the camp with the court's permission i'd like to reserve three minutes for rebuttal to thank you this appeal presents two issues i'd like to begin with the district court's denial of mr mccance motion to suppress we're asking the court to find consistent with prior precedent that officers responding to a vague anonymous tip should not immediately proceed to a stop and frisk where they do not observe any illegal or suspicious conduct whatsoever this court very recently recognized in foster that this circuit's case law is clear and excessively general description in the absence of corroborating observations by the police does not argument is not that when our officers are confronted with emergency circumstances they should not respond with urgency and forcefully however the allegation of an ongoing emergency does not automatically suggest that the caller is honest what it implicates is the government interest at stake the government interest in the case of an emergency car going to a greater impact the balancing test this court must to ensure that the intrusion of the fourth amendment rights was justified by the government interest but i think this case provides a good example of why an emergency color should not automatically be considered  it because there are going to be situations where needed to be other corroborating circumstances like that the description was on point and never read the description of the license plate was on or even here the description of the two actors was on  emphasize that when the police arrived there was no evidence of the beating that the caller had described correct that's correct but you have a problem there i think those you because you never read the description was of someone driving under the influence or driving around to clean in fact when the police followed the motorist there there was no evidence of that driving right that's correct so how do you get how does the the absence of visible signs of being here help you when it seems to be a parallel situation to what the court found unproblematic in the room but i'll take that question in two parts navarette was a close case for virtue of being close toes where the line as for a fourth amendment violation in that case the court found that the specificity of the tip lent significant support to its reliability because the information that the caller provided that she was necessarily an eye witness the officers found what they expected to find space on her to the reckless driving that she alleged is the type of  woman suffers broken bones or blood and often the suspect may say you be quiet mac naturally when the police come up closer you're going to get it we should want the police to be able to intervene in situations like that they have plenty of expertise these can be exposed to the need for situations long before there are broken bones or blood of course but i think what makes this case unique is that this is not your typical domestic my own case domestic violence is of course largely considered a hidden crime but beating someone to death on the side of the road on a sunday afternoon is not your typical domestic violence case so while that might have been plows a bull in wouldn't for somebody to not appear to have been involved in a domestic violence incident because they were the allegation was that the suspect had flashed a gun i don't women during a verbal argument and immediately put it away so of course they're just like  navarette it's possible that the officers do not observe anything that suggests the crime that they are responding to but here that is not the case reasonable suspicion depends on commonsense understanding of human behavior it is not possible for somebody to go from being violently beaten almost to death just three minutes later showing absolutely no sign of that injury and i don't want this court to understand my argument as requiring some sort of extensive credibility checking and not a missteps always require something more but that something more is not subject to a burdensome standard well the caller here too thinks a collar and eye witness is not considered reliable just because they say i'm seeing something i think this court's decisions  baby but remember it's not just about the use of the nine one one system what the supreme court says in that hereto is that used to the nine one one system in and of itself can at least allow a reasonable artificer to presume that somebody might think twice about coming in a false report using nine one one that of course is an assumption and that's not going to be true in every case and when you look at the call you have to consider the contents of the call it included no specific your argument is we can't know if this is an aid to or a three robbery right the government's argument is if you look at the colloquy at first the judge starts to mention a gun then he pulls back then he says well you did this with you know force or threat of force and your client i want you to that at the earlier hearing the government's argument is your client never allocute to another crime another first or second degree felony that would be required for a three so  and the plea hearing as a whole at no point is there any specification of what subsection mr mccance was charged with pleading to or convicted of so in light of all of that what you have is a plea colloquy that does not specifically track the language of any one of the three subsection so undertaking there doesn't need the court's demand for certainty when why doesn't the reference to force or  subsection a one of the statute the model jury instructions show that force and bodily injury which is what a true requires are not interchangeable unlike bodily injury force does not require any bodily harm and human cloning which i can't imagine how that would be involved in a robbery i don't see anything else in there that doesn't involve force or threat so it either plugs into the elements clause or it plugs into the generic  robbery which requires force however slight under graves so is there any way in which this this doesn't that doesn't map on to at least the generic definition robbery of course i think what emphasizes is that the model penal code definition is very different than the generic offense definition of robbery new jersey's robbery definition is based on the model penal code and even among the eleven states that use the model penal code