findings as to the seizure because it is a factual finding not to be disturbed or clear error however in reviewing the government's side of cases and  lights by the use of commands and things of that nature and so the district or district court's conclusions that the detention did or did not occur was can change and on on a review the second thing that i would like to cover is that in all of the government's cases cited for attention as to the use of emergency lights in the course of the tension really are not telling to this case this case stands out from the government side of cases because this occurs in the daytime and curse is that emergency lights is by far your weakest argument and if they said it was take it was desk it was getting toward evening was it not and that's when you have to have some lights on  it's wise to have lights on so the cars behind you will know that you there well your honor one thing i would like to address on that is that in this situation the officer testified that the activities emergency lines and the situation of factual situations there are divided highway so yes on a highway where there's only traffic moving his direction and so if he just directing his lights forward towards months of biasness walking that everybody who sees police emergency lights flashing on the side of an interstate is immediately going to slow down to fifty miles an hour because everybody can see them on both term the second phase that months of eyes would have been detained and that was when officer baker stepped out of the vehicle and he began to issue commands and essentially stopped months of bias from moving by talking to him one of the first things he says to months of honest is to take a hands on your pockets this to a reasonable person i believe would be construed as a restraint of movement because it's a it's a command to do something and so if you're restrained in movement from taking your hands from your pockets then a reasonable person would interpret that you're restrained in your movement from leaving and so we believe that the restraint of movement would apply  government pointed out that they believe that the use of the emergency lights went to show that the vehicle was just there to use for assisting a broken down motorist however in that case the officer activated only his amber lights on his bar yellow lights that would still alert others to his presence but not rid of blues that are there are traditionally thought up to detain and so lights i think we all interpret as there's assistance but red and blues we interpret as to tension you know until you made that argument i have never understood that to be a distinction maybe i'm just a dumb driver but i always thought flashing lights are flashing lights and you better pay attention and i didn't know that there was some significance to the color yes ma'am i believe if this case were brought in a different context if it were brought as an evading arrest case i think that those distinctions would make a difference because i think everyone understands that red and blue lights if you see behind you are you're getting pulled over or if they're directing your general direction you're being detained if yellow lights are being used this is something thought of more as traditionally as you know just kind of hey i'm here off and the only suspicion that they had was that manson by asking was he was nervous and he did not want he kept putting his hands back in his reasonable suspicion because i believe that's good law it's been limited by this court but there's no reasonable suspicion that the officers needed to conduct a pact there was no the officer testifies that there was no threat to him and there was officer said he had no suspicion of a particular crime because you were trying to tie him down in your question into a particular crime suspicion which the officer didn't have but on the other hand both officers apparently were quite found his behavior very up unorthodox and you know what struck me and my chambers when we were looking at this is the fellow you committed a specific office but he was also question whether he had committed any of us and so i believe that both were covered he was trying to be nailed down to a specific office but at the same time he did he never testified that he had any belief that he had done anything of a criminal activity nature believes what the transcript shows the the dortch case i believe is telling because even if the officers had reasonable suspicion in this case the reasonable suspicion would have been of what of what crime they would have been thinking maybe he was intoxicated maybe he was  controlled substance maybe he was involved in some other criminal activity but there was nothing there to ever believe that months of bias was involved in possession of the farm well suppose they thought he was high on know this is not in the record but suppose they do think that for his safety they're going to need to put him somewhere like a drunk tank or something wouldn't they have to frisk him before they were doing anything like that it may  that point but i believe at this point the testimony established that there was a matter of just two three four minutes before from the time they got out of the car until they were tempted to frisk him and so there was no out of that issue they had reasonable suspicion that he was intoxicated you know they could have asked such a question to the could have asked you know if he having sort of mental issues or a thing like that delving into reasons suspicion of some particular off fan  or some some basis to maybe frisk him at a later point but it's a point that they did first and they had no reason to and i believe what the government fails to address and it's brief entirely is the fact that there's a requirement not only that they have reasonable suspicion of that a crime has occurred but a reasonable suspicion that monsour biases on the name dress and there is no reasonable suspicion that monsour violence is armed and dangerous in this case the closest that anything gets to that is putting your hands back in your pockets over and over again but he never cites  he says that he was very polite he was not threatening in any manner and so we believe that the government ignores the issue because it essentially has no response but under arizona v johnson and  trepidation there has to be reasonable suspicion that months fines to some demeter's let me ask you where's your client now he's in federal prison now he was let out i thought oh i'm not aware strongest point is they didn't have reasonable suspicion to the same hand and even if they had reasonable suspicion suspicion to detain him they didn't have reasonable suspicion to believe that he was armed and dangerous and so for those reasons we w please the court i will address first the reasonable suspicion issue whether or not there was reasonable suspicion i think it's fairly clear that this encounter started as a consensual encounter in that it was essentially a welfare check by the officers on what they believe to be and what effectively was a stranded motorists as they saw the disabled truck that mr munson vies was walking away from now in the course of the few minutes of talking to mr monson bias and trying to figure out what about his car and getting a gas yes your honor they did ask him about his car the deputy deputy baker testified that immediately upon encountering mr monson lies he asked what's going on the are you needing assistance did you run out that point so the reason all suspicion the reasonable suspicion that arose in the context of this consensual encounter was mr modernizes not knowing or not being able to say where he was coming from claiming that he was headed to fort worth when in fact the evidence pointed to the contrary because his car was pointed in the west pan direction away from fort worth unusual demeanor for a person who was apparently stranded on the highway deputy baker testified that he were routinely came across either hitchhiker's or people who were had run out of gas or had other vehicle problems on that stretch of interstate twenty it's in a remote area as judge and this noted you know normally these people would would be welcoming of the assistance and he said that this individual's