clients mr carter is a part of works for a company that's owned by his wife and on a particular day in august of two thousand and thirteen pursuant to his job he was on route from the city of lorraine which is approximately thirty five miles west due west of cleveland into the city of cleveland to deliver a variety of recycled metals which is part of his wife's business as he's proceeding down the road he is very aware that the city of rocky river ohio one of sixty two municipalities in cuyahoga county has a very vigorous straffing speed enforcement  policy and so he deliberately slows down to two seven miles under the speed limit puts his truck on cruise control and is proceeding in every manner lawfully through the city of rocky river up to his overweight well actually that's a that's a that's an interesting question and let me address that in the moment george gilman if i may as he comes around a slight corner he discovers he doesn't even initially see a rocky river police officer who has positioned himself in an unusual way at the entrance to an on ramp to an off ramp who he does not know is specifically looking for his truck because he has been directed to do so by his supervisor this gentleman his name creates he's not a defendant in this case as mr carter comes past him the officer pulls out he has a dash cam video that's part of the record and the desh cam video shows precisely that mr carter's going between fifty two and fifty three miles an hour just as he's indicated his speed is not variable he is not weaving within  lane he is not doing anything inappropriate whatsoever including being overweight your honor and let me deal with that in a moment the officer follows mr carter for approximately two miles down the road ultimately turns on his overhead lights and pulls mr carter over and comes up to the vehicle and has a discussion with mr carter mr thompson there is no odor of alcohol there is no odor of marijuana there is no indications whatsoever that this truck is unlawful or that the the driver or the passenger in the vehicle have any wants warrants key pieces or anything have done any kind of a cut to the chase here the the suspect is carrying drugs they pull him over he doesn't have any drugs they trash his load and he says you had no reasonable suspicion to stop me you violated my constitutional rights that's exactly what he said  in a sense the issue is how legit is this overweight requirement and they have some other things they fall on by the wayside but assuming that it's there's reasonable suspicion of overweight they're probably ok if there isn't probably not so can you address the overweight issue sure i'd be happy to well first of all the the record of his this case was decided on a summary judgment motion so the record evidence is as follows mr carter mr thompson both indicated that the the tire inflation on these truck on this truck was completely appropriate the tires are radio plight or radio tires and if you know  biased plate tires very rigid a radial tire has a little bit of movement but virtually every car in the united states at this point is operating off of radial tires the contention was the officer claimed that he could see some kind of a quote bulge this was the term on the rear tires however he never identified the extent of the bolt she never obviously photographed it and you can see the tires in the video that do not show any unusual bulge whatsoever on the tires the question legally is whether or not and allege bullshit tire without any other facts is sufficient in order to find reasonable  suspicion to pull the vehicle over and although this court has never addressed the issue the number of ohio courts have in fact addressed this question because this is a frequent issue when it comes to whether or not a truck should be pulled over for some kind of truck and force made in the state of ohio and the case law in ohio has been very abundantly clear that bulging tires without more is insufficient as a matter of law to create reasonable  e suspicion however the district court held exactly the opposite we think that that is the legal error because there are many reasons a truck tires could potentially be quote a bulging or not bulging one of which is inflation but in this case specifically mr carter testified that he checked the inflation on these tires before he left just fifteen minutes before he was pulled over so there's no question at least from the record evidence that there's a genuine issue of fact interest spewed us to whether there was any bullshit or not what the district court appeared to conclude was because there had been a subsequent weighing of the truck and a perp horded alleged over weight of the truck that that was sufficient evidence to support the contention that the police officer had a reasonable articulable suspicion to pull over the truck in the first place of course that is not consistent with the law whatever you subsequently find in a search does not necessarily support in fact it's not even relevant to whether there is reasonable articulable suspicion to make the stop in the first place but that appears to be where the district court lost its way and further there's a question about what the lawful weight of this vehicle is coming to judge tillman's point in this case the contention was that the vehicle was allegedly five or six thousand pounds overweight however there is no evidence in the record to support that at all and in fact as we pointed out in our brief the method to determine the maximum allowable weight of a truck under an ohio statute fifty five seventy seven four is you have to know the total number of axles you have to determine the distance between the axles and then you apply a formula to determine whether or not