reasonable suspicion at the moment they seized mr lie just to just have a just a playing wink common sense question what would need to have happened here not that the officers could have done they did not and there is no dispute between the government concedes that the officers made a show of authority the moment they got out of their car and they demand four officers approaching four o'clock in the morning did not have a reasonable suspicion that something else that's not in dispute the government concedes that when the officers got out of their car made that show of authority demanded that he raised his hand they did not have reasonable suspicion they were relying on an anonymous t pocket that the police can say show with your hands they can if they have reasonable suspicion that the man is engaged in criminal i never did there's no dispute in have reasonable suspicion here so they cannot meet the demand  testimony as to how quickly he raised his hand after campbell testified four separate times that mr letterman fact did raise his hands and he never testified to any to lay on mr was part so your argument is that what they should have done at roughly four o'clock in the morning we have this anonymous tip that there was an african american with a hood that had possibly been involved in a murder a short time before the what they should've done was was work go up and say excuse me  there was a there was a current report of a gunshot america half earlier in the neighborhood that was it but but that there's no evidence of that tipster was aware of that gun you know no no but the police do have a right to piece those two things together there it was understood how could a district court of deny grocers press well the district court judge denied it based on his determination of the officers had reasonable suspicion from what he termed a refusal on mr low's par is submitted to the officer show of authority he's not trying to run away and campbell says he braces his hands and then they order him to go put his hands on the wall and he goes over me puts his hands on the wall we have we have several witnesses here wouldn't you admit m and we have a trial judge who heard the evidence had a full blown hearing and then indicated that findings would be made and findings are never made correct the government indicates in footnote seven with the brief that perhaps remained is appropriate why shouldn't we just summarily remain in this case because it would be speculative at best for us to try to reverse engineer what findings of fact district court made consonant with its denial of your motion to suppress i don't think the remount is necessary here because if you look at any of the versions provided by any of the four witnesses the officer to not have reasonable suspicion under any of their versions he submitted to the show of authority and the officer did not have reasonable suspicion to seize him according that he did raise his hands immediately when disagree with you that the mere presence of the officers even in number is not a seizure they're there because they are told that there's a man with a gun and there's been a gunshot reported be in the area not just because the officers are they are but that doesn't mean that he's his fourth amendment rights have been violated the beat was it it's not just because they're there it's because they get out of the car the government doesn't dispute they make a show of authority they don't just go up to him suspicion to support that the man in the first place and the supreme court has made clear over and over again if the officer don't have a reasonable suspicion an individual is free to ignore them and go about his business this courts had the same thing in johnson versus campbell they have they approach him and the first thing they say is show with your hands right yes why is it unreasonable for them to say show show with your hands and if he doesn't then proceed to well in this case the show over florida is the officers four officers get out of their police cars and four hot in the morning approaching and demanding that he raises his hand and then he starts the wait so the show with forty is show us your hands or raise your under your eye in jail but this this is a bit of an extension of jail right i mean jail there's a guy to bust off he's it's not a high crime area it's not for the morning there wasn't a report of a shot fired there's just a report haters a guy to bust out with a gun time that they approach mr love so far to the left they don't have the right to ask him to remove your using the government has conceded that the police don't have the right to ask him to remove his hands from the secreted location the government  but that doesn't mean that they've conceded that they didn't have the right to ask him to show his hands if you don't and then see how we respond right because it shows his hands is higher my hands then under your you've a very good jail argument that they can't do anything more when they say show us your hands and he keeps them in there then does that not up the ante no for two reasons they can go up and try to engage in a consensual encounter as part of that consent without reasonable suspicion that's can see it as part of that consensual encounter they can say hey we feel more comfortable if you take your hands out of the your pocket they can do that they didn't do that he has a right to dispute about that and to make that show of authority they need reasonable suspicion when he stops and stays put he has submitted i mean that's clear from this court's decision in johnson versus campbell officer goes up to mr  and is the mending that he rolled down his window well john they did have the if they did not the fact pattern that he's off that put these officers on this location now why didn't these officers have at the very least terry terry stop authority