mr romero was convicted because he was found in possession of a gun the gun that was found after he was arrested for resisting a new mexico's resisting statute it was found after he was found to resist the only merrett was accuser resisting was officer dollars pat down or that pat down order was clearly unlawful because it wasn't supported by reasonable suspicion that he was dangerous because the order itself was unlawful mr american not of legally resisted in the unlawful order even if your honor is found that the water was lawful there was nothing that mr romero did in the video that you've seen where he actually resist because the arrest of mr romero was an offer for unlawful for multiple reasons and the gun was the fruit of that unlawful arrest the gun should have been suppressed how do you distinguish this case from terry versus ohio terry the fact pattern giving the given the totality of circumstances they were watching men and they were taking actions that look to be potentially a robbery here we have a man mr romero at a church on friday evening in broad daylight five thirty pm on an access road to one of our main highways in los cruces highway seventy one dollars where there's cars passing by frequently at rush hour all he's doing is disappearing into a church window officer dollar passes him by and because there's been reports of theft and vandalism not burglary but that's not at that church not at that church just in the area but twelve other churches correct your honor but ultimately he turns around he wants to investigate which we think is reasonable so he pulls up his car he announces his presence and he approaches mr romero at that point this romero's no longer looking into the window if i can stop you there it still sounds pretty much like terry they there was reasonable suspicion that warrants further investigation the officer does see a knife but within eighteen seconds and the timestamp data that i request the court to try to look at again if they're willing to is that nd forty four when officer dollar arrives  burglary which is a potentially violent crime and seen a weapon which is not a fact that was true in terry why isn't the fact that reasonable suspicion of burglary almost raise an inference of potential officer safety concerns your honor if we if we go back to the the suppression hearing transcript officer dollar talks about theft and vandalism there's no mention of burglary we think this was basically  a factual finding that was clearly a lot erroneous by the district court officer dollar mentions that there have been reports of vandalism theft does not mention burglary the government in its argument during the suppression hearing brings up burglary and ultimately burglary just ends up passing through the briefs that you read but if you go back to the transcript there's no mention of burglary so what we're left with is theft having said that even if the court is stuck with burglary of the stage we disagree that burglary is an inherently violent crime in hast because that's a weapon and it's dangerous it's a breaking and entering of a dwelling with the intention of committing a felony there and we disagree with the cases that are cited by the government that it has to involve a weapon it has to be dangerous but ultimately what i'm arguing today your honor is that if you look at what officer dollar testified to there was no mention of burglary it was theft theft is not inherently dangerous it's not violent and then we get to the video of the eighteen seconds were offered officer dollar approaches mr romero who's got a water bottle in one hand and a charger in the other and a pocket knife which read through the briefing is incredibly common in new mexico and legal you have not yet another kni him after the fact he had another knife but again in the transcript of the suppression hearing officer dollar testified to seeing a knife but then he backtracked when he was crossed and he said no actually i didn't put that in my answer  report that i saw a knife and i didn't put it on another pretrial interview that i had done and ultimately he was left with saying he he'd only indicated there was a poll so even during the suppression hearing he said that he didn't actually see a knife poll but yes he was clearly armed but there's nothing in that in those eighteen seconds when he's giving the order to i want to frisk you that was dangerous the conversation was what are you doing here that was  my phone you're right what's that and says you don't have any weapons on you do you and he says no i've got a ok he says let's catch you yes and what happened at that moment again i think the video is so important to watch again because and several times because he's reaching down say i've got a knife he's answering this question officer dollar acknowledge that at the suppression hearing and he also acknowledged after being cross that that's an answer he receives often times so there's because he's receiving that answer often times we can use that as an objective lee reasonable police standard for what happens when you ask the question do you have any weapons i've got a knife in people reach down again the video shows that he wasn't reaching to lunge at him or anything else and you can also tell even though the video gets various collated soon thereafter at that moment from officer dollars demeanor he's not in fear he's not he says wait wait a nd or so sir no i got a don't reach for it ok and then he says set that down let me patchi down real quick and i think  determines that it was a lawful order which we strongly disagree with the whole extent of the heat there's there's no resisting during the whole process now mr romero gets frustrated as i think most normal people would be you know that he's filling up his water and charging a phone and a police officer who's trained to deescalate situations is the one who escalates the situation but during the whole  video officer dollar did not have any reason to believe that mr merrett a criminal record or that he was a drug dealer involved in gangs he didn't know who i'm mr romero was he didn't have a specific complaint on this evening why i know that anyone was breaking into the church and  legal the the basis to do the search but again mr romero didn't resist and we think we think this case is very similar to the united states versus how it's the th circuit