a truck is at its maximum allowable weight there is no evidence in the record that this was done and in fact a traffic citation that was given to mr carter was subsequently dismissed by the prosecuting attorney after a motion to suppress was filed in that case which allowed alleging the exact thing i just sent there's no basis to conclude my right that it was it was in fact waited twenty six thousand one hundred pounds that's that's what the officer claims that it was weird but there is another little problem with that and i don't need to get it let's pass that one unless you're going to rely on it evil claim that the amount was one thousand nine hundred thousand i think five hundred pounds and they base that upon a contention that this is what a database allegedly showed them even though the database is not part of the r and the database at least that number as i read it was a database of vehicle rate teens by manufacturers not by statutes exactly right correct as exactly right ok so even if  general motors thought it was too heavy that doesn't mean that it was the statute well that the statute says it was in whatever state you're in you could have a statute that says don't load it above the manufacturers  not the ohio statute as far as i know that is exactly correct that is exactly correct would you have any opinion or is there any on the record of what the maximum legal weight was actually for cars trucks well judge it would depend on the  the distance between the axles and the and the application of the formula and i have not done that and there's nothing in the record that was all when it was weighed after it was towed in the way they determined it was what nineteen thousand something then this was six thousand pounds over they determine it was twenty six thousand five hundred pounds i believe that's correct that's just out fact of what it weighed the question is what's the standard at least when when i ran the formula and judge gilman's an mit grad so he can do this better than i issues that i can see only have two minutes left and that relates to the reliance in part that the apple these really rely on this that somehow they had a confidential informant that told them there were allegedly drugs on this truck well the law is very clear that in order to rely upon a confidential informant to make a traffic stop such as this there has to be some evidence that the reform it is reliable that the it from that the informant has knowledge and that there is some basis to rely in this case ironically i attempted to i ultimately after taking a whole series of depositions in the case i was i finally identified a police officer in the city of lorraine who supposedly had heard from some confidential informant that nobody had a name for as to that that he was but that he had this information from this confidential informant told the da about it da told rocky river and the state trooper was involved so i wanted the record is completely without any evidence at all that this confidential informant even existed but secondly  that any information is confidential informant had was reliable that he had any basis whatsoever to contend this and although i submit this is logical i'm sure we'll hear a chorus of objections there were no drugs found on this vehicle whatsoever so by definition whatever claim was made here was obviously specious i don't know that a claim was ever made but somehow the mr carter's truck came to the attention of the rocky river police to do you agree that i guess their brief seems to say that at least this this originated with the detective thompson of law rain and you're saying that other than the fact that it did originate with him we don't know anything further that's correct and ironically i tried to depose him and this was opposed by by the parties and ultimately i was unable to take his deposition this one i only learned of his existence and involvement after i took the dea agents deposition which was a long process getting be able to do that virtually we don't have anything affirmative even by allegation that detective thompson said you know i have dealt with c i forty eight for ten years and he's always given really reliable information the way you usually see precisely right there's nothing in the record to support that at all ok i reserve the remainder of my time thinking i'm for rebuttal it please the court my name is frank scaled down and i represent officer hamm way as well as the city of rocky river the district where properly held that there was reasonable suspicion of the totality of the circumstances and you know i'd like to correct counsel's characterization of the district court's opinion that the district court went to ride when it relied on an after the fact determination of what the what the truck weighed in actuality the court went through found three factors very significant one and the video confirms this is that the load was visually or you know look visually overloaded with these four by four package aluminum cans they almost look to be hanging over in certain respects of the flatbed of the truck and the way very much of them i'd get if there is more on the truck but yeah i would say i would say the same so i guess a lot of them when you pack them together the weight gets gets substantially more the other factor that the district court relied on is that you do a bulging tires for whatever reason there is bulging tires on the back of this that would lead a reasonable to be a reasonable inference that the back of the truck is overly overweight when you're looking at the this is really when you're looking at the weight of which on the truck your was your guy  overweight inspector did he say you know we've had training and we know if the tires are bulging that