case number one four dash two five three seven united states of america v john chambers or arguments not to exceed fifteen minutes per side mr decide for the defendant a good morning your honor to me please the court michael does he i'm appearing on behalf of my client john chambers your honors i would like to reserve five minutes for rebuttal if i may thank you your honors were here on a very straightforward issue this is a motion to suppress the appeal of the denial of a motion to suppress evidence in a case in which my client was charged and eventually convicted at jury trial of felon in possession now i want to talk specifically about the district court's opinion denying the motion to suppress the district court made a finding of fact which is clearly erroneous and i understand that generally the court may hear a lawyer say that often and then they might argue about why it's clearly erroneous however in this case it's demonstrably eroni as it's demonst fingers on the police report and we can see it so this is why i want to focus on this particular finding in it underpins it's the underpinning of the district court's denial of the motion to suppress the district court found that the arresting officers received a radio conveyance from the officer who first arrived on the scene which was officer supposedly officer hoffman and according to the district court because officer hofmann was the first one on this excuse me deputy miller deputy miller was the first one on the scene according to the district court's opinion deputy miller conveyed a radio dispatch and he described two individuals and that was the basis of the arresting officers grounds for the terry stop well that didn't happen in the police reports reflect that that didn't happen now the district court specifically said in its finding that the police reports showed that so i want to make clear i'm relying on the district court's citation to the police reports the police report showed that off miller arrived after the arresting officers officer miller denied that he made those that radio transmission he had no recollection of it and just to be clear the district judge queried officer miller because this was the this was the crucial issue in the case of whether there was this radio transmission because without it there is no basis for the terry stop there was no why is that because the officers the two officers who did arrive and have the interaction they saw a sensually what miller had told them or allegedly told them that is two man one with a bandanna in this vicinity i mean miller wasn't the only one that knew that shops had been fired right up that's correct that's what they said that's what they're  saw i don't disagree with that but they testified that the basis for the actual say stop was that they had identified these two individuals and that identification is necessary for us when we look at the matrix of  information as a reflex and are you saying that some other point he denied having made the communication you're correct your honor he indicated he had no recollection of it but he also indicated that he had never seen the defendant before now this is where i was going when the district judge asked him the district judge queried him and said so do you have any recollection of making this radio transmission he said no i don't he said do you remember making any radio transmission or seen anybody he said no i don't remember that and the judge said have you ever seen these or i don't office counselor the judge asked him have you ever seen this defendant he said no so nobody talks about it that there's an identification and equivalence of persons it's not like you go to a house and they say oh i was robbed by a man six feet tall looking like this where it's important what they what they look like he never even if you credit the nonexistent transmission he didn't give a description at most they said there were two guys one of them with a man a screw a bandana well that's quoted so they wouldn't there's nothing contradictory about i've never seen this person because he wasn't identifying him by a space was he well he didn't identify him by his face but if we accept the testimony of the arresting officers the basis that they are to queue lated for why they stopped my client was because they heard a radio transmission of two individuals that were walking near the scene of this shooting one of whom was wearing a bandana and if that's not true then we have nothing else that ties the two individuals to the arrest vicinity of any other crime and and and they were the billy talked to these individual individuals them come to the same point well your honor i think that your question basically goes to what the court this court has described as context based factors you just have two individuals who are walking near an apartment complex and we don't have any other shooting it's a shot to a different fire or shots have been fired you have two individuals this is at six fifty seven o'clock pm so it's not that this isn't in the middle of the night but there was nothing that art that connected my client with the the crime scene there was nothing that connected him to any suspicion the the the arresting officers testified they didn't see him do anything out of the ordinary he wasn't running he didn't reach for a they testified to that so what we're just left with is that they stopped this individual who was walking in this near this apartment complex and then they said well with a bandana over as well my client didn't have a bandana over that the other  stop them collectively there was that that's correct there was another individual walking in who was not happened to not be with my client they were both just walking on the same street there is dispute in the testimony about how far they were apart but we know that they were some distance apart they weren't walking side by side in the instance of like conversing or having walking with a companion they were far enough apart where they worked they didn't appear to be walking together and my client didn't have anything cover testified mr sean collins testified that was the an individual who had the bananas face but the significance of that is that that's what he says what did the officer well the officer said they were closer but both of them between the odds is intitled to rely on the to choose that testimony but even both test the testimony in both sides was that the they were some distance apart whether it was ten to fifteen or forty feet apart they were some distance apart even if you look at both of the testimony from both officers but what's important is that the district court relied