life how do you reconcile your argument that he was detained from the outset with page seven of your motion to suppress the says in the instant case officers percy's mister sanchez when they ordered him to after he had fled and they wanted to some him to submit to a patdown before he fled but just to back up they say they needed reasonable articulable will reasonable suspicion from the moment that they approached him and they didn't have that he felt free to go to the police and in train cases i think we have i don't know how we rule when people's exits have been blocked but they're on the train you're really stuck on the train here he really wasn't able to flee and leave and until of course they capture him to tackle him he was clearly under arrest them your honor that your point of analysis the court's point of analysis is at the moment that there becomes a detention and that detention happened as soon as they box to me and they closed the door they told him to put down his tool box the fact that eventually he was able to get around one of them does not mean that he wasn't you have to look we have to look at the factors if we look at the factors that this portishead out in several cases including spence and lopez and her that the factors to determine whether a particular encounter is a consensual encounter or is it is it investigative detention and the factor is if we look at those be more or less a classic terrorist so so the officers needed reasonable suspicion that crime was afoot so the question is what crime did they think was afoot they suggested that perhaps in and get a full day in but he got the land the last poor of the big any got the license plate and called dispatch and it was eight and they were able to determine the vehicle was not stolen and it got played had been sold out but the license plate had been absolutely nothing that indicated that he was still in a vehicle in the process of stealing vehicle and in fact when they did approach him box i mean they saw right away that there wasn't that the vehicle had not been breached they had they had said that they were concerned that the locks were popped but there was absolutely so read a way that there was the vehicle was intact the window was intact the lock was intact so there was no reasonable suspicion that crime was afoot in there's a reason why them in restrain their freedom of movement this court is laid out factors not a number those factors are located is it open to the public is it in view about others whether their police officer touched or in any way physically restrained the  the person's movement whether the officers were in uniform whether they had weapons how many officers there were the demeanor the tone of voice and whether the officers it by the individual in this case mister sanchez that he was free to leave that he was free to ignore their requests and all those factors for all in favor of finding that there was investigative dissent detention it was not it consensual encounter the location was not out in the open there were not other people around there are officers physically restrained mister sanchez not by touching him but by closing his door and getting taking away his light and by ordering him that he told them and there you they asked shouldn't we viewing the evidence in the light most favorable to the ruling concluded that he had asked or not wondered if if a factual finding was clearly erroneous and this court  this regard it and it clearly he i think all that st of all the totality of the circumstances would indicate that he ordered but it's all about staff and even his testimony never indicated that he requested that he did and it's important to look at the language when they say put the tool box down they didn't say it would you mind putting the tool box down or we thought in fact none of their language was language of a consensual encounter would you mind answering a few questions can we thought we were could if they were legitimately concerned that he was trying to steal the car they were legitimately concerned about the mismatch between the plate and the car this those were the questions they could have asked to either confirm or dispel their whatever suspicion a had but they didn't do that right off the bat they said put your tool box down what are you doing with this car though those the in the context of all the factors he was absolutely ordered to put down his tool box edition only the your question about the new mexico flight statute as i understand your argument is that there was never a reasonable suspicion for the seizure there are therefore the statute simply does not apply  to the gist of your argument yes your honor like as in romero versus story same thing unless there is reasonable suspicion to believe to believe that somebody has committed a crime prior to the flight the flayed itself implies some i just just to quickly address some of the factors that you mentioned for example hands in the pockets this court specifically ruled in davis where in davis same thing cold december night mister davis put his hands in his pocket same thing here cold november night in albuquerque hands in the pocket and there were no other indicators that the individual ringback was armed and dangerous as in there were no bulges there were no furtive movements there were no wasn't searching to get into the pocket rather than just putting him in your honor i would disagree with that description that that is not i don't believe that is the description i believe they said he put his hand in in his pocket later on maybe what you're referring to your honor as they say when he's running when they chase him causing his coat to come off they say that he it seemed like he was trying to reach into his pocket at that time if i may i would like to reserve whole let's hear from the government there when are you ready earning my name is chris mcnair with the united states attorney's office in the last crucis branch office please the court and counsel i'd like to begin before discussing either the consensual encounter or reasonable suspicion just by clearing up a few things in the record because i noticed that the court had a few questions on that and i think that i may be able to  things up a little bit st of all on the boxing in issue officer both officers testified that they had no point boxed the defendant and between the two cars the district court's finding on this point was that the officers announce themselves as they got close to the defendant we don't know exactly where officer court of the was whenever officer brown initiated the encounter with him but it supports officer both officers test that he was in buckstone because he fled in the direction that officer court of the would have had to have been standing on the other end of the two cars in order to box him in and so the fact that he was able to flee towards the front of the holiday and then double back and go into the parking lot of the hotel indicative that he was not in fact boxed in between the two cars and judge that crack you brought up the argument in the motion to suppress which was that he was st seize the moment