around the corner from this you be that s u v was kind of back further behind the wal mart and then keep the by the time officer with lakin stephens approached the three black males are away from this you be kind of the front of the store one out to be an employee and that's in the record by the way i can give you the citation if you wanted one immediately flees of the site the police were black and stephens then pursue that one and then they just say on the radio we think maybe one went into the wal mart they don't even i went back and then kind of double check the record i don't think there's ever a mention of three they just he just says one may have gone in and so they ate they get the one who fled the second suspect was eventually apprehended outside the walgreens across the street or kitty corner and by that point there's two people in custody and they've only had information that there's two suspects there is never information given to any officer that there was three and i think the police were required to assume they have the right people in those first two i think when the two fully gak i mean i think no one takes off on foot they get him within two minutes the other one's going through march across the street by walgreens and it's in the process of saline but i'm confused because i thought there was testimony that one of the officers employee doesn't disperse he's you know he's an employee putting i think carts away if you look at the video he's in like a red rain slicker so by the time mr street is stopped they have two suspects in custody accounted for to his only information neighbor had about participate in this crime the employee is an employee and ingeniously and as far as the video that's nice you can tell after mr street has stopped in like zero so that you know the confirmation that three black males came out of the vehicle didn't occur until well coming out of the wal mart which is mr st i'm not sure if the police encountered the black male employee but again that was clear on the video and it makes it into the record i can give you the record citation for that i think it's in your brief back court record one forty nine page forty one to explain what what troubles me here you know you've emphasized race and gender which obviously can be pretty important parts of identification but we've also got a time and place here people if i understand what the record shows here three or four people here who fit that very general description black males and i and i think i understand your argument but let me ask suppose a robbery is reported in an overwhelmingly african american part of a city the report is white males who conducted the robbery we do their track quickly to a location where there are only three or four white males  would be racist and i'm substitutional to stop those three or four white males for purposes of identification and identification i would say yes it would be because this is the hunch part the hunch is two black male there was let's say there was twenty black males outside the walmart i don't think that changes the analysis in fact that would just illustrate the more why there would be no legal dragnet type action for stopping people based only on a race characteristic  now i don't see how it could have i don't know because the the two co defendants that eventually identify mr street from the pictures that are shown to them which are obtained from the information he gave them during an illegal stop which is his name date of birth other personal identifying information they can't provide they're the only person and the only source that provided that in this case was mr st himself during the illegal stop the defense the co defendants that the two people who were arrested fleeing from the scene  can only give vague nicknames in a description they can't give a name they can't give any address identification information nothing and so i don't see how inevitable discovery could could apply here i think it was brought up briefly before the ma i know judge pepper i believe i have to double check did not rely on that whatsoever in her analysis and so i don't think that this is before the court her analysis focus exclusively on attenuation and as we point out in a reply brief she even males in between the s u v and interest the wal mart which is several hundred feet away one turns out to be an employee in a red rain slicker one takes off towards a cemetery and one eventually is every headed by the walgreens fleeing through marsh thank  you i want to briefly go through the attenuation factors i know i'm getting close to my time here and why i think that they do favor us and why the district court was incorrect about that and i start with what this court has said is the most serious or most important one which is flagrant c of the police misconduct there's two prongs within that factor the first one is what was the purpose of the stop or the purpose of the police action in clearly here was investigatory in design and purpose the district court did find that because it was clearly meant to get information from mr street so this even with his recent stacks he didn't match the clothing description of any of the suspects and he was not otherwise acting suspiciously this is contrary to what the government keeps asserting but the district court was clear that he was not acting suspiciously walking out of the store holding a cell phone to his ear not making eye contact he was singled out from a very large crowd in public outside the wal mart in view of everyone in the crowd so this is intrusive and humiliating it last for ten to fifteen minutes so it's not an extremely long time just  and again the only basis they had were these two hunters one we think there might be a third actor but we have no information supporting that and two if there was a third actor he must be the same sex and race as the other two that we already have in custody and again judge hamilton you go to your hypothetical i think that that's a useful thought experiment if the if there was twenty black males outside the store and they start to stop every black male of those twenty and i think that illustrates how wrong this path was and how flagrant and the fact that it was just one may please the court my name is keith alexander and i represent the united states just to be clear about that the rest of the story it's the answer that inquiry and what the record shows is that when the two first officers arrive at the scene and there's video this on their products camera they parked on the side of the walmart a white s u v it's not typically were cars a park but they see that they also see only three people between that white s u v and the entrance of the wal mart and and the testimony was that they saw him kind of walking towards that entrance and those three individuals were african american men when they when that individual see the police one of them mr donovan is correct takes off running cemetery and at that point in time goes two officers get out of their car run after him after a hand him and then notify people via dispatch and in person as well that they believe that possibly  blackmail had entered into the wal mart mr donovan points out correctly that at the end of the day one of those three individuals happened to be an employee of the wal mart but they didn't know that at the time when they were reporting this over that was informed by what those officers that seen and the only not employee the individual who matched the sex and race of the suspects as described by the victim and as observed by the officers was mr i did not raise on appeal it was not really the point of contention primarily below but you are correct i just checked in that in the district court's opinion page seven and eight the district court relied as an alternative theory other with regard to the basis for reasonable suspicion as just hamilton pointed out there are other factors that inform their decision to stop mr street to hear about mr donovan's hypothetical you've got twenty lakh males in wal mart shopping at a time i think that changes the analysis frankly i think at that there's nothing that distinguishes those twenty individuals from each other that would give them reason to believe that they were the potentially a suspect in the robbery and i would say reasonable suspicion to be a lot harder for us i mean for all twenty for all twenty but here because he was the only one and they had reason to believe that at least one of them may have gone into that wal mart that's a quote that that's what allowed them to distinguish mr street from the others and as you point out if the description of the robbers was two white males if they had observed three white males between the vehicle and the entrance of the wal mart  and i think that united states versus carter is right on point and that and i try to point out the briefs i think that the fundamental aaron appellants argument on this point is that he's demanding this sort of strict but for a logical held that addressed the issue that it's not sufficient to demonstrate that state when i waffle stopped or searched merely gives the police the identity of the potential perpetrator this court said that and karr the ninth circuit tension between this decision and the united states versus her with regard to the flagrant state of the violation that mr donnegan emphasizes in his argument i don't think that it was an obvious violation this is not an instance where they enter a residence without a warrant or they talk to somebody when entering custody like giving a miranda warnings where it's very clear that there's a violation this is a reasonable suspicion question and whether they they reach the level of reasonable suspicion or not it's not going to be maybe as obvious to all of the officers facing a difficult situation potential armed robbery right there and after all the reasons i stated before i think they actually did not meet th intensive chain here but one through the one who actually stops them when it's been asked whether he had individual knowledge of a third suspect he said no he said there was no verification that there was a third suspect and confirm the only information he had was related to t suspects same with niles so now is again the one who told castor who told knifer to do the stop was there any communication about the possibility of a third suspect any kind of chatter on the dispatch to indicate that there might be a third suspect and he said no not provided to us part of the collective knowledge doctrine has to be that they have to be in communication with each other in the government has not shown that here so again we're left with when mr st a stopped he stopped only because he's black only because he's male judge roemer to answer your question about inevitable discovery and judge pepper lays out the chain on page seventy eight and the chain is broken where they would have learned mr street's identity because again his co defendants could not identify him could not name him and could do nothing other than and my last point i think i'm down to just a few seconds the government i think is who gets carded wrong because in carter the key difference is there is an independent source because the identity of the defendant which was the landlord here there is not a