[00:00:00] Speaker 04:
Good morning.

[00:00:01] Speaker 04:
May it please the court.

[00:00:02] Speaker 04:
Peter Walkinshaw on behalf of the United States.

[00:00:05] Speaker 04:
I'd like to reserve about four minutes for rebuttal.

[00:00:06] Speaker 03:
Four?

[00:00:07] Speaker 04:
Four.

[00:00:07] Speaker 04:
And I'll do my best to watch my time.

[00:00:10] Speaker 04:
The touchstone of the Fourth Amendment is reasonableness.

[00:00:13] Speaker 04:
And the officer in this case, in every respect, conducted a reasonable traffic stop.

[00:00:18] Speaker 04:
Conducting the stop by himself on a rural Nevada highway, the officer took basic safety precautions.

[00:00:24] Speaker 03:
Isn't the real question in this case, you know, did he overstay his welcome?

[00:00:30] Speaker 03:
In other words, was it he was doing other things during the process of this traffic stop and that was a problem that's created by this case?

[00:00:37] Speaker 04:
I think the district court certainly came to that conclusion, Your Honor, but I think as laid out in our papers, each of the findings of the district court or the legal conclusion the district court made to support that conclusion were erroneous.

[00:00:51] Speaker 04:
The district court found that it was unreasonable for the officer in this case to remove the defendant from his vehicle.

[00:00:59] Speaker 04:
Well, I agree.

[00:01:00] Speaker 03:
That was clearly, she was in error in that.

[00:01:02] Speaker 03:
That's wrong.

[00:01:03] Speaker 04:
Please, Your Honor.

[00:01:04] Speaker 04:
I'm here to answer questions.

[00:01:05] Speaker 03:
But I mean, it's just going on and on.

[00:01:06] Speaker 03:
I mean, if you look at the video, which we all did, you know, it's, what, 45 minutes or something of that, you know?

[00:01:13] Speaker 03:
And it still wasn't done by then.

[00:01:15] Speaker 04:
Well, Your Honor, I think it's clear from this court's precedence, the Supreme Court's precedent, that the relevant time frame

[00:01:21] Speaker 04:
is the time frame until which the officer acquires reasonable suspicion that a crime has been committed, at which point the officer is free to investigate that issue, separate and apart from the original mission of the traffic stop, which in this case was a speeding violation.

[00:01:42] Speaker 01:
The officer asked Mr. Steinman to get out of his vehicle, come and join him in the patrol car.

[00:01:48] Speaker 01:
And that was what, 10 minutes, five minutes, six minutes, something like that?

[00:01:52] Speaker 01:
Yeah, it was brief, Your Honor.

[00:01:53] Speaker 01:
That's correct.

[00:01:53] Speaker 01:
OK.

[00:01:54] Speaker 01:
And then he had seen the ammunition, right?

[00:02:01] Speaker 01:
That's correct, Your Honor.

[00:02:02] Speaker 01:
It was in plain view from the beginning.

[00:02:03] Speaker 01:
So then he ran the search, found he was a felon.

[00:02:06] Speaker 01:
Correct.

[00:02:07] Speaker 01:
So that changed.

[00:02:08] Speaker 01:
the whole situation, right?

[00:02:10] Speaker 01:
In our view, yes, Your Honor, the district court.

[00:02:12] Speaker 01:
So in effect, start a new clock.

[00:02:14] Speaker 04:
That's correct, Your Honor.

[00:02:15] Speaker 01:
So the question then becomes whether it was reasonable under the Fourth Amendment.

[00:02:21] Speaker 01:
Once he's seen the ammunition, uh, at least a box of ammunition, found this gentleman was a felon to further investigate that, right?

[00:02:30] Speaker 04:
That's correct, Your Honor.

[00:02:31] Speaker 01:
Okay.

[00:02:32] Speaker 01:
And, uh, in your view, why did the district court tack those two together?

[00:02:39] Speaker 04:
the subsequent.

[00:02:40] Speaker 01:
In other words, the initial stop, then you find he's a felon and then going from there.

[00:02:46] Speaker 04:
Right.

[00:02:47] Speaker 01:
Well, you just tacked it all together as if it were one continuum.

[00:02:51] Speaker 04:
That's correct.

[00:02:51] Speaker 04:
And we believe that the district court erred in doing so.

[00:02:54] Speaker 04:
The district court clearly stated for the record its view that there was no justification for the officer

[00:03:01] Speaker 04:
to investigate any violation of federal law.

[00:03:05] Speaker 04:
We think that's just completely inconsistent with Virginia versus Moore, which examined a case in which officers

[00:03:12] Speaker 04:
Conducted an arrest that was prohibited by state law here.

[00:03:15] Speaker 04:
We have a case where there's no no one's identified any clear statement of Nevada law one way or the other but under Virginia versus more clearly doesn't matter either way the question is does the fourth amendment of the federal Constitution find the officers actions unreasonable and

[00:03:32] Speaker 04:
when he searches an automobile based on probable cause.

[00:03:35] Speaker 01:
And the answer to that... We actually have a case law that indicates that the presence of ammunition strongly suggests the existence of a firearm, right?

[00:03:43] Speaker 04:
That's correct, Your Honor.

[00:03:44] Speaker 04:
I think our best case for that is United States versus Baker.

[00:03:46] Speaker 04:
I think it's important to read that case in conjunction with a case relied upon by the defendant, which is United States versus Nora.

[00:03:53] Speaker 04:
Now, Nora stands for the proposition that one gun does not necessarily imply more guns.

