the morning your honor brandon leary with the federal public defender's office and more than district west virginia i represent the appellant mr zachary foster i also represented mr foster in the case below we're here today your honor pursuant to a condition mr foster your honor entered into a conditional guilty plea pursuant to rule eleven where any preserve be issue on appeal to appeal to this court the district court's denial of this motion to suppress  some suspicion that mr foster was arm was engaged in possible criminal activity and therefore the district court granted the motion we're asking this court to reverse that because the issue presented really is very simple and that is under terry whether these two wheeling police officers had a reasonable and articulable some suspicion that mr foster was gauging criminal activity into are armed and dangerous are viewed on or is simply this that the facts of this case and this is a very fact specific case because this court is held in prior cases that these types of decisions are fact specific and the good news for this court and our view is that the facts really are not in dispute here i think that the testimony at the evidence here hearing came in and it was pretty straightforward and we're not quarreling with that and i think the issue simply this court has to review under do novo standard with the district court's legal conclusions below is whether under a totality of the circumstances these two officers were justified under terry that there was a reasonable suspicion that mr foster was engaged in criminal activity and we submit your honor they did when this court compares the facts of this case to the numerous cases this court is sometimes it helps me was a lot of discussion over whether there was technically a seizure i think what the officers did was officer bore your test excuse me officer burke testified that he got out of his car he saw mr foster standing on the corner approximately three to four blocks away pointed it was at the low ready and it was a rifle that wasn't his duty sidearm it wasn't his handgun it was a rifle and he testified that he approached him and our submission here on earth was there anything wrong with his approaching you know no i don't think so i think that the officer could have it's the pat your honor we're arguing the seizure and the pat down was improper so our understand but i want to go through it step by step what really we agree there wasn't anything wrong with him approaching miss mr foster i don't think so your honor but i think as he approached and as he got out of his car and was approaching i don't think there's any doubt based on this record he was going to search and regardless of this reportin the district court relied on i really want to keep the seat was sure nothing wrong with approaching was there anything wrong with asking him questions no and mr foster didn't respond and this court has hel to respond ok what so what what did the officers do wrong but what i think i think that at that point the pat down took place and we're arguing that as to the reasonableness and the reasonable they missed the faster the defendant had reached into his pocket and that was after the officers that they asked if there was a weapon in his possession i don't think that's in dispute your honor the hand movement however i don't think he actually got it painted into his pocket he attempted to reach and that's when officer burke ordered him to stop nats when the path you know they will use force or any no your honor they didn't let me ask you this was it if if an officer has a report and we're talking about the way the hours of the morning you can tell from a cellphone general location they found him three or four blocks from where those cell nobody you know they're not utilizing a whole lot of no use of excessive force nobody's nobody's taze nobody's threatened with a rifle they take what could be seen us wars or injury to the officers in other words in certain circumstances it's possible to actually say for us not as a huge intrusive staff but as a preventive spout to prevent a situation from escalating to the level that some of these tragic confrontations have where you know the officers are wounded and shot all involved to try to keep it from escalating your honor i would respond by saying that this if we deprive them of this i think the district court and i think the judge will consider i think you're getting to w the district court hung its hat on was this notion of officer safety and i think if the court and you touched on this just a second ago when you talk about the purpose of terri and if you go back and read terri and what it talks about and it talks about out crime anticipating crime in that case in the in the terri case there were two gentlemen that were armed and they were casein some type of commercial establishment and the officer was able to intercede before an armed robbery occurred and but terry in the cases that this court has discussed applying terry talks about anticipating crime not necessarily officer safety and i think that the district court was miss in my view your honor i think that this over reliance on officer safety is misplaced because terry talks about the reasonable suspicion as to this person and criminal activity and if you look and you touched on that your honor if you look at what mr foster was doing and you hit the facts he was it was just past midnight he was approximately four blocks away already we both agree th the reason why we have a date by lation in this case well i think it's twofold i think it is the seizure and officer border she testified on direct we we patted him down because he was the only one in the area that was it and it's a that well we raised it because we think the seizure occurred at that point you raised it now but i don't know that it was only develop i think that it was one of the facts that she testified to and i think under review this court can certainly take that into account i think that what she said in my view is the lumen aiding and very important which was in her mind scuse me they came around the corner and there he was and they were going to search him so i'm arguing that the seizure occurred at that point meanwhile to officer burke had out his his rifle so i think i