morning your honor may please the court kevin boykin for the government your honor this case presents an example of successful police work upon receiving a credible threat to harm someone who was not fully identified when that threat came from a member of a known violent drug trafficking organization within forty five to fifty minutes the author says officers had successfully found the formally identified person the target of the threat and stopped him unfortunately the target decided to run flee there was a chase brief chase gun and the drugs were found on him and he was charged you're you're relying on circumstances yes your honor specifically we believe the emergency aid doctrine governs this case is it is it correct that we would be the first circuit to apply that to a traffic stop type situation from what i can tell yes your honor of neither the district court myself and i don't believe opposing counsel either have found a case in which the exception has been applied to a traffic stop or terry situation however i believe in this the first part of the argument the emergency aid doctrine does apply and should apply here brigham city utah versus stewart of course set the doctrine exception in place in the primary understanding of that is the officers need to assist persons who were seriously injured or threatened with such injuries such that the exits and an exit to see ob it is an exit and see obviating the need for the warrant and all the cases that have come up have come up in the context of breaking into the house going into that threshold there's no logical reason or legal reason that it should not apply to a traffic stop or a terry stop situation which omas and enjoys more for the member to action the vehicle exactly that's exactly the point judge to ask where the the protect has much more security much more privacy interest than a vehicle does and that's always been one recognize so there's really no reason that it would not apply to a car as well as to a house because the basic theme behind the emergency doctor is not where the emergency occurs it's the need for an emergency in the first place and you have that here in this case and it starts with that threat which the district court found credible in this case the agent received in in in call on a wiretap from someone related to the harvey fosters a violent drug trafficking organization and while the phone was on the phone of the person who was was being wiretapped the person who asked for permission to make the hit on the radar screen as you know typically when the of these wires they have a whole map of the organization they're investigating was he someone known to them as is affiliated with the struggle is a shoe the record was the record silent on that judge cost of what i believe the agent understood taj may have been someone but there was never a clear touched inside there was never it was never known of that at most from what we gather is the toher tire tosh was a name that may have been but i think it's also whether it's on it's on the border or not i think this is important if you have a violent drug trafficking organization ordering a hit on someone or giving the green light to someone who wants to go take care of it i think it's reasonable suspect that the target is could be involved or there could be some suspicion that he may be more than just a perfectly innocent bystander and i don't think that was ever been denied because i was trying to figure out how they found him so quickly and all they knew was it was a silver infinity in that part of town that's that's correct your honor and that's what they that's what they had to go on which obviously was not a lot but the agent was familiar with the investigation the agent was familiar with the area in glendale a drive on the west bank so and they knew they were looking for a silver infinity one that was one of the reasons for the part of the planning meeting at they had because you were bringing in some officers who were not part of the team and so when they went in there they were really just looking for a silver infinity there were now a number of silver incentives that one of the officers saw but there was no one in those and so the idea is not just to stop a silver infinity they're looking for someone and when they decided when they found this one left after they'd been patrolling for in the area for a little while they found that one infinity with a driver leaving that area and so that was one of the reasons they stopped that was one of the reasons suspicion came on that why did they wait to piece him and find a speeding violation if they truly thought his life was in danger this was an  circumstance agent could that testified that it was a procedure for him and just as a point of reference obviously we're not appealing the judge's decision on on the traffic stop just for the record but it was a decision they made it was a second it was a  decision they made at the time could they have done something a little quicker yes they probably could but one way or the other judge they would have had to stop him to to advise that person so whether you stop him two blocks early or whether you stop him a little later is a matter of discretion for the officers and i think that's something that the courts have to give the benefit of the doubt to the officers on the scene and of course that's where it goes to where the courts have always said in these type of situations with the exigencies of the courts shouldn't second guess the techniques that the officers take because they have to make those decisions they chose not to make the stop in the neighborhood itself now could they have stopped them when they put themselves yes but they waited till they actually turned  highway ninety and got right after that's a decision they made to do and it's something that they have the ability to do in courts in hindsight never