of issues the first one is that i want to address is on which gun was the gun that was the predicate firearm for the one twenty four c offense and i point the court's attention to rule twenty eight a letter which i brought today adding two cases the third circuit case in a fist circuit case which describes a case by case analysis as to whether unanimity instruction is necessary and basically what those courts say is that it doesn't matter unless it matters and if it matters then the jury needs to be instructed on unanimity and there needs to be a special verdict and be alert to case the ninth circuit case involving numerous guns including a machine gun which held that in that case it mattered which gun because of the surgery your penalty under one twenty four c that's just a specific really specific application of this case by case rule that it doesn't matter unless it makes a difference in this case it matters which of the gun because there was no evidence that mr haile and the government concedes and mr haile did not hold the gun that was in the lobby the gentleman that was in the lobby was not mr haile and in fact  page twelve of the government's brief supplemental briefs the government says the evidence supported that defendant was one of the two men who jumped over the counter and going on to the next page the government lists all the possibilities that the jury might have found as to what guns there were and how many guns there were and whether mr haile was just an aider and abettor of one of the guns and held no gun and because of that possibility that very distinct possibility in this case that was the brunt of the that was a possibility the jury could have relied on conceivably and it's jury could have found as the government argued the government argued that he was the man or likely could have been the man who robbed mr petit who had a gun the evidence that he wasn't that person had to do with the color of the bag which roberts carried and that my client had a southern accent you know because he came from louisiana so there was an actual proof as to which man behind the counter of my client was we argued and i think the jury could have found that he was simply aiding and abetting based in part on their question demonstrating their concern about that they were focusing on aiding and abetting so then comes the issue is is there insufficient evidence of aiding and abetting any gun in this of course segue individual the eight are in a better have for knowledge that a gun will be used but they have to take action to facilitate or encourage the use of that gun there is no evidence in this case that my client facilitated the use of any of the guns or encouraged  states versus nelson where they say well she participated in planning the robbery and she did not counsel or encourage the use of the gun in particular while she participated in the robbery knowing a gun would be used she took no action at the scene of the crime who did and gives examples of what it was that they actively did to encourage the use of the gun one guy called out to all the people in the lobby or wherever it was i think was a jewelry store to get down so that the man with the gun could enter safely and that was considered to be deny that but in this case the sure there was a likelihood of juror confusion specifically because of that and there was prejudice because the jury could have relied on the gun that there was no basis for finding a liability because of the insufficien the evidence and the same goes for the unanimity on whether my client was an aider and abettor or principal as to counts two and three and saying i argue that the same approach should apply that the court should look at it and decide whether it matters and in this case because there is insufficient evidence that my client aided and abetted by actively facilitating the use of either of the guns which is very distinctively separate from actively facilitating the robbery and these cases very clearly say that you have to facilitate the its main argument was the team theory that my client was just one of the people in the robbery and that his just being in the robbery facilitated the other use of the gun but there was no evidence of any action that he took so these cases reject that te actually really have taken to support the use of the guns other than what he did well in one of these cases one of the individuals who i think it's a nelson one of the individuals actually held the gun and was going to carry it and then at the last minute i think they handed it to the other guy and like i said earlier he arc one of them argued one of them yelled out to the people to get on the floor as the man with the gun entered which facilitated his s facilitated my client jumping over the counter i think that it's clear about the reverse it must be true my client didn't use the gun to facilitate somebody else's action he did the action that you were just i think correctly describing was facilitated by the man in the lobby because he's got somebody old in with him but you said well and we just news to him he didn't do anything with it well your honor i don't know that it was news to him there was not evidence that he knew about it and the government has the burden and the government has the burden of proving that he actively facilitated that he took some action so i'd like to talk about the suppression motion and to be clear i am challenging the fruits of the world with the rest of my client not the search of the of the house and so the name fruits of that a rest were his statements his post arrest confession and his suit which matched the prints on the counter you're going to argue there was not probable cause for the arrest of your client right particularized probable cause individualized probable cause as i said to him that's right that's my first point i'm also going to be arguing about exigent circumstances there's no question that the police learned through investigation that the robbers were in the immediate neighborhood of where they found that the tracking device the car and one other piece of evidence the keys to the rental car that was left instead of the my immediate neighborhood maybe you're going to get to there i went there and i there was there are posters shown to the jury and it's a there's a huge boulevard that's the street that the apartment house was on and then there was a house and a yard and in a little cross street residential street and a whole network of very close