think that in these officers minds it was search first justify later is the corps well aware of their terry that's not the standard it's justify first serves later so that's why we're arguing made that point but when the court but low when the district court talked about the hand moving movement being significant it referred to the humphreys case from this court and it talked about how this court had previously humphrey's held that a hand gesture can rise to a reasonable suspicion but if the court looks at the close of the facts closely from humphries there are dramatically different than what we have here and humphries the gentleman was standing with a large crowd of people in a high crime area the officer got out of his vehicle saw the hand check and the n smelled marijuana asked the gentleman to stop mr humphries walk down the street the officer continued to walk after him ordering him to stop two or three times mr humphries refused the officer continued to smell marijuana emanating from mr humphries person to the officer actually had to walk into a residence that mr humphries had gone into and i think the testimony i mean the fact of that officer may have been a lot more patient in terms of waiting until making the necessary i have here i agree but that's not the test right that's as much the offeree need where they can actually make this stuff and we don't believe they had enough here and we don't believe they had enough of the stop or they had enough or the or the pat down nine one one call is that enough to provide reasonable suspicion no not in my view it's an anonymous call in the district court agreed to hang up yeah not one one call it can be a factor but by itself that can provide reasonable suspicion by itself it can there's the fact that it's very early in the morning i mean there are other cases where you know they've been lots of people but this is very early in the morning is that fact by itself enough to provide reasonable suspicion to police to stop anybody no it's not it's not but when you start from batting it with those then it becomes something more then ok it's a very high crime area you make a point where not violence is drug distribution but there's not is that in itself sufficient no under no circumstances but the supreme court in the illinois previously been discussing well against the bill the fact that he's only three or four blocks from where the carter place the cell phone call were if i took a strategy of divide and conquer i'd go after each single piece of evidence and you know how you not have a very high rate of agreement but it's it's the combination and we're simply saying that being close or not i would argue it's not close as compared to the more case that you're arthur many years ago i think there's a big in the district court relied on the more cases i think there's a big distinction between how close honor i agree and we're not suggesting that all we're saying is that when the court looks at the facts in this case in our view they were pretty innocuous and they don't rise to the level of a reasonable articulable some suspicion as to mr good morning your honor is terre time caring for the united states please the court at first like to address the discussion that you're having with counsel poor mr foster on the sequence of events and their contention that officers had already decided that they were going to search mr foster as they approach there's copious evidence in the record in this case that that is not in fact how the sequence of events unfolded specifically even though the officer it says to officer burge as mr falls through any questions at that point we told all through that we were going to detain him we were going to have him down did you ever hear of mr berg ever ask if he had any a liar on or if you continue reading her testimony counsel on direct examination takes her step by step through the current all of you to clarify for the court at the suppression hearing how this transpired and she specifically says counsel asked so at that point officer burke ordered you to conduct the terry first can this is after mr foster reached towards his right front pocket and she says yes in clarifying the sequence of events and the testimony from mr burke officer burke is the one who actually ordered the terry first committee the decision that reasonable suspicion had risen to such a level that first was necessary and he testifies on cross examination from counsel for mr foster there discussing the timing of she doesn't include what it says that is it appeared that foster may be high on drugs officer birkhead is rifle in the low ready position it appeared in might be high on drugs him because a gunshot was in the area she didn't even talk about any question about a weapon so this is consistent with her testimony there's no question about a weapon it's just the pocket and we're going to tell you where she does when she's questioned at the suppression hearing both on direct from counsel for the government and on cross examination from counsel mr foster  she is consistent on the timing and she does testify that there was questions about whether he had any weapons and it was only was not at that point that officers decided that a pat down was necessary it was after they advised him what they were investigating asked him if he had any weapons and the combination of mr foster reaching towards his pocket which they relied on their training at the west virginia state police academy that indicated to them when you're asking a person about weapons movement like that could be interpreted as a security check to make sure that a weapon is still in place and this court has held that such a security check or hand motion can be considered as an element of reasonable and i asked him and he immediately complied when they said you know to take your hand out and raise your hands up he didn't comply yes you're on the media yes you're on but that does not lessen the level of reasonable suspicion because the reasonable suspicion is not in this case in particular is not just based upon the hand motion it's a cumulative it's a cumulative sequence of events as wilkinson pointed out they receive a nine one one call that a gunshot has been fired in an area that's known for several different types of crimes including