it's more than twenty seven thousand but he didn't go into that no i mean he has he wasn't he wasn't he wasn't he was the standard you know you had the standard training that he has in terms of determining reasonable cause reasonable suspicion and probable cause except but he was not an expert in that but you don't have to be an expert to be able to see in these in this circumstance when you're looking at what the looked like the and before they set off on the journey tires were i don't know if it's a material dispute of fact on that if the ball if the tires look like even if there is it's properly if there's the proper inflation of the tire the if the you know the inflation of the tire is if you do have overloaded and what they did determine it was overloaded there would be extra baldinger matter if it was perfectly perfectly inflated so that's what the op of the officers perception is it looks overloaded that the tires are bulging and third and this is another factor that the district court relied on was the slow speed and it is odd i travel this i travel this this r every day and i ninety moose pretty quickly certainly over the sixty mile an hour speed limit to have a truck of that size with that load on it going that much below  the the flow of traffic i think is another factor it's not like he's going thirty miles down no no not and i don't mean to hurry i mean do you mean you can pull over any truck that's gone within ten miles of the speed limit oh no of course not i don't i just giving you the three factors that the district court relied on and when you bring all those together the am i right on this slow speed that the the the video the evidence shows he's fifty three  the officer claims that he was going slower earlier but that would seem to be a disputed issue wouldn't it you know that we i think what he said was he was going slower and weaving and then when he flicked the lights on like cars on to video the video doesn't show weaving so it you know because it goes on when the when the as he wasn't the officer says he was that's a disputed issue that's correct and that's let's go let's go over to the weight on the one hand we i guess they have a little quibble but let's say that that really weighed twenty six thousand one hundred question is what is your argument as to what the right statute limit is and did a know it and how did he judge that it was more than that limit so go through the you know i don't think i mean i have the the the determination of how you know how how it was alternately done was an officer hines deposition testimony and how he figured out that it ultimately would be overweight and it had something to do coming from the registration tags of it as far as ham way i think it's under the circumstances that he had he can make the determination to go to pull over the vehicle if he sees the bulging tires if he sees visually heavy heavily overloaded truck and is no idea what the law is well i think that you know what i'm saying is that the you know i don't know if the testimony goes into detail what you know what the exact amount is going off of this manufacturer's database not off of some statutory base you know i apologize i can't say you know one where what i have is a page twenty nine of his deposition it came from the registration tags which apparently through the lead system there can be a determination at least as i followed it yes and i just don't i understand that it's saying that this is a certain kind of truck which actually depends on whether it has front or four wheel drive but the manufacturer says it should weigh so much that's the way i read it i can we can go back and read it again but i just wanted to give you the chance if you were telling me any different ok message from a reliable source because he's really relying and i guess this goes into qualified immunity and he's receiving that from the his supervisor and will have a poke about reliable a little bit later but i know your li good morning your honour's may please the court i'm morgan land i'm representing to your burgeoning speakers today and i would ask this court to affirm the district court's award of summary judgment for trooper baker so far the things that have been discuss d don't don't have much to do with trooper baker he did not make the stop of the vehicle he did not participate in any part of weighing the vehicle but i will let the tail end of mr englishes time up here he did get into confidential informant tip so i can speak to that as well because chipper baker was passed on and given that same information even though he did not stop petitioners vehicle under alabama versus white that case dealt with anonymous tips and to determine the veracity of the tip specific cooperation of the details of that tip are needed and that's exactly what happened in this case regardless of the direction what is it about that for maybe a reliable but i think a little more i mean it was just very specific they were able to cooperate there was the color was passed on that was a black a specific type of black flatbed truck what it was hauling scrap metal specifically crushed aluminum cans and ham waifs saw the three cubes if you watch the video on the very back of the truck driving on i ninety location and then he comes in the predictive information driving towards eastbound towards cleveland so he was also able to confirm that as well as he he sat watching the strip of i ninety and then came the criminal activity the drugs may be contained within you're right your honor the actually the drugs it wasn't like anything was visual from the street so that would not be a basis to stop the vehicle but very close in time after trooper baker got out his dog pocket and walked around the vehicle and paca had