that he was asked to submit to the pat  down that's correct that that was the defendant's argument from the very beginning in this case and in fact after the hearing the court requested supplemental briefing on a few issues and at that point in time even after these facts regarding the tool box were were brought out at the hearing the facts regarding the door being shut the defendant argued in supplemental briefing again that he was st attained the moment the officers asked him to submit to the pat down it was the united states who argued whenever in the response of a motion to suppress that hold on there's actually these questions that occurred before that request for the patdown that occurred within the context of a consensual encounter and defendant's response to that in the reply brief so the motion was well there's no way that you can construe a request to be cut down as a consensual encounter and disregards the other questions that were asked in the reply brief this was largely a non issue for the court until we got to the appeal here and that in my opinion the district court generously interpreted the defendant's arguments and even considering the defendant's arguments regarding the consensual encounter in its opinion she's referring to right at about the same time that he asks after we have asked or tells them to put the box you know she's saying that he was ordered to submit to a pat down and she saying from the get go from that point on there was a seizure and that's what she was arguing you know suppress and she argues in her own appeal that the government never argued reasonable suspicion in disparate court and had an opportunity to do that seems right if she had argued that in a motion to suppress and you didn't argue reasonable suspicion at that initial point to be initially you know her so if that's correct why didn't you wait an argument that there was reasonable suspicion at the point of initially your honor the government what is as i as i argued that the government is the one that brought up the factor or the initial questioning between the officers and sanchez and responding that hold on before we get to this request for a pat down there's other things that occurred and so the government argued that that occurred within the confines of a consensual encounter the government did make a reasonable suspicion argument and its response to the motion to suppress but you know in candor the government incorporated questions that occurred before the officers approached sorry of facts that occurred before the officers approached and then facts that occurred after the officers encountered the defendant that their government deny it delineate the exact moment that the officers had reasonable suspicion that the government did argue that there was reasonable suspicion when they during the encounter just like ra correct and at the point that he stays in the white well that the government what the district court concluded and what the government i think was arguing was that reasonable suspicion developed throughout the encounter once he once he admitted that he had a connection to this vehicle that the officers believe was stolen and once he lied about showing up in the lexus which the officer said observed and so that both the government and the district court i think determine that reasonable suspicion developed around that point in time but see the point of waiver you know this court has repeatedly held that it can affirm a lower court's ruling on any grounds adequately supported by the record in the record was sufficiently developed here for this co those three things you think so it wouldn't be reasonable if we're talking about reasonable suspicion from the outset of the encounter i would that would be different facts those facts would be that the that officer brown when he determined that the license plate did not match that car i don't i don't want to clarify to clarify one point officer brown undoubtedly did not know that this car had not been reported stolen when they approached if the court looks at the record at page one hundred and twenty three and two of the nine officer brown testified that the the moment before they approach made the approach he was investigating that as a stolen vehicle due to the mismatch license plate and then he also rejected the idea that dispatch had ever told him that this card had not been reported stolen the district court actually got the facts a bit confused and i think i did too in my fax he did not call in the van number the last four digits that have been for the car for the  called in was there he asked for the last four of the then that was associated with the mismatch license plate he was standing at the car and looking through the window and that's in his testimony that he is actually looking at those four determines that they don't match the number that he got from dispatch doesn't match and then he returns to his car ask for backup and he's going to reapproach and so that's supported by the district courts determination that he not only was going in for th approach to talk to sanchez but he was also going in so that he could get the full then in order to find out information regarding that vehicle ultimately and there's some confusion on this point the license plate he didn't know when he approach the license plate had not been reported stolen dispatch had not earth at the least dispatch had not told him that the license plate had been reported stolen however the car ultimately and candor again the car had been did not been determined to be stolen whenever they finally wrapped everything up the lexus was stolen and the hyundai wasn't however the hyundai wasn't registered to defend it or his girlfriend and so i don't think that there's any evidence on the record about how they came into possession of the hyundai but just to clear up that point when he approached heat did not if he knew that the license plate and not been reported stolen he did not know whether or not the honda had been reported stolen and he was approaching to investigate that as a stolen vehicle but at the same time back to the point i was trying to make their little bit ago when he approached he whenever they saw sanchez crouch down and there's testimony that he's crouched down facing the hyundai he also testified that he believed that sanchez was about to punch the locks now there's some test or there was some argument that they had been sitting there for ten minutes that comes from officer court of his testimony and it's unclear from his testimony when he's running that ten minute calculation from so he shows up on scene before sanchez ever gets there and he thinks it was about two minutes and then he testifies well i think it was about ten minutes that i sat there before we approached but he's not it's not sure if he's if that's from when he showed up on scene and it's not if or if it's from when the center set up on the scene but then also we don't know how long there's no context for how long sanchez themself stayed in the vehicle so we don't know how long the officers were sitting there watching sanchez at the vehicle when they decided