five counts the most important operative of those counts was a serious violent felon in possession of a firearm and resisting long foresman ultimately approximately nine months after the case was filed in delaware county indiana in december of two thousand and thirteen that case was ultimately dismissed and was refiled pursuant to an indictment in the southern district of indiana and in the initial indictment mr mcfall was charged with one count firearm by a serious final felony under nine twenty two under eighteen u s c nine twenty two and additionally mr mcfall was charged with possession of body armor in violation of eighteen u s c nine thirty one a basis of our contest in this case mr mcfaul went to trial on these charges in october of two thousand and fifteen he was acquitted of the firearm account of the firearms count and ultimately was convicted as to the as to the to the body armor what i think what's important in this case with regard to the issues that have been raised for appeal and i'll call it the issues really there's two issues but there's two points to issue number one which is with regard  in the motion to suppress was that the the stop of mr mcfall vehicle and the ultimately the felony stop procedures that were employed by the ball state university police department and the  person should have been suppressed there was also the issue of the safe that was found in mr mcfall vehicle alternately the district court did find that the the proceeds the contents of the safe which was located in the employed by the officers in this case instructive for this court to consider is a case that ironically had come down from the indiana court of appeals i mean approximately seventy thousand and sixteen which was after our initial opening brief was filed in just before the this the government's response brief filed and what's instructive in that case is for the first time under indiana law the indiana court of appeals recognized that there are situations where an individual may understand that an officer is attempting to stop his vehicle but yet he may proceed to a location that would offer a a safer location for that stop honor from the outset of this case by way of our motion to suppress it was it was mr mcfall argument that the felony stop procedures that were employed by the officers by the arresting officers in this case  were in fact not justified given the circumstances of the stop that is that mr mcfaul was not attempting to evade the officers in this case he was driving in a low speed but i mean as you said you are  already argued he had innocence objective intent because he was trying to get to a safe place the problem is the officers didn't know and so the question is whether the officers him probable cause to arrest him for using their vehicle to flee well understanding that your honor i think that the issue more turns on would be that the felony stop procedures that were employed by the officers in this case  result in a mr mcfall being extracted from his vehicle by up to ten officers at gunpoint he's ordered from his vehicle he according to one of the officers that testified the officer berger at both the suppression hearing and the trial of suburban commented that mr mcfaul was cooperated i don't even understand what the significance of that is your client had a suspended license the officers were going to let him drive way a suspended license so he was going to be taken into c subjective intent of the officers is wholly irrelevant in fourth amendment cases we just asked what probable cause he is that's an objective standard and objectively that was probable cause and under there is a stop and arrest if you are stopped you are arrested it's a seizure within the purpose within the scope of the fourth amendment and as soon as the officers knew  soon as there were illegal term took place but certainly as soon as the officers knew that your client had a suspended license this was all perfectly straightforward under read and what people were thinking or written irrelevant so where do we go from there well you are in fact that once again i believe that the issue turns on and i understand your honour's perspective and position that there is no such thing as a felony stop under federal law the felony stop came from the officers themselves who employed a certain procedure the question is whether the stop was supported by the  appears to be yes since it is understood that your client was driving with a suspended license right that's probable cause for a stop under read and the next stage is the application of arizona against ghana this is supreme court will understood your honor but the point is as well as that the bullet proof vest wasn't or the body armor in this case was once you have probable cause to arrest in the offices you're trying to say they didn't have the right to pat him down want to talk about the using body armor because the guidelines define using body body armor to mean actively employing it in a manner to protect the person from gunfire you haven't argued have you that this case  doesn't fit that definition because i'm having a hard time trying to figure out how it fits that definition in this actively employing it in a manner to protect the person from gunfire but that's not your argument here is it you're correct  honor we did not make that argument and obviously that is a that is a concern that argument was not raised we were focused more on the on the suppression issue which would not affect the four level addition that was made to mr m think however once again a felon fleeing even if determined by officers or by the district court judge in this case my recollection is that there was no determination that this body armor was actually used in the commission of from gunfire but my recollection is yarn actually i litigated that case at the district court levels that that was raised at the sensing argument as part of our sensing argument and part of the objection at this is yes to has not but certainly has not been raised in the briefing i think the best explanation for why is officer berger testified and that fall peeked out the door and was maybe sizing the officers up and there is a gun in the vehicle so i think the best interpretation to how mcfall was using it was he was debating about whether to step out of the car with the gun and confront the officers he ultimately did not but his conduct in the traffic stop i think was different because of the body armor against wasn't raised by i think that is the best interpretation of what that what happened there just to turn quickly to the stop as it as we've heard is undisputed that defendant was driving with a suspended license was the officers probable cause to stop  him as to the cowans case at most what that even if it applies to this case all it says is the fact finder should consider the mens rea of the driver if they were looking for a safe place to stop the district court judge did that hear and considered whether that's what mcfaul was doing it ultimately concluded that's not what mccall was doing i would also point out that that really only goes to the ultimate finding of guilt or the sentencing guideline  impact the problem cause at all because as this court has noted the officers don't know that it's best out of the some sort of an affirmative defense so i just want to go back to the c s business understand listen argue but certainly means that it was a war not just possession it was yes it must be worn war and mcfall here was wearing the body armor there's no dispute about that and i think again it is difficult because this wasn't something that was flushed out because that there wasn't a specific  objection about that and i think the best interpretation of how it was used beyond being worn it that is if it even needs to be used beyond being worn is that mcfaul was debating confronting the officers and took a long time to get out of  finally did and he did not with the gun but i think that he was using it and contemplating what his next step was going to be and i think it's reasonable to interpret that he may have acted differently if he was not wearing body armor they did not really seem to be afraid of the fact the officers had guns drawn and pointed at him the council i'm still not clear on whether or not or what was raised as an issue in going back to the sentencing as well what issue was raised by way of a specific objection prior to cincy in terms of the basis for this enhanced myth as to the the use the position what have you or the body armor i'm still not clear whether that was actually raised to your own i think wrist as we heard the very opening part of the argument today it was whether there was an underlying felony that was the objection throughout whether it was using connection with an un flame constituted or whether the whether mccall's actually constituted fling it was not whether the body armor is used i think that was taken it for granted that it was because he was wearing it there are no further questions the government residents brief