indicated to the odor of narcotics that him indicating to narcotic odor would cooperate the tip that there were possibly drugs somewhere contained in the vehicle served baker's concerned i mean is it kind of why are you spending so much time justifying the stop when he didn't make the stop the way baker avoids liability as he did his dog what his dog supposed to do and unless there's a and you know they make an argument about the toy and so on but unless you the question of liability is whether baker evil lee primed the dog and we'd look at the video and can make a judgement on that i suppose the district court made his judgement in your united states supreme court has said that if there is that a bonafide organization that has certified and trained you know drug sniffing canine that that dog's positive alert can be presumed to create probable cause that oh  here if you watch the video argument if there was a right absolutely in the district court watch the video and said that petitioners allegations were directly blatantly contradicted by the video what you know if there is any question i'm happy to explain that  the dog walks around counterclockwise and different seams of the vehicle are presented think of it as a zigzag motion if you will so during that time the dog is presented these different areas and he smells the dog on the video you can see him jump up on baker's video scratch if you hear the scratching for five seconds and then where they keep the keep the toys sometimes it's a ball sometimes it's a p v c pipe is going to be something that's very durable with the dog's teeth and pulled out because the dog does think that he is smelling for that narcotic odor and you can hear as your trooper baker throws in a downward motion it is coming down and you know flipping around hits the truck and bounces off that's what pocket goes to obtain  as one trainer put it because apparently papa still believes in santa claus he thinks that the when he indicates that's all of a sudden here comes my my treat toy so that that is what i believe that the video shows a the district court certainly agreed with that interpretation there was no you know attempt for trooper baker to sit his his stick up onto the truck and cause it to fall to the question of videos and scott versus harris which supreme court case as i understand the law and tell me if you agree or not is that we still give the district court findings of fact deference unless we find the video compelling in the opposite direction which is what the supreme court did in scott if we thinks it's ambiguous we would not find clear error in the judge in the district court's findings shirt we read if we watch the video and we're so convinced that he got it wrong then we can say that right ok right right and if there are any other questions and i just thank you thank you and time for  let me address the whole dog issue there were two dogs in this case pocket in storm the allegation is that pocket allegedly alerted to the presence of narcotics for these alleged presence of narcotics storm did the exact same thing trained in the exact same way and never did whatsoever that's an interesting issue but in him and in that florida case the fact that even the same dog sometimes correctly alerted and sometimes didn't correctly alert didn't make him improper so the fact that a different dog didn't bark wouldn't seem to you know sometimes sometimes the aaron rodgers throws touchdowns and sometimes he throws interceptions he's still a good quarterback well that's correct and so my my my point in this case is not necessarily that  you cannot ultimately if you find or the court finds that the dog in fact alerted that would give a basis for probable cause i can see the issue however in this case there is i think sufficient rebuttal evidence in this in this case that a reasonable jury acting reasonably considering the video and the testimony of mr carter could find that in fact this the dog never alerted at all david carter said that he was sitting in the police car immediately behind this and observed the officer because this took toy to be hit on to the back of the truck and that's when the old occurred and i think it reasonably looking at the video you can easily conclude that and to suggest somehow with all due respect that this is a blatant misrepresentation of what the video shows respectfully that you heard the way i put the law in my view of the law to your adversary isn't that basically right that the district court would still get first deference and we would need to find that blatantly contradicted by the video the way they ultimate question for the jury and wrong this point is probably not the dog business whether there was a reasonable suspicion to stop here well that's why i started there because i recognize there's a dispute in the record about this but ultimately i wanted to address that point because i have not the idea that somehow officer ham way had any clue what he was doing when it came to a commercial truck and for smith is apocryphal at best officer him we conceded in his deposition and i took this deposition it's in the record that he had no idea about commercial trucking foresman had never been trained to do this had no idea what the meaning was  and to answer your point judge donald this was as close to a pretext as could ever be now i understand it pretext is not going to get me there but they knew there they thought that they had a big drug bust coming because of some alleged confidential informant who hardly ever told them this and so they found a way to pull this vehicle over that is a unquestioned violation of my client's constitutional rights and as a result the district court's judgment should be reversed thank you this will be submitted