from this court that has ever found that someone's moved and it's not custody. [00:05:44] Speaker 04: Now, we're kind of talking on hypotheticals here, but let me... Well, I know there's plenty of case law that allows movement. [00:05:51] Speaker 01: It allows movement for a reason. [00:05:53] Speaker 05: We have plenty of case law that says you can... That you can put somebody in a car and even move them. [00:05:58] Speaker 05: I view these two facts to be [00:06:02] Speaker 05: frankly indistinguishable, putting them in the car, moving them. [00:06:04] Speaker 05: There is this additional act. [00:06:06] Speaker 05: That's OK if there's something that justifies it. [00:06:10] Speaker 05: And we're going to ask your friend on the other side to tell us what here justified that. [00:06:14] Speaker 01: So I'm trying to parse this. [00:06:17] Speaker 01: So is it just putting him in the car that turns this into custody, or is it putting him in the car and moving him that turns into custody? [00:06:24] Speaker 04: Two responses, Your Honor. [00:06:25] Speaker 04: First of all, I would point to the line in Berkamer that says that if there is unquestionably custody, if an officer instructs someone to get in a police car. [00:06:35] Speaker 04: So right there, I think we could look at that. [00:06:38] Speaker 04: But even apart. [00:06:39] Speaker 01: No, but do those cases say there's unquestionably custody if a police officer arrests someone and then places him in a police car? [00:06:47] Speaker 01: There are all cases in which there was an arrest and the person was then placed in the police car. [00:06:52] Speaker 01: There's no arrest here. [00:06:54] Speaker 01: So those cases don't get me there. [00:06:57] Speaker 05: You're arguing that there was an arrest because they put him in the car. [00:06:59] Speaker 04: Yes, exactly. [00:07:00] Speaker 04: But let's put that aside. [00:07:01] Speaker 04: So let's say then that he's in the car. [00:07:04] Speaker 04: Then I think the question does turn to, was there a justification of flight or danger? [00:07:09] Speaker 04: Here, there wasn't. [00:07:10] Speaker 04: Obviously, there were at least four agents to one person. [00:07:14] Speaker 04: They actually took him back to the border, which other agents have said, well, we take them away from the border. [00:07:20] Speaker 01: The reason I'm interested in this is that it seems to me [00:07:23] Speaker 01: he's every bit as much, his movements are every bit as much restrained. [00:07:28] Speaker 01: If they ask the questions while he's surrounded by four agents, then if they ask the questions when they say, sit down in the back of the car, now we don't need to surround you with four agents because it's harder to flee from the back of the car and now we'll ask the questions. [00:07:42] Speaker 01: So in my own mind, I'm having difficulty seeing what the difference between our established case law, which says it's fine to surround him with [00:07:52] Speaker 01: six or seven armed agents and ask him the questions, and he's not in custody, with a supposition that, well, if you just say, sit down in the back of the car, and I'll stand between you and escaping, that turns into custody. [00:08:06] Speaker 01: So that suggests to me that you must be relying on the movement of them. [00:08:13] Speaker 04: I think there's a lot of reasons that there was custody here. [00:08:16] Speaker 04: Movement in the car was one. [00:08:17] Speaker 04: The forum was another. [00:08:18] Speaker 04: I would like to save some of my time for rebuttal if that's possible. [00:08:21] Speaker 04: Yep. [00:08:21] Speaker 04: Thank you. [00:08:22] Speaker 05: You can reserve the balance of your time. [00:08:23] Speaker 05: Thank you. [00:08:29] Speaker 06: morning may please the court and Zach how on behalf of the United States mapping to start with the probable cause question no maybe you can start if tell me why the car got moved oh sure we're all we're all I want to know why he got put in the car and then why the car got moved I think those are [00:08:46] Speaker 05: two separate questions. [00:08:48] Speaker 03: So, admittedly... And the third point is why wasn't that an arrest? [00:08:52] Speaker 06: Yeah. [00:08:54] Speaker 06: Sure. [00:08:54] Speaker 