[00:03:58] Speaker 04:
And we think that's fair, but not really relevant in this case.

[00:04:01] Speaker 04:
In United States versus Baker, the defendant was found with a gun on his person but ammunition that did not fit that gun.

[00:04:09] Speaker 04:
And the court found that that gave the police probable cause to search the car.

[00:04:15] Speaker 04:
Now it's clear from Nora that the basis for that probable cause is not the gun they found on his person, it's the ammunition.

[00:04:21] Speaker 04:
The ammunition is the important thing because it has no function beyond being placed in a gun and fired.

[00:04:27] Speaker 01:
I wanted to ask you about the federal state distinction and I'm sure you're

[00:04:32] Speaker 01:
very much aware of all of it.

[00:04:33] Speaker 01:
For example, in California here, you can do whatever you want with pot.

[00:04:37] Speaker 01:
You can smoke it, grow it, ingest it, whatever you want to do with it.

[00:04:41] Speaker 01:
But it still schedules C, federal violation.

[00:04:44] Speaker 01:
You can't bank it.

[00:04:45] Speaker 01:
You can't do any of those things.

[00:04:46] Speaker 04:
Correct, Your Honor.

[00:04:47] Speaker 01:
So we have this struggle of an officer who sees something that is a violation of federal law but not a violation of state law based on the government's position

[00:05:00] Speaker 01:
is the existence of the, in this case, the ammunition, the presumption of the firearm, enough to overcome the problem of it's okay under state law to have ammunition.

[00:05:11] Speaker 04:
Well, Your Honor, under Virginia versus Moore, the fact that it may be a problem under state law is irrelevant to whether or not the exclusionary rule of the federal Fourth Amendment will be applied.

[00:05:22] Speaker 04:
Now, I know that there are some district court cases from California

[00:05:27] Speaker 04:
relied upon by the district court.

[00:05:29] Speaker 04:
It's cited in a footnote in our papers in which the marijuana issue that you referenced effectively resulted in suppression of the evidence in those cases.

[00:05:39] Speaker 04:
Now, the government's position is that those cases were wrongly decided and are not binding on this court.

[00:05:44] Speaker 04:
However, this is an easier case than those cases because in those cases, California law affirmatively prohibited

[00:05:52] Speaker 04:
those peace officers from conducting any kind of search for marijuana.

[00:05:57] Speaker 04:
It's the relevant statutes set in each of those cases.

[00:06:00] Speaker 04:
Now, we think under Virginia v. Moore, which also looked at conduct by state police officers that was prohibited, it's totally irreconcilable with the conclusions of those cases.

[00:06:10] Speaker 04:
But that being said, we have nothing in elegance in this case.

[00:06:14] Speaker 04:
There's nothing under Nevada law that speaks to

[00:06:16] Speaker 04:
any kind of prohibition for Nevada peace officers searching for evidence of federal crimes.

[00:06:24] Speaker 01:
The bottom line under the Virginia versus Moore and just from your perspective, common sense, there's just simply no problem.

[00:06:31] Speaker 01:
We look at the fact that there was ammunition.

[00:06:34] Speaker 01:
Our case law says that's a strong indication of firearms.

[00:06:37] Speaker 01:
tie that with the rummaging around to the back before the stop.

[00:06:42] Speaker 01:
No problem from your perspective.

[00:06:44] Speaker 04:
That's true, Your Honor.

[00:06:44] Speaker 04:
There's really two ways that the court can get to probable cause here.

[00:06:46] Speaker 04:
There's probable cause of a federal violation, which you think is sufficient to justify the search of the car, which is the ammunition in itself.

[00:06:53] Speaker 04:
But we also would say if the court doesn't wish to engage with Virginia versus Moore for purposes of resolving this case, could also very easily find that probable cause was established by

[00:07:05] Speaker 04:
the fact that the officer saw ammunition in the car, the fact that Mr. Simon denied having felony convictions on his record, when he was confronted with the fact that he did have felony convictions on his record, he denied that the ammunition that he'd already admitted to was in the car.

[00:07:22] Speaker 04:
So we think that, and of course combined with the fact that he was furtively moving to conceal something when Officer Trooper Boyer first pulled up that's visible in the dash cams.

[00:07:34] Speaker 01:
As you go along, there are additional triggers.

[00:07:38] Speaker 01:
He said he wasn't having convictions.

[00:07:40] Speaker 01:
Turns out he's a felon.

[00:07:42] Speaker 01:
You start tying these things together, and it's not one continuum.

[00:07:46] Speaker 01:
It's new starting blocks, in effect.

[00:07:48] Speaker 04:
Yes, Your Honor, although I think it's worth noting that all of the information that Trooper Board needed to establish probable cause, either for the federal

[00:07:57] Speaker 04:
or the state violation.

[00:08:00] Speaker 04:
So either probable cause that there was ammunition or a gun in the car and that he was a felon was achieved either at the moment that he read the criminal history report that he requested from dispatch, established a federal violation.

[00:08:11] Speaker 04:
And then immediately after that, he asked Steinman about his prior convictions and the ammunition in the car.

[00:08:19] Speaker 04:
And Steinman began to deny things that he had already admitted to.

[00:08:23] Speaker 04:
And so at that point,

[00:08:24] Speaker 04:
We would say the probable cause had already attached, but it certainly attached at the point that Simon denied began to give inconsistent answers regarding things that a trooper had already seen in the car.

[00:08:36] Speaker 01:
Do I recall correctly that Mr. Steinman also began to sweat profusely and was acting nervous?

