officers of the denver post office were doing a bust operation at the two thousand two hundred dollars block of lawrence which is close to where we are right now when they saw a c i approach another individual not mr jackson and then done a pretty the operation surveillance of the area and as he was going through the area he was looking around and he noticed one person that he said stood out to him that and a person to be mr jackson what noticed what kind of sprung to mind was is he was healthy and that he had very bright white shoes dressed yes especially considering the other people in that area right and that's over by the denver rescue i think about three but nothing actually changes mr jackson is just standing there he gets into an observation post which is basically in his car about a block away and at the hearing there were some photographs showing what that distance seconds long conversation and then the cia and mr tyndall walk back the detective doesn't see any hand to hand transaction specifically but then the cia leaves and gives a notice that there had been a purchase and says it purchased from mr tyndall later on after the arrest there's a statement written by the c i in which the c i confirms that the person who sold him the narcotics in this case was this other person mr tendo and then he writes a notation the cia at the bottom of the report that says that the other person in black that's referred mr jackson was just standing there at the time so when the officers approached mr jackson there's a there's a fact missing though isn't there that after the cia walked away the mr jackson and the person who sold the narcotics conferenced for lack of a better term yeah they did and actually they after the c i leaves the scene the mr tyndall then after some it's unclear as to how many seconds but those over two were mr jackson are they have they talk and that's the only time that the anything that's a kind of an exchange or something there's some kind of exchange that goes on but he doesn't say what it is that he sees he just can't see what it is then detective gus puts on the call to basically hold everyone in place and the officers then a rival in uniform at the location when they get to the to the location there's a video which shows that one of the officers seizes grabs mr jackson momentarily because then after a few seconds mr jackson flees he told him that i think he told him something to the effect that he wasn't going anywhere to the right right and so he said he puts he has physical pain physical control and he then says you're not going anywhere and i think it's about four or five seconds i think that's the government's brief mentions four or five seconds in the order from the court it's the district court's ruling just more it's momentary but then mr jackson flees then there is some kind of struggle between mr jackson and the officer who's trying to detain him and that's where the firearm falls out mr jackson is able to flee temporarily and then he's eventually stopped that when he stopped there's there's in his possession narcotics and also prerecorded by money that was used by the c i to purchase the drugs for mr tendo so obviously the argument in retrospect this will surely that means that mr jackson was definitely involved because the prerecorded by money went through from c i to mr tyndall to mr jackson however we're looking at what information was contained where the officers had probable cause prior to knowing obviously about the prerecorded by money because obviously russell that's the issue did they have probable cause and if not why not exactly that is the issue there is an abandonment component to this where the district court matter i agree that if they have probable cause to arrest mr jackson inevitably they would have the firearm it would have been search incident to an arrest so the issue then is whether or not probable cause  the district court found obviously that it did it mr jackson disagrees citing the cases that we had cited in our brief we point to the fact that at least subjectively prior to when the officers approached mr jackson when he was doing after the conversation with the cia and mr kendall did the cops approach your client it's not very long and so there's nothing in the record as to time but  i can i can tell the court it wasn't very this all happened fairly quickly so the detective i think i believe testified that after he got the buy the signal from the c i so he for sufficient time for the c i to leave so that was an obvious that this it was given the notice he he then immediately called for the officers to get on to the location and then at some point around that time he sees mr jackson and mr tendo have that conversation an exchange but it's all happening very quickly so we're not talking about the passage of say twenty minutes or i don't even think it is ten minutes is very brief where all this is happening i mean isn't the huddle between the cia mr   and they and then the signal that hey i've bought some even though he said hey that mr tindall was the person who i exchanged with does it i mean isn't that pretty strong evidence that mr jackson was involved  transaction and because after they do that and they huddle up again well it's definitely suspicious right and so i understand if the officers if the tech of gossip felt suspicious about the conduct the question is is it probable cause does that allow the officer the go ahead and arrest well the whole purpose of having the c i on the scene was to attempt to buy drugs correct and when that was ach he gave the signal i have bought drugs yes do we have probable cause then just in that very summary description as it relates to tendo yes so as it relates so we take jackson out of the picture even though he's in the picture and can't we look at totality of the circumstances you can but it's still individual ie it would not for example have given probable cause to have arrested everyone in that location there was some discussion  the motions here in because there was issues as to who was radioed in to stop and i think detective goss was radio call was stop everybody to basically hold everyone in place  now i understand if the tech that got us in the officer said look we're going to do maybe some terry stops us to some other people investigative stop and ask them questions it would have been inappropriate illegal to say that everyone there was just going to just arrest everybody put them in the paddy wagon will figure it out later i agree there was probable cause to arrest in the because tendo had the conversation with the c in terms of whether or not what it was there appeared to the calculus well i think that you know claiming he was arrested with the man put his hand on his arm and said you're not going anywhere he was seized at that point and he had given himself up to to the seizure so it was it was he gave himself up as usual yes because all it takes is a momentary it's the and in fact it's in the government's brief which is the mostly case that they  because that's a case in which the defendant they are the order the defend in the car to basically you know get out of the car and the defendant during that time is ignoring the orders and trying to hide so had the officer not grap mr jackson so for example if the officer had approached mr jackson said you're not going anywhere and mr jackson had run there wouldn't have been a seizure but that momentary grab is enough seizure happened at that point and he had been seized for purposes the th let me change the facts on you slightly say that the officer observed mr ten dollars and the c i doing a deal and that mr tendo goes over in appears to make an exchange with mr jackson who in my hypothetical has just walked up