new jersey is very unique because it's one of only three states along with pennsylvania and montana that include subsection eighty three the reason that is broader than even the generic y references subsection e three so all of those not either i recognize that a three is a unique subsection of the statute and most likely offenders are going to be convicted under a winery two a probability not a hypothetical i've had a law clerk looking i cannot find actual robbery cases new jersey that are premised on nonviolent crimes they all seem to involve threats of one source another  weapon something else like that why isn't that going to be enough you're right it's not it's not just a likelihood but if we can't find cases that are you know you give me your money or i will burn down your house or steal your identity then that's not enough for m undertaken that sort of task because it obviously conflicts with the categorical approach the purpose of the categorical approach is to focus on whether an offense or state offense falls within certain categories and to do that comparison t court is confined to the elements of the statute now we're not making any fanciful argument any first or second degree felony means any first or second degree felony  i think would grieve says is the typical case the model penal code is going to be a useful starting point point but that's not the case here because so many states define it generic robbery in a way that's so different so what the saying is we're not going to look at the model penal code because here it's not a useful guide to what the generic offense is because it's so different or if there's  victim and it requires threat or use of force so even under the defendant's theory that this is in the visible the court still can reach the conclusion you can still affirm the district court by cases which tell us that you analyze this by asking two questions the first question is whether there are alternate degrees of offenses and when you have that here the second question is is there are there alternate is there alternate conduct that must be proven beyond a reasonable doubt the jury instructions here say that so there's no question that there are two ways that the new jersey robbery statute is divisible the second step the court recognizes is extent that it's not an exact wording and exact matches threat of force as to threat of bodily injury we look at the jury instructions at the definition of force and force includes but does not require bodily injury so there's no there's no another the the statute says first and second degree robbery which have different penalties but even if you were to assume that there were no  penalties were not there that they were not alternate penalties then you can still look to the fact that each of the subsections require the court or a jury to find the defendant guilty beyond a reasonable doubt so even treat those as different well i would i guess ask the court to also look at ramos which tells us that the pennsylvania aggravated assault statute which mirrors little the layout of the panel the pennsylvania statute mirrors what's going on here you've got different degrees and also you have different conduct so either way if i'm understanding the court's question correctly either way you can still find the the new jersey statute visible the fact that there may not be different penalties in this particular statute doesn't necessarily mean that the penalties are not listed elsewhere in the code and that you can look to the to those sections to find out what the penalties are as to first i mean that there would have to be a penalty issue between first and second degree robbery for four of the two degrees to make any significant but but the point is that first and second degree robbery there is a different or different grading it's associated with so well and that's true on our part if i didn't understand the course question before but even though as to each of the subsections there is no distinct penalty each of those subsections must be proven beyond a reasonable doubt that's the point that i am hoping that i'm getting across it doesn't matter whether those particular subsections require different penalties it's a matter of when i'm when i'm saying that the yes the overlaying the visibility issue in the new jersey statute is that first degree robbery has different health is than second degree robbery and you have to go a step further and find out those specific  you can do it in any number of you can commit the burglary and any number of locations but you you don't have to prove those locations beyond reasonable doubt here you do have to prove each of the subway elements is another way of saying it's with the gun gives the police reasonable suspicion to approach a person i mean this is how was the police supposed to know if a gun was in fact involved or how are they supposed to know how to approach or interview anyone if they know if they suspect the gun might be involved they have to go one approach frisk and then ask the questions i think my opponent has already conceded that they have to interview them and if they have to interview them with the knowledge that there might be a gun the only reasonable approach is to search for the gun and here they didn't even go into his pockets with a bag mediately they patted him down first and then they found the outline of the gun and then proceeded to to arrive but i mean that as we know it from the wooden case in the from even materials that might that that are used as training materials that domestic problems comes and goes so whether or not they saw an actual beating once they arrived that doesn't answer the question as to whether or not the police a reason the police officer having the tip that this caller made would approach the couple and figure out what's going on it would be a trouble don't think that the question would read anything into that the defendant doesn't have to be beating the person all the way through and i think we acknowledge that or i think the other side acknowledges that when the police get there just because they description and when the police arrive there observations are not consistent with what was described why in that circumstance wouldn't we require that war before there is a risk where there is a search i don't think that the tip was that vague i think you have to think about what the other side is