06: So, admittedly, the agent didn't get to give a full explanation here. [00:08:58] Speaker 06: He did get to get out a few sentences. [00:09:00] Speaker 06: This is at page 25 and 26 of the record. [00:09:02] Speaker 06: His answer was that smugglers often send others over the border, and so he had to get back to his spot on the line. [00:09:09] Speaker 06: So, in other words, he's worried about others coming over the border and him not seeing them. [00:09:13] Speaker 06: He's not worried about this individual. [00:09:14] Speaker 03: So, he's not worried about this guy. [00:09:16] Speaker 05: There's no threat of danger or fear of flight. [00:09:19] Speaker 05: He needs to get back to the line, and so he takes this individual into his car, whereas he could have asked questions right there when they surrounded him. [00:09:28] Speaker 06: So I think that's the reason for the movement is others. [00:09:31] Speaker 05: The reason for putting him in the truck in the first place, I think... I'm not sure that's helpful to your case, because our line of cases say you need something more to justify a restraint beyond just sort of asking questions in a [00:09:46] Speaker 05: you know, setting that the person already exists in. [00:09:49] Speaker 06: So let me break it up. [00:09:50] Speaker 06: So the reason he's put in the truck in the first place is because it's 3 a.m., he jumps over the border fence, and then he's sprinting away. [00:09:55] Speaker 06: He makes it 50 yards. [00:09:56] Speaker 06: So there is flight demonstrated by this individual defendant. [00:09:59] Speaker 05: No, but then he runs, you know, he comes down the wall and he runs. [00:10:04] Speaker 05: Then when the border patrol agents see him, [00:10:08] Speaker 05: Surround him. [00:10:09] Speaker 05: He does not flee. [00:10:10] Speaker 05: Do you agree with that? [00:10:11] Speaker 05: Yes, he stops. [00:10:12] Speaker 05: Do you agree with that? [00:10:13] Speaker 05: Yes, there's no weapon on him. [00:10:14] Speaker 05: Do you agree with that? [00:10:15] Speaker 05: Yes, okay So he's there he's surrounded. [00:10:18] Speaker 05: He's not a threat To the officers in terms of a weapon or danger there don't feel afraid and he's not actively fleeing Do you agree with that? [00:10:27] Speaker 06: I agree with that. [00:10:28] Speaker 06: The only caveat I give is I believe the pat-down occurred [00:10:34] Speaker 06: no sorry the pat down did occur before he was put in the truck so I do agree with that the only point I'll make is that in seeing the court approved of this very thing putting someone in the back of the truck in other cases the court has approved of doing stop stop you there and judge decided I may or may not agree on this but I want to sort of make [00:10:54] Speaker 01: the point of my question clear. [00:10:56] Speaker 01: Let's assume that under the circumstances, putting him in the backseat of the car didn't transform this Terry stop into a custodial stop. [00:11:06] Speaker 01: Just assume that for purposes of argument. [00:11:09] Speaker 01: He then shuts the door and drives the car. [00:11:12] Speaker 01: He has a good reason to drive the car for law enforcement purposes, which is he wants to be able to see whether somebody else is coming across. [00:11:19] Speaker 01: But that's not related to this defendant. [00:11:23] Speaker 01: In other words, he's not moving this defendant for any good reason. [00:11:27] Speaker 01: He's only moving himself for a good reason. [00:11:30] Speaker 01: And so I'm trying to figure out whether now we've got him under circumstances that look more like custody. [00:11:37] Speaker 01: And if the reason was, I don't want to question him until I get away from the scene, because I'm afraid other people will show up, I'd understand it. [00:11:47] Speaker 01: But the reason here is a reason unrelated [00:11:50] Speaker 01: to this defendant or any danger that he poses or any flight of risks that he poses. [00:11:55] Speaker 01: The reason here is I want to catch more. [00:11:57] Speaker 01: I want to see if there are more people coming. [00:11:59] Speaker 01: And I'm trying to figure out why that doesn't transform this into custody. [00:12:03] Speaker 06: So let me give you the best analogy I can. [00:12:05] Speaker 