[00:08:43] Speaker 04:
Yes, Your Honor.

[00:08:44] Speaker 04:
The district court found that he was quite compliant but did acknowledge in its oral ruling, I believe it characterized it as slight nervousness, but acknowledged that he was nervous and there was sweating.

[00:08:57] Speaker 04:
I believe the defense makes the point, and I think it

[00:09:00] Speaker 04:
to a degree, it's a fair one, that this was a stop conducted in August in rural Nevada.

[00:09:04] Speaker 04:
So it was hot out.

[00:09:05] Speaker 04:
There's perhaps an alternative explanation for the sweating and the nervousness.

[00:09:10] Speaker 04:
But officers are not required to rule out every alternative explanation for suspicious behavior.

[00:09:15] Speaker 04:
That's simply just not something required.

[00:09:16] Speaker 03:
I have two questions, but I don't know.

[00:09:19] Speaker 03:
Go ahead.

[00:09:19] Speaker 03:
Two questions.

[00:09:20] Speaker 03:
First one of which is, at what exact point in time are you saying that there was sufficient probable cause?

[00:09:28] Speaker 04:
I think the moment that we think, and there's a little bit of a disagreement between the government and the defense here, Your Honor, but we think that the moment that the officer received the information regarding the, Steinman's criminal history, which happened about 15 minutes into the stop,

[00:09:47] Speaker 04:
nothing more was needed.

[00:09:48] Speaker 04:
I believe they say that he needed to read it.

[00:09:50] Speaker 04:
It perhaps took him a minute or two to do so.

[00:09:52] Speaker 03:
So in other words, you're saying that asking for a person whom you're stopping for a traffic stop, asking for their criminal history is not an unacceptable increase of the amount of time it's taking for the traffic stop itself?

[00:10:04] Speaker 04:
That's correct, Your Honor.

[00:10:05] Speaker 04:
That's black-letter law in this circuit under both Hilton and Taylor.

[00:10:08] Speaker 03:
Let me ask you this, though.

[00:10:09] Speaker 03:
If you have a basis for doing the traffic stop, and you're doing the traffic stop, and there's obviously a lot of things that you're doing

[00:10:15] Speaker 03:
in the course of a traffic stop, for example, getting their criminal history and stuff of that sort.

[00:10:18] Speaker 03:
If the officer also does inquiries in areas that are totally unrelated to the traffic stop, related to potential crimes, does that extend the

[00:10:30] Speaker 03:
or make the traffic stop something improper for the amount of time.

[00:10:33] Speaker 03:
In other words, you're still doing what you're doing, in other words, getting his prior criminal history, but you're also talking about a lot of other stuff that has no basis or connection to either the traffic stop or anything else, apparently, but maybe evidence of some other crime.

[00:10:47] Speaker 03:
Does that do anything?

[00:10:49] Speaker 04:
The question, Your Honor, I believe, for this Court is whether or not what are referred to as unrelated inquiries measurably extend the duration of the stop.

[00:10:56] Speaker 04:
And it's also black letter of law in the circuit.

[00:10:59] Speaker 04:
I believe the clearest case on point is United States versus Mendes, which is cited in our papers.

[00:11:05] Speaker 04:
Judge Reinhart writing for the court held that it was not an illegitimate extension of the stop for officers to conduct inquiries that happened in parallel.

[00:11:15] Speaker 04:
to a valid investigation of the traffic stop itself.

[00:11:19] Speaker 04:
So I believe in that case, the officers had run a license check.

[00:11:22] Speaker 04:
And while they were waiting for the results of that license check, they were permitted to ask the defendant kind of whatever they wanted, because those questions don't extend the duration of the stop.

[00:11:30] Speaker 04:
That's exactly what happened here, Your Honor.

[00:11:33] Speaker 01:
And the ammunition is that trigger, if you will.

[00:11:35] Speaker 01:
Correct.

[00:11:36] Speaker 01:
Yeah.

[00:11:37] Speaker 01:
You had a question?

[00:11:37] Speaker 01:
No.

[00:11:39] Speaker 03:
I just want a quick question.

[00:11:40] Speaker 03:
Yeah.

[00:11:40] Speaker 03:
I didn't, when I looked at the video, I didn't see the ammunition in the video.

[00:11:44] Speaker 03:
I was supposed to be on the floor of the... That's correct.

[00:11:46] Speaker 03:
Leave it on the passenger side.

[00:11:48] Speaker 03:
Is there any description of how large a box it was?

[00:11:50] Speaker 03:
It's supposed to be green colored something, but is there any...?

[00:11:53] Speaker 04:
I don't believe that it was testified to in great detail in the hearing itself, but I believe that there are attachments to the motion to suppress in the record detailing what was found.

[00:12:04] Speaker 04:
I don't recall if there's a very specific description of the particular sort of ammunition.

[00:12:11] Speaker 01:
You want a reserve balance of your time?

[00:12:12] Speaker 01:
I would, please.

[00:12:13] Speaker 01:
Thank you.

[00:12:13] Speaker 01:
All right.

[00:12:15] Speaker 01:
Mr. Barron, please.

[00:12:23] Speaker 00:
Good morning, Your Honors, and may it please the Court, Jeremy Barron, on behalf of Mr. Steinman.

[00:12:28] Speaker 00:
There are three issues in this appeal.

[00:12:29] Speaker 00:
I'm hoping to cover all three today.

[00:12:31] Speaker 00:
Unless the panel directs me otherwise, I'll start with prolongation, move on to the government's affirmative waiver of the overbreath issue, and conclude with probable cause.