on that finding a fact which which was and correct though the order that finding means the finding of all of the of the radio dispatcher let me go back to that because as i understood it and correct me if i'm wrong recent hoffman who were the two people who make the actual stop in the ultimate arrest they say they got a did a radio dispatch ok so if one set of people say they got a dispatch and another guy says he doesn't remember maybe he did maybe he didn't isn't that the kind of credibility determination that the district judges entitle to make now i don't recall that there were logs of some sort about calls here if there were what were known to be generally business record lawyers and that showed no call of any sort was made then you might have a case but if it's legal that we do have that right what do we have those contemporaries of but your honor to answer your question the supreme court specifically addressed your point and united states versus gypsum and they said where testimony is in conflict with contemporaneous documents we can give that little weight to particularly when the crucial issues involved the mix question of law in fact this is the supreme court's decision united states which is what it's in that's what it that's not a suppression i don't think  well it wasn't a suppression but that is where we find the genesis of the clearly erroneous and anderton value what what is it that you say that the contemporaneous documents because that would seem much stronger than a nine one one police reports there's two agencies that recorded contemporaneously the police the recordings of the the dispatches both of those both of those documents show that there was no radio dispatch and both of those documents showed that officer miller arrived after the arresting officer so he couldn't have made the radio dispatch and those were really those were inhabitants of those are cited in my brief and that's what the district court cited to any system wrong those those contemporaneous documents disprove the finding of fact and you'll have your time for  please the court chris rawsthorne for the united states of america which one would address there was reasonable suspicion for the stop at least to address a few things that were raised by the the  sergeant recent looking specifically at document twenty page id fifty three for sergeant reese's portion stated that they were walking right next to each other in the same direction so both of the officers were were consistent in their testimony that the that these two individuals at least in their belief were together and there was the one person who was testifying giving them some distance apart  the district court the first district court who heard his testimony did not credit it and referred to it is internally inconsistent based upon the discrepancies within mr collins testimony the with regard to the  with regard to the statement regarding deputy miller's testimony and that he denied making the specific radio transmission that i don't think is a completely accurate recitation of his testimony what deputy miller testified to specifically and in the trial he was called by the defense and in the suppression hearing it was called by the government what he testified to both cases was a lack of memory he in the trial he specifically said it was due to the number of calls that he responds to unfortunately i think twice both in the suppression hearing and in the trial he spoke of the number of both because he acts as a paramedic and a sheriff's deputy the number of shootings and stabbings that he responds to which didn't provide him with particulars memory of this date but if we accept characterization of the testimony given by health council wouldn't that testimony internally inconsistent and otherwise well what what what deputy miller specifically said was and this is as i said in the question was in this case you have no memory of not not doing it or making the call and you have no memory of making the call you just don't remember that particular call and he says i just don't remember the specific call deputy miller sergeant reese and deputy hoffman made the arrest and it with that with the call i'm talking about the response to the actual shooting you know mr  arrived after the arresting officers it would have been impossible for him to put up with this that what do you say about well there's two separate issues with that the first is that unfortunately because of turnover in the city of flint and for another and for other reasons that aren't explained as far as the genesee county dispatch in the in the genesee county there's three different nine one one dispatcher systems there's the fenton which is a suburb of jessie county which isn't wasn't an issue in this case the city of flint and genesee county they run off to a computer aided dispatch report dispatch systems both of which separately keep records in this case from the radio transmission was was kept and so we're left with the rote times that are written there and we know the deputy miller was the first person to be called to respond we also know that when he when deputy miller made the transmission a few minutes later of being at the scene that it was a different location from which he would be speaking of from when he passed the from when he passed the two individuals so there's certainly it's not entirely inconsistent with that with that occurring he so it's certainly possible that that occurred and moreover the like you're not really addressing the time difference is a designer stood at the there is a  record by somebody that is the notation by a dispatcher of five fifty four is that is that an electronic record or is that a notation by a dispatcher i'm not entirely sure i believe it's an electronic record but essentially i guess the time difference could be made up for the fact that we're talking about two separate locations the location of which these two individuals were observed and the location at which he alternately arrives to the location of the shooting or i'm not sure if it's where he begins to make a record make a transmission that he's actually tending to the shooting victim or if he's located the shooting victim this apartment building the regency apartments has essentially one entrance by motor vehicle and if so miller by by by this sort of governments account sees these two guys but he's on his way to the shooting victim correct and at some point he tends to the shooting victim and at some point he makes a transmission arguably not necessarily the instant that he sees the two people yes well with regard to the transmission that he's arrived on  scene the later transmission