to approach but back to reasonable suspicion from the outset what we have is that the officer knew that the there was a mismatch license plate he watched the defendant political box out back in a lone individual pull into this parking lot put a tool box down by the driver's side door of that vehicle and he believed that he was about to tamper with  and under the court's decision in shelton which was one of judge think of it as cases and i believe joined by judge bacharach there's reasonable suspicion for them to approach and determine whether there's a car burglary or an auto theft that's occurring that's similar also to the santiago case in which officers were staking out a stolen vehicle and they witnessed the defendant suspiciously walking down the street he then sat down next to the vehicle for practically two minutes and there the court found that he was associating himself with the vehicle and that there's reasonable suspicion to approach him on that and it's also similar to the salazar case where the district or where the court found reasonable suspicion based off the fact that a defendant pulled into a parking lot backed his car up next to a commercial vehicle and the officer didn't even see him get out of the vehicle but he saw the door open in the court said that there was sufficient time for the when the door was open the off served served enough time for that person to  taken things out of that commercial truck and so there was reasonable suspicion to approach the justification for the pat down was the officers had observed the defendant crouching down by a tool box they couldn't see his body they approach they believe that he is in fact committing a crime at that time or possibly about to tamper with the vehicle they approach they talked to him and what officer court of a testified to was that sanchez it's body language he could see that he was getting into fight or flight mode and they're not really sure which and given the fact that he had put his hand in the right pocket which is where the gun was ultimately found although the officers didn't know that it was there at the time the officers were concerned for their safety they were still investigating these other issues that they hadn't no reasonable suspicion have been dispelled based off of sanchez's answers to their questions and before continuing on with that investigatory detention they wanted to do a pat down before proceeding well they have to have the reasonable suspicion that he will armed and dangerous that's correct your honor and in reviewing your decision and it's a descent actually and the room arrow case you talk about that you can't look at those reasonable suspicion armed and dangerous in a vacuum that all of those things play off of each other and if an individual is crouched down by its will blocks and that they recently suspect him being in the process of committing a crime there may be cause to perform a pat down in that in that instance and that those things play off of each other but ultimately my argument is that it's immaterial whether there was reasonable suspicion because for the pat down instruction investigation cracked that's correct i believe so if i understood the court's question correctly if the court determines that there wasn't reasonable suspicion from the outset of the encounter there was certainly reasonable suspicion why it's the defendant denied any association with the lexus and once he admitted a link to the car that the that the officers  time there certainly reasonable suspicion at that point and that's what the district court concluded that reasonable suspicion was not dispelled by the time that sanchez fled and so regardless of whether there is reasonable suspicion for a pat down he fled while he was still if i can answer that question the officers had observed him crouched over with a tool box which you know they have fastened that they set it to set it down for safety reasons he could have had a screwdriver he could have had a hammer out of that they didn't know specifically that it was a firearm  alleviate that reasonable my point regarding the tool box is that if he had pulled a tool out and they had seen it he could have put it into his coat pocket and that could have been used against them they were there incredibly close together as approximately five to six feet apart but then when he kept making furtive gestures towards that pocket the right pockets to sceptically which is what the officers testified they became concerned and when he started getting flighty as far as the court of assess in criminal behavior that that gave the officers reasonable suspicion my contention ultimately is that that's immaterial because he was still lawfully detained pursuant to the reasonable suspicion developed by the officers encounter with  that the government keeps referring to what the officers believe them with that's a hunch that is exactly what this court talked about in fernandez when he when the officer talked about his expense and tension in the air there was absolutely no  objectives but if it elements that then the government can point to that the officers testified to the fact that they watch the car for ten minutes and the government can try to move away from that ten minutes but that is exactly what their agent officers testified to they watched him for ten minutes and saw nothing that showed he was breaking into the a car at all and then they see if anything they're concerned that he was breaking into the vehicle should have been dispelled at that moment basically saying that i have a th sense and i have a sense that something is wrong i also wanted to respond to the fact that the government said several times that the officers there reasonable suspicion developed during the encounter that's not when reasonable suspicion needs to exist reasonable suspicion needs to exist at the moment and the counter begins and that's what they didn't have and then if i could just move to  the questions about the separate they're still believed to be reasonable articulable suspicion for the detention period then separately in order to do a pat down there has to be reasonable articulable suspicion that the person is both armed and dangerous and there was not testimony that there were any furtive movements that there was a bolt that there was anything and it what he that the testimony was that he put his hand in his pocket that tool box was closed it was in his hand so any big whatever he was doing fact that the government was telling you what happened with the car that's irrelevant in this the same exact question is far as the pat down is relevant whether he runs because they need the reasonable articulable suspicion that he's armed and dangerous at the moment that they say they're going to pat him down they didn't have that suspicion that would have you think the critical piece asking for the put down was an authorized and you would say that that they were going to pat him down in at that moment they needed reasonable suspicion to do that they didn't say eight that's mine or my question my question is you and yours and you just say yes or no previous the reasonable