saying i think we have to assume in order not to find this particular couple at this location and th easily identifiable there maybe ten man with red hats and raids in that area and they all are with a woman but that's not what's happening here the documents assume that the the this is the only couple that kind of fit the description with well i think if the court reviews the the police records one of the police officers i believe it was officer rochester both officers rochester and patterson they really go back to her to the dispassion asked to make sure that they're getting the right people and they asked if the person had a red hat if they had braids and they confirmed that as they're walking to this couple so i don't think that the tip was so vague that the that the police officers didn't have a now set of people to choose from i mean that's the whole idea behind giving a physical description if someone's excited about what's going on they may not have all the details but they're they're alleging and no one in the crowd has a braids then you know we will have is a different situation i mean that's i guess the hasan would be less and other cases that deal with just people on the street and and you have callers is calling in saying with your hang your hat on right right judge well again we're looking at the totality of the circumstances and that's how the includes that nine one one aspect which is what iran are mentioned to my opponent that changes the one reporting it to reporting that someone was being beaten that the person might kill the victim and that they think that there may be a gun your observations as they're walking right and they see the  braids the girl the location and they don't know whether there's a gun so you agree that their observations are relevant they are to account and in some cases might be sufficiently inconsistent with the attempt to undermine reasonable suspicion they might be inconsistent yes in in those cases but as you know we're never see a couple that matches the description of a call but not see the beating the beating could have very well happened it's not an inconsistency there might be an ambiguity and you have to now investigate i think the supreme court has said you can begin with the government's argument about why this statue of him is divisible the government has not provided this court with any reliable way of finding that this is a visible statue there is nothing different alternatives terry different punishments that the alternatives require different conduct or different evidence doesn't suggest that they are elements because by virtue of being statutory alternatives they're always going to require different things card and each of those three require something different than in the other of course but you referenced the example that those supreme court used in matheson to company the knife the gun in the bag are different things yet they're still means not elements of what's going on there is there's a familial relationship we all understand the genesis weapon and then there's a bunch of particular species that here we have a one the two or three which are there just it's hard to generalize and summarize what all three have in common i mean one of them is actual bodily injury one of them is threatened and one of them is different than one right so that that element to the numeration of them is counted differently it's not different kinds of structures or different kinds of weapons that have a million all relationship well there are different types of aggravating conduct that elevates effect into a robbery so in that sense they are similar and under the categorical approach you look at what is covered by that aggravating content element and it does include this subsection p three which doesn't require force if i could say if i could address the government's argument regarding the frisk a useful illustration of what after sears should do in this type of situation is in the second circuit's decision inseminates there the officers are very similarly we're responding to an assault and progress from an anonymous caller that might have a weapon when they arrive on the scene they confront a scene that is potentially more dangerous than the one here because they are in a high crime area around four o'clock in the morning and they enter lobby of a building that has large groups of people milling around when they find someone that matches the suspects description but is not necessarily involved in an assault they don't need at least go up to him and stop and frisk him we see him walking with his hands in his pockets and they say can you hold on a second that is what the officers should have done here approached asked a simple question at least monitored him for a little while but then if there is sufficient reliability to the things the caller is right about the more likelihood that they are telling the truth but where that tip is vague you can't where the tip is being you can't make the same assumption does it this year reliability that the substance of the call you carry sufficient industry of reliability to be an exception to the legal theory yes and i think that's that's consistent with courts traditionally viewing tips from eyewitnesses is as more reliable but you still need a sufficient level of permission to reliably conclude that this person is an eyewitness that has some special familiarity with the crime that they're alleging as opposed to some general observer the person told this if they were intersection detail that week that they can this person does not say anything about the victim she doesn't say anything about how the beating is actually being carried out is the person injured she says that there at a intersection but doesn't is specifically claimed i witness but the amount of information that she provides does not afford her the same type of reliability that we would normally afford to an eye witness that's why the courts always focus not on the fact that the person said i'm an eyewitness but on the quality and content of the information that they provide is this the situation they taurus where there relaying information in a play by play fashion where they are providing information in a manner that suggests this is not somebody that is holding a grudge or seeking to harass someone under the totality of the circumstances you look at how the information is being really what is being