06: I think the closest case on point here would be Glendogallagos. [00:12:08] Speaker 06: So there you had 15 to 20 individuals fleeing from the border. [00:12:11] Speaker 06: They were stopped, ordered to sit down in a circle. [00:12:15] Speaker 06: The individual defendant kept running. [00:12:17] Speaker 06: He was stopped, apprehended, handcuffed, [00:12:20] Speaker 06: And I think that's more coercive than being put in the back of a truck. [00:12:23] Speaker 03: That's not this case. [00:12:25] Speaker 06: The reason I say it's similar is because then the defendant was brought back to that group. [00:12:30] Speaker 06: And the reason it was okay is because there you had other individuals who could have posed a risk of flight because the agent who was still there was outnumbered. [00:12:39] Speaker 06: Well, that's not related to the individual defendant who had been subdued. [00:12:43] Speaker 03: By the same token here... No, no, no, no. [00:12:47] Speaker 03: Their flight and danger risk [00:12:50] Speaker 03: under the case you're segueing into, the question that Judge Hurwitz asked you was the significance of the fact that the agent had other stuff to do. [00:13:03] Speaker 03: You get to go back to his main beat and look for more suspects. [00:13:12] Speaker 06: Your Honor, I think the difference is, I think we're still dealing with a risk of flight of individuals. [00:13:17] Speaker 06: The only difference is that in Glendale-Galagos, you had identified the individuals. [00:13:20] Speaker 05: So isn't it true that every Border Patrol agent could just say, there's always a risk of flight? [00:13:29] Speaker 05: People are crossing a border and trying to get inland. [00:13:33] Speaker 05: So isn't wouldn't that transform? [00:13:39] Speaker 06: I think often factually you will be able to disprove that the reason being that [00:13:45] Speaker 06: To disprove what? [00:13:46] Speaker 06: I'm sorry. [00:13:46] Speaker 06: To disprove that there was a need to transport someone to get back to the original position. [00:13:51] Speaker 05: But our cases require the government to assert the justification for that additional step, not the other way around. [00:14:00] Speaker 05: I mean, if we adopt, I think what you're arguing, [00:14:03] Speaker 05: then the baseline would be that you can put anybody in a vehicle and move them or handcuff anybody because there's always sort of an assumed risk of flight or danger. [00:14:14] Speaker 05: And they would somehow have to disprove that in order to not be in custody and be interrogated without Mirandized. [00:14:22] Speaker 06: Your honor, I do think it's the defendant's burden to show that they are subject to custodial interrogation as the proponent of the motion. [00:14:29] Speaker 06: But here, I do think you will have many cases where it's easy to show that there's no justification for it. [00:14:34] Speaker 06: So for example, if this had been 3 PM as opposed to 3 AM, and you could easily say, well, look, being 30 yards further into the country, you could still see the border clearly. [00:14:45] Speaker 06: So even if there was a risk of someone else jumping over the fence. [00:14:48] Speaker 01: So I don't blame the agent for wanting to move the car. [00:14:51] Speaker 01: He may have had wonderful. [00:14:52] Speaker 01: purposes for it. [00:14:54] Speaker 01: The question is whether vis-a-vis this individual that transformed this into a custodial stop that would have required before he questioned him just a simple reading of Miranda warnings. [00:15:06] Speaker 01: Nobody's trying to interfere with the way law enforcement patrols the border. [00:15:11] Speaker 01: We have a very technical question here, which is whether or not all these facts add up to custody. [00:15:17] Speaker 01: And I'm sympathetic, maybe my colleagues aren't, I don't know, to the notion that you don't have to question them standing up in the middle of the six agents. [00:15:26] Speaker 01: You could say, sit down in the back of the car and I'll question you. [00:15:29] Speaker 01: Because both of those prevent the person from fleeing. [00:15:34] Speaker 01: And he's obviously somebody who likes to run, because those are the facts in this case. [00:15:40] Speaker 01: That's OK with me, I