because their term light wasn't turned on there really is no way to refute that absent a third party which are there is we have an adversary system you get a hearing in front of a judicial officer and he listens to the testimony makes credibility determination in this case you made the credibility because a lot from a sauce officer got there testify there was a light in crosswalk there my client got up there and said hello there wasn't of course nobody believes my client the other because you want to be clear he was clearly erroneous based upon the record that he made but we don't need to your honor because facts of this case but those are the facts of this case rather the second report recommendation does not rely upon the fact it is standard of review counsel you're arguing you're arguing to us that we should reject the credibility of the arresting officer and find that he was not credible in your client was telling the truth your honor is whether or not the government prove that there is a lot of violation here to justify the stop and mr keyser in the first evidentiary hearing the government presented testimony that there was a light in crosswalk there under the vatican code i mean the a las vegas and this will code you must  crosswalk if you're between two adjacent operating stop traffic control devices traffic signals at the first evidence or here in the government presented testimony from the officer that there was a traffic signal there and a cross walk the defense object our client testify there wasn't after the first report recommendation came out we actually acquired testimony from the city engineer and presented it and in objections didn't know in fact there was no cross light there at the time of the jaywalking or a marked cross walk there was ok but isn't the issue isn't the issue reasonable suspicion did the officer have a reasonable suspicion to believe that this person jaywalk is not what this is all about right i would say it's more of a probable cause you generally reasonable suspicion is we believe this criminal activity of food or we want to investigate collectivity here the question is did he jaywalk or not there was no more investigation to do at the time of the seizure the officer was under the belief he testified he was under the belief that my client the walk and that's why he  honor or more specifically i would say the issue is did the government prove there was any law violation here becomes a mix question of want facts because of this business district problem that we have the government's original rationale was this was jaywalking clearly because he advocacy point but i mean really don't you have to question is where the record shows this is a business district or not right right which gets to my second theme which is uncertainty and there's a lot of uncertainty in this record whether this is the business district and why do i see that well first of all the says there's two ways the walk one to walk between a decent operating traffic control devices are two to cross in cross outside of a market unmarked crosswalk within a business district now there's a lot of uncertain this record what is a business jester because although we have this incorporation from the las vegas missile code engineer on page one ninety of the e o are specifically set that if this is this or is designated by the las vegas city council and not only city council or not right now we don't and it's our design knowledge that it's not him but where does that leave us well the government's going to say that that doesn't nation either the engineer was wrong as a matter of law or he just had his facts wrong or it's irrelevant would be the government's retort to that they're going to say that this is a self executing definition at the finish and are asking for a four point zero if you seven well i'm interested in what you're saying i'll ask them one thing but i think that that's a price what i would say is i have no idea there's no there's very than what we've already talked about because if you look at the death band or is that was there a reasonable suspicion in the mind of the officer at the time he stopped mr kaiser that he was engaged in feet of business facade before he makes the initial detention of mr kaiser for jaywalking well it seems that recently on about the law is it really the law is clear that a mistake of law on the matter how reasonable that  basis for the stop negates the validity of the stuff that's a fact question isn't it and that is in order to determine whether or not it's a business district the statute speaks of an actual length of building business facade it has to be what is that three hundred  second from where do you measure your honor i have no idea i guess from the end of the building to the other end of the building and if it's more than three hundred feet then i guess it meets the statute but what would be the operative building i guess that's my point here but  mean i'm getting back to look at soto which is the key case here it seems to me and i'll press out it was pretty clear the statute said where the sticker had to be and the and the officer reasonably believed there was a violation with the officer was wrong as a matter of law engage in that allegation without any proof that that was the actual legal justification relied upon by the officer putting that aside even if that argument is rejected what the court has to do somehow is determine whether or not the officer was right about the versus ohio there was reasonable suspicion based upon the furtive conduct of your client the fact that he wouldn't take his right hand out of his pocket at three o'clock in the morning when the officer stopped him and told him repeatedly to get your hand out of your pocket i mean that's all very traditional terry type investigative stop fact finding is that in your eyes and i don't believe that that that the court made a factual finding if you look at the second the transmission doesn't the court about that and it starts on t twenty one and this is which report recommendation or your frame to the right of the first or second one because there were two or i can't remember which of the two it was but as i recall the court actually referred to the fact that he was carrying the cd case he darted out from between the building he had his right hand in his pocket and he wouldn't keep it he would take it out and that was all in connection with the court's determination that this  stop i don't believe that's a fair reading of the court's ruling which is on two twenty one to two twenty three it seems to be entirely predicated on the idea that this is a business district and not just a fight to stop and remember we have to the this stuff has to be justified