next case is the united states of america versus shawn graves clear offender in hansford for the north carolina robbery convictions with the court's permission i'd like to begin with the second issue career offender and handsome and i like to begin with that in part because our position honour's know from the priest north carolina robbery is it not consensual take the of money or property by violence or fear and that it can be violated by the minimus force what we have to do in terms of whether or not that's an  robbery for the clear fender statutes is faulty analysis that was sent out by your honor judge hardiman in the murrah case which is to look at various sources and to the still a generic definition of theft by imitation and putting the victim in fear and if the court were to adopt that majority position then north carolina robbery would be that integrated robbery offense because it corresponds with a analysis and we agree with you in the ten states that define robbery with infliction of serious bodily injury and couldn't persons in fear of serious bodily injury and so i think more that question is why not follow the model penal code that's right it might be our default position but if there's a whole lot of case law going the other way that does give us pause right well it might on the other hand consider that  state legislatures that come up with these criminal codes are often not these codes don't come from the greatest legal minds and i think if you contrast that with with those who are the american i sometimes as legal minds end up on federal court should consider very strongly i guess it's a very i think good academic interesting argument you're making mr kraus but what i'm struggling with is even assuming that the model penal code is the better approach is that really our task here or is our task to ascertain what north carolina was up to no i think your task is to decide on a generic definition of robbery well but and you know we can give it a new definition even if the north carolina statute at the time your client was convicted mapped onto a different standard i guess i'm asking the question of timing is it is it relevant what we would now say about the north carolina statute or is it relevant more relevant to evaluate whether the north carolina statute at the time your client suffered a conviction there was generic robbery well the don't carolina statute has been what is the task in trying to decide whether it falls within the numerated robbery definition for purposes that requires this court to come up with a definition for generic robbery and that's what he wants to define generic robbery contrary to the way most courts of the find it it sounds like the majority rule and quality of number of decisions necessarily of the deciding factor by well that's a fair point it's certainly possible that a majority of the courts have asli describe generic robbery that's the essence of your point yes why do you think then perhaps you could give us something more persuasive and hey you know the folks at the ala wai are really smart and i cited in an opinion that the m p c is a good place to start which certainly it is but can you give us a more substantive reason as to why on the substance the m p c's definition is is better than the mood of the majority here but i think one reason would be that having robbery included serious bodily injury  separates it more distinctly from mere larceny robbery i think that a lot of stat loft codes is actually considered to be aggravated larceny and i think the  may i move on to another point yes sir ok i want to one move on to the suppression issue and there were two points in the suppression issue one that was then i'm going to touch on one was that the stop self was not based on reasonable suspicion and the other is that the seizure of the drugs from the watch pocket exceeded the scope of a proper terry stop and i'd like to do discuss the second one first that the seizure of drugs from the watch pocket exceeded the scope of the proper protective frisk i say that because in dickerson the object of a proper frisk is limited to what is necessary for the discovery of weapon of weapons and the reason why the pat down of the watch pocket and went beyond that scope is because and this is a a fact in the record that really hasn't been commented upon by anybody you can't put a weapon in a watch pocket there's no weapon to be looking for this have to be a weapon or it could be contraband well the protective frisk is only looking for weapons with and to protect the safety of the switch boy i mean i don't know they certainly use your so you're saying contraband doesn't count if he thinks he feels crack cocaine or something like that that doesn't count well my point is that the watch pocket is so small that he shouldn't even be patting it down it would be an almost as if he was wearing flip flops in bare feet and he can't put harrowing stamp bags of heroin can't fit into small places oh sure but this is a protective frisk pocket that seems rather awkward when year when you're doing a protective pat down to say well this area would be his mall for a weapon so i won't touch him there well might be a little we argue that this was not a proper stop because there just weren't enough specific facts to permit it i think one of the things to consider here is what symonds did not see certainly he got the report of the shots being fired in a certain area he got the report of the two men leaving the area when his directions he spotted the two men coming into his area after that one suspicious people as he's trying to avoid me any one of those things if you break them up they're clearly not enough they're they're little they're little bricks in the war yes but there were there were several bricks in the wall right well this is true but small one as far as the analytical framework that being said obviously the united states takes a very different position as to what should be used to define generic robbery and the m p c while it may be a good starting place as your honor has pointed out in the merit decision is only one of the places that the court just look at or both taylor and your discussion and marrow and one of the other excellent places to look or find places to look would a significant majority of the states in the union define robbery in the sense where fear is enough it doesn't require the serious bodily injury so how significant is the majority can we do we have an exact count well it is sick in those cases i think they added up the numbers being thirty eight including north carolina would be the fear or some level of force so the broader standard is something in the order of ten states had the the attachment to a severe bodily injury or bodily injury requirement and i think there are a couple of states