and that's that's why it would not be entirely if they at the scene that's when he's at the victim not when he passes the yes that would be that would be my that's your argument yes  and i think the the and the source of when the two officers confront the man what's the what's the source of that time is that there transmission there's that's from also from the from the computer aided from the dispatch reports is the result of that and there might be between the two dispatch reports some difference in time because they're running on two different systems both the so the miller miller is responding to one system and the two officers recent hoffman are responding to a different system i believe they're both on both different systems that there's records coming in on both the dispatch reports are not entirely clear and there's some testimony with regard to the that there's other errors within the dispatch report as far as the the officers identified as stopping the individual with the firearm were identified within the dispatch as flint city officers rather than what they were what they actually were which was michigan state police report michigan state police officers it's not a huge difference but i think in a unfolding sit but in an unfolding situation it's this is not a verbatim transcript of what a curse so there's the testimony the district court choosing to show they're not tapes of the dispatchers the tapes were not the tapes there was not a tape in the circumstance of the of the radio back and forth so there's some summary of it but there's not a complete transcript and the district court's decision to credit the testimony of sergeant reese and trooper hoffman over the dispatch report was not clearly erroneous based on all of those facts and i guess when i say the  district court i should say both district court since the defendant renewed the motion to suppress at the end of the trial in front of judge berg so both district courts when they in ruling on the motion to suppress came to the same decision and just judge her based it not not only on the trial testimony but also on reading it will really recent hoffman the fact that there was a shooting th shots had been heard in this vicinity did that come only from miller's allegedly from miller's dispatch no they were responding they were responding miller was dispatched to the scene of the shooting and they were also dispatched to the same scene of the same shooting was came from who had reported the shooting that is not that's not clear in the least i'll ask your adversary is it clear that recent hoffman knew that there was a shooting in this vicinity whether or not they heard miller's call yes that's entirely clear they were the record is of both in their testimony was that they were responding to this that they were sent off to the shooting by the central dispatch that it was a report of a shooting of an individual and that upon their way to the shooting they heard the dispatch from deputy miller up while on their way to that within a quarter mile of the reported location of the shooting they saw two individuals after receiving this report from deputy miller one of whom was wearing a bandana over his face that it was it wasn't the middle of the night but since this was january occurrence it was dark and see with their own eyes other than the same thing might have been there two three minutes earlier they were the only thing the only difference would be is that they may have been closer miller they may have been somewhat closer to the actual shooting scene when miller observed them but regardless they saw within five minutes of this reported shooting two individuals being the only individuals walking on the street one of whom was wearing a bandana covering his face so there was reasonable  the reasonable suspicion based on those facts and and i don't think that deputy miller's testimony does not again it doesn't it he doesn't disavow making the call it's just a lack of memory as i write these as you said this was winter these events happened on january ninth they weren't indicted i think until july do you know when the actual suppression hearing  was held i believe that the suppression hearing was held in december so it's basically nearly a year after the events in terms of what miller remembers or doesn't remember yes and with deputy miller we're talking about that long time afterwards and with his role once he got to the scene being that of a paramedic rather than an officer he wasn't involved in the drafting of of any reports and would have less to go off of than sergeant reese and though he did he didn't make any contemporaneous recording of this whole event at all he was off trying to save the victim yes that is correct go ahead and so overall i think decision in this case would align with those and especially under the clearly erroneous standard there's mix the evidence is there is evidence in terms of deputy hoffman and sergeant reese is testimony to support deputy miller support the fact the deputy mayor made such transmission and even without deputy mayor making such transmission there's reasonable suspicion to stop these individuals for that we thin she didn't give him permission to take it that right yes that is correct and it's a fact that while while mr chambers while mr chambers objected to the application of the sentencing it enhanced meant he didn't object to that particular fact as you as you recite it in the p s r and and excuse me more specifically the defense mr chambers admitted to the same in the in his sensing memorandum and in united states v jackson that's four hundred one f three d some forty seven that involved the application of the sentencing enhanced meant for stolen firearm for an individual who took his father's firearm in order to commit suicide and in that particular case the while over ruling on other grounds the district this court upheld the application of the sentencing unhandsome it because looking at the definition of to steal is to take without permission up it up held in that particular circumstance that claim language definition but it seems to me that that is a very broad there any indication that he took the weapon with the intention of depriving the owner of that for all times which is more what would you like think about the plain language of stealing the the plain language of stealing  the court went off of in jackson is they didn't include that but there is no evidence as to what mr chambers was going to do with the firearm when he took his girlfriend's firearm without permission on that day and took his and took her extra magazine as well so i don't know i'm not sure why he