works out and that's why that's why the rules are city of the benefit of the doubt to the officers in that case here in the corridor and this is where we believe the district court erred first and foremost by looking to the subjective and sent and second guessing these techniques and that's one of the problems here the district court looks to what it considered the lack of police urgency on the action specifically showing detective rocker's receipt of the call and between the delay between receiving the call and then actually stopping them the judge said call the question monitored other calls and even just kind of what you said why didn't they stop before the problem is with all this it goes away from what the courts have said to take a look at what is the objective reason was what is the response was the objective lee reasonable what the officers did correct your honor the the wiretap call was recorded it was in the record and the transcript was given to the record also it is there it wasn't just the agent saying this is what i heard the agent testify to it of course but it was enough and recorded and that of course he just had that the basic information on it but and the court nonetheless credited that so the fact that that call occurred and created next you can see is not really in question the district court to credit that and once credited the officers had a duty to do everything they could to go find this person and in forty five minutes they did the district court by looking to the subject of intent and ultimately saying it was not enough and that the lack of urgency of what the just  the district court felt that that was a problem and actually cut against urgency but the planning operation was necessary it was objectively reasonable to have a brief planning operation here the threat was from an unidentified person it was against identified person but we know the threat was coming from a member of a violent drug trafficking organization it was at night time not all of the officers that were going to be taking part in this picture all were part of this investigation it was not known reasonable to briefly meet to discuss and under the circumstances it is not unreasonable to pause briefly for the officers to pause briefly and discuss a way to safely locate this person notify him and then do it in a way that shoe when they tracked this guy they thought well you know yes we're out there to render help but that's sort of new territory and if you get him for a traffic stop or something it be better but they people stop and if there is a traffic stop that's involved that is occasionally done without that here this case is still governed by the emergency aid exception which is where the police had and where law enforcement had from the beginning and it had it for all forty five minutes there's no reason to believe the exit you can see and it and this is the second part of the hour we raise because the judge is looking at the subject to focus the district court took that object the focus subject to focus to say because the police didn't go fast enough because the urgency was there that meant clearly the exit you can see was over and that's on page three of six of the record the improper focus led the court to say clearly excuse over the primary the primary problem with this is that it's basing the length of the eggs you can see the late in the length of the emergency on what the officers do this threat on the wire didn't come with an expiration it didn't say let's kill him in the next forty five minutes it's it was a threat to go take care of this person there's no reason to think it ended earlier the court found the threat credible and has no reason to believe that the caller who was looking to kill mr tucson would have done so because the police didn't do enough action the inaction and or that it's not as quick doesn't mean the threat ends and that's why the len davis case that we cited is so important in this case in the when davis matter which involve the murder of kim grows on a wiretap the first threat came in at five o'clock in the afternoon the police did nothing about another call came in at nine forty five and then at ten o'clock at six at eleven o'clock six hours after the initial call him grose was killed you had police in action in that case you had a lack of response to an emergency in that case that didn't mean the threat and this is and when davis is not a hypothetical case study it was a case by the f b i out of the eastern district of louisiana it's a real case it's a real matter and it's a real example of why just because the officers might not do something that district court things that should have that doesn't mean the emergency ganz that doesn't mean the threat to kill  this is not the case of bad police work as i said this is a case of good police work which led to the successful location of this target without any danger this is not a case that the exclusionary rule should apply to finding the on identified target of this threat within forty five minutes was good work and this is why reversal is important in this case the exclusionary rule does not apply the exclusionary rule the purpose of it is to deter police conduct or improper police behavior this is not the type of case where we want to deter police in this situation the police did what was expected if no evidence would have been recovered if the stop would have been made to mr tucson would have had his driver's license and had fled and no evidence was recovered i don't think anybody would be sitting here saying that's bad improper police work likewise if the police would not have done anything for forty five or fifty minutes and at the fifty one minute mark mr tucson is killed i don't think anybody would have been saying well the police did all they could have done here the police had a duty as long as this emergency was real as long as it was