at the moment of seizure in this case that's when the officer yells hey you stop now he learned a lot of information after he yelled that and there was compliance and they started walking toward him but all that information of course is not relevant to our initial inquiry here is was the stop justified  please the court here in la hood representing united states from the district of nevada it's clear in looking at the facts of this case that the determination of the facts that was made by the local district judge are to be reviewed by the clearly erroneous standard here and when we look at that your honor we have to remember this district court heard two separate hearings heard from three separate officers i'm sorry one officer and two separate witnesses and made that determination after a lengthy and reasonable is the government's contention that independent of any concern about jaywalking that there this was a permissible terry stop your honor i think it raises reasonable suspicion when three in the morning you see somebody dart across four lanes of traffic in an area that has lots of business and we also have to remember this is a twenty four hour casino restaurant that he comes from darts across at three in the morning and i believe and th interview did the magistrate judge make any findings on a terry stop by itself your honor i believe that was his decision was predicated upon the fact that he believed there was a jaywalking violation there all along with these other factors of you know being three in the morning darting across four lanes of traffic carrying something in his hand all that raised suspicion within the officer mind at that time well you see your position is that the  cause also beyond reasonable suspicion they found that there was probable cause here what probable cause for the jaywalking i mean i just there is no such thing as probable cause for a terry stop is there i mean it's reasonable suspicion that doesn't require probable cause that's correct but i believe they made both of those determination a reasonable suspicion and probably right now the time segregating out the probable cause for the jaywalking i just want to make sure i understood what your position was on just a pure terry stop there's no no intention of arrest and this guy for jaywalking doesn't even think he's jaywalking does he have enough for a terry stop you know and i believe if we look at the ren case when we look at an objective what a reasonable objective officer would do in this situation i think it does qualify as a reasonable terry stop your honor in looking at all the factors not just one but the totality of everything that happened on this early morning and i think if you look at that you look at the ren decision and you look at that objective you not mr the what was in his mind at the time but objectively i think it does qualify for the reason suspicion standard your honor and that would be our position let me move to the business district that i find this a really puzzling case because at least it's been some time now when i did work for cities and counties they did find business districts and i think the engineers testimony one that the business district is defined by the planning department the city council votes is consistent with at least my experience and that you know we don't know the record is devoid of  this puzzles me well my response to that your honor is this particular person mr schneider that testified was not an expert on what the city council does and i think you even indicate that's the only thing in the records and i think he's probably right well your honor if you look at what the business rates defined i think you can take that definition and in a local judge or a district judge at that level can look at that and itself x can they can determine by the fact that happened here looking at the photos looking at hearing the evidence by the witness to look at that definition i think it's clear when you apply the fact that definition this is a business district you know what the magistrate judge found look at here are two twenty three where he in his findings of fact where he recites the testimony of the city engineer michael snyder at the may four hearing made clear that business is extend for over a quarter mile in both directions from the mary although intersection on the south side of charleston both are there for the area is the business district and kaiser was obligated to cross within a marker and mark cross walk or violate the or i would agree with your honor that that was the determination he made and that's uncontroverted by anything the defense said that a quarter mile in each direction there are businesses looking at the council the problem i have with that is that as far as i can tell you can correct me is that the testimony was based on the businesses that existed some years later and not at the time i read through it and i didn't see any marker or indication that the that the through each corner that was represented at that intersection and when he went through that analysis a special spot to be on e r one seventy two he talked about the first corner which was where the odetta center was and he said that was in place northwest corner he does not address the northeast corner but i think if you look at that he talks about at the time which in the case of the corner at south west it was february two thousand and two that i want to se was april of two thousand and three in which he indicates in his testimony there are clearly businesses that were developed there and if you look at the photos that were presented to him at that time in the exhibits he talks about and i think it's uncontroverted that a quarter mile in each direction there are businesses there shopping center and i'd also point out that in defense counsel's argument to the judge ronnie are one twenty nine he admits this is a business shopping center across the street from when and where this happened that's his statement to the magistrate judge in his some summarization of why they thought the evidence should be suppressed so by his own admission he talks about a busy shopping area i would just submit to the court that i believe mr snyder indicated that at that time at least two of the corners there was significant business is located there i would also argue one other point if you read defense counsel's review would think that this is some abandoned desert road i mean this is a road that where there's four lanes of traffic there's a median there sidewalks there's a casino that's open twenty four hours there's a roy's restaurant that the defendant even admitted was there and we have all the other evidence of the shopping or i think it's clear that the court made the