there might have been reasonable suspicion that they could have been armed because of the you know on eleven call justifying the pat down the request for the pat down but the request for the pat down was only to establish whether they had weapons and once it was determined that mr peck did not have a weapon there was really no reason to continue the investigation so the government's argument is and it was a search and sit and two are asked and obviously they could do a pat down and also look for evidence if there's any evidence and i think destroyed so it's on at theory according to the government they pulled out the envelopes continue the search of and he noticed at the envelope was made out to them so i doesn't add get past the reasonable suspicion that we have probable cause assertions and to arrest well that's the whole crux of this case is whether you  loitering basically if you seem to be hanging out for no good reason that's that's good enough why why wasn't why didn't they have probable cause well st of all they didn't have probable cause to arrest for trespass because there was really no evidence of any intent to interfere with property rights how about ordering what is really the question here where they live loitering if you look at the  department saw him inside the curtilage he was in the playground area there were no trespassing signs and there was also a fence that surrounded the property they also  the black and white saw him initially then went around the corner about five minutes later came back he was still standing in the same area that he had been says there are actors in s k so they had nine hundred and eleven call at they were wearing the two of them are wearing dark out there had burglaries in the area and they asked for the cell phone which was suspicious because that's a prelude to a robbery so i wasn't just that they were chilling i think that's what the person well in terms of the justification for conducting the pat down search i see i see your point because of the time the time of the day and the report concerning a request to use the phone which in itself is not a criminal act but the the caller was concerned because the caller had noted that there had been berg burglaries in the area but the police report and the declarations of the officers indicate that they were not at that point convinced they had probable cause to arrest for anything that they were just conducting what they call the trespass investigation  are thoughts are not significant here and it's the objective of if there was enough for for probable cause but objective lee speaking the reason why that edge really decision is so important in this case is because there is no evidence in the case that either mr pic or his partner were quote unquote delaying or lingering within the curtilage of the property but but i mean we knew the police knew that they didn't live there it was ten o'clock at night and they had there's reasonable grounds to believe that they had just asked these passers by for their cell phone and what had been a prelude to a burglary and it caused alarm enough for this nine hundred and eleven call so given that they knew that they didn't live there why isn't that reasonable grounds to believe that there's enough on the why they're there to justify an arrest given what they did with the passer by who and the nine hundred and eleven call why don't why doesn't that get past the relatively modest probably cost burden i think they what they had the oh i don't have a page number apologize i'm just quoting from the from the language within the decision after the discussion of trespass where they indicate that it requires occupation of the property in a non in continuous type of possession and they also indicate that there has to be specific intent to remain permanently or until ousted they then discuss loitering i'm asking you because this is a we and forty seven age also has a specific intent requirement which the officers had no probable cause that section requires that the alleged border quote unquote to lay or linger on the property for the purpose of committing a crime as opportunity maybe by scott one color was conveying to the police when he called the police that there are in the area that these two people were there he was partner i don't the street you know the sidewalk and they said that they were in the shadows but when the officers came to the location and they're sitting on the stairwell they're not working they're not peering into windows they're just sitting there and in fact they're sitting there in a sort of an open and notorious fashion or you know on the stairwell the lights are on them they're not hiding from anybody they're just sitting there and again we don't even know how long for longer than just a transient moment and so therefore moment well when the police came onto the onto the property they saw them and immediately approached them so at that point they had no idea how long they were going or they were they were in the area when the initially got there they started to go into the bushes and into the area near the sidewalk they didn't even go into the complex because they were looking for them on the outside they didn't expect to see them inside and when they did they saw them  just for a moment before they just put before they approached and they were not hiding they were not lurking they were not doing anything suggestive of committing a burglary at that premises or or robbery or anything of that nature so host probable cause in the sense that the officers mates on their training and experience know that opportunistic criminals half ass make names for their cell phones as a point to eventually rob the so as to mr picks state that it was his mail the government's position is that he did not move to suppress that statement aside for a minute the issue of having with this within the ambit of his conditional plea why weren't miranda warnings required at the time he was questioned about the mail since the government's argument is that by that point there was probable cause and it certainly appears like a reasonable person and mr pic's position would not have felt free to leave again putting aside the issue of the so they they already had historical information about him at the time they approached him and so clearly they knew he didn't live there his purpose could very well ben to sell  narcotics at the cooperate of it which would be sufficient for probable cause one would think to arrest him for loitering and yet the court held that there was insufficient evidence of that particular because he had only been there for a very short period of time they talked about it in terms of being a transient hiding anywhere unlike the trespass case that was mentioned there was no activity within the curtilage of the property suggest that they had any intention to enter any of the apartments or to commit any kind of crimes at the location quickly concerning the plainview argument we don't know exactly how these envelopes appeared when they were removed from the