to approach that they had and say look we like to talk to you and while we're talking we please take your hears out of your pockets why is that a legitimate terry stop because all they have at that point is the anonymous corner of that hot spot making drug sell but when the police arrive this star not in suspicious in regard to the defendant on that corner and judge bakker said the hype the fact that it's a hot spot adds nothing here because the police haven't seen anything suspicious and go back are found and this court found that high crime area plus anonymous tip and those certain things it doesn't even come close to reasonable suspicion here one of the police observed they see a young couple engaged in conversation on the steps of the woman's home this is absolutely nothing suspicious at all and in their behavior this is a case like robeson it's not a case like connally or some of the other cases the government sites where the police it's connally there is no court decision that we know of that has ever said that and in fact we think it would actually be shocking if a federal court said that a police officer walking up to somebody i don't care whether high crime area or not i cannot ask a person least slow according to some of the testimony which little while consistent i would say he wasn't just slow and i can come back to that only one officer pulled his gun because he was repeatedly refusing commands we have a clear indication here very clear finding it's very clear that he found the officers credible every officer credited which one just because the officers testified to cross purposes on several issues well let me say and i still i'm going to come back to the important analysis of reasonable suspicion but on on removing his hands mcginnis is the one who's confronting him directly and says i told him repeatedly and as he didn't do it and as i became concerned he pulled his gun the officer who somehow has not been mentioned this morning is officer possessed i think his name  pronounced also omitted from the defendant's reply brief to zack is right behind the other two officers he says essentially this man never complied with us he was backing up he was being told repeatedly to pull us hands out he didn't he parked right behind their cruiser he was just a few feet it behind him as they walked out of what he said was he observed the other officers engaging the suspect upon the right what he did and he said and i think it's page one forty where he says he never complied and he raised his hands and what yes what seems to be of happened here is that there does seem to be a consensus that he essentially stopped and the frog maybe took a couple steps back but he didn't try to run and then they come up and they say put reaching a waiting car he stood at the passenger side door and turned toward the officers of course and he had stopped enough he had he had basically submitted to their authority and the fact that he later didn't put his arms up and whatnot doesn't mean that he wasn't seized at the moment that he stopped by the side of the car that's right he was released he did stop ethiopia had his hands on the car and then later they said to him could you raise your hands and he doesn't and what the sixth circu here if you can here with your girlfriend at four o'clock in the morning and three police cars come up and they jump out of the car and they tell you to stop and you do i mean you'd be frightened on your mind when you and i probably i your honor those that's not the record here the that there is a discrepancy as to whether he stops i acknowledge that as we have throughout mcginnis says he was frozen the other two say he was the other two say campbells as he in which this court should outright reverse and say he was stopped where you have no factual finding that he was stopped and you do have this discrepancy why did they have to approach him in the first place and town put its hands up i mean he just there with his girlfriend on the street within an hour and a half before in the same neighborhood which is notorious it is reasonable for an officer to walk out with the important point and this is where i started and what i need to get out with is that let's say they're wrong let's say they should not  weighing in favor of a re man because we have a different fact pattern than j l we have a different fact in than other similar cases that we've written on in this area and you know the government strikes me as asking for a little bit of an extension or a modification of jail based upon you know what perhaps are better facts for the government than the facts that the government had in jail why would we ever write an opinion of that magnitude and that difficulty without detailed fact finding by the district court that would strikes me as is almost it's very aggressive if not reckless his ins which i do think is immediate and supported by the testimony of all of the officers and judge joyner found it's a fish he found that he didn't find it necessary to go into what happened as he backed up put his hands against the wall he found i think you agreed with me that if we walk out there now on market street the police cannot require us to show them our hands so i assume this is fiction you're making is well market street at lunchtime is not a high crime neighborhood for the morning report he shows one and this court says they've got reasonable suspicion at this moment of criminal activity the pattern down the other cases when more important is the supreme court's case in illinois versus ward and this is also what  that you don't even have the right to ask somebody to do something that he has a right to refuse to do wardlow is a case in which all the officers do is pull up and the man runs now that's something that somebody has the right to do but nobody ran here no that's right let me just explain what i think