argument in search of facts and they are present here what the government has claimed is that basically we gave away the store we have stipulated to the entire case and in fact they argue that what we've done is made an unconditional guilty plea but that's simply not true because the stipulated facts in preparation for the bench trial main left open the element of knowing possession that was left to the district  judge as the trier of fact to take the facts that were stipulated and then draw that legal conclusion about whether that element was met and so these two people nations were really nothing more than a substitute for evidence that would have been presented as a full blown tr but the knowledge i guess and intent of the defendant really isn't relevant on the question of whether or not the police acted reasonably conducting the search so what have you in fact slipped related to all those facts no i don't the person with reasonable suspicion or that there was probable cause and we've certainly seen cases that some that the government sites where the defendant stipulates that he was in knowing possession of the drugs but all that was stipulated here were the the facts of the historical facts that the police recovered drugs from mr morgan's person and from his vehicle and then the question for the trier of fact and we stipulate of course the lab results and  those kind of things in the same way the editorial defense will very often stipulate the interstate commerce element of a firearm for example and so then what was left of the district judge was to determine knowing possession so with regard to the  seizure the th amendment arguments that reasonable suspicion nothing in the stipulation undermine whether these facts as presented amounting to reasonable suspicion to the sim so we don't deny for example that the police out also point out that the government had a hand in drafting these super lation as they admitted them as evidence at the bench trial and the government didn't object when defense counsel said we're doing this in order to preserve our right to appeal and so the government certainly never indicated that ah we've got you now that we've we've in fact want our suppression issue by drafting the stipulations this way so there's only bit of a fairness argument argument is that there's really no way to administer their argument short of never having any stipulations because again the way that they drafted them here they've never explained why these aren't good enough o exactly a proper stipulation would be we acknowledge that if we had stipulated you know in possession that he did that effectively guilty plea we acknowledge that he if we had stipulated reasonable suspicion that that would  stipulations and district judges would have to sit through are really a pro forma presentation we have to call in these witnesses and get them on the stand i think that's just completely inefficient the well that's the issue isn't it i mean whether  sense of responsibility so they really would have us over a barrel in those cases and in the ones where they don't give us a conditional plea and they see what it really comes down to is what benefit would there be if we win the th amendment issue and if all this evidence is suppressed then if in the hypothetical retrial that would take place none of that evidence would be able to be presented and so that's what we're asking for and the facts and it's always going to be the case that evidence that is on appeal deemed to be inadmissible then we have to imagine what the trial would have looked like without it so imagine for a for be argument about a prior conviction you couldn't deny that a prior conviction existed but if you win on appeal and that should have been admitted then you have to go back and imagine what the trial would have see that somewhere in the world there was a quality of methamphetamine it would matter because if it suppressed it wouldn't come into a trial against mork well let me ask you a kind of question it's been  significantly different do we have to if we don't think it's a the court could offer some guidance on which is what the government has asked for but we think the guidance would be to do what we did here and to not give away all the elements and to not admit to perhaps anything that might have been known to the police or in their minds of when they were undertaking this encounter but certainly be evasive to avoid and just move on to the th amendment issues which i'd like to do now unless there are further questions about the stipulations of this ultimately that there are all of this evidence should be suppressed because the police seized mr morgan without reasonable suspicion well the police had suspicion of was this woman who ran across traffic into the convenience store parking lot and  they may have had some reason to be suspicious of her activities but there was nothing individualized to mr morgan based on anything that they observed from her and then the judge and i'm using the measure judge of this are suspicious and some of them are clearly erroneous when the court looks at the video evidence that contradicts findings that the court made a run through these very quickly one was a high crime area which this court has said is not terribly suspicious and this was broad daylight in a convenience store parking lot it's open for business the woman was there saw this really will more specific it's a prostitution area and they're on a prostitution mission so it's not you're accurately state the wall that in the the area has you know maybe some limited belief but in this slightly