case  the house had been investigating suspicious activity call for a woman who heard noises in her basement there was no evidence of forced entry or missing items officer approached mr hasse was on the street mr hasse was holding a cell phone is right in his left hand was in his pocket officer asked if he could talk to mr house and we mr house turn around the officer no supposin the slip lefkow pocket well here they're actually investigating crime in house here or there just been some report of vandalism of that so i think our facts are even even better  you i suggest you go with what i'm asking you are right are all charged with resisting obstructing it's your choice yes are you going to give me a ticket i'm going to pat you down handcuff you and does not resist and it doesn't nothing one of them rises to the level of resistance mr romero doesn't flee doesn't fight back he doesn't curse at the officer the video plane clearly shows that the officers are the one who escalates the incident so there's nothing that mr america has done to to resist at the moment he says i'm going on you know after i want to catch down i'm going to charged with resisting the government argued that any error that m suppression hearing says that the new mexico statute resisting refers to defend or defend its overt physical act or defend its refusal to obey lawful plop lawful lawfully place commands and we submit to the court that there's nothing in that video that mr romero did where he makes an overt physical act to resist or doesn't obey the commands and again the video is very telling and also the transcript very telling because i think officer dollar confirms he didn't really you know alternately resisting he did what he's ultimately told there was some huffing and puffing along the way but again i think anyone in that situation where a police officer is escalating the situation would potentially out react similarly what's your best case our best case on the on on on these fact morning honors may it please the court counsel benjamin christians and we have united states i'd like to st directly address house where my opposing counsel left off and say i think there's a key factual difference between this case and house and that is that in the house there w a call out to suspicion of burglary but about fifteen minutes before mr house was encountered the officer already investigated determined that there was apparently no burglary at all thus there was no reasonable suspicion to a burglary and that is i think the key distinction between these facts and the facts and house there was no absolutely no reason to think here that romero was trying to vandalise or burglarize the church i mean he was on  outside of the church briefly looking in but by the time the officer got there he was just getting water and torturing yourself and your honor i believe that the reason is as you stated that he was seen period into the windows of the church i believe that officer dollar testified that he group they weren't challenging that and i don't believe they responded in their reply and stated that they were in fact challenging that that being said i do believe that the looking into the window with the background that there had been other crimes had to church at a nearby churches excuse me within the is assuming the burglary which i thought he said assuming it for purposes of argument not conceding it to us a matter of fact but i guess we're hearing different answers but assuming for purpose of argument that this is suspicion of burglary does that automatically justify a pat down i don't think that the court need to go that far other circuits have held that a reasonable suspicion of a potentially violent crime like burglary does almost per se provide reasonable suspicion that the that the individuals aren't interested but here i think that it is a combination of the reasonable suspicion of burglary with the fact that defendant was armed and i believe when the transcript  clip do your clothing constitutes a basis for a no your honor right the th circuit has or this court has held that the test requires a reasonable suspicion that that individual is all armed and dangerous believe is that this was an isolated empty parking lot it was daytime there were it was close to a road but certainly if if a defendant had chosen to attack officer dollar no one else would have been  court as well as the new mexico court of appeals have held that refusal to obey a lawful command is in fact resisting under this particular subsection and i think it's i think here it's important to note that the district court made factual findings that defendant did in fact the six the district court found and there's been no one challenge at any point that i think until i believe this argument that any finding by the district was clearly erroneous the district court found that there were that officer dollar was compelled to drop his taser and repeat the order once again at that point i believe it was the defendant place that was on the ground but did not turn and face the law so finally officer dollars that go to the ground he did not other than expressing we will remember about why he's being asked to do something i just don't see even a scintilla of evidence of resistance and the whole thing was twenty seconds are you saying that if you aren't down on the ground i mean never ran he never put his fists you never understood where were you never he never said no he never even said no he said why in the twenty seconds he never got an answer why and he did exactly what he was told to do so if you have this video and the conduct of this video supports a conclusion of resistance then there is virtually no way you can not resist i mean he could hardly have got to the ground any faster than a reasonable person would your honor i would say that state that the district court found that the video when considered in light of the entire record including the suppression hearing and where he was able to judge the credibility of officer dollar and hear what officer dollar perceived at the time he stablished that there was a refusal to in our response brief and i think that we conclusively show that's not true they reply brief that adopts a new argument which is that defendant never resisted at all and i think that that sort of that mutation of the argument is why there's never been an attempt to show