[00:12:41] Speaker 00:
beginning with prolongation.

[00:12:43] Speaker 00:
This was a 90 minute long traffic stop that was prolonged in multiple respects throughout the 90 minutes without reasonable suspicion.

[00:12:50] Speaker 00:
But for today's purposes, I would like to focus on a particular three minute period of the stop because the government's reply brief really narrows the scope of the dispute between the parties on that three minute period.

[00:13:02] Speaker 00:
So this is a period that begins at 3.59 PM when Mr. Steinman shows the officer his insurance information

[00:13:08] Speaker 00:
ending at 4.02, which is when the officer calls in the request for the criminal history check.

[00:13:13] Speaker 00:
This is a period where the parties agree the trooper has an obligation to be diligently working on the ticket.

[00:13:19] Speaker 00:
And the parties agree that the trooper is engaging in unrelated inquiries, asking unrelated questions during this three-minute period that lasts for at least 30 seconds.

[00:13:29] Speaker 00:
By our count, it's more like 45 seconds.

[00:13:31] Speaker 01:
That amount of- You find that 35 seconds, 45 seconds too long?

[00:13:37] Speaker 00:
That's correct.

[00:13:38] Speaker 00:
Any prolongation is prolongation.

[00:13:39] Speaker 01:
There is no de minimis exception to the- Do you have any case law that would suggest you're correct about that?

[00:13:45] Speaker 00:
Yes.

[00:13:45] Speaker 00:
So Rodriguez itself overruled the Eighth Circuit's de minimis rule.

[00:13:50] Speaker 00:
In Landeros, this court described Rodriguez and explains that any slight prolongation is an impermissible prolongation.

[00:13:58] Speaker 01:
Even when the officer had observed the ammunition?

[00:14:02] Speaker 00:
There's no reasonable suspicion at that point.

[00:14:04] Speaker 00:
I believe the government has explained its view today.

[00:14:06] Speaker 00:
There was no reasonable suspicion until 406 at the earliest.

[00:14:10] Speaker 00:
And I'm focused on the period leading up to 402.

[00:14:14] Speaker 01:
Honestly, I find that startling.

[00:14:16] Speaker 01:
I get you a lot of things you've got going for you.

[00:14:18] Speaker 01:
But the idea that a 30 to 45 second delay somehow disqualifies what happened thereafter is startling to me.

[00:14:28] Speaker 01:
How can that be?

[00:14:29] Speaker 00:
I would again emphasize Landeros, which says Rodriguez prohibits even slight prolongations.

[00:14:36] Speaker 00:
And the 11th Circuit's en banc decision in Campbell.

[00:14:38] Speaker 01:
That's the 11th Circuit.

[00:14:40] Speaker 01:
We don't care about the 11th Circuit.

[00:14:41] Speaker 01:
We don't care about any other circuit for purposes of this case.

[00:14:45] Speaker 00:
Understood, but the circuits are uniform in agreeing that Rodriguez overruled the concept of a de minimis rule.

[00:14:53] Speaker 00:
Most of the circuits leading up to Rodriguez had adopted this rule that de minimis brief extensions are permissible so long as the overall length of the stop is reasonable.

[00:15:03] Speaker 03:
Can you give me the minutes again that you're talking about from when to when?

[00:15:07] Speaker 00:
Yes, so 359 is when Mr. Steinman shows the insurance information.

[00:15:12] Speaker 00:
And so at that point, the officer has everything he needs in order to write the ticket.

[00:15:16] Speaker 00:
402 is when the trooper calls in the request for the criminal history check.

[00:15:22] Speaker 03:
Oh, 359 and 402.

[00:15:24] Speaker 03:
And then the response from that inquiry, when did the response come in?

[00:15:28] Speaker 03:
About 406.

[00:15:30] Speaker 03:
Well, that's only like seven seconds.

[00:15:33] Speaker 03:
He said 359 to 402.

[00:15:34] Speaker 00:
359 p.m., I can give specific seconds.

[00:15:39] Speaker 03:
He said 359 to 402?

[00:15:42] Speaker 00:
Yes, it's questioning over this three-minute period.

[00:15:44] Speaker 00:
At 402 p.m.

[00:15:45] Speaker 00:
is when the request for the criminal history check is made.

[00:15:48] Speaker 02:
At 406 p.m., four minutes later is when... My understanding was that he was writing the citation as he was conversing.

[00:15:56] Speaker 02:
Is that correct?

[00:15:57] Speaker 00:
So what the district court- Between 359 and 402?

[00:16:01] Speaker 00:
There's some work on the citation, but what the district court concluded is that the officer was slow playing the citation process and that his focus on the questioning was distracting him from diligently completing the ticket.

[00:16:13] Speaker 02:
And that is a factual determination under this court's precedent, whether the unrelated- So you think the Fourth Amendment really determines how focused a police officer is while writing a citation?

[00:16:23] Speaker 00:
Under Rodriguez, the question is whether the unrelated inquiries are measurably extending the stop.

[00:16:30] Speaker 00:
And under this court's precedent interpreting Rodriguez, that's a factual determination.

[00:16:34] Speaker 00:
And the Eighth Circuit has a pre-Rodriguez case talking about a blended process where you have an officer spending some time working on the ticket, some time asking questions, some time working on the ticket, some time asking questions.

[00:16:45] Speaker 01:
So your perspective is that while the officer is riding the ticket,

[00:16:51] Speaker 01:
He can't really talk about anything other than that while he's writing it out.

