only constitutional if it's within a delineated in defined exception to the warrant rule either this was a district court found a terry stop or more recently as a government has submitted  traffic violation mr gibson it's that it was in either the terry stop requires that at the time of the seizure the police have an articulable and reasonable suspicion that crime was afoot any particular arise basis to believe that my client mr gibbs was the one that in fact committed that crime is there a difference for our purposes between a terry stop and a traffic stop there is your honor there is in one critical respect to terry stop requires reasonable suspicion that crime is afoot crime a traffic stop requires probable cause that the person so you need more for a traffic stop based on probable cause when you do for terr that's right but in many respects or not in other respects would be fair to say they're pretty much the same yes that's correct they're they're same the same in so far as the other rules which terry it's progeny have given us that's correct here what is clear is that the police did not believe that mr gibbs had committed any crime whatsoever when they seized him with drawn guns and it is also time until i can figure out the situation and isn't that exactly what happened here to answer your first question yes there are precedents the answer second question no and the answer to second question is inherently tied in with the first the first president it's on point which stands for the proposition that police can detain a passenger is maryland the wilson the principles that animated traffic that would be without any individual individualize reasonable suspicion of any criminal activity on the part of the passenger right ass the part of the passenger but it's for a very particular reason which i would submit does not does not apply here to in fact number one starting from pennsylvania mims proceeding into maryland v also and more recently in brunel and be california the supreme court's principles as a traffic stops have always managed by the fact that to enforce the traffic laws on the road the police must necessarily seize the driver of the car and it and its occupants because the cars proceed on the road and to enforce the law you have to pull it over number one number two out of that fact that inherent seizure they've held that many things that happened in the course of a traffic stop asking the driver to get out why did he put his hands up he put his hands up because he was confronted by an overwhelming show of course of police authority namely the presence did they made as to whether the officers had drawn weapons right the district court heads resolve that debate and unless it's clearly erroneous i would submit there is no debate the district court found that the weapons were drawn is that why it was hand europe would submit that's why  he had a gun in his pocket and no permit made that statement as a district court found after the police had alighted their vehicles after their guns were on holster and after he and the driver of the car mr jones were channeled between two other cars with police in either and the second principle which is operative in a traffic stop context but not as operative in this context is the rationale the traffic stops as supreme court found in pennsylvania the mims pose a unique harm to officers in that case pennsylvania the mens let me ask you this question and that's why i was actually a bit the difference if any between classic terry stop and a traffic stop this is sort of a hybrid case but let's suppose for the purpose of my question the officer saw what he said he saw saw a traffic violation turned his car around pulled in front of the car had his lights on and suppose instead of the passenger in the driver having already exited the two of them was still in the car at that point i take it you would agree that the officer would have been free to direct the driver and the passenger to leave the car right i would your honor but there's one critic just just bear with me for a second that he could have done could he not he would but my client was never alleged have been a passenger i am asking a different question and he could have detained the passenger at least briefly that's right and cited the driver for a violation that's right now you say this isn't a traffic stop because the car had already come to our halt right there was no one in the car that meant is that is correct that we should not look at this as a traffic stop case but as just a more usual terry stop the just happened to be near a car that just happened to be running in the just happened to be in the middle of the street from whence the two just exited the two didn't exit your honor only one existed my client was never a passenger but everything else you said i would i would agree your passenger your client was not a passenger never never see that's the and that's that's that's a critical distinction which takes us further afield from what i ate from that from the traffic stop line was it clear from the facts of the case that your client was standing right next to the driver between the car and another car between the car and the kirby was within two feet of the car that was  was that was clear the reason that was clear was because oh no i don't i just want to be sure so he's within two feet of the car standing next to the driver the car is in the middle of the street car racing in the wrong direction when it's not right the middle of the street but it is obstructing the flow of traffic well it's it's a two way street one lane each way right and as i understood it the hourly was parked in such a way as to block the traffic from coming in that direction that's correct so it was it was in the it was in the street it wasn't parked like at the side of the curb it was not fully in the swale there was another car there it blocked the traffic that's correct judge and the two of them were standing next to the car and the engine was running the two of them were standing standing next