think. [00:15:41] Speaker 01: But I'm now wondering why. [00:15:44] Speaker 01: the agent said well for my own purposes I'd like to keep you back there longer because I have other things to do in the context of a Terry stop on the street we would never allow that we would never allow a cop to say well [00:15:58] Speaker 01: I'd like to ask you questions, but I've just gotten another call. [00:16:01] Speaker 01: So get in the back of my car and I'll drive you before I ask you the Terry questions. [00:16:07] Speaker 01: So I'm trying to figure out what the difference is here. [00:16:09] Speaker 01: It's the government that invokes the Terry framework. [00:16:12] Speaker 01: So why was it necessary to put him in the car and move him? [00:16:18] Speaker 01: And then my next question, and I'd like your friend to be able to address this too, is does it matter that the movement was quite brief, both in terms of [00:16:29] Speaker 01: distance and time. [00:16:31] Speaker 06: Sure. [00:16:32] Speaker 06: And I'm trying not to split hairs here, but I think there's a difference between putting in the car and then the movement. [00:16:36] Speaker 06: The putting in the car, I think, is because he's just witnessed that. [00:16:38] Speaker 01: Right. [00:16:38] Speaker 01: And I've asked you to assume that putting him in the car is OK. [00:16:41] Speaker 01: OK. [00:16:41] Speaker 01: I'm trying to figure out whether, once having put him in the car, shutting the door and moving the car makes a difference in our analysis of custody. [00:16:51] Speaker 01: And if it does make a difference, what relevance to that analysis is the amount of distance and the time? [00:16:58] Speaker 06: Sure, so I think the answer is it does make a difference and it quite often will tip the scales in terms of you concluding that it is custodial interrogation. [00:17:06] Speaker 06: I do think the brief duration and where he's going and all of that matters. [00:17:11] Speaker 01: Tell me what case law helps you there. [00:17:13] Speaker 06: Sure, so I think [00:17:16] Speaker 06: Again, I know Judge Parker doesn't like this example. [00:17:18] Speaker 06: I think the best case I can quote for you is Glendale Gallagos. [00:17:21] Speaker 06: The reason being... It's our fault. [00:17:23] Speaker 01: You're stuck with the cases we decide. [00:17:25] Speaker 06: No. [00:17:25] Speaker 06: Maybe to put this in terms of the way this court has phrased it before, this court has often said that the question is whether a reasonable, innocent person in the defendant's shoes would feel like they were free to go after brief questioning. [00:17:37] Speaker 06: Now, obviously, in Galindo Gallagos, if you've just been chased down, handcuffed, and then walked back to a group. [00:17:42] Speaker 05: But we don't just ask that one question. [00:17:44] Speaker 05: If that were the question, then what any one of these individuals said alone would be dispositive of whether or not the non-Mirandaist questioning was OK. [00:17:52] Speaker 05: So we go beyond that to say, OK, does a reasonable person feel like they're in custody? [00:18:00] Speaker 05: And if there are these additional steps taken, like putting them and moving them in a car, was that justified? [00:18:06] Speaker 05: And usually, it requires [00:18:07] Speaker 05: the agent to articulate some thing, like in the case you're citing, and I think this is why, and this is not your fault, these cases really come out based on sort of some very minor nuance in the facts, but the facts of that case that you're citing in Glendale-Gaego, there are 15 to 20 people. [00:18:26] Speaker 05: The guy is actively fleeing, the border patrol agent. [00:18:33] Speaker 05: many additional facts that they then asserted, the government then asserted as the justification to handcuff those people. [00:18:41] Speaker 05: Those just don't exist here. [00:18:44] Speaker 05: In fact, there's no articulation of a justification by the Border Patrol agent for the four that surrounded him in doing what they did. [00:18:54] Speaker 06: Well, again, so I think now we're going back to the original stop, and I'm happy to address that there. [00:18:58] Speaker 01: Well, he's got plenty of good reason for the original stop. [00:19:00] Speaker 01: We