and independently i looked at this as well where it's kind of hard to fit them in one definition of the other so again it is a significant  majority of states right but so that doesn't make that the persuasive you mr kraus argues that without the fear of injury it seems like larceny you know why why isn't there some virtue in more clearly distinguishing robbery from arson well there maybe some virtue in that but that's not the analysis the job of this or an in determining what generic robbery is isn't deciding what it should be but rather what it is and basing that upon things like what the majority of states choose to call robbery and and that i think is a significant difference between the way the united way north carolina chose to go it's not the way that north carolina chose my own how do we know that how do we know that just by reading the statute correctly and that's that's what we have to go on but what they chose through using common law or robbery so does this mean that the federal courts are always bound to conclude that a generic version of robbery or any other crime is simply determined by polling the states to ascertain what the majority view is because generic seems to correspondent at least on some level with majority i think that would be the primary thing to look at in a situation where you have a significant difference in the numbers that go one way versus the other i think if it was a much closer question than maybe you look at in the legal system and facing what those guidelines impose he think that criminals consider what the guidelines impose before they go out commit a crime i don't know that they're going to any studies on that i would like to think some of them maybe think about it there was what why the benefit i'm getting at is if you define generic robbery to be consistent with the majority number of states and by being a broader definition it would then also include those for the minority number of states then you have the benefit of having robbery as it's the find in the fifty states be equivalent to what is referred to as robbery and we got one that this is for a federal purpose this is for when we're sentencing in federal courts we want to have a consistent policy and shouldn't we think about what we're trying to do in defining robbery when we think about what generic robbery ought to be and should we think about  criminals we are trying to distinguish who are the serious recidivist who are a serious risk to society and shouldn't that be the goal we have in mind when we're considering what offense should entail for the purposes to be considered nationwide rather than just in north carolina or tell our pennsylvania i think that's a noble goal again i don't think that's really the role that the court has in this type of case though you have the sentencing commission that is decided to say that robbery in a generic sense is appropriate for punishment under the career offender guidelines if it wanted to elevate or it felt that robbery should include some level of serious bodily harm then you're getting into a standard that is very similar to the elements of the use of the use of physical force as the find by johnson as supreme court decision johnson tw it would otherwise be covered by the element of force was in the first subsection of the of the guidelines so i think there is some intent on the part of the sentencing commission that you can read into this saying well we're going to decide that irrespective of whether there was a potential of serious bodily injury or serious use of physical force these particular crimes are going to be serious enough to be considered violent felonies for the purposes of the sensing and handsome  as the generic definition of robbery changed over time is that evolving decade by dickie her eyes are nearly static for a long time and that's my research into it limited as it as it may be did seem to leave it in a fairly static posture since many of the definitions of robbery even those that are statutory seem to track closely when we're talking about here or use of some on the unified level use of force or violence to the common law definitions used in states like north carolina south carolina and i think a couple of others so if the the state's statutory definitions of robbery or common law or robbery i've remained fairly static over time and the generic definition also be likely to stay static over time under the analysis that we're talking about here with that if there's other questions detective simmons considered on their own you would have a problem establishing reasonable suspicion but he wasn't taking them on their own he was taking them all together using his experience and training to inform what he viewed saw them they matched the description he then using his experience in training identify the graves was walking in such a way that it appeared he might be trying to conceal protect the weapon stored in his waistband it serves him for a period of time decides he wants the to interact with them a little bit makes eye contact with mr graves who then responds with that with an arm signal that and again detective simmons experience and training can be a non verbal exchange between a potential buyer and seller of drugs he then pulls this car over to the side a little ways down and by this point the associate has left and mr graves makes a beeline for his car to come over presumably to consummate the informally agreed to potential drug transaction you put all of those factors together this was not a hunch this is a trained officer who is was faced with a number of factors and made a very reasonable some for that there would be criminal lawyer and it turned out he was right with some of the work that the court has been doing on i would this testimony judgment he's had all and some of the discussions of the recent third circuit judicial conference and that is th the fact that events after after you have engaged in some activity that events after that can affect your memory of that activity and led to it's possible that the some of the inferences that the officer sivan's made here are highly susceptible to that sort of change in memory aren't those without ability determinations though i mean the district the district court we can't really consider no i guess what i'm saying is that you make of plausible argument that could be made to the district court and even if it sounded like the argument wasn't made and if it was a made it forfeited if it was made the the district court's credibility findings went very much in favor of the officer right well i would just respectfully ask the court to consider that as something to consider as you decide on officer simmons inference is ok quick question on north carolina do you take issue at all with mr cerruti said about thirty eight