about the scope of the court's view the cases seem to indicate that there are instances in which consulting the trial record is as appropriate i'm going to suggest this is not one of them in the united by the defense then as the court perhaps the appellate court should decline to consider that testimony and of all the testimony that we've heard here really the one witness that we have consistently challenge the credibility on is officer cally and so to the extent that officer kelly offered additional information that would support reasonable systems at trial that was never part of the factual record that the district court addressed in the post trauma motion that the government advanced in either to suppress so i mean what happened after the trial was defense counsel filed a motion for a new trial and said well even even officer kelly's testimony here didn't do anything but didn't specifically identify additional fact i think everybody was operating under the assumption that this was essentially the same record that we had looked at it at the motion to suppress here perhaps foremost the district court judge i'm sorry perhaps foremost the district court judge wright i mean he summarily denied the motion and did did so if memory serves by saying he just incorporates by reference the prior ruling exactly and so that you know it's to me it's more a question of appellate procedure proper role of what this court has to do is determine st of all what the law is and then apply it to the really the facts and when the are in dispute it can't really do that role and so we think that the court really ought to focus on the facts that were presented to the and that includes for example the government's new argument on appeal that this was somehow a call for a  burglary it's not supported by the record but the place to make that argument is in the district court and absolutely nobody mentioned the burglary in the district nine hundred and eleven operator thought this was a criminal trespass we don't know why that information is not  but under collective knowledge that knowledge is passed on to the officers who all thought they were responding to a criminal trespass and so this burglary argument just isn't supported it's not something you can come up with a new one on appeal  let me turn to can i ask you a question on that point i just want to get your reaction to this i don't know if you go too far not in your brief you can you can tell me you don't on on the point of misdemeanor versus felony conviction because what i worry about this at a very practical level there's a nine hundred and eleven call gets transmitted to the police you know over the radio and i i really worry about a rule under the th amendment that requires officers responding a nine normal in call to try to catalogue are we responding to a felony are we responding to a misdemeanor now so you can go ahead respond to that i'll have something else to say well i think so in this case i think it's very clear that they misdemeanor right it's not that they operated and say hey look there's a cat in a tree you know get over there when you can run but you brought your broader point i think which is fair is that look this is they're not responding to shots fired they're not never the th circuit and the th circuit have both addressed these criminal trespass cases and in one it was it was not reasonable to effect a serious stop where there really was no additional information to suggest that there was still a trespass going on your position is that the misdemeanor is something that should just be taken into if the totality of the circumstances correct not that as you say what the six circuit to a completed misdemeanor never g correct and the distinction is a felony always can support a terry stop if police have reasonable suspicion of a felony even if it's completed they can stop somebody and investigate further but if police suspect a lesser crime there's not a catacomb categorical rule they need actual reasonable suspicion to believe that there's a need for intervention that outweighs the person's interest in not being detained and i was focusing on something  distinction rather than between felony misdemeanor which we completed did not complete this is the completion nature of the that's right an ongoing misdemeanor police can and can affect a terry so i mean that's terry i think terry terry suggests that the question is the completed aspect of the crime and that's what the supreme court addressed in hensley which is the interest change police officers we want them to respond to ongoing emergencies ongoing crimes to contemplated crimes as and terry the terry stop took place at you mean after the completion of the crime or the ongoing wind at during the point when the police approached him as they asked him a question st i don't think you're saying just the mayor asking of question supports the terr when along the spectrum of when the police got there is it your position that the terry stop actually took place well it depends certainly once they touch him and go to stop and frisk him right that i just that is certainly that's a question did it r your mind did it take place or from your argument before that there's a do to our factual sort of dispute if there is an order right at some point of the officers approaching him and ordering him to do something like take  its out of his pockets that could be the seizure right because essentially what the government saying is well he had to obey that order and the fact that he didn't obey that order means that there's no reasonable suspicion to believe he's armed which implies that's and that's not a voluntary decision and so