visit position is that the officers lacked particularized reasonable articulable suspicion as came before you start yes your honor can we talk about the conditional clear agreement we can talk about whatever you want to talk with answer the question i have is obviously your client pled guilty but as a result of the plea agreement it was conditioned on this court being able to review the district court's ruling on the motion to suppress yes which the district court denied after never densher hearing you in this case are raising new grounds as a result of the motion to suppress how are those grounds properly before this court your honor our position is that mr bruce moved to suppress his seizure on the basis that it violated the th amendment and that your honour's can reverse on any argument in support of a violation of the th amendment how is that how is that proper normally as as we know issues that are not raised before the district court cannot be raised for the st time here unless obviously it's a subject matter jurisdiction or something where you don't  yeah but in this case my understanding is obviously you can raise whatever you choose to way to to raise that were already addressed before the district court but my understanding is here you're also trying to raise an issue regarding current ledge that was never addressed below our position is that the curtilage argument is is an argument in support of a claim that was made so that was it made because in terms of her current lidge you actually have to raise that and say that there is a privacy interest or the individual has an interest with regard to the curtilage i think that if the court finds that the record is insufficient to establish mr bruce's relationship to the property that actually would be appropriate why would that be appropriate because curtilage for example you had in have pages of closing argument you never mention curtilage you had two and a half pages of rebuttal closing you never mention courage counsel for the government did address and direct examination the fact that the car was located in the lawn of this property we have no idea whose property it is because that was never addressed and that was never brought up that wasn't raised in the motion and it wasn't raised in the hearing so again why should we give your client another opportunity to go before a judge goa to address this when this was never raised your honor we did raise that the officers needed probable cause and probable cause is different i just want to address occurred lidge because even it's either wave or we can talk about plain error but i want to have a discussion about why we should even look at this issue for the district court and its denial of mr bruce's motion to suppress talked about the degree of intrusion that was involved in the in the seizure of mr bruce who did this again the district court in the district court order denying our motion to suppress talked about how the factors that distinguish whether as the seizure is requires probable cause or only reasonable articulable suspicion and one of those factors is the degree of intrusion on the private citizen and our position is that what we've raised is another argument about the degree of intrusion ribbit how can you again how can you raise a new argument before this court that the district court never heard or never considered your honor i think any analysis but held that an issue that was not raised in front not preserved in front of the district court in the conditional plea cannot be raised and and that's just basic appellate one hundred and one dollars i mean that's not even that i understand that that's part of that case but that's a dollars if it's a civil case or a criminal case if you don't raise an issue below you can't come here and ask us to consider that issue because the whole point is to allow a trial court judge to make a ruling based on the argument and then we determine whether or not there's a legal error understood your honor however what what i think that should actually stands for is in that case what the defendant tried to do want to appeal was challenge the validity of the search of his rental car in front of the district court he had made it completely separate claim that his arrest was without probable cause and so why cong is the published opinion cited by the government here that says your honour's can't address i think  to the officers needed a probable cause here but moving on fully preserved is the question of whether the officers had reasonable articulable suspicion to stop the occupants of a parked vehicle that were present at the home what the same facts of this case except the caller says that the the there's a hostage situation rather than a fight very different that suggests a crime right so the c calls about the observations that the caller here makes do not actually establish a crime the good old or did the caller not say that there was an altercation between two individuals and they saw a gun the caller said that there was an involved officers all the time routinely go to those those calls because it could be a domestic violence dispute correct i mean that's just there is no question that that's that's not an officer can stop those individuals well there are a couple facts that distinguish this there is no suggestion that this is a domestic violence incident or the there are different rules in a domestic violence why not i mean it could be it's an altercation how does an a police officer know whether it's an involved and also there is the difference between what the officers received through dispatch there's an argument in the front yard of a car and there's a black man standing next to a white car with a gun in his hand and the officers