driving on october th two thousand and seventeen there is no evidence that it was at the location of the shooting and its near presence in the vicinity and near association with the crossfire shortly before and united states v d re mere presence at the scene of a crime or near association with someone who has committed a crime do not provide a basis for a search receipt or of property v appeared to be the same infinity as as you read that was in the video surveillance and referenced by the anything there may be i think i guess i would need to clarify when you say that evidence there is evidence that the infinity was seen at a certain location by it was actually seen st a st street in southeast near certain parkway and it was next seen in one stanton road in front of turner elementary and then it was seen turning right on to alabama at that point w three does not claim that it sees the infinity with the cross fire any longer and the cross fire is at th and ten replace fifteen place in town or streets  the w three then also sees the cross fire at an alley across from the scene of the shooting again not the infinity the next time the crossfire is either from the scene of the shooting so with with those facts with regard to the infinity those facts don't even raise reasonable suspicion that the infinity was at at this location of the shooting or had any involvement with the shooting now i wonder why that's why i asked my question the way i did namely a reasonable police officer having a look at the surveillance having read the witnesses statements could do nothing more than walk by when he saw the infinity and a man in it no an officer can always in gauge a citizen on the street there's nothing that that stops in  up to i guess return to your question as to what the officer i understand why you want to answer my question that way but i thought the record was a little different that maybe i'm wrong but i thought the officer approached the vehicle and there was some conversation and the occupant refused to get out of the car and i'm not clear here exactly what the officer did but at some point the officer put his hand through the open window and on lock the car go or i believe that's correct and then i'm not clear what happened either what pull pull the occupant out of the occupant got out when the police officer had on lock the door i'm not sure that there's a dispute that  the officer forcibly removed mr jenkins from the car so having asked him to exit the car two or three times what i'm trying to do and i hear is the government's brief as i recall talks about the occupants reactions to the officers a request to get out of the car yes and this in part of the mosaic of what would a reasonable officer having the information we've reviewed do under the circumstances well what i would say is officer did not have reasonable suspicion to seize d'angelo jenkins when the officer walked past the angelo jenkins  only had information about the car and and i submit that that information didn't as certainly not fifty two days later didn't rise to the level of reasonable suspicion to stop the car but certainly not probable cause to seize the car to back up just a little bit with regard to what happens on october th the record evidence is that the detective and this is from that affidavit that the detective conducted a traffic stop on the infinity and something subsequently i did the driver a traffic stop in and of itself is a seizure and if it is if it is a traffic stop if the basis for the seizure is not conduct of a person but because you believe you have a right to seize the car then the seizure starts taking place once the officer stops the car now with regard to mr jenkins if you're going to separate out the stop of mr jenkins which i submit you can't do when someone is drop in a car at that point there is no reasonable suspicion against mr jenkins there is only i keep hesitating because i don't think there's reasonable suspicion requires probable cause or it's not seized there's not a standard of reasonable suspicion to seize evidence is a standard of reasonable suspicion to seize a person because the person has is an act of committing a crime or has recently committed a crime and that's where the the timing of this becomes a problem for the government too because if officers had reasonable suspicion with regard to the infinity infinity is not a person infinity cannot commit a crime so i'm i'm i'm at a loss for what they could do with that reasonable suspicion on the infinity all they can do is which then requires probable cause so if they had reasonable suspicion for the infiniti they could not do anything with regard to mr jenkins they don't have reasonable suspicion for him they don't have probable cause for him but we do know again to return to october th the st thing the officer says and the record evidence is undisputed is that he conducted a traffic stop he didn't conduct a traffic stop with mr jenkins and the car separately he did both at the same time because of his suspicion about the car which means that it had to be a seizure of the car when he when he initiated that stop and any interaction with mr jenkins was was subsequent to that seizure and could not be a basis for justifying that seizure so whether the officer reached into the car or not whether the whether mr jenkins refused to get out or not should not enter into the equation of whether there was probable cause to seize the car as the officer walked by now if the court asked like what is a reasonable officer to do a reasonable officer as i said could walk up to mr jenkins and ask questions this is not a situation of escalating suspicion on october t this is a situation in which the officer from the beginning intended to seize the car so the officer did not walk up and ask questions and did not do what we would call investigation officer immediately implicated mr jenkins th amendment rights and mr dream jenkins th amendment rights with regard to himself and with regard to his possession of the infinity and if and if that all slowed through the infiniti then then the officer needed probable cause to to conduct a stop  in the shooting but gave rise to the reasons who at least as you said reasonable suspicion about the vehicle but bear in mind that the crime in question here argument independent of the stale argument stay on i'm sorry i don't follow you i think i thought you were making an argument about these precise sequences that i'm follow that here and whether there well i i think it's difficult no i'm