that would be the point at which the terry stop occurs but but but i don't think that fact happened and so i think that terry stop starts when the officer after the officer approaches  howell doesn't respond and he decides ok i'm going to frisk that's that's the start of it so simultaneous with the fresca i think so i don't see any any i mean mr howe it was just unresponsive and so there was no there was no seizure but of course that means we have to satisfy the two standards for both but i think it occurred simultaneously  the i think this case is a lot like he is you know in terms of the completed misdemeanor in terms of the the seriousness of the offense in terms of the reasonableness of the response to that effect and what we've suggested is the initial police action was perfectly reasonable go out and investigate but their investigation revealed that there was not a continued trespass going on there it certainly wasn't a burglary they talked to one person outside the factory a bunch of the factory workers arrived and there's no evidence that they were they thought anything was and at that point in their investigation officers have that it's not reasonable for officers to then start detaining everybody who walks on the street and that's what appears happened here i mean the big thing that i keep coming back to is mr howell didn't fit the description of the person who was given to nine hundred and eleven he was a different race that's that's a big factor although he was a different race but was any of hispanic origin his it had a hispanic surname he sometimes went by the alias of jeffrey martinez as given those factors how much weight simply put it well the officer escobar has hispanic how it was white i mean i think that answers the question when we're used because we're not talking about fine you know race is a very tricky subject and academically will talk about race in a very different terms and somebody calling nine hundred and one and saying there's a hispanic man you know across the street going under oath that to me that has to imply that the that that refers to skin and it refers basically to a brown skin color and so when we use these sort of crude terms and law enforcement say white black hispanic that has to mean something otherwise it's meaningless you know there's the case of the six circuit where there was a call about a black male or female had committed the crime and they stopped the driver and he was well plenty of hispanic people have very dark skin and you'd call them black if you saw that that that's not how we're using the words you know these sorts of inquiries  common sense inquiries if somebody says hispanic you look for somebody who looks hispanic and the district court could see mr howard here in front of them even said you know mr howe is white i mean that's that is a fact i'm just a record you keep  set the distance between the fence and the building that was in cheerier to the front i don't think it does i was thinking about this i mean i've looked at google maps there may be in the government's trial exhibits there maybe some indication of that distance but you know there's it's basically there's a sidewalk and just about in the sidewalk as both the fence and and the factory and the fence seems to extend to the factory i'm not even certain what you don't want to set aside and you've been very very clear about just but just for purposes of talking this through a bit ok let's suppose we we consider the trial record and let's suppose that we credit the trial testimony of officer kelly that he instructed mr howell take his hands on his pockets and he declined why doesn't that change to terry analysis altogether because i think it changes it in a couple ways st as i was mentioning i think it changes it because i think at that point if the argument is he he has to take his hands out of his pockets or he's going to be frisked then that's that's a seizure because he was then subject to basically an involuntary decision either take is it it might add something right to the concern about hands and pockets is is there is this a benign sort of it's cold outside it's december and put it i have my hands in my pockets or is it i'm manipulating something in my pockets and police officers or reason we can see and if there's a command to remove your hands from your pockets and the person doesn't respond sure that's of that's a factor i don't think it's dispositive  what we see in the other cases where we're concerned about pockets is precisely some indication that the person they might be armed and that might come from the nature of the call so if you're responding to shots fired and you order hands out of the pockets walsh and they don't you know he doesn't take them out at that point yet we know there's been a gun involved we're real concerned about officers that mr howell wasn't responsive to anything it's it's not as if he was perfectly description between the who the suspect was and mr howells race i don't think that that is something that allows a police officer to frisk because then again you know the officer could have asked anybody on the street that day was wearing a black hat in a black jacket which i don't think which i think describes a lot of people and if they don't obey his commands that he doesn't really have authority to give suddenly they're there for asking every assert kelly's testimony at the trial at the hands in the pocket conflict with what the district court considered at the suppression stage from officer kelly i know there was to saying at those reports or did they conflict with another officers testimony i think it sort of conflicts by omission i mean officer kelly