reasonable for this emergency to believe this emergency existed  duty to try to find him and that's what they did michigan versus fisher the language in that court says it does not meet the needs of law enforcement or the demands of public encounter here only when an apparent threat has become an actual harm and officers rule out the in oculus explanation from the circumstances we don't require officers to walk away from something because in a few minutes they don't see a problem that's never been the policy of this court day daises boxer's as an example where forty five minutes was perfectly ok and that's this and it's similar in this case the threat that not expired the threat was ongoing and the officers reacting reasonably and indeed acted successfully to find it in conclusion this is not the case to suppress  the officers acted professionally and adequately and objective lead reasonable in the circumstances within forty five minutes they found this on identified subject of this threat and got him out of harm's way the threat  dissipate and the emergency had not ended simply because the officers had a planning and to the extent the district court considered subjective reasoning and second guess techniques to come to that decision the district court erred we respectfully request this honorable court record as a whole the judge brown did not didn't he didn't apply the subjective intent or the motives of the police officers which is really the jest of of the government's argument judge brown held that it appeared from the evidence and the testimony that whatever exit jency existed at the time of the wiretap call it clearly subsided and when cadet started pacing tucson's a vehicle he was not acting in response to exiting and circumstances would have it in syndicates that forty five minutes after the threat she found that there was a threat heard on the wire get what evidence led her to conclude that forty five minutes later that threat no longer existed well i think if you there is there's one way you can look at it and that is to is to listen clearly to the to the recording that's contained in the record that one person calls from the west we go area to a man named williams and says there's somebody around what do you want me to do and he says do it but if there are people around or it's hot don't do it and so i think it's very easy to to infer from that conversation that the shooter is right at the scene within seconds or minutes from his target and if it was going to be carried out carried out it would have been done in a matter of nothing and nothing happened nothing happened you would say even if they got there twenty minutes later that would have been the exit to sit would have gone away you know i don't i don't know i don't know that i can answer that you know forty five minutes certainly is is too long possibly twenty minutes i think you know without telling the police how to do their job i think the smarter thing would have been to call nine one one immediately and get police to the scene rather than what happened was agent purist with the f b i called deputy ron occur who's doing it detail in mattering at a grammar school he hops in his car to drive to west we go to meet with with two other two other units one of them being deputy cadet who was the one who pulled him over they have a meeting there and then they go into the the see but wasn't the challenge that no one knew the exact scene they just knew this car was driving around they knew and they knew it was on laman street and laman street is only two or three blocks in the kennedy heights area and since you bring it up it's interesting that that detective ron occur said that they never even went to limit street they went to the kennedy nights subdivision but they never went to the place in questions so as i was saying that when cadets started pacing tucson's vehicle he was not acting in response to extreme circumstances and he was he was pacing and judge found that there was that there wasn't sufficient there wasn't reasonable suspicion to pull him over and the and the government's not challenging that part of the seizure she noted that program performed proactive patrols and both of these testified that they went out to the kennedy heights subdivision for proactive patrols and if you were when you read the transcript you'll see the proactive he didn't see any of that this was the first there are many many inconsistencies throughout the transcript of of them both of the officers governments knowledge is that the emergency aid exception at least in the supreme court has only been applied to home searches what your position whether it applies to a traffic stop well it doesn't apply that this traffic stop it is a general matter if it was within two minutes if you don't have that timing problem you think is out there if they got there right away could they have stopped him because of this throughout maybe maybe you know i don't know  performing these proactive patrols and both of them testified that to silent that was stopped because he was observing committing a traffic violation and the police report confirms the saying they do not in there were poured in their police reports say anything about an emergency they do not say anything about the threat and they didn't stop them because of the threat so and in answer to hear your question whether it applies in other cases in this case it certainly doesn't apply because they didn't pull him over because of the threat they pulled him over because of the traffic violation run occur even testified that he was not sure that the person driving was the same one whose life was threatened the judge further found that at the time of the stop there was no reliable information of an urgent ongoing emergency and went to such a stop the decision to stop was not objective lee reasonable the government claims that  the judge's ruling rested