right here and mr jackson and they appear to make an exchange at that point d police have probable cause to believe that there was a drug transaction there as well terms of being able to arrest mr tyndall as a seller or mr jackson if  when we're talking about mr jackson i mean it appeared that mr jackson from from that hypothetical the mr jackson was engaged in illegal activity as well it doesn't have to be the same activity as m temple it's always facts and circumstances so you look at each fact this is where they were one of the reasons we give district courts the deference they hear a fax but in that situation an exchange by itself is not indication of criminal activity ok so i mean that's not an exchange by itself that's an exchange happening just moments after an a confirmed by in a high crime and drug area right yes ok but still it's not an indication of criminal activity by itself it's so just like mere presence isn't by itself in the case in the criminal activity people can make exchanges even if they're in a quote high drug environment that don't rise a level of stop people true but doesn't mr jackson have to do in my hypothetical wouldn't mr jackson have to live with what the police just observed mr temple doing i don't know in other words kind of like a strict liability if you're in a no not liability but i mean it it adds to the totality of what they're considering well it can still be considered for certain levels of interactions with the officers right so there is always the availability of doing stop you can do a further investigate can do is an investigative stop to get information the question is can you raise it up to the level to the highest level possible which is to seize and arrest and that's what the officers chose to do with regards to mr off and i have a brief amount of time just real quickly as it relates to abandonment here our only issue is essentially that no findings of fact that mr jackson voluntarily abandon it it appears that the record if anything has suggested that it fell out good morning and may place a court morning oral shock i represent the united states there is probable cause in this case because the technique goss personally observed what she knew and understood based not only on commonsense but on his training and experience to be a drug deal involving that offended the defendant wasn't just there like all the spectators the objective facts supported the conclusion that he was actually involved here's what detective goss personally observed he saw a confidential informant who  specifically engaged by law enforcement to purchase drugs walk over to a man in a brown jacket to make that purchase then a few seconds later those two men walked over to the defendant and all three men huddled closely together and interacted with one another for a few moments then after that interaction the c i walked away and signaled that he had just purchased drugs telling another detective that he had purchased crack cocaine from the man in the brown jacket led him to the defendant then after the cia walked away the man in the brown jacket walked back over to the defendant and handed him something the detective didn't actually see the drugs and money exchanged hands but he saw everything but and given the talent of the circumstances it was clear what had just happened and regardless of who actually handed the drugs to the c i it was at least a more than reasonable inference that those two men were working together probable cause of course they commonsense standard and common sense here supports the conclusion that the defendant had participated in that drug deal now there was other circumstantial evidence here that i think further adds to the problem cause analysis including of course that this was effectively an open open air drug market including the detective's experience that this is exactly the way these kind of drug deals occur in that area with a drug dealer using  of the typical population there to actually deliver the drugs the fact that the defendant stood out all of that can play into the analysis but we don't even need any of that because the officer here personally  observed what had happened there's a lot of talk from the defendant about him merely being in proximity to the situation of course that's not the case here certainly it wouldn't have been appropriate to arrest every single person who was standing on that block nobody's arguing that only two people actually interacted with the c i when we know that there was a drug person or when the detective at the time knew that there was a drug purchase being made so the defendant was in a much different situation than brown jacket that's because that's the man who handed him the drugs according to the c i but probable cause of course isn't limited to that person and regardless of what the c i said the detective actually saw another person involved so  minimum there would have been enough for a search isn't it to arrest and i agree with that but i do just want to make two additional points on the abandonment issue the st is that the district court's finding here wasn't clearly erroneous it was reviewed for clear air that is supported by the record and the way that supported by the record is not that he intentionally dropped it but that he intentionally left the gun there after it dropped and the facts in the record to support that are that the video of the incident shows that when the gun fell to the ground one of the officers yelled that there was a gun and then the defendant ran away now we can argue about factually whether in fact he intended to leave it there but there's certainly enough there to support the district court's fine so objectively you can look at it objectively we don't care about the subject of intent i think we do need the subjective intent of the defendant but i think what we have here is we have a so we have a finding by the district court that he intentionally abandoned it there and the question we have is is that clear error is are there facts in the record to support that finding and the facts we have to support that finding is the video itself  well as the district court summary of that video but just like one of the gun falls out of your jacket as you're running away that's a voluntary abandonment if you continue running i think it is but i think the nd point i want to make here and this is an important point is the district court focused on a ban it but it doesn't matter whether the defendant intentionally left it there or not because at that point the gun was exposed in plain view in the middle of downtown denver with a bunch of spectators around and so at that point nothing prevented officers from picking that gun up whether that's to protect the public safety whether that's because it's contraband having been used in connection with a or having been possessed in connection with a drug deal so the supreme court has said that weapons and contraband in a public place can be seized that's that's certainly true certainly officers weren't required to leave it there and go see if the defendant meant it meant that is my argument unless the court has any further questions the government requests that this court affirm the dischord order denying the motion to suppress thank you if on my way here i'm running to the core in my phone way to drop out of my pocket land on the floor but i keep running i've not voluntarily abandon my phone because you didn't know you dropped it unless i didn't know it and there's no evidence that if you would that be that might help but there's no evidence in the record that mr jackson knew that his going to fall and out so i don't think the record is complete on that issue thank you thank cancel thank you both for your arguments the case