citizens who say there is something off about what's going on the way these people are looking down on the waiters scoping out the surroundings it looks like they're actively casing the area for a saw mr paine was very familiar with this area and that it was unusual for anybody to be a pedestrian on that stretch of road it alone for there to be  an african american man walking alone on that road and the trooper that was suspicious to him particularly since he was actively looking for somebody who had just left the crime scene well why doesn't typically so this was suspicious to him that's why i put it to you that it's particularly in light of the fact that this was coming right on the heels of a police call hey this person has for the area the booking form why would that be enough this in the nature of reasons reasonable suspicion though it's not good you could look at it and say there's something definitely absolutely illegal happening right now and it's not even be first probably something probable cause kyle level it's just this is off it's different it's different enough to make me suspicious enough that i can stop and and inquire of this person i mean that's that that's in the very criminal activity or call it was involved in pennsylvania all of those things together with the observations of the police and of the barbershop people that doesn't that's just it's all suspicion that  substitute for a preponderance and which you might benefit a whole host of other evidence that would have been available she draw that inference including the items in the car so isn't isn't there sufficient evidence to satisfy the relevant and if not deference to because the district court judges in the best position to make evidentiary rulings of this sort are we constrained not to apply this rigidly but on the contrary to apply it deferentially when we more singh says the gun could be the same because it's it's kind of the same size on four counts he says it works similar in size and color now if you're right it's way before so they're not going to say in fact they were careful to your client's co founder was charged with constructive possession it was a very issue so why you know why would these guys even have guns because they were going to commit a robbery there was evidence of  ok yes in light of that are why is the error here which i believe is concede why is it not harmless started with the arrest of mr payne how was it that somebody walking down the street doing nothing obviously illegal is subject to being stopped by a police officer coughed and driven away proximity of the crime scene to the hottest spot him within six minutes of defended foster being apprehended and within two tenths of a mile of the crime scene defend it pain was walking in a direction away from that car scene well probably safe that in that general area there were a lot of people who were walking away from were moving away from the crime scene how  did you want to respond to the defense counsel's statement that there's a bus stop on that stretch of road of course are going to be people get annoyed and off the bus are going to you know they're going to be on foot what's the response to that we should district were also noted that this took place in february that time of year does not encourage pedestrian activity is your best argument that he was the only one seeing within the p put it in this respect only that there's no there's the baby is the vague descriptions going on and then later the government of course does rely on this one hundred percent identification doesn't it undermine the one hundred percent identification which features not enough research will stop but in the conviction of mr perry triggering dowels identification was a critical piece of additives in the all to make conviction in this case precisely and that's why i'm asking you how is it that he's able to say i'm one hundred percent sure that's the fellow but yet when he's asked by a fellow trooper give me a better description he cannot give one well i think there's a number of plausible reasons the first being the truth we don't testify at trial that during this time period he was securing a loaded weapon that was on the pavement in the middle of a shopping center so he had other roles and responsibilities that he was filling on back even if the only available there's a cool description what exactly they said we hear from your colleagues and we see in the briefing case they say in effect there's two black guys in a car outside a barber shop that makes us nervous that's sort of their characterization of it  car entered into the shopping center the man who knew for the car to evade the police immediately upon the police coming into the parking lot of the shopping center be headed to trial i think there is no reasonable conclusion from the evidence other than that to defend it were kissing a business in the brand or shopping center with the intent to rob error but the way to the air you've got three officers two who by and say that's him that's him so that's out how do you make that into nothing it is how do you make that into harmless record it was eighty three one eighty two in my context he said the officers did not choose forster for the wrong motive when says he's tied it also to the officers to speak to mr schwartz's point that the very fact that the jury asked to see these things these videos tells you that they  identification the jury asked to see the casing video which was spotted defenestration appearance video which he was most easily compared to the person in the courtroom and they asked to see the photograph of the getaway car which was tied to him at the same time that i submit with respect demonstrate carefully relied on one of the evidence and i happened which was principally the video which was viewed objectively by all the witnesses if the police officers had just described the video would be occurring watchable conclusion to think that people who are planning a robbery and casing a shopping center for a robbery don't have a motive if it's if it's unclear which they specifically they're going rob you know i mean that's kind of the purpose of of a criminal going in scoping something else to decide is this a good target should i move now or should i not move now i mean just because the judge says i don't know to put ourselves in the role of jurors and say well this is a pretty strong case i think we would have convicted that's not the standard i think i think that you are not sure conviction based on the  why this was not a fair fight that's why the extra evidence that that saves conviction it is not here was it three or five because and this puts gerald had a right to have her testimony evaluated on the same level as the