not no i think i have always incorporated the fifty two dates into this analysis and i'm ok i think it's difficult not to because time is always a question the reason in the reasonable suspicion that any reasonable suspicion case that reasonable suspicion doesn't last for ever is obvious because that is that's that's an expansion of the th amendment that that is not found in the text or in any case law is it reasonable to think that whomever is driving a car  reasonable suspicion from its inception is an exception to the th amendment in any time the th amendment is implicated in time your business and sees them walk back and forth twenty four times when i look out agree that and terry analysis has been applied in additional circumstances and i thought would judge ginsberg was getting at this notion that you have the surveillance information and my initial question was premised on the notion that it's the identical vehicle that's shown in the fifty two days later is necessarily the same person you have the traffic stop the vehicle can be an instrumentality cross you say he could talk to the person and their why not reasonably approach with caution given that the crime involved guns violent shootings and maybe  occupant can provide some information to assist the officer in carrying out the investigation and when the driver reacts the way he does when even get out of the car why isn't that enough to cause the officers suspicions to be heightened i'm not saying that it's that the officer couldn't have suspicion and i'm my question is more than suspicion heightened suspicion well you know six we have all these cases about th prospective defendant acted nervously answer the questions directly that's not part of the th amendment analysis and i think you have to deal with it don't you yes certainly  all of this assumes and if i'm forced to assume if this is the hypothetical i am forced to assume that the infinity participated in the shooting then yes  the officer would have reasonable suspicion he would have been suspicion when he came up to the car if the defendant acted nervous i'd submit that the seizure takes place however at the traffic stop so the seizure has already occurred and everything that flows after the seizure occurs cannot justify the seizure itself  so in claiming that the officer conducted a traffic stop i understand that the court's concerned but at that point mr jenkins has been stopped and the car has been seized so any nervousness in the interactions with the officer can't be used as the basis to justify the seizure the only thing that can be used as the basis to justify the seizure is what happened on september nd two thousand and seventeen and we know that on september nd the infinity was with the crossfire for a number of minutes during that day at the crucial moments infinity let me interrupt you judge rogers have you had your question answered or can you continue it if we give him some reply sr if i remember correctly had already told the police that he was the exclusive driver of that vehicle  i understand that i now have the vehicle they have the information that there is only one person who drives the vehicle does that change anything but i'm not sure that that before stopping the vehicle then that it adds to the equation that mr jenkins was the person who could be stopped  the vehicle was involved in this tandem driving and maybe on a crime and the vehicles associated with only one driver we can let it go at that your honor i hate to like argue this but i'm having difficulty assuming it is an assumption that only one person drives it she said she hadn't spoken to her brother in over a month she said he was that he was the driver of the vehicle but that information even if true didn't give didn't was not criminal driving a car is not criminal i saw them that but whatever whatever suspicion attaches to the car now reasonably attaches to whomever was driving it because we know give you a couple minutes mr x and mr hansford good morning good morning and me at least the court eric cantor heard for the united states there are two alternative independent grounds to affirm the district court's decision to deny the motion to suppress in this case st as we've been discussing this morning the police have probable cause to seize the infinity but nd any taint from the unlawful seizure by the time of the search because the search was done under an independent search warrant that was executed in good faith well thought out of your brief raises some questions about that ask you were in your brief to discuss the traffic stop i'm sorry the traffic stop meaning what occurs during the course of the traffic  the fact that there was a traffic stop and what would justify that where is that discussed in your brief so i think that's an footnotes to what i think before we get there that is not properly before the court this is the defendant below never before the court the defendant exported because the defendant although never objected to consideration of a traffic stop before the district court and indeed in his own motion to suppress evidence discuss the course of that traffic stop with no suggestion that there was anything problematic about the traffic stop or that anything would be subject to suppression an from considering any of the evidence learned during the course of the traffic stop and indeed during the course of the proceedings both parties were discussing it and i think there are other points that seem to be trying to be reopened on appeal that are important which is that defense counsel below expressly conceded this is on appendix page one hundred and forty said i can see that these vehicles appear to be travelling together so any suggestion that it's mere happenstance that they happened to be in the same area that's an express concession that was made and the district court it i think relied on the full properly relied on the full scope all that were submitted by both the defendant and the government and so the question before this court at this point is whether the full backs in those affidavits would support probable cause not whether certain facts can be knocked out on a kind of theory that there wasn't reasonable articulable suspicion i will say as well on the traffic stop we also discussed this in footnote seven  the police approach a parked car they stop behind a parked car and it is not clear if there is actually a seizure at that point because it's not going to get it below but the defendant is clearly not even though there's a show of