get there and we're not talking about a situation where they see a black man wearing all black but they get there to the same house this the anonymous caller made to nine hundred and eleven saying there's an altercation between two individuals at this location and there there is a white car they identified the white car and they identified the house they didn't give the license plate but they did identify the white car well they did the color did say there is a white vehicle but i don't think i think the court would be hard pressed to find a case that said that the state at the same location there is a white be a call at this address me a man right yes your honor means that the white vehicle is in any way involved in the crime or implicated in the crime in that way this case  average california from alabama v white and even from florida v j l when the police arrive they have no particular suspicion that the occupants of the vehicle and this case which was in no way connected to the crime  were the same people the caller had called about and they had no reasonable suspicion that there was an ongoing going crime inside of that did this not happen within like four poor five minutes from receiving the call the caller called at three nineteen dispatch center to dispatch at three hundred and twenty two or three hundred and twenty three in the officers body can begins at three hundred and twenty eight i think that the scene was different when the officers arrived that is a distinguishing factor and the scene was different in a way which undermined the caller's reliability and it undermined the existence of reasonable articulable suspicion they have to believe that the people inside of those cars that car in the they testified there was no way they could identify them and there was nothing coming from the car that suggested there was an argument a fight there's no yelling there's no movement in the car there's no obvious of gestures there's no plain view of a gun so in other words these people inside of the car which the colored did not connect to the crime and i think  school asked you this question but i'll ask you as well yes so in under your are the theory that you're you're giving us is it your position that because they were no longer outside having a discussion that the police or just should have just left and not investigated no your honor my answer would be similar to what i told judge scola nothing about this case has the officers had to leave they could do police work and what would that have been so i'd like to draw your honour's attention to  unlawful activity with guns but in a public place the color specifically identified the car that these people were in so they had more particular suspicion but the the court ultimately found basically the scene when the officers arrived was different than what was called about dispelled the officers suspicion and dispel the creation potentially of an emergency situation and what about the scene dispelled any any concern about the situation well there isn't evidence of an argument there isn't evidence evidence of a firearm and there isn't evidence of a shooting so those are the things that the caller calls about the create a concern and there's no problem the officers should be as the court said in watts and the officers should be responding put in the officers have been concerned that it had moved to a hostage type of situation i think that is a hunch i think that is sort of there we can allow ourselves to consider all the multiple pos maybe there was someone dead in the car s but with the collar observed was a mere argument with a gun in the front yard that itself does not describe a crime he said there may be a shooting which could have been predictive and the officers get there and they see no evidence of that and i mentioned earlier that there is a different standard i think for a domestic violence situation there is not obviously the different constitutional standard i mean the constitution applies equally to domestic violence and other situations it does  the officers arrived on the scene because what the officer saw at that time didn't match the report from the caller and that's that's exactly what we had here was a yes your honor it is a different situation at that undermines both the reliability of the caller and the particularized suspicion and the existence of an ongoing crime and so it doesn't mean officers should leave just like the court says and watson they say it would be appropriate for the police to respond to the home and then when they get there they can try to attempt a consensual encounter there's no th amendment implication with a consensual encounter or they can try to make their own observations or they can wait to see if the car leaves and develop probable cause for a traffic infraction which  you know they did none of those things they immediately jumped out of their cars and seized everyone in the car at gunpoint with with no particular i suspicion that they were the people that the caller had called about or that there was a crime ongoing this is this is gun possession in a home in the curtilage of a home that's not the same have yes or have st of all where in the record do you have any evidence that this was his home that he had a possess interest in this property or that he any privacy interest in this property so i don't think that in order to establish to undermine the existence of reasonable suspicion created talking about courage because you're saying that he and that he has a right to it so it tell me where in the record there is evidence of that specifically or your honor i was raising that point to point now that what the caller observed did not create reasonable suspicion of the crime because