to the car the door was open the lights were on it was unclear if the engine was running what is equally clear is that there were several story i thought there was testimony that wasn't refuted that the engine was still running did i miss heparin then i believe that the testimony was the lights were on there were five other adults immediately in the vicinity of the vehicle because right behind the cars the front yard of an apartment building which came out of the test help me understand just the physical the ality is in the street blocking on coming traffic the lights are on is the door open the doors open doors open and standing next to the vehicle within two feet of the vehicle are your client and the driver that be accurate that that's correct and there's two other things to add to that number one there are two police cars that are essentially sandwiching the audi n at its could and its trunk and then immediately between immediately next to another parked car what is also clear is this officer detective lopez the one who initially saw this parking violation and one who summoned back up officers clearly knew who the driver was he clearly knew the driver was mr jones and we know that because he said he went directly to make contact with the driver about the other officer officer do act claims to have not known he was summoned there for the purpose who the identity of the driver officer direct was something or anything disputing that he did not know there is nothing disputing it because he had no pre pay so we can accept that two officers and two patrol cars alighted on black audi in the middle of the street one of them claimed clearly knew the driver was on the other did not and the other officer comes up to your client was standing within two feet of the car with the door open in the lights on and both of them the two officers are blocking any eagerness by either the driver or your client do i have that right you have the correct or where are the other people standing in relationship to the car they're standing in a in a yard that's immediately behind the car so immediately abutting the street they were not they were not in the street they were not on the street it were not on the street whereas the defendant and the driver were standing on the street next to the car they were standing it's unclear most likely they were standing in the swale between next to the car which is parked on the street as your honor mention and there's another car next to that seat of my time is extended you make it go ahead and take another two minutes you've been answering your questions well thank your honor but going back to that issue of whether officer do x ignorance should factor into this court's i guess what i'm asking is why shouldn't we treat this is basically a traffic stop case whether your client was in the car or not they certainly had some reason to believe he was associated with in the car it was next to the car the car was on the lights were on the door was open and they came upon it just almost seconds after they stopped the car for more than one reason judge i won't rehash what i've said already about what animates a traffic stop and what makes it different  more more importantly though the government has not submitted any authority that would say that that would say that the traffic stop principles apply to pedestrians or people that are not actually in a car at the time of the seizure number two no court has extended the terri doctor actually this record in this court of not extended to terri doctor and two parking tickets the principle to terri have always always been or worse remain that in order to well this was more than a parking ticket warden well as to the terms of the vehicular violations it was more than parking in a zone that didn't allow you to park or something like that mean in fairness the car was in the middle of the road blocking on coming traffic with the light on and the door open is that the same thing as a parking violation i pull into south miami i pull over to the side the meter maids pour there on top of me and if i'm gone for one second they're going to hit me with a ticket it's a little bit different in that pursuant to florida section three sixteen point one nine hundred forty five which is what mr gibbs mr jones was cited under the answer is no  good morning in may it please the court eileen cannon on behalf of the united states see it with me is gregory sheller who represented the government in the district court in the district were properly denied the defendant's motion to dismiss a loaded firearm that he told in this case it was reasonably ins go at yes your honor the reason why there is no question about the scope or the nature of the intrusion being unreasonable here is because within seconds of the officers arrival detective to act observed mr gibbs who was standing right alongside the driver leaning on the audi channeled in between the audi and a car just south of the audi and he begins to act of a silly right away looking to his left and right walking backwards away from detective to ak and then he turns his body only to see detective lopez behind him dress why would why why would he you're claiming now that he was going to escape or try to well there is evidence in the record very specific avenue that a bunch of a bunch of police officers would draw in weapons well to be clear there were  that well there were two officers detectives lopez and that arrived at the same time immediately upon their arrival they see mr gibbs as i mentioned acting of a silly and within seconds of that he's saying i've got to be honest i have a gun on me under those circumstances in that split second encounter our position is that there is no for the mind violation and there is no reasonable scope given the extremely short duration of that stop me to say one thing about your side of this had their guns drawn and that i did not fear for their safety but yet and the district court discredited that testimony but the district court went on to find that they acted