together blocks of residential streets filled with little houses and then that the boulevard is filled with apartments it's a very densely populated area this is just like the case where they watched a man run into a hotel and they don't know which room in the hotel he goes into that the robbers are somewhere  very densely populated neighborhood which is a neighborhood with a lot of african american residents including the other man who the police stopped on the street so they just randomly picked the only two men that they saw in the immediate area which is within a block of the tran ponder device stopped them both and determined officer testified that they just thought it was more likely that the robber was mister grimes rather than this other gentleman terry king  later in the day but again it was not a very cold day he was jogging and he had a startled look on his face that's what the officer said he actually used a different word in his declaration but i think that it is well known that in oakland when approached by police officers young black men have a right probably to have a star look on their face or a frightened look on their face and i don't think that's probable cause to differentiate him from another individual who they didn't say what his face looked like but they  ned him for several hours as well and they said that he was near these items of evidence which he was equal distance from the items as the other guy the other individual so they could have and they didn't learn anything more from him that connected him to the robbery when they questioned him they did not find out that he was the robber be they just found out where he lived and they determined because they determined it was him based on my think was a very good police hunch but a hunch does not make probable cause they zeroed in on the lot that is i guess adjacent to or some or near this little cross street and so although he was i think the description was i read them both again they were both one was on ninety fourth i think it's ninety fourth avenue which is a little street and the other one was on sunny side which is the little cross street and those are about the same side streets and they were approximately the same distance coming both in the same direction that but i think they're in the same direction of it but not anywhere necessarily  officer would have written that in his report if that was the reason i think that they determined because he was younger he was more likely the robber although that's not written in the report but it was correct that the transponder was found close to where they encountered this would give another house they happened to be on the street but as i said this is a densely populated area people could have dashed in they were not and then this leads me to my next point find as a result of the arrest that they would not have detail the aspect of the crime which is supported by evidence that has been shown by the government in terms of where the car was left what kind of car was driven that clearly that cannot be considered to be just cumulative that he would just simply have been an individual he lived he had lived part time in that apartment he had a reason to be there he could have been there when the robbers came home if in fact they're really the robbers and they come home and and he sees that they have all this money and all this stuff he could have also been found by the jury to been the driver and if he was standing in the driver then he would have been acquitted of the one twenty four say so there were a couple of different reasons now you know it seems to me that the police and probable cause to believe if there were believe that and they make the in alice arrest in effect that you do agree it was an in house arrest the government concedes that as well when they order them now it's the same thing as if they came back to the question in my mind is just what those facts were that established the probable cause to believe that the robbers of the bank were he an apartment said what i understand from the reports and from the government's position it's that he's near the device and  keys and the taco that he but no one sees him drop those items he gives a startled look and he was no is wearing no shirt and no shoes and his talking and those facts i submit to not support  finding that he a probable cause that he was the robber and so why necessarily with our choose yes he was running without shoes there are a lot of famous all the people who win the beta breakers every year have a great color won me a leopard marathon without humans but it's pretty unusual yes i mean he's the bank robber though i mean and you know is that and is it unusual enough that i understand you and they don't just stop him he's not the only person they start they that they have to there has to be continuous awareness of the not of the location of the suspect and in this case instead of that they found the residence by investigation which is clearly breaks the the chain of events breaks the pursuit and so there was no hot pursuit as well trial there was no need for a specific you know anybody instruction in this case because the defendant was guilty no matter what theory aiding and abetting or as a principle and no matter whether he had a gun or not there was sufficient sufficient evidence to support the jury jury's verdict and that's what we're talking about here is whether we're going to overturn the jury's guilty verdict if the found it was the man in the law me he had a gun and he clearly use that gun to rob the bank and they were all massed which is why we don't know which one was the fun if he was the robber behind the counter who was standing next to conjure petty the merchant teller she very clearly testified that that man pointed a gun at her and told her to turn around before taking the money if he was that man he's also guilty as a principal then there was the third man third man who was next to read a grimes through to grimes said that the men came into the bank she ducked down right next to her cash him which is right next to her and the man came over and ordered her to open up her cash can and she opened up the bottom one and she couldn't open up the top one under nelson which i think we can agree is the problematic case here now since found that the woman who participated in those robberies name was edwards but edwards was guilty as an aider and abettor of a nine twenty four c for one robbery but not for the other