before the court today are fairly simple and i'm not sure this is one of the whole time but if you if you get going do you want me to let you at five minutes i do ok thank you concluded was not true however it is not the responsibility of this court to determine that ultimate issue nor was it the responsibility of the district court that responsibility properly should be given to a jury however the district court you search that responsibility in granting the defendant's motion for s excuse me why and why is that the case where the facts that are utilized to determine whether or not there was reasonable suspicion to detain or probable cause to arrest are not in dispute the underlying knees wearing a sweatshirt your client's entitled to whatever inference would be must favorable to him i would not see that it has to be a material fact and so why don't you tell us what the material facts are that your and your clients then we wouldn't be here today well as a matter of fact in the order and judge where is order he says teachers weren't sure he didn't even make that factual finding he said that the plaintiff was wearing either a t shirt or a sweatshirt not important to the trial  what material facts were utilized by the by the trial court that were in dispute ok there are a number of material facts both regarding the conduct of the plaintiffs and also more importantly regarding the conduct of the officers because of course what this case is ultimately about is is whether the officers conduct was was on constitutional or not in terms directions of the officers particularly the directions of officer as officer rodriguez testified that one of the factors that he considered most important  determining that mr health was under the influence of a controlled substance was the fact that mr helper and was was not following his instructions not following the actions that he was giving him assumed that there had been a lack of an ability to follow instructions that wasn't utilized it was listed in the court's recitation of the fast even if it wasn't specifically stated in any in the jury would be able to conclude that his constitutional rights were violated turning turning to the conduct of the officers first looking at the initial stop and whether or detention or kurd if the officers had had said to him you're free to go if you would like you don't have any responsibility to talk to us but we'd to we'd like to do research there would have been the detention how were they didn't do that and instead of accepting mr health firms explanation for why he was there and also explaining why he might have seemed a little bit agitated the officers proceeded to search him and to question him since they need they noticed th measuring or anything like that that he had a slightly elevated body temperature he you know it was very cold night and all of these things would be consistent with somebody who was under say yes or no i say no and for a number of reasons first of all the district court accepted without question the  in coming to this decision to grant stormy judgment thank your client was heavily perspiring as opposed to lightly perspiring or that body temperature was that at a greatly elevated level or only slightly elevated that's why i keep i keep it the is the question as to what facts if if proven would be sufficient to establish suspicion detain or probable cause to to a rast if they be proven is for the court to determine it's not for a jury to determine the jury determines whether or not the evidence is sufficient to  those facts that are made as a as a as a legal determination as being sufficient is there as a predicate and you've argued greatly in your brief that the biggest issue here was the factual issue of whether or not there was perspiring and didn't didn't acknowledge that it was that it was categorized by the officer in a small degree but i think the i don't want to spend too much time on  reasonable suspicion because i think that the most important issue is the probable cause but in terms of the terms of the i think the most important thing is that all of the that were made by the officer initially were easily explained that i want to ask you about that because your client does give explanations but and they may be correct you know i don't know you know i wasn't i was obviously not there that what he explains is why he had those physical manifestations because i think you had a fight with this crop friend then he'd been jockeying and there were things along those lines well i didn't do it and the officers obviously aren't aren't required to just accept that he gave very specific explanations that were easily verifiable and if even chris case the court held that in a situation like that where exculpatory evidence is easily verifiable then the officers have have a duty to do so to do that investigation and determine whether that exculpatory explanation is true both if there's a witness there they can readily ask him about about something and i witness that may be one thing but here there's there's no obligation on the part of officers to contact girlfriends or other people who may not be there and who may not relate to truth in any event i'm a think there's any case that provides that kind of risk and that obligation on a on an officer under these circumstances i think again it comes down to whether it's easily accessible in the sense that they're down the street from where the girlfriend lives the girlfriend's going to say well we had an argument girlfriend's not going to say gee i know absolutely for sure that he hasn't taken anything or he didn't take anything after after we left after this argument so the so the information from the girlfriend's going to be limited only that they that they had a fight but i think that that is probably the most important factor that their officers initially relied on was was this guy seemed agitated and all the other all the other factors follow from that well if i true that he that he that he left his girlfriend's house because they had broken up then then it makes it clear yes there's a reason why he was agitated yes there's a reason why he's not dressed correctly for the for the weather yes there's a reason why his his temperature is elevated in his perspiration but i do want to move on to the to the probable cause issue with if i may because i think there's a number of disputed fa do that because those three those three steps were not relevant to a determination as to whether an individual is under the influence of the stimulus however a very important point that was not taken into consideration by the district determine that that they had probable cause to arrest plaintiff and there was a different reading between officer i guess who was the trainee and officer perry who was the training officer now officer later when they measured plaintiff's pupils again in the in the clearly well that area in the hospital it was well within the normal area was four point five based on on objective evidence to support a finding of of probable cause and certainly that kind of that kind of evidence would be sufficient for a reasonable jury to find that there was not sufficient objective that evidence for the officers to determine that there was probable cause you want to research the balance thank you for your argument husband comes home from work encounters his wife in the house and starts yelling his eyes are pouring he's perspiring around the forehead play with these arms whatever i thinks he's mad at me well in fact the husband just got fired from his job you came home running and the question is is the w wrong of course she's not wrong from her perspective and that's basically what this case is about and it's really also about the fact that  misunderstands two aspects number one is the issue of undisputed material facts in the context of the reasonable suspicion and probable cause equation or context and he also doesn't i want to highlight what is already been said in our brief we have delineated a great number of facts that are absolutely undisputed there undisputed by mr how let's bring in all the witnesses let's ask all questions and that isn't the way probable cause reasonable rational suspicion operate expert i think counsel or plan of hell is completely and correct in claiming that you know because the trial court did it or some formal ruling on that that you can't do it you're hearing this through noble and therefore you can ru the objections anew and the problem with mr burke as a as an expert is number one he's not qualified there's nothing in here is a declaration so what's the point of that though because it wasn't even utilized by the trial court in fashioning the order it was completely irrelevant for the district court and now you're asking us to start making  well i guess it still comes back to what are the end disputed facts that the court has and while i think officers would like to probably get you know they would like to be the final arbiter of legal issues but and probably take a lot of exception with the court to do it sometimes but i think we think we have to we have to focus on what you know what we're being undisputed facts and get all reasonable you know  it sounds from these were someone in agreement and that's i guess my point like i said originally if you go through the list of our facts on twenty twenty nine of our brief for reasonable rational suspicion and thirty eight for for probable cause has defined what's reasonable suspicion what's probable cause because let's let you know let's say that the officer says i don't think that there was reasonable suspicion i don't think that there was probable cause i don't think that his you know this court that's when they think that they had a right to do it so the fact that he thinks that doesn't mean that what what how does that change the facts that we have to look at i guess we don't really care about his opinion not that we don't care but i don't know how we can factor it in  officer ruggles made was he said well criminals will live officers well a reasonable inference could be made from that that officer rodriguez improperly assumed that this person was a criminal and therefore made a support a conclusion that he was under the influence that the officer that was that was making the determination was untrained in was unable to make th determination the defendants make a make a big deal about the extensive experience of officer perry but one of the factors that the district court didn't take into account