in his report basically said you know it describes mr howe's demeanor could you could find a way i think a judge could make a finding to say this is consistent but on the other hand if that is if that's the motivation for the search you would expect that officer kelly would say he he had his hands in his pockets he didn't take them out i asked him to i was concerned for my safety that's that's the critical fact so although he didn't have the opportunity to a chest at did he because he didn't testify at a suppression hearing well no but you would think in a police report in the three o two when you  recounting the salient facts of why i stopped and frisk somebody it's i thought he had a gun in his pocket because he had his answers pockets and he didn't take them out and i asked him to so i you know i don't think it myrick important and what i mean what i mean by that is the concern the concern that i have here is for mr howell's perspective post pretrial the motion to suppress is is ruled upon it's done he lost it he wished he would have won he did it and he lost it in law in my or expresses a concern that a defendant would reasonably conclude that that part of the part of this is over and then we go to trial and here we have testimony that i think adds something that's quite significant at least in my judgment it is you know get your hands on your pockets i need to see your hands and he declines at a point in time where a defendant has no no reason to that that testimony is still in play v z the th amendment question and that's that's what concerns me here with looking at the trial record i think that's right and up that's exactly why even when looking at the trial record may sometimes be permitted in this case that's that's not the prudent course the other thing too is you know we have some discrepancies or so at this in the demeanor evidence how officer kelley describes mr howell at trial it's slightly different he uses different terms this is also maybe five years later six years after the incident but that's what's concerning because of course you know contradictions between the three o two and trial testimony is right for cross examination but why would you cross examine and what was his demeanor the cross examination is did you i mean essentially did you plant the gun or not i mean that that was sort of but that's exactly right at this at this point that issues done we denied the defendant's motion suppress following the nine hundred and eleven call the defendant was in the right place at the right time wearing the right clothes he did a quick double take at officer cally and he had a look  panic on his face a stunning look what's going on and the defendant in response that he moves his hands into his pockets the officer then trucks in to remove his hands from is pockets and the defendant does not do is request it so it's your position that he st moved them then and that kept them there and when he was asked to remove them he didn't take him out that's like you're trying to combine the suppression hearing and the trial testimony that's how i interpret the evidence that is of course address the issue of scope of the evidence for this court review but that is how i interpret the evidence offered by officer kelly are you asking us to look at the trial testimony that you didn't ask that below when you didn't asset in your initial briefing it was something we raised when you were here previously is that something you're asking prices or do yes the court was correct to raise that issue last year and government is requesting that this court consider the evidence introduced at trial in ruling on the whether to affirm the motion is the law have you waived that argument by not raising it below and that raising it in your briefs here well to be fair we did raise that in our standard of review in our response brief we cite i believe that we do psyches as to the effect that if the entire record is in plain clothes you didn't identify that particular testimony in brief we did not identify a particular testimony you may have made a pride legal statement that we could consider everything but you didn't identify the particular testimony of officer kelly at the trial or ask us to rely on that correct that we did not specifically speak about that the line of testimony that he had instructed him to the defendant to movies here from august he did so given that have you waved your right to rely on that now i believe it in light of the you know the raised it you know have to respond to this i'll just have to say it is part of asking you questions the reason that i don't think you raised reliance upon the record is because it's counterfactual what what happened here was this was all litigated pretrial on a record that of course did not include a trial and didn't include the hands out of the pockets point because that came up at trial when officer kelly testified in so everyone thought that the district court resolved this pretrial on a particular record and that's the way it all that's the way it all came up to us and the concern that i have now on appeal about pivot include the trial record which in my view contains a very different in very material fact this point about the hands coming out is that it runs in to the to the concern about prejudice that sounded in law in minor that that ship has sailed pretty trial and so if at trial there's evidence that says that is brought out that is kind of trying to bolster a reinforce the pretrial ruling the defendant has no notice of that no incentive to litigate it whatsoever it's very it's prejudicial to a guy in howell's position that that's the point i'd like you to respond to