reasonably and drawing their weapons for their own safety comus flames like a contradiction by stone what also said and what the district court file is that mike any difference in the ultimate no your honor our position is that even accepting the facts as found by the district court it wasn't unreasonable for the officers in that split second encounter to draw their weapons for officer safety which is what the district court found and although as they testified they might not have had an actionable threat from mr gibbs at that exact moment that doesn't mean that they don't approach these traffic stops as they always do with extreme caution because as detective direct testified these encounters can often result in much more dangerous circumstances to officers and that's something that both the supreme court and discord have routinely made clear that officers are not required to subject themselves to when reasonable risk is the is the  an object of or a subjective objective let me ask you this is this a traffic stop or is this a terry stop or does it make a difference it doesn't make a difference and it's clear would you characterize what happened here this is a traffic stop under the rubric of terry it's very clear under binding authority that terri applies and gives officers a lawful right to conduct a traffic stop pending investigation two of the hc ular violation that's  clear as recently as in arizona b johnson for example and in numerous cases of this court there is no limitation on traffic stops my friend on the other side would say a criminal or import has said that a traffic stop is not quite the same thing as a terry stop may look alike in some ways but it's not quite the same thing most traffic stops is court has observed resemble in duration in the atmosphere the kind of relief detention terri but it's not quite the same thing right mostly with traffic stop you've got probable cause to believe there was a vehicle a violation that's correct your honor carry you generally don't have probable cause you have reasonable objectively reasonable suspicion to detain briefly for the purpose of inquiring further about some unusual or suspicious circumstance so one has probable cause the other does not in other respects they're pretty much the same yes i would submit their governed under the same general legal principles and the principles of terry which although terry of course  concerned individuals walking around and suspected of casing a store those principles i think time and time again have been extended to the traffic cop stop context which is why the two pronged terry test so to  speak asks number one did the officers have a lawful grounds to suspect that a traffic violation had occurred and number two were their actions reasonably related in scope to the reason for the stop in the first place and we tell from the fact that  ether gibbs was a passenger or not it's not clear whether he was a no finding by the trial court that's correct but he was standing in a very narrow space right alongside the driver channeled in between the audi and a car just south of the a think any reasonable officer would you soon that he's associated with that vehicle and because of that close physical proximity and because of mr gibbs his immediate of the said behavior upon their arrival in the seconds long nature of the encounter how did lopez testify that there was a passenger no your honor or did you say there wasn't a passenger or was he never asked i believe i do not believe he was asked but i don't know the officer who spots the traffic violation but sound as light and or to pull him over doesn't testify whether or not there was anyone in the car other than jones i don't believe he testifies that there was a passenger in the car when he observed him obstruct traffic and drive into oncoming traffic but i would point the detective did not know who the driver was they arrive i don't know i understand that i'm just asking whether jones testified that whether lopez testify that one guy was driving the car alone and there was no one in it or whether th was a passenger in the car or whether he just didn't say anything about the passenger at all he didn't say anything about a passenger so i'm i mean i'm comfortable saying that you know he didn't it was one person driving it's not clear on the record how far away they were they just of course found that there were quote a number of people around but it is clear that only mr gibbs and mr jones were standing right alongside each other and nobody else was in there close physical proximity other than the two of them so regardless of how many feet specifically the other people around there were unquestionably people around in a high crime area known for quote what was the basis for detaining we all agree right there was some kind of detention of gibbs here right now dispute about that correct may not have been a formal arrest but he sure wasn't free to leave correct we are we are we  are suing that there is a what was the basis for detaining well the basis for detaining gibbs is that the officers approach the scene to issue a citation to the driver and because mr gates is standing in such close physical proximity to the driver and because within seconds he's telling the officers he has a gun on them there's basically no way around that reality which is an unavoidable intrusion given their close physical proximity so although they might not have initially intended to make contact with gibbs he was standing right alongside mr jones and within seconds he says i've got to be honest i have a gun on me which in this high crime area known for drive by shootings it really doesn't leave law enforcement with any other option but to at that point secure the weapon and detain mr gibbs i don't think there's any dispute that once he said he had a weapon they had to act the question is whether they could detain him and the detention yes it is reasonable under the fourth amendment because they are undisputed traffic violations which allow the officers to approach that