know that. [00:19:01] Speaker 01: And I think they have plenty of good reason to restrict his movements. [00:19:06] Speaker 01: We know that. [00:19:09] Speaker 01: The question is, and our cases say, those restrictions on movement are perfectly appropriate if necessary [00:19:18] Speaker 01: for law enforcement purposes before you ask the Terry questions. [00:19:22] Speaker 01: So that's why handcuffing people or a galindo and all that's okay. [00:19:27] Speaker 01: The question is, what's the justification here for waiting to ask the Terry questions until after the door is shut and the car is moved? [00:19:39] Speaker 06: And I think that boils down to a simple factual dispute about whether it is a sufficient justification when the individuals who might be fleeing have already been identified, as in Glendale Gallagher. [00:19:49] Speaker 01: Well, but moving the car doesn't place the officer in any better position [00:19:55] Speaker 01: vis-a-vis this question, then if he questioned him, as I suggested he might have when he first would have been the back seat. [00:20:03] Speaker 01: I don't understand if there were people running around doing stuff and the officer says, let me get you in the car and move you because I don't want them coming around to get you. [00:20:10] Speaker 01: But he doesn't say that. [00:20:12] Speaker 01: All he says is, for purposes not related to you, I thought law enforcement duties required that I move the car. [00:20:21] Speaker 01: And I accept that to be true. [00:20:23] Speaker 01: But I'm not sure why that made it [00:20:26] Speaker 01: inappropriate for him to ask the Terry questions earlier rather than [00:20:30] Speaker 01: rather than later. [00:20:31] Speaker 06: So for purposes other than you, I think is a rationale this court has accepted. [00:20:36] Speaker 06: The only question here, I think, is whether you agree with it in this case, the particular rationale other than you, as opposed to the one in Galindo Galagos. [00:20:45] Speaker 06: That's the reason I point to that case. [00:20:46] Speaker 06: It's because it's a reason other than you for moving the defendant, because the other individuals might flee. [00:20:52] Speaker 06: So here, again, I think you have to accept the premise that you can do it for reasons other than you. [00:20:57] Speaker 06: It's just, do you buy that [00:20:58] Speaker 06: rationale in this case on these particular facts. [00:21:01] Speaker 01: Let me ask the question differently then. [00:21:04] Speaker 01: What circumstance made it not inappropriate? [00:21:09] Speaker 01: Difficult, hard, dangerous for the officer simply to ask the questions when he put him in the back of the car? [00:21:18] Speaker 06: So as I read it, and again, the questioning got cut off here, so the explanation is very brief. [00:21:25] Speaker 06: It's a couple of sentences. [00:21:26] Speaker 06: But the officer says that smugglers might send others over the border. [00:21:31] Speaker 06: And as I read that, he needs to get back to his original place on the line because he needs to look out for individuals who might jump over the border. [00:21:39] Speaker 05: Does that answer your question? [00:21:43] Speaker 05: I think it does. [00:21:44] Speaker 05: I'm just going to ask you one last question, and you're out of time, unless my colleagues have any other questions. [00:21:48] Speaker 05: I think we've asked everybody who's made arguments on these issues today this question, but I'm not sure you've answered it. [00:21:53] Speaker 05: Do you believe that the Border Patrol agent had probable cause at the time that they apprehended him or stopped him based on what they had seen of him crossing the fence? [00:22:04] Speaker 06: I think the answer is quite probably yes, and this was what I was trying to say at the outset is I don't actually think that's relevant to the analysis. [00:22:12] Speaker 06: In Berkamer, the officer had probable cause to arrest because he saw a car swerving all over the road and the individual got out and staggered and the officer said he was going to arrest him from the moment he saw him get out of the car. [00:22:23] Speaker 06: And the Supreme Court said, that's irrelevant to the determination of custody. [00:22:27] Speaker 06: And then in Galindo