[00:16:54] Speaker 01:
And if he does, somehow he has violated Rodriguez.

[00:16:58] Speaker 01:
Is that your position?

[00:16:58] Speaker 00:
He can he can talk about other things so long as his focus is on the ticket.

[00:17:02] Speaker 01:
And the question is how long in your view does the officer have to write out the ticket?

[00:17:07] Speaker 00:
It's going to depend on a case by case basis here.

[00:17:09] Speaker 00:
The trooper testified it typically takes him 15 minutes.

[00:17:12] Speaker 00:
We're not saying there's a specific time limit that all officers have to operate within.

[00:17:18] Speaker 00:
What we're saying is that if there is unrelated questioning that is measurably extending the stop, that is impermissible.

[00:17:24] Speaker 00:
And whether unrelated questioning is measurably prolonging a stop is a factual determination that the district court makes in the first instance with the benefit of presiding over the evidentiary hearing and seeing the troopers testimony.

[00:17:35] Speaker 01:
From your perspective, at what point did the officers see the ammunition?

[00:17:40] Speaker 00:
It appears he sees it upon the initial approach to the car.

[00:17:43] Speaker 01:
Okay, so he got a traffic stop.

[00:17:47] Speaker 01:
He sees ammunition, triggers something.

[00:17:50] Speaker 01:
Does that change the nature of the inquiry here?

[00:17:52] Speaker 01:
I mean, he's writing it out the ticket.

[00:17:55] Speaker 01:
From my view of the video, he's perfectly polite.

[00:17:58] Speaker 01:
He's really very polite, very cordial, suggests they go in another car.

[00:18:04] Speaker 01:
Probably partly for safety, but also because people are standing out in the traffic.

[00:18:09] Speaker 01:
He's riding the ticket, waiting for the information to come in.

[00:18:11] Speaker 01:
He certainly has a basis for asking for that based upon seeing the ammunition, did he not?

[00:18:16] Speaker 00:
I apologize, could you repeat the question?

[00:18:18] Speaker 01:
I'm sorry, did the officer not have a basis for asking for the criminal history based on seeing the ammunition in the car?

[00:18:25] Speaker 00:
Our view is that the unique criminal history request in this case is not permissibly related to officer safety.

[00:18:31] Speaker 00:
But setting that aside, even if there was an officer safety basis for requesting the criminal history check so late into the stop, there is still ample prolongation leading up to that.

[00:18:41] Speaker 00:
And for this three-minute period, I want to emphasize the government doesn't dispute

[00:18:46] Speaker 00:
that there is potential prolongation of 30 to 45 seconds within this three-minute period between 3.59 and 4.02.

[00:18:52] Speaker 00:
They're not saying, oh, it's so short it can't qualify as prolongation.

[00:18:56] Speaker 00:
What they're saying is that the officer was multitasking, and the district court did not make a lack of diligence finding that covers this three-minute period.

[00:19:04] Speaker 00:
And that is an incorrect interpretation of the district court's

[00:19:07] Speaker 00:
or ruling, the district court.

[00:19:09] Speaker 01:
District, you want us, we have to look at district court's finding, but we look for clear error, right?

[00:19:14] Speaker 01:
That's correct.

[00:19:15] Speaker 01:
So if we disagree based on the video and so on, then that's just, we're finding clear error, right?

[00:19:20] Speaker 00:
Clear error is a deferential standard because the district court is able to make its factual findings with the benefit of seeing the evidentiary hearing firsthand, watching the trooper testify,

[00:19:31] Speaker 00:
assessing his demeanor and credibility.

[00:19:34] Speaker 00:
And here you have a district court judge providing an oral ruling immediately after the evidentiary hearing ends when this live testimony is still fresh in the judge's mind.

[00:19:42] Speaker 00:
And that's the type of factual finding that... But it was primarily based on the video, wasn't it?

[00:19:47] Speaker 00:
It's based on the video and the trooper's testimony and the... Is the trooper's testimony inconsistent with the video in any way?

[00:19:54] Speaker 00:
The question that the district court was answering is whether the trooper was being diligent and these unrelated questions were sort of incidental and not adding time to the stop, or whether the trooper was focused on his investigation and was slow playing the citation process.

[00:20:06] Speaker 03:
Let me ask you, I apologize, at what point in time was the, did the arrest, I'm sorry, the vehicle stop occur?

[00:20:13] Speaker 03:
At what point in time during the day?

[00:20:14] Speaker 03:
You said, I do everything by seconds and minutes, so I can't figure out when you say between 3.59, when did these things start?

[00:20:21] Speaker 00:
Yeah, I'm sorry if the conversion's not working, but the stop begins at 3.51 p.m.

[00:20:26] Speaker 00:
Okay, 3.51.

[00:20:26] Speaker 03:
Okay, thank you.

[00:20:28] Speaker 00:
Eight minutes later is when Mr. Steinman shows the insurance information at 3.59.

[00:20:32] Speaker 01:
And does the record show what the traffic was, or was this by a busy freeway, or was it by a busy street, or was it a quiet neighborhood?

[00:20:40] Speaker 01:
Where was it?

[00:20:41] Speaker 00:
It's a one lane in each direction highway in rural Nevada.

[00:20:46] Speaker 00:
Unless there are further questions on prolongation, I would like to turn to.

[00:20:50] Speaker 02:
I have some questions.

[00:20:50] Speaker 02:
So you agree that at most, the multitasking led to a 30 to 40 second prolongation?

[00:20:57] Speaker 02:
Is that your argument?

[00:20:58] Speaker 00:
In this particular three minute period.