demeanor was not what would be expected in that in that context just another factor that shows that something is suspicious here the unusual nervousness is also a factor under the case law and reasonable suspicion is not a hi clear it's not the same as preponderance of the evidence it's not the same as probable cause it's really a low barrier is there something that in this officer is judgment in the experience he's noticed that justifies a brief further investigation in the continuum up in the continuum of time you know say well kirchick where do you say you know if individual and for the purpose of figuring out you know this is suspicious there could be an innocent explanation but at the same time there's something here we need to figure out what's going on and i say that at that point it's scary stuff because once it transforms into a terry stop where there is the reasonable suspicion at the same time the case law is clear that the officer is entitled to essentially ensure his own safety and the safety of others during that terry stop by conducting a just a very cursory pat down and that's what occurred here once the officers had some reason to believe that there was something going on here that was not entirely innocent perhaps at that point the officer was justified based on that information and also based on the information of what you observed mr that that did happen although the it didn't happen immediately so first there was the during what we call the consensual encounter first there were the questions about hey what's going on is your car broke down do you need a ride did you run out of gas did you have some vehicle problem those questions occurred first later once the answers to those questions created the sort of suspicion and the officers had had time to observe mr munson vices hand movements he kept putting his hands as pocket he was acting generally at manner but it wasn't immediately it was it was further in to the scenario one of these individuals had been acting in a suspicious way by sensually running from the side of the police when the officer was talking to those individuals another individual walked out of the bar with his hands in his pocket and the officer essentially immediately went over and patted that person focus more on this pression hearing on the fact that here you are in the middle of nowhere in this fairly well dressed fellow ought to be asking for help and in studies determined to walk right by the police officers may nobody seem to focus on that if you're i think that i don't know how much of a focus it was i think it was clear from the deputies testimony that this individual was he was what he was seemingly seemingly like just a person yeah but he's going to ignore them they're the only obstacle to in his course on the big interstate i mean it's just very bizarre to me i agree your honor and i maybe they just thought that would speak for itself i don't know but i think that's right here and i think i think it was discussed in the context of the deputy testified that this was very unusual that he would come across a person in this environment in the person would would act this way as opposed to a normal encounter where the person sales thinks thank goodness you're here i really appreciate it can you give me a ride to the gas station so it's a low bar when you say he was on i want to say where he was coming from he was asked where are you coming from and he said i don't know something to that effect just so effective you know where you know and where you come from he was unable to articulate where he was coming from and likewise explanation of where he was going was at so reasonable suspicion arises it's a relatively low bar i'll say i don't have to answer questions about the wides i think that that's pretty straight forward from the record that this was a welfare check on a stranded motorist it would be perfectly reasonable to to use lights in that situation you're right on the side of the highway in fact if you if you watch the video mr monster this is walking down the shoulder once the car stops there's so much for a second and trucks and cars that are speeding by you know just just feet away in the highway so the use of whites is reasonable in this situation are internal records say that he was due to be released on nov twentieth two thousand and fifteen and then that he was  counsel cited that is it's pretty clear that the question of a whether a seizure is a current or whether it was a consensual encounter that is a fact finding that is reviewed for clear now the entire question of d facts did the facts that were found by the district court truly create reasonable suspicion that is what is subject to novo review so i don't think there's a disagreement there for example here the conclusion that it was a consensual encounter initially that is something that would be a finding of fact something for you so we believe the district court's findings are well supported by the record they're not erroneous under the clear standard and it stopped being a consensual encounter i'm sorry we did stop being a consensual candidate right around the time that the officer told mr months of eyes that he was going to conduct a pat down at that time enough information at a crude and there had been enough chance to observe mr munson bias that his yes i think at the time the officer said on going to pat you down at that time there was sufficient evidence and sufficient observations had been made to transform it into a terrorism we read the record and we don't thank you sufficient wouldn't you agree that the fence counsel and officer baker in which he he indicates he didn't you didn't suspect him of any criminal act at that time at the time that you encountered him began asking questions you didn't at the time that he asked to pat him down for weapons he didn't suspect him of any criminal and his statement is i wouldn't say criminal act no he was just acting suspicious and so it  egs the questions suspicious somewhat suspicious of not a criminal so just acting strange is another way to put that acting suspicious and so we believe that the officer at mit's freely admits that he did not have reasonable suspicion that a criminal and a criminal activity was afoot there was nothing going on that he believed needs to be investigated and detained for that purpose additionally officer baker when he's subject to cross examination officer baker admits he never actually offered him a ride he never actually offered him gas it makes this general statement during his direct examination i was there to offer was there to see what he needed but he had he never actually did those things he only just asked where he was going where he had come from not that's not exactly right because there is i think it's pretty much uncontroverted he asked him if he needed assistance i think he made a general statement you know he needs some help as well as what he says but he never really says one who said just says right you know i guess i came out there to offer him some assistance  so you know the government in their argument states that they believe there's a pimple reasonable suspicion however the only facts you have is you have a well dressed man acting  but that's not a basis for detention on the fact of committing a criminal oftens and the there's just there's not ample all there is is that him putting his hands back in his pocket several times as your honor pointed out perhaps that the walking around the vehicle is suspicious to this court but in the officer did not know that he found it suspicious it was never made  basis of suspicion by the government so we believe that the reasonable suspicion was was deeply lacking and especially no reasonable suspicion that he had actually possessed a firearm that he was armed and dangerous there was no reason to believe that less the court has any questions for me well i mean if just for the sake of if your client was released from prison on novak five months ago  suppose he went back to mexico normally doesn't that suspend an appeal if they fled the jurisdiction i mean  i can talk to my colleagues about this but i would just i don't like ruling on an five story pinions or hypothetical situations and it might just be good to know if your could be in contact with your client