different way perhaps i don't think that adds mileage and it's always ironic when we say that the police are looking for that women run up to cars too well for the johns that are in the car i'm not sure that the evidence totally supported that just beyond the officers bare assertion but but even aside even assuming that that fact can be considered i don't think it has very much of we had the woman's  the woman said that she's not from the area and doesn't know mr morgan which i think is more reason not to suspect that he is involved if she doesn't have any particular reason to be running up to him the judge found that mr morgan whistled at the woman and i think that fact is clearly erroneous fashion fanny's clearly erroneous because of what she actually said was she heard a whistle and there was no reason to attribute that that's why she went up to his core that's where she went  cell phone and that would finish talking to her they you still there and they go over and say can we talk to you and as a result of that when they when they ask for his i d gives it to him at that point they find out they have a warrant for his  are and what we have in this case i think to sort of overarching all of these arguments is really remarkably poor judgment on the part of the police officers to seize mr morgan based on very very flimsy suspicion and to run roughshod over his miranda rights and question him in a way that the measure judge said was a textbook case of how you're not supposed to comply with miranda and so either these police officers were fairly incompetent or they were intentionally running roughshod over mr morgan's constitutional rights in either situation call out for the deterrent value of  and that under that really undergirds all of our arguments especially with regard to good faith for example and of the police intent to mislead the magistrate the state magistrate in terms of getting the warrant all of it is a situation where idea that they did not have the right if they had a right to search the corps to search the say oh well they would have had the right to search anything within the car assume they had probable cause to do so  no we don't draw that line and i just think sion other than to say that the police did look at the viewpoint didn't see anything else in plain view and so there's certainly nothing else in the car that would add to any suspicion with regard to the safety in particular but yes the probable cause to search the car would apply to containers within the car so if there are no other questions at this time would reserve some time for thank you  i'd like to start with the moon as issue one plenary point i don't think that there is any kind of unfairness here and however the court rules on the sectional this issue as we've explain the brief the defendant i think would be a allowed to get out of his stipulations if the court concluded that they mooted his suppression issues and the government has never said in this case that you couldn't enter into a conditional guilty  the conditional guilty plea would not be able to cover this discovery of the straw because before they search with this search warrant because that's simply not case  dispositive likewise i don't think that there's really a way in which a defendant is going to lose out on acceptance regardless of what rule the court adopts because under a conditional guilty plea you get acceptance and it is possible to go to trial to preserve an issue and still receive acceptance if you're not contesting evidence the question here i think is really twofold  is that you it removes the need to introduce evidence and so that's what is why it is no longer going to create an avenue for a suppression argument is that's i think that's a very important question and candidly when i st started thinking about this case that was definitely an issue i struggled with and you know the st cut of why i concluded it isn't bonuses because a bunch of cases talk about it terms of so wealth but that's not a very satisfactory answer i think there is a doctrinal a sound reason for why it is moot and the core of move this is is that it takes an issue that the court away from the court that it doesn't have to decide that put differently if you look to you know the court's ruling and catarrh is it possible that how he decided it that it would make a difference to the parties and or you don't have a complete stipulation to all the elements of the man's right and so i think there is a very important difference between the question about the certainty of whether a defendant will be  question about whether there is still a running dispute over a piece of evidence that it can ken and litigate and so the stipulation means that the government doesn't have to enter to use the evidence from the would think that you can see it when you consider a case where parties choose not to enter duce of piece of evidence and there could be disputes about th amendment issues there could be a dispute about hearsay whatever if that evidence is never occasioned by the court about the will the full lydy of that evidence is is moot like there is nothing the court could say about that that could have effect on a case when it was never entered to sit so but the cases also in the context of guilty pleas allow for a conditional guilty plea that provides an issue isn't this effectively what happened here this was a conditional stipulation in the sense that both parties agree that the purpose of it was to allow the defendant to litigate these suppression motions so why should we treat it the same as a and there was no other no the bargain i