Gallegos, this court said the same thing. [00:22:30] Speaker 06: And you could look at virtually the fact pattern of any one of these cases. [00:22:32] Speaker 05: I think the reason we're asking the question is because we are exploring whether or not these cases would be better off under a different [00:22:44] Speaker 05: analysis than the Terry Stop analysis, which is that there are sufficient facts in the border cases that allow agents to determine probable cause at the outset to arrest an individual. [00:22:55] Speaker 06: Sure. [00:22:55] Speaker 06: And I've been giving you the precedential answer, and my precedential answer is, unfortunately, I think the ship has sailed. [00:23:00] Speaker 06: probably have to go on bonk, and even then I think Berkamer probably stands anyway. [00:23:04] Speaker 06: I think we agree with you on that. [00:23:05] Speaker 01: That's the most accurate answer to any question we've gotten today. [00:23:08] Speaker 06: The common sense answer, if I can give it, for why that rationale in those cases might make sense is because it's not just to confirm suspicion of criminal activity, it's to dispel it. [00:23:19] Speaker 06: Now, in these situations near the border, I admit you're probably almost always going to be confirming it, but you can imagine, admittedly, probably a far-fetched scenario where an agent walks up to someone that has just jumped over the border, and the person says, thank goodness you're here. [00:23:37] Speaker 06: Someone was chasing me while I was visiting Mexico. [00:23:39] Speaker 06: Here's my U.S. [00:23:40] Speaker 06: passport. [00:23:41] Speaker 06: You know, it's far-fetched, but you can imagine a scenario where someone's dispelling these suspicions as opposed to confirming them, and I think that's always been the rationale behind applying this rubric to the... Yeah, and I think we all understand this is a dangerous job done under difficult circumstances. [00:24:01] Speaker 01: the agents are trying to do the right thing in almost every case we see. [00:24:05] Speaker 01: So I think what we're trying to explore is whether the legal framework that we've imposed on this is a realistic one, and whether we ought to view it through a different lens. [00:24:16] Speaker 01: But your answers in that have been helpful. [00:24:18] Speaker 01: They may not be dispositive in this case. [00:24:20] Speaker 01: Thank you. [00:24:21] Speaker 05: And you'll get 10 more minutes in the next case that we're arguing. [00:24:26] Speaker 05: Thank you. [00:24:30] Speaker 04: We've hatched this through a lot. [00:24:31] Speaker 04: I don't want to take it too much longer, but I do want to answer Judge Hurwitz's question, which was, does it matter that movement was brief in terms of distance or time? [00:24:41] Speaker 04: I agree with Judge Desai. [00:24:42] Speaker 04: I think it could be half an hour. [00:24:44] Speaker 01: She's only asking questions. [00:24:46] Speaker 04: She wasn't stating a position. [00:24:51] Speaker 04: Well, I think it doesn't really matter. [00:24:53] Speaker 04: I think as soon as you move someone, [00:24:56] Speaker 04: You know, that's custody. [00:24:59] Speaker 01: Your friend didn't get to that. [00:25:00] Speaker 01: And I must tell you, that's what troubles me about this case. [00:25:03] Speaker 01: And maybe it's not dispositive, but I just want to ask you about it. [00:25:08] Speaker 01: It's a pretty puny set of facts. [00:25:12] Speaker 01: In other words, it's one minute. [00:25:14] Speaker 01: The entire episode takes one minute. [00:25:17] Speaker 01: And if you start from my premise, which you don't, [00:25:19] Speaker 01: that he wasn't in custody when he was first put in the back seat. [00:25:23] Speaker 01: I'm trying to figure out why these 60 seconds transformed it into custody. [00:25:29] Speaker 01: You know, if the officer had started to move and said, oops, I forgot to ask you back there whether you're a citizen. [00:25:35] Speaker 01: And he said, oh, no, I'm not. [00:25:37] Speaker 01: I mean, it seems to me in terms of the actual imposition of restraint on your client, it's so much less than in a case where it'd be put underground and handcuffed. [00:25:48] Speaker 01: And so I'm trying to figure out how to put all that into