vandalism drug use so they report to that it's in the very early morning hours mr foster is the only one discovered in close proximity to that event they approach as  they're approaching him he is not responding to their questions he's not making eye contact with the officer which the district court relied on and he doesn't have to make i wouldn't but and officers approaching him in the night he was ultimately it was high on drugs if so officers are approaching him in the light at night guns at the low ready for your honor just to clarify what is he what can it what could he have done at that point if it's just that you're in this area and i understand it's not just that but  could they have are you arguing that they could have seized or could have brister him just for being there in that area as he just in the wrong place at the wrong turn certainly his presence in an area known for than by itself is not reasonable suspicion it's the cumulation of all of those events culminating in him reaching for his pocket and i just want to do want to clarify one characterization of the district court's opinion while they did strongly emphasize the officer safety aspect they spent five pages of their opinion on that i do just want to clarify that that's not the only thing they base their conclusion that there was reasonable suspicion on the judge and the opinion saying that the facts as a whole of the case scale in tip the scale in favor of admitting the evidence so they talk about what type of crime was being responded to where it was and all of the facts the sequence of events as a whole yes  church nor the district court really focused on that right correct your honor and as i pointed out there the totality of the record in this case the incident reports that were filed and both officers testified that they wrote those incident reports the same day of the incident within hours of their interactions with mr foster and their testimony at the suppression hearing in fact that wasn't the defense's theory or suppression it was simply that even if singing all the facts and circumstances under our precedent that wasn't enough for these officers to initiate the first correct your honor the characterization that the officers had already decided upon approaching mr foster that they were going to pat him down for weapons or detain him in any way that was first raised on appeal in this case the district court didn't credit i mean the different credit in testimony and the decision to frisk was made out or the  it's important to know the standard for review specifically for that issue because that's a factual determination of what facts the sequence of events fell into and in this case be legal conclusion of whether there was reasonable suspicion prevent a great part of it is to prove that worse things from happening the worst thing is being the actual commission of an armed robbery or commission of a crime or a confrontation in which the of not pleasant things in a way they shouldn't be randomly undertaken because they are encouraging on people's privacy and dignity but terry makes the judgment is the sometimes if there's reasonable suspicion the minor intrusion is warranted to prevent something far worse or even more tragic and this seems in line with what is a very it was a very lopsided decision under the warren court or one of the worst famous decisions along with miranda in all of criminal our criminal procedure and we have so many over these past years so many said situations where people are shot for us is the shot where suspects are shot it's terrible and terry may be one of the tools that we have to try to head off if the total is misused it leads to anger all of it so if it's used in a measured proper way it can perform the functions that are  warrant himself envisioned for absolutely honor and there are some specific language in terry that i think implies that this is exactly the type of case that that tool should be used for the court and terr an officer is justified in believing the individual who suspicious behavior he's investigating at close range his arm can presently dangerous to the officer or to others of the rounding neighborhood even the defendant himself it would appear to be clearly on reasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm and that's exactly what the officers in this case were doing when mr foster reached towards his pocket they had to rely on the culmination of their training experience and all be surrounding circumstances of their interaction with mr foster to decide how best to proceed and the district court took a look at those circumstances and conducted a well thought out and reasoned analysis and came to the conclusion that their actions were supported by reasonable suspicion in  repetition yes your honor so based on the foregoing we would ask that this court affirmed the district court's decision denying mr foster's request to suppress the evidence of those firearms thank you very much you just want to start honor keeping with the spirit of no repetition i really would just comment on one matter and that would be the nine one one call where the court a minute ago was talking about the magistrate judge's report recommendation what was objected to and what wasn't below and the magistrate judge's report recommendation gave no credit to the nine one one call and the government didn't jack to that findings with the district court never addressed it so i don't think it's been preserved here so i would argue therefore that the nine one one call is immaterial i think that judge stackers questions to my colleague goes to the heart of the matter with regard to officer border and her belief that he was in the area we were going to search him and then officer burke obviously i think actions sometimes speak louder than words when he exit in the vehicle he had his gun not necessarily drawn i would argue at the ready is drawn but i think we're splitting hairs at this point clearly in my view those actions reveal they were going to search in other than that your honor i don't i think the court is well a quick to deal with this and i think everything else has been addressed in the record here today at the oral argument i'll be happy to answer any questions of the court as anything else states and this court