is the legal analogy your honor if i'm standing on market street with such argument and the police pull up and i run that's not a reasonable suspicion i have the right to run away from anything i want to run away from and yet the supreme court says even if you have the right to do that an officer can still consider that in the talent of the circumstances and what is the plus factor in word love that leads to the finding a reasonable suspicion of this court has affirmed it in subsequent decisions is a high crime area so flight in a high crime area in other words you can always take innocent things that happen and put them together that's your visa decision you have to do this but the fetish position is he was chief for the for police officers additionally came there and before he even was even away i agree with it that's why it's over the wording no because he needs to submit and he does now lots of met him taking out his hands which is the first thing he's told the officers not only testify but there they're telling him a media and you sort of stand a place for even a moment you've submitted very what's crucial here and it's unfortunate is these cases come down to these fine facts like this what's crucial here is when we order is given to show his hands here it's as they're walking towards him a media exactly what your argument is is that maybe he was froze but there's two things he had to do this with with already have stop and he has shown his hands he may have stopped there's actual question a claim about that but since he didn't show his hands immediately therefore he didn't submit to authority i whatever is happening at that moment the officers and this court can consider in deciding whether there's reasonable suspicion if it happens after that moment he came and what i'm saying is at that moment of seizure he is doing two things at that i  to great that he's frozen in place because there is discrepancy but that best for the defense he's doing two things that that sack he is in place and he's not showing his hands that means at that moment that that's the where we freeze the picture and say let's look at the tally of the circumstance and at that second the totality of the circumstances includes that he has refused to show he's saying you know what mr epstein points out the first question asking what should they have done instead of jumping out of the car and really in a very aggressive way showing their authority what if they had done come come said excuse me we just i want need to talk to the other person stand by by the way just in case something goes wrong there's been a shooting out have got has been to given to us of a person that meets your descriptions from what we like to ask you some questions want to do that well they could and i'm not going to be the one to tell police officers on the street at four in the morning in this area where shots of a fire exactly how to do their jobs they chose to tell him to show his hands and i think it's pure common sense and not only do we accept what the officers say and judge during it clearly did that he gave this order but it's common sense if you're walking up on somebody with his hands into his jacket at four in the morning which shots are fired you have an anonymous report except that it's anonymous but didn't exactly describing this person i think an officer would actually be fairly crazy nothing ever came into any type of evidence that this was the person who did the shooting be or have no absolutely not so your honor what i'm saying is that i think what they did is reasonable and that's what the fourth amendment is all about but even if it's not reasonable they the reason this prevails is because of the way the supreme court for better or worse has to find this whole area of law through how dari what the what how dari basically stands for hutaree of course the case where they're chasing the guy down the alley and the supreme court says we will assume that they did not have a basis to do that and it's obviously what compels the person to toss the narcotics and they say there's been no seizure because he hasn't and that so the way the supreme court has inquiry for better or worse is he it's not just a show of authority it's not just you and i discussing should the police have done it better could they have done this better it's what actually happened what happened up to that moment of seizure and what i'm saying is up to that moment of seizure judge joinery the factual finding he did not show his hands that's the moment we freeze the picture and that's the moment we say what we have and that's what i'm saying to you is that is a stretch beyond were before the seizure because the seizure occurred before they told him to raise it before he actually raised his hands of course why does a seizure happen is when you were standing on the street the police come up and they go to you and judge hardiman ok stop raise your hands if you stop and you don't raise your hand you're telling me that's not a seizure you know what i'm saying is in this case and look at the facts of this case they're telling him not to raise his hands as they're walking towards this it doesn't happen where they casually stroll up and say oh by the way could you show your hands this is happening over the course of walking several car legs towards him because very quickly because whether it's quick or not very concerned for their safety they say they had to tell him multiple shown his hands that's the dish reports finding we can send it back and i'm fairly confident that you know the search trying to can more clearly articulate the finding that he made and it's evident in the ruling that he reached that that he he was asked to do this if i could just say one other you have to submit so not my primary argument here of course is he did remove his hands up to the time of the seizure and back at