took her entire her firearm loaded with all of it's loaded and then also took the extra magazine as well i'm not sure if that would lend more toward him doing something permanently depriving or if you felt the need for more ammunition but we don't know what he ultimately intend to do with the firearm on the day we do what we do know is is that it was taken without her permission based on his apology to her at the scene after he was caught with it her statements that she that she took it without permission and i don't think there's locked up somewhere wasn't it wasn't like it was lying around the house between the two of them i thought it was locked away yeah i believe that she had stated that she may have been she stated that she had that he had at somehow been able to access the key anything else colleagues your honor i want to return to the point that your honour's asked about these electronic recordings the electronic entries and as my brother counsel indicated these were electronic entries and i want to make clear there were two different contemporaneous records we're not talking about one we're talking about two different contemporaneous records one was the city of flints dispatch the other was the genesee county dispatch and both of those contemporaneous electronic entries show that officer miller arrived after and then he didn't make any radio dispatch about these individuals or anyone walking around even with a bandana just to be clear the defense called the dispatch the woman who ran the county dispatch carol jensen to testify and this is what she said she said ok and so that both the city and the county records indicate that two people apparently at least one of them with a bandanna were stopped before officer miller arrived is that correct and she said correct and then the question is there any indication in either of those records two independent records that officer miller was on the scene and gave a description of anybody prior to his arrival at the scene no i don't see anything in there is it fair to say that whe agree that there are these are not tapes right there not tapes but there are electronic entries all but the electronic entry is at best when he says something so the statement quote arrived at the scene ok but that's your identity theft a characterization that's addressed i'll just finish the next question the question was is it fair to say that in terms of both of the chronology is that there is no indication after the six fifty pm dispatch that deputy miller made a radio dispatch which included this description correct so neither one of them yet if it's not a transcript what whatever he said whatever he might have said would not necessarily have appeared but there's no entry of it it's not about when it went if he made it whether he saw these people then passed the scene and made a recording what was that you said six fifty i had seen something here talking about five fifty four no your honor there were six this is six fifty this is all six fifty  six fifty five these are when these entries were in the electronic records but the point was both of these contemporaneous documents show that miller never made a dispatch and so when your honor never made it is never made it has you have made it on time when he made a dispatch that's what you're relying on right that it's you know it's afterwards carnality is only show that he responded to responded to this patch of the shooting he went to the scene and then he arrived the other officer said that they arrived limit but when you say there's no dispatcher there's no nothing miller did to say something because they had to know he arrived at the scene oh there they didn't know that they didn't know miller or miller miller made no electronic communication of any sort that according to the contemporaneous records of two different jurisdictions he made no dispatch about seeing two in development not about seeing them because we stick with me come on miller miller is in some way connected to the electronic system because you keep saying he didn't he did not arrive until afterwards right so there is something which is the afterwards ok that's right and that's when he is at the victim correct that's correct ok so he does have something that he's there right but the testimony is that they the testimony the arresting officers was that miller described these two individuals one with a bandana there's all knew of the shooting then i was just a minute did the see these two guys walking in close proximity well the government there you see these two guys walking in close proximity quarter mile from the shooting and that is a very important and distinguishing factor when you look at the fact it was a quarter mile from the end when they saw them that was within a couple of minutes of the shooting is that right that's correct but that doesn't tie these individuals that are all walking collins wearing a mask that's correct in were the events that occurred occurred did they occur in a high crime district baker that's correct you're saying that's not enough because they must have relied on miller to have identified two people well that was their testimony that they relied on miller and were looking at what they articulated basically articulate their base as let's just take either version of the facts are the facts that i just laid out for you you're saying are those insufficient i believe those facts are insufficient those are context based factors this court in johnson said context space factors can lead to inferences of racial profiling and socio economic differences those are context space to individuals walking a quarter of a mile from a shooting that's all what is context you sometimes we all the things that have interesting i'm context would be that this individual is right outside the shooting or he has blood on his hands or he has a gun in his hand or he's running those are not context based factors the antenna is n that it's a high crime area that's that's a context base factor in that you know you just said the shooting was context based is that what you meant the shooting was the shooting was the reason they were real but i just ask you is in your opinion is the shooting a context based fact i believe it's not texted you that's why the officers were going there ok but having individuals a quarter of a mile from there walking in apartment complex i hear you anything else colleagues no thank you mr disney thank you for taking this case under the criminal justice act to do that thank you or visit our system of justice and i imagine we're not compensating you at your usual so we appreciate your doing it will be submitted the clerk