[00:21:00] Speaker 00:
We think there's prolongation before and after.

[00:21:02] Speaker 02:
But is there cases that say that 30 seconds is prolongation?

[00:21:07] Speaker 00:
Landeros says slight prolongation.

[00:21:09] Speaker 00:
Rodriguez, overall.

[00:21:10] Speaker 02:
What was the time limit?

[00:21:11] Speaker 02:
What was the time in that, Landeros?

[00:21:14] Speaker 00:
I don't know what the exact time calculation was in Landeros, but again, Landeros says slight prolongation.

[00:21:20] Speaker 00:
Rodriguez overrules the Eighth Circuit's de minimis rule and to the extent that the Eleventh Circuit's decision in Campbell is relevant.

[00:21:29] Speaker 02:
All of this is overarching the reasonableness inquiry, right?

[00:21:33] Speaker 02:
So 30 seconds, how is that unreasonable?

[00:21:36] Speaker 00:
Because the Supreme Court in Rodriguez overruled this overall reasonableness standard.

[00:21:41] Speaker 00:
So leading up to Rodriguez, all of the circuit courts, or most of the circuit courts, had adopted a rule that says so long as the overall length of the stop is reasonable and so long.

[00:21:49] Speaker 02:
Yeah, no, but I'm talking about the reasonableness of 30-second prolongation.

[00:21:53] Speaker 02:
Yeah, I agree that that's different.

[00:21:55] Speaker 02:
But 30 seconds, if he dropped his pen, that would take 30 seconds.

[00:21:59] Speaker 02:
But that would not.

[00:22:01] Speaker 02:
Could that affect, could suppression be based off of that?

[00:22:04] Speaker 00:
No, because dropping a pen is not an unrelated inquiry.

[00:22:07] Speaker 00:
It has to be an unrelated inquiry, and it has to measurably prolong the stop.

[00:22:10] Speaker 00:
And if it does, there is no de minimis exception.

[00:22:13] Speaker 00:
And courts across the country have found prolongations based on similar time periods.

[00:22:17] Speaker 00:
This is well within the heartland of the time period.

[00:22:19] Speaker 02:
So there are cases that suppress base of a 30-second prolongation?

[00:22:23] Speaker 00:
I hesitate to cite Campbell again, because it is an out-of-circuit decision, but it is an 11th circuit en banc decision that collects cases from other circuits with similar time frames.

[00:22:31] Speaker ?:
OK.

[00:22:31] Speaker 01:
So much for de minimis non curit lex, right?

[00:22:35] Speaker 01:
Correct.

[00:22:35] Speaker 01:
Okay.

[00:22:36] Speaker 00:
Moving on to the affirmative waiver of overbreath.

[00:22:39] Speaker 00:
The district court made it abundantly clear that it was granting suppression on three independent bases, the first, prolongation, the second, lack of probable cause, and the third, the overbreath of the warrant.

[00:22:50] Speaker 00:
In the government's opening brief, they challenge prolongation and probable cause, but say not a word about overbreath.

[00:22:55] Speaker 00:
In our answering brief, we responded and said that because the district court, because the government had not briefed this issue, they had either waived or forfeited it.

[00:23:03] Speaker 01:
OK, let's just agree, arguing, though, that the government's waived that issue.

[00:23:09] Speaker 01:
What about the vehicle exception, though?

[00:23:11] Speaker 01:
Doesn't the law permit them to search the vehicle without a warrant under the circumstances of this case?

[00:23:20] Speaker 00:
There is an automobile exception to the warrant requirement.

[00:23:23] Speaker 00:
But here, the officers went and got a warrant.

[00:23:25] Speaker 00:
And they search pursuant to the warrant, and the warrant is invalid.

[00:23:28] Speaker 01:
I understand that.

[00:23:29] Speaker 01:
But again, California says superfluity does not vitiate under 3537 of the Civil Code.

[00:23:37] Speaker 01:
This is admittedly a different state.

[00:23:40] Speaker 01:
But the reality is, if there are two bases for searching the vehicle, one of them was not done properly, but you have another one, what's the problem?

[00:23:50] Speaker 00:
So that's the government's merits argument that they discuss in about a page of their reply brief, and they are raising that argument for the first time on appeal in their reply brief.

[00:23:58] Speaker 00:
It was not raised before the district court.

[00:23:59] Speaker 00:
We have not had a chance to respond to the merits of that argument.

[00:24:02] Speaker 00:
If the court wants to reach the merits of that, we would ask for supplemental briefing.

[00:24:06] Speaker 00:
I can address it briefly today.

[00:24:08] Speaker 00:
But before I do, I just want to emphasize the government is not asking the court to reach the merits of that argument.

[00:24:15] Speaker 00:
They are saying the district court did not make an over-breadth ruling and therefore this court should not reach the over-breadth ruling that does not exist.

[00:24:23] Speaker 00:
With all due respect to counsel for the government, I don't understand how you can read the district court's oral ruling that way.

[00:24:30] Speaker 00:
I'd be happy to cite the four pages of the oral ruling where it is making its overbreath determination.

[00:24:37] Speaker 00:
The government is asking this court not to reach the overbreath ruling.

[00:24:40] Speaker 00:
And this is a very similar situation to the situation in Lower versus Thomas, which is a case from this court, a 2254 post-conviction case, where the district court granted relief on three claims.

[00:24:51] Speaker 00:
The state appealed.

[00:24:53] Speaker 00:
They discussed two of the three claims.

[00:24:54] Speaker 02:
I think that's pretty clear.