mean it was it as best i can tell so it doesn't have any of the all the hallmarks of concerns of a guilty plea so why couldn't we just say that now and i think actually that may be crystallizes best what concerns the government the most here because on the one hand i think you're exactly right if this case if you said it's moot we went back to the conditional guilty plea it would come back looking awfully similar with one really important difference and that really important difference is i think what should really factor in why courts should not be inviting of these kinds of stipulated bench trials and that is and i don't mean to in any sense criticize the district judge here and what i'm about to say when you go and look at this bench trial the transcript for it says it was thirteen minutes it was eleven pages of transcript seven of them were spent on the trial and then the remaining portion was for the talking about coming seeing proceedings and so really you know just a rough cut that's about eight minutes for this bunch of trial the defendant's own statements of that trial the only statement he makes is at the end of it after the court  ensure that what if the government won't agree to it sometimes ago i mean some of the cases on this the government it without at least from reading the cases without a lot of explanation doesn't agree and there may be a reason that they may be acting aggressively where they may have a range in that show that pertains to this case if it get that conditional plea would sold this issue but the government these proceedings you don't like and they would not continue to exist or go forward in the same voice that mess the outcome of what you're asking for i think that's right and you know the very short of the answer to that is that in our system we have guilty pleas and we have trials and don't lower the distinction as much as this takes you toward and so the defendant who faced with the government objection to a conditional guilty is entirely go to trial and can even do that while preserving acceptance points in that sense is not harmed in any fashion and you have what would then be a trial for the quarter of you in the cause of you know bundy says no conditional police on non case dispositive issues and the principle reason for that is because you get into adjudicate things you don't have to decide because they're harmless and if you have a trial it's up to the government to put on  show that a piece of evidence is harmless if that's what they want to say in this court you know would be a client to adjudicate and so you know the essence of what i'm saying here is the there's guilty pleas we have a really good system for those with ruhleben colloquy as we have trials with procedures that produce fair results where the defendant holds witnesses if he wants cross examines evidence is presented the court gets a search for the straw was you know improper there's no way that straw makes a difference in this case and you try to piece together harmlessness analysis out of a stipulated trial but the parties may stipulate in a fashion that really obscures what the strength of the evidences and that's not a good way for courts to begin processing cases where we have trials guilty pl and i think it's better to keep those categories more discrete distinct than this body of case law is letting you do it but i also want to just go back to the more pure d points about the effect of stipulations and i think the courts treat stipulations and a way doesn't allow them to have these kinds of caviar that you're being led toward in this context i mean a party stipulates to something not supposed to take with a geisha over that fact off the table and indeed even if there's a retrial you're not typically allowed absent some pretty special set of circumstances to take back that stipulation so you're given what the office of a stipulation is an office of a stipulation as to and litigation over particular topic and so it it's it's at least as to the pardons complaining about it but aren't there  true and those cases don't allow so you once you've made that stipulation to continue fighting the fact but they do as the mccoy case from the supreme court shows if there was an agreement from the defendant for admission of the whole crime for example then that's a problem under ineffectiveness standards and so goes back to why this defendant if this court said look your stipulation this i think gets out of these stipulations and we go back and he either enters into a conditional guilty plea or we have a regular trial and if he wants to preserve acceptance and should not contest any of the facts of the trial  which so i think that the defendant is really his interests remain protected here the procedure the point about the procedure here is is in no respect to play gotcha  parties it's just one for the system as a whole produces the most secure and fair adjudication of guilt guilty pleas have all of the waivers built into them for a reason because they're designed to produce finality and trials give you a broad range of protections but issues that don't matter no longer become a basis for complaint on appeal been too yes but dishes it is truly a minutes but if there's really no issues besides the legality of the suppression and the government won't agree to a conditional here i got a cold i think that moved this doctrine in a certain sense is kind of a pain for courts but that's a consequence of a jurisdictional limit and the core of movement's doctrine is if there's not a dispute over which a federal court can make a material difference of meaningful