vehicle mr gibbs was standing right as i mentioned right alongside the driver channeled in a very narrow space within seconds he's acting  high crime area and he says i've got to be honest i have a gun on me that's a matter of seconds and i think giving the given the quickly evolving nature of these encounters it's not unreasonable under the fourth amendment for the officers to have acted as they did based on what they were learning in that split is there any significance to be attached to the fact that they drew their weapons ultimately that changed the analysis in any way no no not because  establishing that this was a detention of some kind that would be given the physical relationship between the parties right well that's why of course there's no dispute that there's a seizure as soon as the officers are approaching but even measuring the point of seizure at that point doesn't change the ultimate legal conclusion because they had lawful grounds to conduct a traffic stop of that vehicle that to individuals are standing right alongside each other within seconds mr gibbs is exhibiting evasive behavior indicative of flight as detective to act i think quite helpfully testified and based on his personal experience in a high crime area and all within a matter of seconds so the drawing of the weapons ultimately as a district court found is not dispositive to the legal analysis and it shouldn't change this court's legal conclusion if your owners have no further questions i would respectfully ask this court to affirm the district court's denial of the motion to dismiss the loaded firearm thanks very much let me just ask you a question of basic question plainly there was a traffic violation the police was certainly in the rights to if not pull the car over because it had already stopped to pull in front and behind the police the audi right they had right to do that yes or and given where the two of them were standing two officers approached from either side what is it that the officers should have done with respect to your client that they didn't do before he blurted out i have to be honest with you or i have a gun what should they have done differently what was it that they did put it in that putting it more from a lovely that was on reasonable this the events in this case were extraordinary made extraordinary by the fact that there were guns  drawn as an initial matter to answer your question judge i do not believe the officers should have pulled their guns on mr gibbs or any of the other said let's just hold aside the firearms for a second did they error in any way was it an reasonable for them to pull one police car in front of the audi which was parked in the middle of the street and one car behind the audi which was parked in the middle of the street that was perfectly reasonable right that was reasonable because that maneuver sees the audi but not the end of it ok so they're blocking the car and your client and the driver are standing between the car and another vehicle on the side of the road right you have the correct edge so the only way for the officers to come act the two folks standing there was to walk toward them effectively they had detained the two whether they had good go on their weapons or not didn't  they yes but your so let me just ask you would suppose they had never drawn their weapons suppose the trial judge had believed their account that they didn't draw their weapons they were in fearful of these two folks and they just came to the two of them and within seconds your client blurts out i have to be honest with you i have a gun would there be any basis to find a fourth amendment violation on the hypothetical that i just gave you on the hypothetical that you just gave the judge is there a basis yes is there is compelling a basis no what would be the basis the basis one could could argue color a belief theoretically mr gibbs was still sees based on the way the testimony came out you know i think he was seized there's no doubt his his means of egress were blocked but given how the two of them were placed between the audi in another car audi is blocked by two police cars and the two officers between the two cars and converge on the two of them they were both blocked there because of where they were standing if we take your account your client walked over from the sidewalk of the house or whatever to talk to the driver of the car for whatever reason so the two of them by choice between two cars and the cops came and blocked them effectively by approaching them and your client blurts out he has a gun i'm hard pressed holding aside the fact that they drew their weapons to see any plausible claim that it violated the fourth amendment have i missed something there then i wan get to what arguably makes the case different which is that they pulled their weapons right judge so that short of pulling their weapons i'm hard pressed to see a fourth amendment violation the only thing i would say about that the first hypothetical you've pose this returning back to the first principles even under a traffic stop rubric you must have probable cause that the individual you were detaining was one that committed a traffic violation to a can't be and co it or it cohen suspicion or merely a hard it's got to be m cohen suspicion they had reason to believe there was a traffic violation they had probable cause they may have had cyclists drive or they had probable cause to arrest the driver and the thing is officer lopez specifically knew that there was a traffic violation the driver was but as to whether or not mr gibbs was a driver passenger that was just so let's assume he wasn't a passenger let's assume he just walked out from behind the house to greet his friend so that he put himself in such a position where the two of them w necessarily detained by the police the detention was not unlawful by virtue of them having approach from two sides was it the detention was not unlawful by the virtue of them having approach from two sides where the detention becomes lawful is if they block