whatever was happening was happening within the curtilage of a home and that means that gun possession may not be illegal it is not the same as it has to be that person's home because the th amendment protects people not places it protects people with a reasonable expectation of privacy and where is his reasonable expectation of privacy in this record well st of all if we were to just refer to cats i'm asking for a record citation please your honor the  record reflects just that this was the curtilage of a home and that he was a private citizen inside of a car the record does not say ok thank right thank you thank you record that this is curtilage or that this defendant has a possessory interest in this completely unclosed driveway the word curtilage appears nowhere in the district court pleadings and unsurprisingly judge school it didn't address it because it was never ra view this is clearly out scott outside of the scope of this court's review and should be addressed and at a minimum fails under the plane air standard why i do have a question about that because as i said candidly i'm not sure to backs this case but we have to set a rule that will affect other cases why do you think that this issue is completely waived as opposed to simply a plane or a question because the nature of this claim is that the officers wouldn't have been lawfully entitled to even pull into this completely open ended grassy area which is what stipulated in the in the in the factual proffer excuse me that's an entirely different claim qual qualitatively from the two arguments raised in the district court number one being that this was an arrest requiring probable cause and number two that alternatively this was an investigative detention requiring reasonable suspicion that is very different from the argument that off officers would have had to change a search warrant even to pull into that entirely an enclosed area so for that reason we  think it's really far afield from the issues that were litigated and it would be inappropriate at this stage to engage in that kind of fact finding exercise to determine whether this is curtilage at that but in order to make a terry stop there's got to be some indication that quote criminal activity may be afoot what was i mean start with me from the time the officers arrive what was the evidence there that there was criminal activity  afoot so the criminal activity here would be engaging it brandishing a firearm i don't know i mean they drive up there two people in a car which was the evidence of criminal activity while they're responding to a reliable tip in art and i'm not talking about the call i'm talking about once they arrive what they see on the scene there's they've got it in order to conduct the terry stop they've got to there's got to be reasonable yes and we believe that they have  that fully because they're responding to an emergency said joe you're going back to the call i mean they've got a secret suspicion of criminal activity afoot when they arrive or do you disagree with the well there's no requirement in the law that officers  corroborate the illegality themselves i think that a principle is clearly dispelled in the navarette decision when in that case in fact the officers trailed the suspected drunk driver for five minutes and saw no erratic driving no infractions and yet nonetheless were authorized to conduct a terry stop because of the reasonable suspicion based on the reliable nine hundred and eleven call and the danger that this driver could escalate and harm others on the road so the same principle governs he governs here the officers were not anything in this record the end because the caller knew his call was traceable no your honor but no such additional requirement is necessary because as the supreme court explained navarette this call was made on the recorded emergency nine hundred and eleven system as the officers testified at the suppression hearing numbers are retained in the system and that is no evidence of the car knew that there is no there is no express reference by the car that he knows his number is being retained but he's obviously calling nine hundred and eleven and as the supreme court explained in navarrette that that system in compass is some built in tracing and identification features that i think are important because a color is exposing himself to potential criminal sanction for making a false report which is a crime in the state of florida and although the call ultimately appears to the officers responding as anonymous there is testimony in the record that the dispatcher if he wanted to could call back the caller using the number that the officer testified that obviously there's two types of nine hundred and eleven calls you can have a call barbara got calls and my numbers automatically so the officer can call me back immediately if they want to or there's an anonymous call but it's still traceable but the dispatcher is a one that then has to get the number and then related to the officer that at the testimony yes that's correct your honor so the officer couldn't immediately call because the officers have  number but the officer could ask the dispatcher to call the caller and in that way what's important is that the caller is readily identifiable and that adds an additional layer of veracity which is what the supreme court discusses and does does it matter or is or is  fact that it happened so quickly yes we believe that it does matter and this is a very close in time response the call comes in to be exact at three hundred and eleven dollars is the need for a reasonable suspicion the criminal activity might be afoot no your hon reasonable suspicion still is required and we believe we have that here because the call is