they found that she was guilty as an  abettor in the july eleventh robbery because in that robbery she had ordered people in the bank to get down before the person with the gun came in and so she had facilitated that person's use of the gun by making it safe for him to enter by giving that  the court also found that another of the bank robbers by giving a command for people to get down under the protection of the gun had served as an aider and abettor then the court found that edwards was not guilty of aiding and abetting the use of the gun on the august inforced by one or two guns that were in the bank so under nelson everybody in that bank is guilty of aiding and abetting the evidence for knowledge was just what his confession held it so that his fingers would be in this position on the gun before the robbery so from that we believe that because of the type of robbery it was it was an armed take over robbery of a bank in the middle of the day and he  planning it we believe the jury could have inferred that he participated in planning an armed bank robbery using a gun and that by holding and handling the going to head of time they could have been for that he knew that the gun was going to be used and the planning involved  and a final point on this issue of who was aiding and abetting if the defendants had not taken money out of the cash hands then the robber who was in the lobby if he was the only person with a gun would have just been standing there waving a gun around that would have been no point to him doing that everybody in that robbery was essential to completing the robbery everybody there performed a vital role and everybody there aided and abetted everybody else's participation now on a motion to suppress i believe this court had a number of questions one i can a factual question i can just answer right away philip grimes was approximately twenty five feet away from the tracker when officer was he was twenty five feet away from one away from the tracking device yeah ok when officer long first saw him so he was very close mr king was right across the street from where the tracking device was so both of them were very close the officers did stop mr king and they had i believe responsibility to do to find out either whether he was involved in the robbery or whether he'd seen anything that might help them out he could have been a witness and seen the robbers running somewhere as soon as they ascertained that he was not involved in the robbery they let him go they did not do the same thing with  for many respects they knew the tracker they had they had a handheld device that showed them that the tracker was in the immediate area the tracker has been moving they have been following a moving track or they have traced it from san still running because the signal that they had been getting from the well they knew that the tracking devices yeah they knew it was the other thing that they knew was that it takes approximately an hour to get from san jose to oakland and the robbery had occurred at ten fifty in the morning and it was now eleven forty five so they knew that even driving very very quickly the robbers had just enough time to get to where the tracking device was so they had to have just arrived or drive very soon afterwards they saw philip grimes and it was cold outside officer juan testified it was cold enough that he was wearing his heavy police jacket and a lot and they see somebody walking down the street very suspicious if you would seen them walking down the street wearing these clothes in the middle of the day so it was logical for the officers to assume one of the first things they would do is shed their bank robbery so the fact that this person wasn't wearing normal stree them that he lived in apartment five they found out soon thereafter that he didn't live in apartment five his apartment five was vacant they found out that he actually lived in apartments sex so he had given them false information about where he l which added into their probable cause calculation then they also found the tracker which was in the yard right behind the building where philip  three twenty nine bank and there was a path that connected those two buildings they knew that he was he was headed back towards ninety three twenty nine bancroft away from the tracker and back towards that building when they found the street and they reviewed the video surveillance for the time after the robbery and they saw it all down all this before they encountered the man on the street you know your honor they this information is information that would have been coming in to them as they were conducting their investigation ok and that the time they made the arrest they didn't know anything about the car right apparently it's not clear your honor because it didn't take them the robbery occurred at ten fifty in the morning when they saw philip grimes it was approximately eleven fifty five in the morning so it was an hour later it's entirely possible they could have seen that video i think they could have known at that time that they were looking for a dark colored s u v but it's just not it's not clear from the record there's not a lot of time stamps on what the police were doing robbery it is clear that at some point that reasonable suspicion does develop into probable cause as they find all of these other things that connect him and the location to the robbery and they connect him to the robbery and they connect him to apartment six and then while taking steps to secure the area they evacuate the building they know that the robbers aren't in any of the other apartments they know that apartment six is occupied and they know that the people in apartment six are not coming out in spite of the visible police presence in spite of commands to come out they're not coming out and so they have probable cause to believe that those people are the bank robbers how many apartments were there in the building you know there were eight apartments in the building one of them we know was not occupied because that was apartment five so there were seven it's just two story building here there was a two story building yesterday with all of the apartments basing the streets and then  they learned that from the apartment manager that the apartment that he had given the number he had given number five was knocking but they then searched the police records and philip grimes in their database and he has given apartment six as an apartment to the police in the past