[00:24:56] Speaker 02:
Can you talk to the, go move on to the probable cause question?

[00:25:00] Speaker 00:
Certainly.

[00:25:00] Speaker 00:
Let me just briefly address the merits question on over breath.

[00:25:04] Speaker 00:
As far as the automobile exception, the police have a choice.

[00:25:07] Speaker 00:
They can choose to do the warrantless search or they can choose to get a warrant and act pursuant to the warrant.

[00:25:12] Speaker 00:
And that's what they did.

[00:25:13] Speaker 00:
And I don't think many courts would be receptive to the converse of the government's argument, which is assume that there was a warrantless search based on exigent circumstances.

[00:25:22] Speaker 00:
There's a challenge to that.

[00:25:24] Speaker 00:
The court says there was no exigent circumstances.

[00:25:26] Speaker 00:
But the government takes the position, well, there was probable cause to go and get a warrant.

[00:25:30] Speaker 00:
So we can imagine a counterfactual world where the police go and get the warrant, and they have probable cause, and they search pursuant to the warrant.

[00:25:38] Speaker 00:
the warrantless search was invalid, they could have gotten the warrant, and that would have been fine.

[00:25:42] Speaker 03:
That argument wouldn't have happened.

[00:25:45] Speaker 03:
The vehicle exception is there, whereas the warrant thing is not.

[00:25:48] Speaker 03:
That's the difference between your example that you're citing to it.

[00:25:50] Speaker 00:
Your example doesn't make sense.

[00:25:51] Speaker 00:
It that may be a difference, but again, it's a choice that the police can make what they want to do and what the government is saying is you can ignore the choice they made and assume a counterfactual where they did something differently.

[00:26:03] Speaker 03:
And if they had the right to do it at that point in time, they like to try to be more cautious to get a warrant.

[00:26:09] Speaker 03:
And for some reason, the warrant is overbroad as issued, not their fault.

[00:26:13] Speaker 03:
they still have the right to begin with to do the search.

[00:26:16] Speaker 03:
So I don't understand what your argument is.

[00:26:17] Speaker 03:
In other words, your argument is that if they do something which is even more generous to the defendant, but Tom Sound turns out wrong because of what the officer does in issuing the warrant, they should get penalized for that.

[00:26:29] Speaker 00:
The police have a choice of how to act, and once they make that choice, the court should review what they have done based on the choices they have made.

[00:26:36] Speaker 00:
If the court has any questions about that, we would ask for supplemental briefing on the merits of the overbreath issue, but the court should not reach the overbreath issue because the government is affirmatively asking this court not to do so.

[00:26:46] Speaker 01:
Okay, so if you're right, the government's waived that issue.

[00:26:50] Speaker 01:
We still have the vehicle exception, do we not?

[00:26:54] Speaker 00:
ruling was an independent basis for suppression.

[00:26:56] Speaker 00:
The government is not challenging that.

[00:26:58] Speaker 01:
But let's say that's right, arguendo.

[00:27:02] Speaker 01:
Okay, but you still have the vehicle exception.

[00:27:05] Speaker 00:
That's the argument about overbreath that the government has previewed in its reply brief, but that's an argument about overbreath and why the overbreath of the warrant does not lead to suppression.

[00:27:16] Speaker 00:
The government is ultimately asking this court not to reach that issue.

[00:27:21] Speaker 00:
And therefore, the court should not reach that issue and affirm on the basis of the district court's over-breadth ruling, or at least allow for supplemental briefing on this waiver question, as well as the merits of over-breadth.

[00:27:32] Speaker 00:
I see my time is up.

[00:27:33] Speaker 00:
I'm happy to answer.

[00:27:34] Speaker 03:
Yeah, it is.

[00:27:35] Speaker 03:
Can we have a question?

[00:27:36] Speaker 03:
I'm going to take a question.

[00:27:37] Speaker 01:
No, don't worry about it.

[00:27:38] Speaker 01:
That's good.

[00:27:38] Speaker 01:
Oh, OK.

[00:27:39] Speaker 01:
Thank you.

[00:27:40] Speaker 01:
Thank you very much.

[00:27:48] Speaker 04:
I'd like to take the issues in reverse order that my friend on the other side took them from.

[00:27:52] Speaker 04:
Just very quickly, I think this waiver issue can be disposed of by referring the court to page 148- You speak up a little bit, you're a little bit- I beg your pardon, Your Honor.

[00:28:00] Speaker 04:
I refer the court to page 148 of the record in which the district court has a colloquy with government counsel, which asks, well, if the officers had probable- I'm paraphrasing.

[00:28:11] Speaker 04:
The officers had probable cause.

[00:28:13] Speaker 04:
I don't need to reach the issue of whether or not the warrant's defective, right?

[00:28:16] Speaker 04:
because if you have probable cause, you can search the car.

[00:28:19] Speaker 04:
Now, the disagreement between the parties is whether or not the officers getting a warrant that is defective somehow prevents them from searching a car that they are authorized to search through an exception to the warrant requirement.

[00:28:34] Speaker 04:
If they don't need a warrant, does getting a bad one prevent them from doing a search?

[00:28:38] Speaker 04:
The answer to that question is no, there's no authority anywhere for that.

[00:28:41] Speaker 04:
And there's also really no basis to conclude on the stray care.

[00:28:46] Speaker 04:
There's one word in the district court's oral opinion.

[00:28:49] Speaker 04:
It basically says, I have multiple independent bases, is what the district court said.

[00:28:53] Speaker 04:
She doesn't identify getting a bad warrant as one of them.