robot reliable for a number of reasons starting st with this is illegal to possess a firearm on private property in florida well it's illegal to open carry a firearm now and my question is it is illegal to possess a firearm on private property in the city of florida i can't i don't know exactly the answer to the private property component although i can say that the various fact statutes that are implicated here are seven hundred and ninety point five three which prohibits i mean i thought that was a softball and i mean you can possess a firearm on private property in florida without violating the law well of crimes if you're in your home but if you're openly displaying a firearm that's displayable to the public which is what we have here that's implicating the you can only possess a firearm in florida if you're in your home i'm not suggesting that but what i'm saying here is that this individual who by the way has represented no possessory interest in this property so we have no support in the record to suggest he's connected to him and is writing any evidence the police officers knew that when they arrived no but the point is that he hasn't exhibited a th amendment interest in this property and he's waving a gun around during an ongoing argument that the police didn't see that to know but the collar did and the caller reported that in an eyewitness fashion to two the police would not president say that you can't the police can develop reasonable suspicion of criminal activity by observing exclusively non criminal activity correct yes yes your honor said what was the basis of them in this  the when they approached the scene the two individuals forty five minutes later were no longer standing outside and so they were individual but the officers knew there were people in the vehicle the dome light was on and for officer safety it's not a crime sitting  a vehicle with a dumb light on that's correct but officers don't have to corroborate the illegality themselves i think that's the key point from navarrette and nowhere in the law is that requirement of corroboration set forth and the defendant cites no authority that would require officers to engage in that would it have mattered i'm sorry miss cannon would it have mattered if when the officer showed up instead of a white car it's now a blue car i think it would i think it would have potentially reduce guess address with the car there and i think that really makes that connection much tighter than just a white vehicle roaming let me ask you a question so if let's assume that the white car was there but the end of there were no individuals there i guess i'll call  rebuttal also to your dear friend on the other side the cars there the they show up to the location there's no individuals there would the police have been allowed to walk the premises of the home to see what was going on yes your honor we believe that the officers as have a duty to respond to these reported emergencies for public safety and that they did so very reasonably in this case that's a principle this court has set forth in many cases including for example holloway where this court discusses officers ability and need to be able to respond to these nine hundred and eleven emergencies and so yes and that's an area where they would have been intitled to walk the perimeter to ensure that nobody was being harmed and in this case of course they saw the white vehicle consistent with the call they saw the exact address consistent with the call this is the middle of the night in a high crime area and in our view the officers acted eminently  had statistics should not be subject to more intrusive police practices than those who are in wealthy neighborhoods do you think that's right or you think that's wrong we think that's right but we point this case is not a watson case wat so do you think watson has rightly decided i think there are some key distinguishing features and if i may know but do you think it was rightly decided in then you can tell me i think it's a much closer question and i'm not entirely sure that it was correctly decided but i think it's not controlling here even if it were i because in that case the court specifically says the circumstances in this case did not necessitate an emergency response the anonymous caller reported no tense situation like a verbal argument or physical concern that come aleck to vittie might be afoot and then says but when they arrived at that situation didn't exist any more so that should have dissipated their worry in that seems like exactly what we have here you you disagree with that yes your honor but i clear that the emergency had to there are two people in the car one could be in a hostage situation one could be harmed officers have no way of corroborating that because of course these individuals in the car so there has been a reported tense situation an alter cation and i think that really takes this case outside of the watson model and the call in this case even indicate concern that the police should be especially careful yes your honor that they were witnessing yes your honor and i think that goes to his role as a concerned citizen who's calling in the middle and i about something that he's very very worried about he even thinks there could be a shooting any minute from now and there's no indication on this record that that caller was saying anything other than what he was observing in real time and so for that reason and  all the other reasons that support the reliability of the call plus the surrounding circumstances including the time of day that high crime nature of the area the fact that the officers did corroborate the location and the color of the vehicle we believe they acted eminently reasonable under the th