on an incorrect analysis of the law they point to her questions during the hearing and before the hearing to suggest that she focused on the subject of intent of the officers and second guessing the spot decision however her order and reasons clearly show otherwise she in fact cites many of the many of the same cases that the government cites the bring them versus stewart case is really that it is really the case and i don't get into that and a little later but but clearly it's her and her analysis  in fact she she states and i quote in regards to the emergency aid exception that it depends not on the officers subjective intent or the seriousness of any crime they are investigating when the emergency arises of times but at one time she quotes that in break in the reasonableness measured in objective terms by examining the totality of the circumstances skews the bright line rule instead  emphasizing the facts specific nature of the inquiry so she she's applied the right law she's upright the analysis it's a very thorough opinion that i think it's spans over fifty pages it begins with an analysis of of the of the testimony each of the parties positions the law and then she applies the law as she's supposed to do and she recognize that the supreme court caution to avoid the risk of second case guessing the officers based on twenty twenty hindsight and that the court must still unsure at the time the officers acted there was reliable information of an urgent ongoing emergency because it is essentially a factual determination and she determined that it was over she also notes that the supreme court rejected the defendant's assertions in the breakroom case that the court should consider subjective motives of officers this court's review is clear or judge brown did not apply the wrong legal questions always come down to reasonable tell us how it's on reasonable for police to stop someone trying to help them because they think there's a it out  it seems that if if they hadn't done this in the ad your client had been shot we could possibly be here on a ninety three case where he'd be saying they violated my rights by not helping you know the put the police own actions indicated that they thought that the birds and see it had ended and and clearly i think it's reasonable for the judge to believe that it had ended they were leaving this they were leaving the scene at the time they they were you know they hadn't found anything they were they were leaving and objectively going back to my earlier statement if a person was shot it would have been within a matter of a matter of minutes you know maybe twenty minutes as you suggest but forty minutes is really beginning to really beginning to stretch out what do we do here with the fact that there was a perceived traffic violation the speeding i mean the supreme court has gone about as far as i can imagine it could have been saying that once there's been a traffic violation regardless of the subjective intent that's that's the end of the ballgame they can make a stop over the rim case which was unanimous on the supreme court amazingly and the court hasn't really backed off of that at all well the government's not chanting challenging her or finding  traffic violation you know she she did not find the officers credible she went into a great deal of analysis on cadets pacing or  historical facts but does not mention the facts that show that the emergency was over such as the police did not go to the layman street place where the call was made the police leaving the neighborhood the police saying they are stopping tucson for a traffic violation but not to warn him the police do not know that the driver of the infinity was potential target and the police report does not even mention a threat all of this shows that there was no object only reasonable basis for believing that a person was in need it was an immediate need now why did judge brown ask the questions about why the police did what they did i don't know but it doesn't suggest that she applied the wrong way legal standard judge brown was thorough she asked questions before the hearing and during the hearing you know she tried to be prepared she mentioned that at times during the hearing she mentioned that she was confused and she didn't understand and when you read the transcript i just said the reason you don't understand is because they're just lying  she wanted to give the officers an opportunity to explain to help her understand and for her to to make an analysis if she may not have known the standard at the time but i doubt that because during the hearing she stated on several occasions to both games to renee here that she needed objective facts or she knew i think she knew the standard at the time  objective reasonable basis to respond to it i think is a matter of minutes given set of these facts as i stated earlier the corrupt call was that the caller was on the scene near that target whoever the target may be may not have even then tosh to send he was told to do it if there was no one around or the police were not around assuming that a person is armed this takes less than a few minutes  stopped because of speeding not exigent circumstances the police testified the stop was because of speeding but the government is not challenging the finding that the court finds the testimony of pacing credit credibility and not object to believe reasonable and the government failed to meet its burden of showing that the officers had objective believe reasonable basis to initiate the stop of the vehicle deputy contest kid that testified they were leaving the area when he started pacing he was not acting in response to exigent circumstances she noted that they did not know if the driver was the same individual infinity needed immediate aid they clearly did not have an objective lead a reasonable basis for believing the person is in immediate need