that the district courts the actual finding their findings are clearly erroneous up until counsel mentioned the words clearly erroneous in his his a i'd like to turn to the ultimate basis to finding that there was resistance here and that it's reasonable and state of law i think that there is case law from both the new mexico court of appeals as well as this court that recognizes that refusal to obey a lawful command is in fact it isn't fact sufficient under this statute however i would like to ask you to read the transcript with your permission and ask you at the point at which there is a failure to obey a lawful command officer dollars shows up and say hey what's up man how are you remember pretty good off you tell me when i reach the point where there's no bang lawful commanding officer daughter what's going on rogue room air oh i'm getting some water and charging my phone dollar what's that mr romero i'm getting some water and trying to charge my phone dollar listen to me this can go smoothly or it can go rough for you i suggest you go with what i'm asking you all right your honor i have but i believe that the point at which he's resisting i believe it was that that was the district's actual finding works so i believe that's correct your honor except to the extent that you have not seen officer dollars testimony in person and that i believe is the basis you know that to me as the justification for the clearly erroneous standard  if i may return to the reasonable mistake of law to before concluding my argument and they said i think that the new mexico court of appeals and circuit cases have held that a failure to avail awful command is in fact  refusal to obey immediately you know why is the time lag legally significant i think here is your honor it's legally significant because it required officer dollar to repeat the command to escalate the situation by by drawing his taser i think i i think that there is there most likely some sort of minimum amount of time that would be required to refuse to obey a lawful command but i think if the amount of time that was sufficient  dollar to repeat the command and to also be forced to draw a defensive weapon and further repeat the command is it's more than enough to refuse to obey a lawful well here's the problem you tell us that  refusal to obey the command is after the point at which the officer says let me pet you real quick if you're but the pat down has to be justified before it is requested not after it's requested and the only thing that took place after he said let me pat you down real quick is the question why yes your honor and i don't see the question why being resistance  if somebody says it is it seems to be that's clearly erroneous i think your honor i would formulate it is two questions the st being whether there was reasonable suspicion that he defended was armed and dangerous such that officer dollar could or pat yeah but yeah i went through this you didn't tell me that it was any of that prove that he was armed and dangerous yet i can cite and i understood that you were asking me to prove where he resisted the threat believe that the facts that us now know not where he resisted were he refused to obey an order and romero says are you going to give me a ticket or what and officer dollar says i'm going to put you in handcuffs and take you to jail romeril i don't want to go to jail at that point dollar the officer pulls out his gun and he points to that romero and then he's going to throw him in handcuffs and then he is going to slap a taser on the guy no resistance or at least not that we saw in the video no resistance from the transcript that we made of the video i just don't see it i mean  i hear your argument but it's premised on a lot of conclusions that i don't know it's only one judge but i just didn't see it was justified here as i believe that the refusal is following circumstances one that there's just no behavior that rises to a level of resistance or more importantly did you can see that this was a burglary your honor in the in the opening brief u ltimately yes we did but again we submitted the transcript you can see what we conceded that he was investigating a burglary but even having said that we disagree with the fact that a burglary is inherently violent and that a person must be dangerous so i still don't think you get to the the patdown the why do you make a concession i don't stand for your honor i think what happened was i wasn't involved with the original  case and then i didn't write the appeal i just stepped in already but i think what happened is at the suppression hearing officer dollar made it clear that it was only theft or vandalism and then the government commingled the terms burglary and theft we didn't object to the suppression hearing and then it just evolved into that in the brief but i think we could be potentially saved in that the transcript of the suppression hearing it only says stuffed in vandalism by the actual officer providing the evidence the nd clearly erroneous structural finding is that the nd ninety five was never by officer dollar determine to be a knife at all it was just a bolt and there's no indication that it was anything violent felony cases presume that burglaries and inherently violent some cases do your honor yes and i know the government side of those also resisting the resisting finding based on all the facts  clearly erroneous and again the back to the knife i mean the knife that was seen was a pocket knife and officer dollar conceded that that's something that's common in mexico he says at multiple times per day he also sees mr romero's reaction of saying yeah i've got an item yes and reaching down your honor i believe we did your honor of you also asked for the best case i also think in terms of whether he resisted or not maryland versus pringle the supreme court case sets out what an objective lee reasonable lease officer we believe if he's resisting or not and i think objected lee reasonable police officer with make no way this person resisting and wouldn't escalate the situation is officer dollar did your honor your own as we're asking requested requesting this court to find that suppress should have been granted vacate his conviction and sentence remand for further proceedings and grant other relief as this court finds appropriate thank you thank you counsel counter excuse cases submitted