someone from moving that person is so there's no question they block them i'm trying to find out what makes this a violation of the fourth amendment holding aside the firearm i'm at a loss to see any plausible theory upon which you could say given where they chose to be that this violated the fourth amendment i think mendenhall makes very clear that the standard of seizure is whether or not a reasonable person would feel free to leave if he wasn't free to leave i'm quite prepared to accept the concession of the united states which is that your client was detained how be it for a brief period of time by virtue of where he chose to put himself in relationship to the car in the uk the driver he was detained albi it briefly what converted this into an unlawful detention is the question isn't it it is and tell me in your view what made this unlawful what made this on lawful worth the firearms and the fact that that's simply not reasonable when we look at wren there is let's suppose that's right let's suppose they had no basis for pulling their weapons they would detain though briefly whether the weapons were pulled or not were they not it wasn't the weapons that caused the detention should be careful with the idea that what is being fashioned is a new blanket officer safety exception to the warrant requirement while of course the problem you have there is that you have a finding of the trial court a they pulled their weapons and b they had agrees and to do what they had reason to be concerned about their safety well the interesting is that a finding of fact to which we are obliged to give deference yes i believe both those things are accurate but it has to fit within it delineated morning exception the trial court said this was a terry stop but the truck court's order never at any point articulated what was the crime that anyone suspected my client of having committed  i don't think they suspected your client of anything he just happened to be the wrong place at the wrong time by his choice it's it's interesting because then we get into a separate line of cases where this court has taken up the idea of proximity to criminality being a basis to see someone even without reasonable suspicion there are two cases that are really principally on point one sided in the government but i guess i want to come back to the point i'm making if they had a basis to detain the two of them simply by virtue of the physicality of the scene with or without the firearms being drawn what difference does the fact that they drew their weapon ha on the fourth and then the now since you see normally we would say if they pulled their weapons that would be powerful in disha that there was a seizure there was a detention maybe even an arrest but if you accept the premise that by virtue of this circumstance they were free to briefly detained in order to cite them that's the he cuellar violation why does it matter that he had a firearm matter on for this reason judge if you think of all police action in terms of a grain silo it must first go through a funnel of either of some worn exception in this case we'll call it terry stop or traffic stop but it's irrelevant for the purpose of this hypothetical but then after that pursuant to terry itself and more recently and read it still has to pass through a sea of reasonableness the police officer's actions always have to be reasonable and we assess reasonable right so even if it were reasonable to begin with it was converted into an unreasonable stop and detention because they pull the firearm is that the centrally the argument it's why they pull their firearms judge the answers why the questions why what were they trying to affect in this case what they were trying to do was to give a person parking ticket no florida section for statute three sixteen point nine nine hundred forty five says you can serve that ticket merely by laying the ticket on the windshield i would venture to say that's how criminal nonmoving violation i do not believe lawfully a client and mr jones could've been arrested to receive this ticket under florida statute but as far as a fourth amendment analysis goes there is that independent basis of reasonable this why this would there not have been of the hill a violation for what she could have been arrested whether the officer cited it in this ticket or not  i would i would admit judge that there did seem to be an observed moving violation of the driver then again superman it doesn't matter what the officer cited him for if the office decided on for the wrong thing that walking his dog in the middle of the street when it was really a traffic violation wouldn't matter objectively the question is would there have been a basis to cite them for a moving violation right objectively that's right objectively that's right officer lopez could have contemporaneously blue light of this car stopped the driver officer lopez could have stopped his car called his fellow officers back up and then scream to mr jones hey you driver come over here officer lopez could have said disbelieves these two cops they say they had no fear they said they didn't draw their weapons just marino says i believe the folks on the side of the road and they had their weapons drawn so that changes the whole coloration of this case doesn't it doesn't it really puts into perspective exactly how limited the suppression of evidence in this case would be this case by virtue of the fact the police tried to color this as a mer encounter couple with the fact that the judge said that guns were out issue a parking ticket means that this court could find just the facts of this particular seizure in this particular case as to this particular individual were unreasonable and therefore the district courts is there any significance to be drawn from the fact that the encounter was just so brief the detention was just so brief it was almost instantaneous before he blurted out he had a gun now it's gunpoint and that makes this case so unique thank you very much thank you both and your arm will proceed to the