and at this time we'll hear united states versus where t good morning your honour's may please the court jennifer mellon from the federal public defender's office on behalf of the appellant in this case i'll start with the question of whether mr ware to submitted since that is the crux of the district court's decision below denying his motion to suppress this case raises what i think here's an interesting question about how to distinguish between a brief but authentic submission and what the court below called the temporary h it does not rise to the level of a submission and this does not violate the fourth amendment it's clearly possible to submit authentically but then later to flee and that's in that mr ware tests submitted it to the officers attempt to change him really in the only way he could which was by remaining fixed and answering the officer's question that he had some of the questions he did and that's where the crisis and moments of this whole and direct from yes so what the officer testified to below is that the interaction lasted anywhere between thirty and sixty seconds but that's clearly enough time for multiple questions  put it if you put his hands on the roof of the car even if it was for ten seconds he would have submitted this case is different the other tenet as the this admission consists of not not moving where as in you know one of the cases that we're all arguing about is one in which the the the claim submission is to pull over the car when you know when there the cops lights a fleet flashing wait for the cop to get out of the car and the couple on foot step on the gas and go and that's not submission because that is simply waiting to see whether you can you can  it's way to maximize your chances of getting away that's not the car pulled over briefly and then took off but isn't there communication from a police car to a driver when the lights are flashing it tells you to pull over that's it that is a communication we will follow  few moments than an actual stopping and responding to the officers questions which are our core stops that's where the cop going to the carcass for he was tracing  but more briefly then what happened here and even though at the time itself is not according to united states persists windell the crux of the question is a fairly because even in swindle the the crux of the quote because we're looking at thirty seconds or a minute but  considered and and weighed this is a matter of law or is this an issue or is there an element of fact about this is there's no fact dispute of any kind interesting because there were factual disputes on the record below that were not result as part of the court's decision in the case is specific on the question for example of whether mr ware was already in a fixed position when approached by the police officer or whether he was walking and then stopped and what essentially the district court said below was that even assuming that he had stopped walking in response to the approach of the police officer the court would still have found that it was a temporary holding and that any dispute here that there was a show of force no your honor our argument specifically that there was a show of authority and submission not that there was any use of that's correct and not that there was any use of violent force but in any event you argue that the verbal submission the remaining fixed and i specifically argue that also in the context of everything else that happened as part of that approach the cases talk about these in being very fact specific and very can text tool and the submission i think looks more like a submission in the context of the show of authority that preceded it it's late at night mr ware tuss it's after dark huertas is alone in a desolate area in bridgeport and importantly the officer approaches him coming the wrong way down a one way street at the same time the officer is using a spotlight in order to light him up and is also asking him what i would describe as accusatory questions out of the window of the car in response to all of that mr ware tis stays fixed and response to those questions that thirty to sex sixty second period during which he responded as questions is distinguishable from the cases that are cited by the district court specifically in valentine the defendant the case i described as positive for a few moments and only giving his name clearly more than that happened here in hernandez the defendants described as hesitating for a moment and making direct eye contact but there's no description of any further exchange so i asked him a hypothetical if the defendant to not run away but just stayed there fixed and the police officer got out of the car with the booze officer have had a right to search the bag based on these thoughts at this point ya know and that was the second part of our argument at the district court level was that there was no reasonable suspicion for a stop and a search at identify the person who made that allegation and there were really no specific factors besides the fact that the person with the gun was somewhere in the area that would have narrowed appropriately the officer suspicion think mr ware test like other people in the neighborhood would also value his right to be free from unreasonable searches and seizures use and he was seized yes at the time of the initial encounter that's that's why  may please the court good morning assistant united states attorney i only know reynolds from the district of connecticut and let me start by saying that this police officer acted exactly how one would want a police officer  exactly what he should do in the face of a complaint of someone with a gun he acted reasonably from the moment he got that complaint in getting information and this wasn't an anonymous complaint there's a scale and as we point demeanor he was able to see that she was nervous and he testified to that at the suppression hearing he was able to run her plate he called in the information and she gave very specific information it wasn't just a man with a gun she so there's a named brandon he went that way she pointed out the direction he had walked she said he was walking she said specifically that he had a gun in a black bag and so moments later after calling this information to his command he the officer who was working alone that night in a marked car in uniform proceeded down the street and he's shown the spotlight down one of the streets around the bridgeport police department has this all happened right in the vicinity of the bridgeport police department and he saw a band as he described hauling a black bag in and in a strange way is what he said almost like a lantern and he pointed that out kind of in front of him and that's when he approached and he  a woman but but he at that point had reasonable suspicion but the district court the lead decided this case on a different factor and properly so because under the cases under test and under the supreme court cases under chester not under mendenhall and this court's findings and decision in the swindle case it's very clear that there was no show of authority to the and there was no actual submission what's important here is not the that's the issue i mean to be a separate question as to whether there was a show of authority i think you know it's close because you know car your car is going the wrong way down a street it's a police car to our car got spotlight shining on you nobody else and people might reasonably think that that they have to that that if they ran away they would we have to consider all the circumstances correct ran out and found that he did not submit to the offices authority the district court never reached the question of whether a reasonable person in this to where to his place would have felt free to leave she didn't reach that at all it doesn't but what we're what we're arguing is just in looking at the whole picture it's important to look at how the officer acted to the act reasonably and and what are the things he didn't do under the now uscis of the show of authority he didn't  activate lights and sirens he didn't drive down that road at a high rate of speed he didn't block the defendant in any way he didn't even get out of his car he didn't issue any verbal commands he spoke to  so what what are our position is that the judge considered all of that she heard the testimony she considered all the facts the record is very full and complete in this regard and she properly found under the cases of the circuit and under the supreme court cases that this was an actual submission but we've also laid out in footnote five of our brief and as we argued below and as to the offense argued below there was reasonable suspicion in this case this wasn't a fully anonymous  the officer acted reasonably he had every right to go up to mr huertas who was holding a black bag which matched the information he had gotten and ask him a few questions and so at that point when he fled under the reasonable suspicion this court could also his youngest to address the question of what constitutes authentic submission remaining in a fixed position can be authentic it's one of the types of submission that the supreme court specifically referred to in bremen versus california in that case the court said that it's important to look at the totality of the circumstances to understand what it would mean to submit to authority and specifically stated that one sitting in a chair may submit to authority by not getting up to run away let me give you hypothetical a policeman walks up to somebody to talk to that person that there's a fence between the two of them the person talks to the police officer assumes the police officer says they stay there and coming around to get you the person runs to the cop has to jump over the fence in order to is it's not authentic or is that simply designed to pacify the office r hope that the the the cop those who think it would depend on the other circumstances that preceded that interaction if it's that if it began with the officer demanding that the person stop from  distance and the person stood there and waited for an extended period of time if there is a fence in between you can look through but you can't get there you can't lay hands upon anybody you can't handcuff them you can't you can't  you can't do anything it's like being on the phone isn't do you think it would depend on how long the person stood there waiting for the officer in the first place and suppose it was under  minute and other circumstances that accompanied that demand to stop in this case mr huertas did wait he did answer accusatory questions i think it was clear from the moment that the officer started driving towards him the wrong way down a one way street that he was interested in detaining him in fact the officer said in his police report so there was an intent to detain from early in this process and mr huertas did stand remain fixed and be seen as in aid of escaping that is to say if you merely ran away the cop would run after him or he might fear that whereas if he answered questions and seemed relaxed and and bored the officer and guy might have driven off in it the question is whether what your client did could reasonably be seen as as in aid of an ultimate decision and this time