yes your honor so i guess i would say  the seven circus precedence don't you agree though just as a matter of table setting and then you can continue that kelly's testimony bolsters the pretrial ruling it helps you it unfairly prejudicial if the defense lawyer does not have an incentive to address that but in this case the defense lawyer did have an incentive to address if he sent to the extent of the discrepancy in the testimony of the you know the key officer and that differentiates from the three o two according to a prior interview of that officer that defense attorney has a incentive to seek to impeach him perfect perfect the impeachment and that that count perhaps the question goes to what the cross examination  differed if if if there had been notice about the additional fact the  meaning if the the cross examination is being prepared for purposes of officer kelly defense doesn't know about this additional fact with regard to the hands in the pockets there's going to be a cross examination of the lead witness how in if is the cross examination to differ as a result of notice of the additional fact so so you're saying if in the trial preparation separate from the unifil three o two if during the trial preparation asked questions essentially the same questions it would not have i don't think it would have played out to differently but that's not to say in the way that it did play out the defense lawyer did not have the incentive to try to impeach officer kelly to try to make it look as though his story a change because judge guterres concern which is absolutely a fair one is that theoretically that in suppression you're considering sort of one concern and you go to trial and that again that long wire itself held that that was in it overruled that argument of prejudice and the only one is really left open was the one that appellant's counsel raised which was the idea of whether or not the witness testimony has really been attacked his credibility has really been attacked and also the other concern that i have here is i don't have any idea whether the district judge believed officer kelly or didn't believe officer kelly on the hands out of the pockets and the reason of course is because the trial or all the all the district court judge said was i'm incorporating my prior reference my ruling but it's a pretty it's a pretty material addition to the three o two it's a pretty material addition to the you my view that hey look i told the guy to take his hands out of his pockets and he ignored me that's not in the police paperwork that's of course what the officer testified to a trial the district court judge may have believed the testimony he may not have we don't have any idea and what you're asking us to do here is to credit that as part of this you know appellate review of the th amendment analysis district court never considered it you know that that it just it just doesn't seem in keeping with the way we conduct review your honor have discretion here yes your honor on that point i would say that so there's two things the st is the way this played out testimony by officer keller kelly because the th amendment issue was raised again close trial and so at that time to the extent there was any daylight between defense counsel's interests during the trial that race for a five seconds i'm sorry raise for five seconds judge hundred percent correct they renewed it right but the at the district court judge she said hey we're we're done with that i dealt with that pretrial right right so so i guess the two things again i'm speaking really to the fact that the post trial briefing gave the defense counsel its again and opportunity to adjust same concerns that would have occurred you know been present during the special moment of the procedure but then with regard to judge the district court judge specifically you know he sat through the entire invoking and relying upon the the rationale he previously articulated so but that fact was never brought up to that and defense counsel didn't bring it up it's not helpful to defense counsel the government didn't raise it  opposing the post trial motion so there's no indication that the court it was on the court's radar at all so as i understand it as i understand the concerns do because i was the long wire set out the policy reasons why it should be considered because there's the risk of a undue windfall to the defendant of having his conviction overturned so that's the policy reason to consider the child evidence in there was an officer who was not called in the suppression hearing and then the he testified at trial the government sought to rely on his testimony to sustain the denial of the motion below the defense try prejudices so i think there's sort of two versions of this situation and one in which the defendant is trying to use the trial testimony to attack the denial and in the end there's cases in that context the say only if the defense has renewed the motion is that allowable and then long wire which says it can be used to sustain the denial in light of this important policy proceed human so a couple points i ask a question about the merits of it because you know i know we're talking on the record part of this is important of course and it's important we cover it but  if we limit if we limit their review to the pretrial record i know that's not where you're urging but if we do that ok you concerned at all that this is too close to florida versus  jail i'm not because the difference is in florida versus j l the defendant who was approached by the officers did not do anything in that encounter to specifically provide additional reasonable suspicion where is this defendant