this analysis. [00:25:54] Speaker 04: Although I agree with the point that once you move, that's custody, I think the court can consider duration, can consider time. [00:26:02] Speaker 04: I'm not saying that those are not relevant to the overall analysis of whether there's custody. [00:26:08] Speaker 04: But here, whatever metric you used, there was absolutely probable cause. [00:26:13] Speaker 01: Let me pose this another way, just so you understand my dilemma. [00:26:17] Speaker 01: Let's assume in the previous case we heard [00:26:20] Speaker 01: But we say, gee, our case law says putting you on the ground and handcuffing you is in custody, which seems to me like what every person in the world would understand to be in custody. [00:26:30] Speaker 01: But we hold in this case that leaving you in a car for 60 seconds comes out to be custody. [00:26:36] Speaker 01: It seems to me that while the law may compel both of those results, the law would then be pretty silly, wouldn't it? [00:26:43] Speaker 04: I think, as has been acknowledged today, the law in this area, in this circuit, is a little jumbled. [00:26:50] Speaker 04: And there are things that this panel can and cannot do. [00:26:55] Speaker 04: We recognize that. [00:26:56] Speaker 04: But it is worth, I think, giving a bigger picture look to some of these questions and perhaps questioning them. [00:27:03] Speaker 05: Absent the bigger picture look, as we've all acknowledged today, that we're not really able to do here, sitting as a three-judge panel, we still have [00:27:10] Speaker 05: are cases that sort of seem to draw a distinction between some of these things, whether we all think that they're a distinction worth a difference or not is a separate question. [00:27:21] Speaker 05: So if we were to adapt your view, which is this just doesn't, this crossed the line because there wasn't something more that justified the placement or movement in the vehicle, what is your best case [00:27:40] Speaker 05: that you can provide us to say this is more like these cases that say the facts don't justify the custody versus these other cases that do? [00:27:50] Speaker 04: I think that's a little bit difficult because this court hasn't found a lot of Miranda violations in these type of situations. [00:27:58] Speaker 04: So it's hard for me to say, well, because there was no Miranda violation or because there was a Miranda violation here are facts like this. [00:28:06] Speaker 05: But honestly, we have cases like this case though, where there is no, I mean, I think your friend on the other side just actually conceded that there wasn't even they're not even attempting to say that there was a justification for the movement that related to the individual. [00:28:20] Speaker 05: It had to do with the officer's desire to get back to the line. [00:28:23] Speaker 05: As you said, they were moving closer to the border, not towards [00:28:26] Speaker 05: you know, a detention center or something. [00:28:27] Speaker 04: I agree. [00:28:28] Speaker 04: And I think that that resolves it. [00:28:29] Speaker 01: So your argument has to be about the absence of justification. [00:28:33] Speaker 01: Because we do have lots of cases that say taking them a quarter mile or all the way back away from the border for the safety of the officer. [00:28:41] Speaker 01: or because of other exigent circumstances, is OK and doesn't transform a Terry stop into a custodial stop. [00:28:49] Speaker 01: So your argument in this case must be there just wasn't any good reason to do it. [00:28:55] Speaker 04: I don't actually agree, Your Honor. [00:28:57] Speaker 04: I'm not really sure there are published decisions where someone has been moved and then there is a finding of no custody. [00:29:05] Speaker 04: But at a minimum here, [00:29:06] Speaker 04: As the court notes and the government acknowledges, there was no flight or danger justification. [00:29:12] Speaker 04: So that resolves this. [00:29:14] Speaker 04: All right. [00:29:14] Speaker 04: Thank you very much. [00:29:15] Speaker 05: We're going to take, let's do a 10 minute recess and then we'll be back for the remaining two cases for today. [00:29:21] Speaker 05: Thank you. [00:29:41] Speaker 04: This court shall stand in recess for 10 minutes.