[00:28:56] Speaker 04:
And it just simply isn't.

[00:28:57] Speaker 04:
There's no basis for it.

[00:28:58] Speaker 04:
There's no authority anywhere for that proposition as the court.

[00:29:01] Speaker 01:
So from your perspective, page 148 of the record, you're going to see that the district court basically was saying, well, why do we need

[00:29:09] Speaker 01:
get into this?

[00:29:09] Speaker 01:
Is that what you're saying?

[00:29:10] Speaker 01:
Yes.

[00:29:10] Speaker 04:
I would encourage the court to review that part of the record in particular.

[00:29:14] Speaker 04:
I think it's just not plausible that the district court came to this totally unprecedented, unfounded ruling.

[00:29:21] Speaker 01:
And I gather the government's position, opposite to what your friend is saying, is that the legal exception exists independently

[00:29:32] Speaker 01:
The fact that they were trying to be extra cautious, even if it was over broad, it's irrelevant because you still have the vehicle exception.

[00:29:39] Speaker 01:
Is that correct?

[00:29:39] Speaker 04:
Correct, Your Honor.

[00:29:40] Speaker 04:
But again, it's not an issue for this Court on Appeal because the district court didn't really reach that.

[00:29:45] Speaker 01:
Do you think the district court didn't even reach that?

[00:29:47] Speaker 04:
No.

[00:29:47] Speaker 04:
Moving to the 35 to 40 second delay, I think I do want to take exception with the characterization of it as a 30 to 45 second delay.

[00:29:56] Speaker 04:
That's not true because the officer was working in parallel during that time.

[00:30:01] Speaker 02:
So it's not like the officer diverted from the valid mission.

[00:30:05] Speaker 02:
I thought the argument was over the three minutes.

[00:30:08] Speaker 02:
30 to 40 seconds was extraneous.

[00:30:11] Speaker 04:
So in the 30 to 40 seconds, he is asking questions about where Steinman is from and what he did for a living, but he's making casual conversation while he's working on the ticket.

[00:30:20] Speaker 04:
I encourage the court to watch this portion of the video.

[00:30:22] Speaker 04:
And you will see that while these questions are being asked, the officers, if anything, kind of half paying attention to Steinman.

[00:30:29] Speaker 04:
The officer is not required by the Fourth Amendment to sit in stony silence as he fills out a ticket, especially if he's

[00:30:36] Speaker 04:
move the officer into his car so he can keep an eye on him, he can keep control of the situation.

[00:30:41] Speaker 04:
It sounds like you just disagreed that there was a 30 to 40 second delay.

[00:30:46] Speaker 04:
No, we don't think there was any appreciable delay at all.

[00:30:50] Speaker 04:
And the district court, when saying that the process was slow played, I'd refer the court to page

[00:30:55] Speaker 04:
12 of the record, where it identifies the portions that it feels are extraneous questioning.

[00:31:01] Speaker 04:
It's the questioning after the criminal history check comes back.

[00:31:04] Speaker 04:
The district court's basis for slow playing, for prolongation, is that the officer was not allowed to take Simon out of the

[00:31:17] Speaker 04:
run the criminal history check or ask him questions about the criminal history check after it came back.

[00:31:22] Speaker 04:
And all of that's valid.

[00:31:23] Speaker 04:
This sort of, you know, brief interchange while filling out the ticket is clearly valid under Mendes, which says officers can ask questions while they're pursuing the mission to stop in parallel.

[00:31:34] Speaker 01:
So there's a multitasking situation, right?

[00:31:36] Speaker 04:
Correct.

[00:31:37] Speaker 04:
And again, it's multitasking over the course of 30 to 45 seconds.

[00:31:41] Speaker 01:
Other questions by my colleagues?

[00:31:43] Speaker 01:
I think not.

[00:31:44] Speaker 01:
Just to give you plenty of opportunity, Council, both of you are welcome to submit promptly a 28-J letter addressing the issue of what happens if there's a vehicle exception but the officers seek a warrant and the warrant's overbroad arguendo.

[00:32:02] Speaker 01:
What happens there?

[00:32:03] Speaker 01:
What does the law say about that?

[00:32:05] Speaker 04:
And Your Honor, just so I understand, I also would welcome any questions from opposing counsel regarding procedure, but simultaneous 28 J letters?

[00:32:14] Speaker 01:
28 J letters.

[00:32:14] Speaker 04:
And no responses or?

[00:32:16] Speaker 01:
No, just simultaneously.

[00:32:17] Speaker 01:
I mean, I don't know it's going to change anything, but we want to give you an opportunity to address that issue.

[00:32:24] Speaker 03:
Should we give them a date?

[00:32:25] Speaker 03:
What?

[00:32:25] Speaker 03:
Should we give them a date?

[00:32:26] Speaker 01:
Oh, yeah.

[00:32:27] Speaker 01:
Let's do that within, let's see, today's the what, the 5th?

[00:32:31] Speaker 01:
Yeah.

[00:32:32] Speaker 01:
So let's say by the 15th.

[00:32:35] Speaker 01:
Let's just say five pages.

[00:32:39] Speaker 01:
It's just not a big long issue, okay?

[00:32:42] Speaker 01:
This should be really straightforward.

[00:32:44] Speaker 01:
So five pages, okay?

[00:32:45] Speaker 01:
Thank you.

[00:32:46] Speaker 01:
Thank you for your time.

[00:32:49] Speaker 01:
Thank you.

[00:32:49] Speaker 01:
The case just argued is submitted.