did it in the way that officer kelly approaches him he has a a look of panic and he does the quick double take and look at panic being more than nervousness he does the double take but the panic approaches him and says what's going on no response and instead of no risk in addition to no response he moved his hands into his pockets so the the look of panic the double take the no response in and into the pocket are all individual things the officer perceived right morse much more serious nine hundred and eleven call than you have here correct i mean right i mean here there's nothing about somebody being armed there's a call about a truck commercial trust passes what it sounds like  but the court has real trouble with that with that stop and you know by extension you know the pat down you know it's crystal clear from the call that at least according to the caller the guy has a gun and he fits the description  so that case is the controlling supreme court precedent in the category of cases that involve anonymous nine hundred and eleven calls and nothing else so what the reason i think the reason i'm to be totally transparent the reason i'm thinking about florida versus j l is i know that our defending here is not eric escobar correct right are defending his health ok but the very st thing that happens when the when the when the squad car arrives is they get out and they just pat down escobar and it is pat him down because he fit the description right and i think that's a florida versus jail problem you would respond to that and say he's not the defendant howell's the defendant right but if there's there's a lot going on here that just looks like a very a very quick kind of trigger on the pat down with both people with escobar and howell i mean we have the we have the benefit here in the courtroom  appropriately kind of going frame by frame through what happens but when you look at the record and you look at the way this is described i mean it is strange again i agree it's bang bang as police work very often and i would suggest that it's bang two well sure because if you're asking are you not i don't know what you guys doing here i'm just going he was going out to a seven hundred and eleven or something right so he doesn't know when he was i don't know maybe that guy maybe that's who you're looking for i don't think it was a framing or anything like that i think it was asking for like  and i don't think he was framing either and there was not no one else i know nobody's saying that so i think that you know and then kelly's prime well like all right maybe it is him i don't know let's go over and talk to him and then it's not a discussion it's a it's a very it's almost an because it's important to look at the one record itself and he describes it as a man coming under the fence at a warehouse self and this is what the point i was making i mean if you if you tally the nine hundred and eleven calls to the nine hundred and eleven operators in chicago i think they'd say that's that's closer to the cat in the tree than it is the shots fired that's low and i would suggest it's in the perhaps in the middle of the list because again a person why does a person climb under the fence at a warehouse it's not just to go for a walk it happens all day every day and they're like well we got to respond of course we got a response figure out what's going on but it's not we're not responding to a report of a weapon a violent crime in progress anything like that absolutely stipulated and the government is not suggesting that the call lone could have supported a stop of course not if they had officers that showed up on the call on encounter mr howell and he did not have a look of panic he did not have a deal to give the double take and if he did not with his hands into his pockets in response to the request off of officer kelly there would not have been reasonable suspicion sufficient to support the stop and frisk on this question of this of this of the proximity of the of the factory to the fence his record origin and the judge considered this argument to the district court judge because they did this argument and concluded that any discrepancy did not preclude the reasonable suspicion in light of all the other factors that we've been talking about and that the dis or articulated in his reasoning and the government agrees with that assessment should it impact our decision that he wasn't carrying a black bag either that was part of the nine hundred and eleven a black bag is easily dropped i would i would argue that this court should put very little weight it would be different circumstance if it were different clothes which jammie change but would with more difficulty than merely dropping a bat and i see my time one to pick up on two points one we've i think we've correctly identified that the scope of review revolves around the question of prejudice and normally in a and appellate review we often think of this in terms of waiver and forfeiture the reason those doctrines exist in some part is big you prejudice in the palin's or in f l here and the party on appeal if you bring up new arguments on appeal that weren't fleshed out in the district and i think that's especially true you know officer kelly in my view at least knew a little bit more about how to make sure his stops are going to be ok and you see miller come in and testify of course we stop and frisk them we don't know if they have a weapon that's what we have to do is police  the invocation of florida versus jail i think is very interesting in florida versus jail we actually had a exact match of the year we don't even have that and so i think that we just don't have reliable