force the defendant is not agreeing to that show of force so under had already there is not a seizure until the defendant actually yields to that show for and so we don't have anything in the record suggesting the record some clear i'd say but i think that has to count against the defendant given that he didn't raise these issues but i do want to also note in addition to this tand driving this eight minute three and a half mile loop around the crime scene the police did have at least one other crucial piece of evidence before the encounter with the defendant on october t was tracked down to crossfire and the crossfire showed multiple bullet strikes in the crossfire so in other words this car that they had tracked down and license plate readers did identify these two particular cars but these cars that they had that the detectives had tracked down in this case the st car that they tracked down on suspicion of being involved in the shooting it did show signs of being involved in some shooting and so that provided further corroboration that these two cars that they noticed making this unusual loop were going to be cars rightly seen as subject of suspicion in and i do think under westby it's important to consider the full to tally of the evidence that was before the district court so the fact that there may be an innocent explanation for something the fact that it's not illegal for the defendant to be driving this particular car was beside the question is not whether there's an innocent explanation it's not whether a single fact in isolation is going to provide probable cause it's looking at the full of the circumstances and often individual facts that may on their own not seem particularly significant when viewed as a whole with the rest of the evidence that does create probable cause we we do in addition make the argument that even if there is not probable cause in this case the independent search warrant that the police obtain equally to cars which is that the police flee and to get a warrant to search a place but in order to maintain the status quo will getting the warrant they enter without a warrant and secure the premises and what and others say is as long as the police were going to get a warrant anyway independent source doctrine is the paper that any illegal entry or seizure and that's exactly what happened here which is that the police seized the car didn't use anything that they saw during the course of the seizure and then obtained an independent warrant based on that in our brief on pages forty six to forty seven cites a number of cases in other most we think that flows from the temporary reasonable articulable suspicion seizure of the defendant as part of this traffic stop the defendant is not arrested on scene and the supreme court  and eighty five case that we cite in the footnote to sad is when the police have reasonable articulable suspicion that someone has been involved in a completed felony the police can temporarily seize that person as part of a traffic stop to investigate that suspicion so we think the police at least did have that and in any event i think that the homeless the statement that the defendant was homeless is not the kind of straw that pushed us over into there's no reason to think that is the reason that the magistrate granted the warrant and the background principle is that the police should should not be in a better position from an illegal action but they also shouldn't be in a worse position which the supreme court explained that murray and so there's no rule that they have to kind of scrub any illegal action from a warrant in order for the independen that kind of single statement buried at the end of the war would not be enough to defeat the independen if there are no other questions we would ask that this court affirm and i thank you mr x and why don't you take two minutes the cases actually say that the word itself must be wholly unrelated or wholly unconnected to the stop to the seizure they could not the case law could not the police needed an independent legal basis to seize the infiniti separate from the information contained in the search warrant and here we know that from the beginning the police seized the infinity in order to search it this is just the type of exploratory investigatory work that the th amendment prohibits if the police could have gotten a search warrant ahead of time then they should have gotten a search more ahead of time they should have had a search warrant as the officer was walking down the street and saw the car as the officer was pulling up in his car and stopped the car  and it is not the only statement that mr vinay gives who is representing mr jenkins below made with regard to what he was agreeing to in this case but he says yes your honor i've because the video surveillance is clear and the police are able to time it and i would have no reason to dispute it based on the fact that they have whole cameras at the school and they have pole cameras leading into the parkway given that then i'm not going to challenge the timing of it so i can see that these vehicles appear to be traveling together he links the vehicles traveling together with time but he doesn't say the vehicles are together the entire time we know from w three that w three sees the crossfire at at the location closest to the shooting and sees the crossfire directly across the street from the shooting i would also point out to the court that within the affidavit the st affidavit itself as w three interest suit lynn parkway it sees the cross fire behind it it does not see the infinity with the cross fire behind it as it interceding parkway on suitland parkway stanton sooden parkway there is a pole camera that captures the cross fire and the infinity the cross fire again after the st affidavit indicates that the cross fire is driving and the infinity accelerates and the next indication in the affidavit is that the infinity is at st avenue and suitland parkway one minute before the cross fire arrives at that location so the affidavit is actually out of sequence but the affidavit does say that the cross fire accelerates if you look at the timestamps after the infinity has accelerated but the only time there is excel aeration is one suit when parkway blocks and blocks away from this shooting and that is the the  time that the infinity is seen at all with with the crossfire by w three so it is simply not accurate it is not accurate as i laid out in my briefs that the cars were looping this area together and it is simply not accurate