difference and maybe it's more than that you know if it can't make a difference then it shouldn't be deciding that question and that's just a feature of article three power and occasionally jurisdictional problems when they pop up create you know a lot of trouble and one of the reasons i think this is a good case to tackle is that because jurisdictional issues aren't wave a ball and they do pop up it's very helpful for parties to know what the crown rules are and what the limit limits are and when when something goes awry so that you know litigants who are considering well should do a stipulated trial will know what you know what would happen with side in sochi simply having a rule regardless of what the rule is almost is better than having deep on certainty about what the rule is and so in that he's told hang tight when the officer is going to check on his identification and at that point i think that's right when you can take into account that the police st approach the woman the other man who is near the be truck walks away and when they go and talk to him he's on a cell phone and one of the officer says i want to talk to you and the defendant keeps talking on the phone he doesn't you know i don't think that that's a particularly coercive environment  in that situation and it is it's agreed upon that essentially the moot point of seizure is the at least when the officer asked to hang tight now i think that when you're checking an identification that doesn't necessarily trigger seizure and so it could be later but it doesn't matter at that point there's already plenty of evidence to have reasonable suspicion that this defendant was a participant and prostitution and that flows from a variety of facts it's an area where prostitution regularly occurs they had spotted the woman pretty frequently walking along this road jefferson davis get over this truck she said she was responding to a whistle from the area she did not know the defendant and she said she was not from richmond even though she was seen walking frequently along this highway and she admitted using  without a prescription one of the sers testified that prostitutes often had drug addictions and she had no personal items with her despite from the she was from out of town and there was this brief interchange between the defendant and the woman the police suspect was a prostitute and the kind of brief conversation is typical for someone asking for mr bryant says that all of this is really  participants and so she's standing by the door of the truck the defendant's inside that provides i think reasonable suspicion for for them to investigate him but the key point said similarly i think that the miranda issue is really far afield on the street inquiry because this question doesn't really even begin until they've already properly seized to have discovered that she had an existing arrest warrant and so astri says you get this when when there's a totally valid uncontested plea valid origin you arrest somebody you are at that point not able to you know complain about your detention because the officer was doing what he had to do at that point he knows that there's an arrest warrant and so there was this you know investigation into prostitution they learned he's got a warrant after that there's no th amendment you know intrusion of all this case all right thank you very much mr crowe thank you your honor correct about our men this issue that this would go back to the district court and there would be further proceedings either a full blown trial or perhaps a conditional plate what i mean in the sense of unfairness is that it would be unclear t parties going forward d and the court if the court says that this isn't good enough then nobody would really know what's good enough and i really didn't hear from the government's argument any sense of any stipulations that would ever really be appropriate of anyone would feel safe entering into without worrying about looting future appeal so i think that's the unfairness i wanted to highlight that these he addressed that there's not any he's thrown to  or maybe i mean if they if that's their position i think it would also lead to defense attorneys being gun shy about entering the any stipulations because you would always want to make sure that you're not giving anything away or that that later on you're going to be accused of accidentally moving something and i think it's just really in a fish and procedure and it's also funny that nobody's ever notice it up until this case that there's been countless stipulated which i think it's again implausible to think that this woman would run across traffic here in a whistle from someone who was on the phone and to be able to hear that across that six lanes of traffic and if the court watches the video he's diesel engine is very loud it's hard to hear or just normal conversation steps away from it and so i think it's a clearly erroneous finding  fact based on the video evidence that that she was responding directly to him and the other thing that's plainly obvious in the video is that she came around past him to the passenger side of the vehicle and there's another man standing at the passenger side of the vehicle that she's standing basically next to and then when the police arrived them and walks away in the police don't engage him at all and so i think if there was any and i understand that the idea that it takes two to solicitation case but i think of anything this is the suspicion would have been more obvious as to the person that she's actually standing next to rather than someone who was on his phone and didn't