the government in its reply relief  boykin had just mentioned it is misplaced in the davis case davis was a police officer in the victim in that case and filed a complaint against  officer davis davis plan the murder with with paul harvey who was the shooter the delay in the shooting was because they couldn't following couldn't find rose but in this case the shooter knew exactly where the target was they didn't need to look for me if if if that is the the color was was outside of this house where he saw these so over and infinity there was no doubt there was no reason for it to lead he was either going to take the shot then or he wasn't the government also celebrates in their brief and also before you knew that the police accomplished their mission successfully and that is doubtful as the exigency abated and the police never found a silver to infinity on lehmann street and they only assume that do you agree that you need to show clear error here no your honor as we stated in the brief we do believe the novo review is appropriate because the judge in our opinion looked and applied the wrong law and as we stated in our ability the nova review is a is a proper there believe webster unmask are the two cases we've cited on the on the question of law all right move move move moving beyond i mean you're certainly entitled to address that but as to any findings of fact you would need to show clear if if we conclude that mr court understood the law yes your honor and that of some of my follow up question to that is specifically where would you assign clear or which findings  subordinate findings would you have done a fire i would have would have us accept the fact that there was clear i think the biggest one that is a key in this one is the judge's finding that the exigency had dissipated because even under clear error this co reverse and clear as it if it's left with a firm conviction that something is wrong in the record here something is wrong and i think the facts of this case show up now because of everything that was done because of the nature of the threat because of the type of threat because of the unknown nature of who it was initially who it was who was the target that not fully identifying that within forty five minutes that's a very reasonable time for someone to find out it's actually a very good time to actually be able to find the person that's the occurred she credited the threat and credited that the threat did cause an emergency exit i will agree that's a different situation of the district court would have said i don't find evidence at the outset but i think judge casa as you pointed out made judgments you may have to once this threat was made and once the judge credit that this is a real threat we really put police officers in a trick bag if we say well forty five minutes is just way too long to find this guy and that's the problem so in answer your question just going it would not be any different in this case because that finding was made and because if it did happen and there be no other difference than any other finding the fact that the judge credit i mean you were up towards the end of your argument you were suggesting this wouldn't be a case an appropriate case for the exclusionary rule because there's no police misconduct to determine as i read your brief though you're just challenging whether there was a fourth amendment violation you're not making this are you making a separate argument that even if there is a fourth amendment  remedy of exclusion of which which is i mean is a separate question the courts usually confront but what arguments are you actually making buggering that we do we do not believe a fourth amendment violation occurred here we believe the emergency aid doctrine applies only the officers had every right to act like they did and recently that he did what they had to do they could not do anything other then stop this man to tell him what the threat was beyond that though we don't know certainly if the court feels differently we don't feel this is a case for for the reasons i stated before but is that in your brief that separate argument that of the remedy is not appropriate if there was a violation why i probably probably did not separate it out like that i'd have to double check and i know we we didn't make a good faith argument for three zero four three zero six from the order the officers did not reasonably believe that a person was in need ron a response undermines a finding because he did not act with a sense of urgency the officers did not arrive at the scene or conduct their investigation with any sense of urgency none of these concerns addressed the intent of the person who made the hit and all of these concerns addressed the subject of intent of what the what the court believe we think that is the wrong focus this is a fact specific case but the facts of this case showed the officers did exactly what you would expect them to do and judge smith getting back to your question judge possibly the us as well the emergency aid of doctoring should apply to this case the focus is on the need to give aid and protection from harm not whether it's a car or a house and there's no expanse of  asking just the application of the doctor well and again and i had asked you the very first question of you so i just want to be sure that i understand because you answer yes that this would be the first time a circuit had applied circumstances to a traffic stop so i mean are you are you representing the position of the department of justice that yes we should make that leap and that pronouncement as a matter of law yes your honor and  i can say that is writing this and getting guidance throughout this case from the solicitor general's office the position was there is no logical or legal reason they can see why it wouldn't why the emergency a doctor would not apply to a terry stop traffic stop situation