amendment and so we ask this court to affirm the district court's order to nine the defendant's motion to suppress if your honour's have no further question i actually just one of the follow up on this idea guilty and reservation of the right to seek a appellate court review only of the district court's denial of the defendant's motion to suppress on the grounds that law enforcement one lacked reasonable suspicion or to probable cause to stop the defendant and so your position as that doesn't allow them to make the arguments there mike in here today because well that allows them to make their st argument which is that the officers lacked reasonable suspicion because that was fully and fairly litigate in the district court but the idea that the defendant possesses a constitutional interest in that an enclosed driveway which he believes constitutes curtilage that's the argument we believe is not properly before this court and under this court's precedents such as why kung where this court has been forced the limits on conditional probably agreements it wouldn't be appropriate in our view to what it's not a belt up in the concept of probable cause know your honour's you believe this notion that the officers couldn't even be there and would have needed a search warrant to even pull up into this open ended driveway is entirely distinct from the arguments raised below are you aware of any case where we've been looking at an issue under the plane or standard and we've remained it for additional factual findings to determine if that if the party can establish the air that they're claiming no your honor and i'm aware of cases that say the opposite one recently in the m d l e a context pacifically said that such fact with the full name it's within the last thirty days and it duly and it concerned a potential delay in present men i know that published opinion from the th circuit yes your honor it's united states versus trinity something my apologies for not well if it's any comfort to you people talk to me about cases that are road and i can't remember the name so i say you're forgiven thank you or are you for your presentation  emergency or crime yes those are distinguishable facts i would say as to as to the car using a different phone the reason it's important that they we don't have the caller's phone number and that the officers testified at the hearing here they had no way to get it they did not know that this caller's number was preserved is that we don't know and if that's not true the testimony from the officer was that there the number is preserved it's just the question of whether or not they could get it they'd have to call dispatch to get the number and then dispatch would call them back with the number which thankfully are on are when i pressed the officer bell in cross examination and i asked him do you know the number and can you say for a fact that you can have this number i believe his answer was no and the government and their witnesses run notice since never it was in two thousand and fourteen that that was a fact they're supposed to establish is this number never it was based on a bare basically  a record that didn't discuss whether the call was traced the supreme court made a bunch of assumptions on the basis of how they believe the nine hundred and one system nine hundred and eleven systems nash functions nationally but there is no evidence that the miami dade police department there's no facts in the record to establish that this call was traceable the officer bell talked about how he believes the dispatch system works but when pressed about the facts about this call or  numbers are kept for us it's when it's generated shows it's anonymous caller they get the call you can't call basically anonymously you don't call ninety one you're ready anonymous the number is there and you say i'm giving an anonymous tip when the call comes to the communication they have the number and they differentiate they take the number out when they send it to the police they do whatever they do to make their nonis and then the court i think it's my collar id when someone calls yourself when you can see the number answer correct yes when someone calls and one does nine  have a caller id so that they can see the number that's calling answer yes that's all i'm trying to say and do they keep the numbers yes they do yes you are on nine hundred and eleven if you call the number back if i need to complain to step outside i can have dispatch give me the our initial brief and that is my cross examination of officer bell i asked him you're not the nine hundred and eleven dispatcher he said no i said correcting myself and one operator he because he had clarified those are actually two separate civilians you did not see this anonymous callers a phone number at any time for your argument is it important that the police officer knows the number or that it's it's actually traceable so that the the caller understands this is not you know them calling with a burner phone where no one can ever identify them well there is no evidence that whether it was a burner phone or whether it wasn't but that but i also asked him you do not know for a fact that this anonymous caller's number came up to the nine hundred and eleven operator and he said not for a fact so this hundred and thirty eight of the initial briefs appendix i'm reading the record the whole transcript the pate it ends on page nine thousand two hundred and sixty six of ninety three of the transcript was a close call and like we argued in the brief we don't think that never can be extended this would represent an extension of never it and the th amendment rest to death by a one thousand cuts if in every close call the court side with the government some of