and they're so they're probably and six let's get everybody out of that building and see if they come out a few comes out of six or whenever anybody asked her really tell everybody get out of the apartment building cause to believe that phillip grimes was one of the robbers and that he had come from that apartment they did not know where the apartment was still occupied however that fact developed as the course of the investigation developed when they saw people in the apartment through the back window in the apartment knew that they were there for several reasons there was a visible police stronger civil police presence in the area they knew they'd taken a tracker with them back to their hideout and they knew that they'd sent philip grimes out to go get the tracker and he didn't come back this court is found in the past that's sending for example a drug program with drugs and if you doesn't come back there's reason to believe that that supplier whoever sent that person out can believe that that person was picked up by the police and the police are now surrounding the area and this creates an existence as this court has recognized in the past if you have armed bank robbers with a gun they haven't found a gun yet any guns along to get away or out of that they found other things holed up in an apartment surrounded by the police there's a danger both to the police and to the community and the police have the right to do what it was they need to do to protect themselves in the community in this case they did not go bursting into the apartment immediately with their guns drawn creating a dangerous situation they surrounded the building clear the neighborhood and talked the robbers into coming out of the apartment and we submit that this is a reasonable and appropriate response to the situation there was an accident scene they could have come in the could have gone into the apartment right away either based on shooter grimes's consent or the exigencies of the situation they didn't instead they chose to take the prudent and safe course of action i've never heard of it back and you know what i was curious to know i haven't heard applied to this situation although the court did ask what the government would have gotten if it what the government got us through the messages that it used that it would not have gotten had it entered the apartment on the street or crimes consent and the answer that question is nothing if the officers had gone into the apartment and arrest of the defendant was true to crimes consent she still would have  discovery argument had they entered the apartment under sharia grants consent they could have detained the people who were in the apartment while they were searching the apartment they would have found three people matching the description of the robber surrounded by evidence of the crime so at that point they clearly would have had probable cause if they did not have it already which we submit to it so you want to this is a case where we believe the police did everything right they had probable cause to believe that the bank robbers were in a particular place they didn't go bursting into that place right away instead they took steps to strengthen their probable cause developed their case even further protect the safety of the community and talk to the robbers out of the building before arresting them and there was no fourth amendment violation here the district court properly denied a motion to suppress the jury's verdict was supported by substantial evidence the defendant's guilt and we believe that the and the jury verdict should be affirmed i have a couple more questions a couple of minutes if there are any questions i don't see any thank you council for your argument  first i'd like to direct the court to the government's very helpful supplemental excerpts of record pages two thirty seven and about five or ten pages after that which contains the timeline that was prepared by one of the officers on the scene so it tells what happened each time in the day and shows that they called out and ordered them to come out at fifteen zero three which i believe is three zero three just several hours after they began to undertake this investigation other parts including this apartment faced a wall or a fence that is the next door and it's a little alley and they could not necessarily see the police just no indication that the police were in plain view in fact they kept everybody back and they made a very wide perimeter and there were no police cars nearby to the apartment the prosecutor says that as soon as they found out that terry king was not involved they let him go we present investigator to talk to terry king and he was held for several hours in a police car during this entire process so that's completely incorrect now in order to get by the weren't requirement and exit in circumstance as a justification they have to have not had time to get a warrant in this case they had time to bring on and set up a huge tactical center a few blocks away bring in f b i agents that were they list all the sergeants and all the detectives and all the teams that were here they had snipers placed there were two u s attorneys were coming back and forth who were available to approve a telephone or written warrant during that time period they had time to get the water and power department to turn off the water they had tons of time that they could have used to get a warrant in this case and instead they chose not to and to just pursue what they were doing to basically get these people out and follow up on their hunch because they knew that they could not justify or who knows maybe it's but i would submit that they could not justify to a court that why was barefoot on the street in the vicinity of evidence of a bank robbery and your honor's point is well taken they'd jettisoned one tracker in san jose and kept going so they weren't entitled to search all the homes in the neighborhood where that tractor was found in the rest of the people on the street there they could have checked chucked out the window that tracker and headed out into their next rental car and on the next you know on the way and as to the inevitable discovery argument of the government argued in its brief also that it was a protective suite pursuant to the concert consent that is all bootstrapping the officers ordered those men out so they could arrest them not so they could search and took my client's shoes at the facility where he was questioned he was