the end judge jury did exactly right in considering the totality as of that moment and finding that there was reasonable suspicion not probable cause anywhere that's the whole the whole case comes down to the command to show your hands be a legit refusal to show their hands and the timeline would seem to be critical regarding when the gun was drawn when the command was made to show the hands what response was made these are all critical facts are there not i agree and this is one of many cases in which it turns on facts like this as to whether the police could do what they ultimately did here again i rest on judge joiners finding that and i think it's implicit in his finding that he didn't show his hands as he was repeatedly told to do so up until the time he thought they finally got control of that if your honor thinks you need to know more about the timeline then i completely respect  case is did the government have the right to order him to show his hand oh without reasonable suspicion it's clear that they don't and that's made clear in the fourth what pieces which cases that we have or where it's totally employer and here's why there's no reasonable suspicion and burden when they make the demand and there's no reasonable suspicion here where they make that demand they might be a little closer to reasonable suspicion here because the number of steps but they s disappear they haven't passed the threshold of reasonable suspicion and why that matters is because the supreme court and warble of says one officer without reasonable suspicion approaches an individual the individual has a right to ignore the police and go about his business in any refusal to cooperate without more does now from a minimal level of objective justification so the offer the government the government's conceded of you standing there with his hands by side through the resource suspicion but they say that it's different because he's his hands are hidden wise i mean isn't it possible you could have had a gun in his pocket pulled it out and shot them i mean that seems sort of obvious statement they don't have reasonable suspicion of that though and because of that they can't know and why  why why wouldn't they were and they've been told that someone fitting his description has a gun you've got all of these factors is just what you have all these factors that even the supreme court i just the courts of appeals have about that now they're saying that they got the reasonable suspicion for the terry stop by asking him to show was here they said the reasonable suspicion came only as a result of him not immediately raising his hand not when they made the demand friends we're not dealing with a well worn path like some of the other fact patterns that you gentlemen are even more familiar with than we are we're dealing with a fairly novel very difficult situation why not remain on the case that 's certainly an option here why i would suggest you don't need to if you take any of the officers versions as a matter of law there's not a right police do not have reasonable suspicion to justify the seizure if you want  versus vernon fourth circuit case officer approached without reasonable suspicion hands or in pockets for circuit says the police have no right to ask to demand that he remove his hands and that the fact that the defendant there refused to remove us and try to get the facts which we don't have well we have each of the office we have we have allegations we have each of the officers testimony my thought my feeling is that under any of their versions take  all these factors you say a police officer could not approach someone who matched the scriptures high criteria for a good morning got truck reports of the area that they don't have authority to spot someone for a terri there was a police officer observing an individual that physically observing him casing what he thought was casing a department store who as i recall cry and he then had a right because he thought that there was could be criminal activity afoot to go up and investigate further this is this is a that's a on the right around when they pull up in the car they don't see anything suspicious they see a young couple engaged in quiet conversation now all that suspicious is is the information their head before they approach yeah so they think i'm less they can gain more right like flight plus and all this other stuff unless they can game or you win the case exactly and what we did the judge saw the other were obviously the judge saw it the other way and but if you had to be exactly sure what facts on the why didn't any of the officers test them the moment they get out of the karmic that show of authority they don't have reasonable suspicion and since he didn't run away under all of their accounts he because it would be a little bit risky for courts to establish a principle of law that officers need to engage in citizen encounters i think that's their peril allowing people who they think maybe from their cars and by doing that they might well have seen something suspicious i can all the other it is what the government site where they see some kind of for of hand movement that the officers from their experience and he's trying to hide a guy are trying to reach for the g that much what simmons actually does your honor because the second circuit there sat once the defendant stopped for reasonable suspicion purposes for the stop once he comes to a halt the officer couldn't consider for reasonable suspicion purposes he consider for reasonable suspicion person purposes what happens next that they ask him to raise his hands and he doesn't comply he says hands down are actually in his pockets and the court said well wait he was already sees he stopped you can't consider that for purposes of reasonable suspicion for the stop thank you thank you both counsel very well presented arguments as always