thank your honor may i please the court counsel my name is brian cook and i represent the opponent in this case carl hunder since mr henderson was denied his right to the effective assistance of counsel because his trial attorney failed to file a motion to suppress the gun that was a necessary part of the state's case against him even though such a motion had a reasonable probability of succeeding in changing outcome mr henderson's prosecution the public court agreed with mr hasn't since argument that he was illegally seize when the police stopped the car and whiskey in which he was a passenger but appellate court's germination rule rather than conducting a traditional attenuation analysis of the severity of the proceeding police misconduct is weighed on a case by case basis against other factors the state argues that the defendant's flight completely terminates the seizure and thus wipes the slate clean of any proceeding police misconduct no howard reduced that misconduct might have been this rule would undermine the deterrence of illegal searches and seizures that the exclusionary rule is designed to achieve and would also require courts to develop a new body of case law about when flight terminates a seizure a traditional attenuation analysis on the other hand is familiar and well established and allows trial judges to use their experience to weigh the relevant factors in each pacific case to determine whether attenuation it's certainly a factor but it should only be one factor under the state's analysis that would be the single factor that is this positive you could have no matter how egregious that the legal  was the defendant's fight would be the only relevant factor and the evidence would automatically command in this artist we argued in the so this is our position would be that we do have a seizure in this case the violated  binding us supreme court precedent in florida versus jail a case that is very similar to this case police officers are trained to know that in the fourth amendment and they violated it clearly here the appellate court had no difficulty making that holding and even the trial court unprompted held at the end of trial that this was an illegal seizure so we have to weigh the severity of that misconduct here against the defendant's flight we also have another factor in that analysis is the amount of time that passed between in a wheel seizure and the recovery of evidence here there was very little time it was very soon after the car stopped the police you know got the other passengers out of the car were handcuffing them they then had mr henderson exit the car and it was at that point after they brought him over to the sidewalk that he fled so very little time passed between the illegal stop and the flight another factor to look at is the extent to which  defendant's abandonment was voluntary here the officers were unable to testify very clearly whether their friend it had actually reached into his waistband and dropped the gun intentionally or whether it just fell from his waistband doesn't fit into the attenuation analysis that you that would cut in favor of exclusion i think the more the more severe the defendant's fly the more you know you could have cases in which for example the defendant leads police on a high speed chase or in the course of his flight commits a battery and police officers that sort of flight would weigh more heavily against the defendant you can also have a case where the defendant does intentionally drop evidence rather than just perhaps having it fall out of his possession accidentally again that would be a circumstance in which that flight would weigh more heavily but all of these factors are things that it should be in the first instance the trial court should be weighing all of those factors not just looking at a single factor to determine whether or not the evidence should be excluded and the the primary reason for that is the exclusionary rule as i said is its primary purpose is to deter police misconduct and if you have an analysis and application of makes police misconduct irrelevant to whether the evidence is going to be excluded then you're undermining that primary purpose you're allowing police officers to conduct illegal searches and seizures even severely illegal ones and knowing that as long as a defendant please there will be no consequences for their legal actions the evidence will come in no matter how bad their misconduct has been  address is it to a point it does it does say that if a defendant is seized and then flees that would perhaps terminate the seizure but what they don't want to address is what the consequences of that would be for the exclusionary rule they don't really address attenuation analysis in any detail at all and that's the that's the key distinction the state's position is essentially that a a post seizure flight is no different than precision  flight but it ignores the very important difference between those two cases and that is the presence of an illegal search and seizure when you have a post seizure flight you do have that illegal search and seizure and there is that's sort of the predicate for conducting an a no i don't think so your honor for some reasons first of all a defense decision to flee it's kind of an impulsive split second sort of decision it's not one where the fed is going to have time to consider you know the costs and benefits you know the consequences you know for a subsequent corner case before he flees and it would also require the fairness to have a very sophisticated understanding of for them in the case law in order to even make that sort of calculation police officers on the other hand they are trained to understand the fourth amendment and they are in a position before they make a stop such as the car stuck in this case to consider whether or not they have justification for that stop and what the consequences might be of conducting th into officer us any testimony from the officers about what usually happens when you're under load a car of all places in handcuffs all in least under arrest or some just released at that  there was no testimony of that sort i mean they testified about what they did in this specific case and they had initially they handcuffed the driver and the other passenger first so we do have that testimony this defendant the last to get out he was the last to get out yes getting back to your question about encouraging differences to flee my other point would be you know as we talked about with justice t even if a defendant flees that doesn't give a defendant a free pass the defendant's flight is still going to be a factor in the attenuation analysis so it's still going to count against the defendant so there's still a disincentive there to flee even if the defendant is officers offered a lot of testimony at trial about each of the factors that's relevant to determining whether or not the the initial car stop was illegal they testified about the tip that they received from the anonymous informant t testified about kind of the characteristics of that informant they testified about what they did after receiving that so we have a lot of evidence about that they also testified in in detail about what happened after they stopped the car exactly what their actions were before mr hundreds and fled so we do have a pretty a very well developed record to determine whether or not there is a reasonable probability that a motion to suppress would have succeeded and i think it's important to keep in mind that the the standard at this stage this war doesn't have to decide if the gun would be suppressed because we're raising a claim of ineffective assistance the record simply needs to show that there's a reasonable probability that that that motion had a chance of succeeding and i think the the leading case here would be brown one versus california that was a recent us supreme court case in which they held that the passenger of a car is seized when that car is stopped normally have a seizure you have to have a reasonable person would wouldn't feel free to leave or decline the police encounter and then you also have to have submission to police authority and what the u s supreme court said in brown one is when a car is stopped a passenger submitted to police authority by staying in the car and henderson he stayed in the car as the police got the other two men out and cuffed them and then he additionally submitted to their authority by complying with their order to exit the car and then allowed the police officers to walk him from one side of the heart of the other it was only after all of those things that happened that he had fled so i think under brown when there there is definitely a seizure and no one has ever contested otherwise in this  case if you're under seven for the questions karl hundreds of requests that this court find his trial attorney was ineffective failing to follow a motion to suppress the gun the motion had a reasonable probability of succeeding and it was mr henderson's strongest defense of his charge so no reasonable trial turkey would have failed to file such a motion given the facts in this case counsel was therefore ineffective and mr henderson requests that his case be remanded for suppression hearing to determine the admissibility of the gun thank you thank you it's the people's position that defense counsel in this case was not in fact to have because any motion a surprise that would have been filed by defense counsel would have been futile as there is no reasonable probability that such a motion we've been successful in the trial court the facts of this case show that the defendant was in a in a car with two other men it was a distinct current hand link and police officers were on routine patrol when a citizen legged them down and said that there was a possible gone into handling again the officers continued their routine patrol and within five to ten minutes they spotted the tan lincoln they could the vehicle they asked passengers the passengers and the driver to come out of the vehicle the defendant complied and did come out of vehicle and then as the officers were  preparing to position him behind the car presumably as for safety reasons since they believe there was a gun in the car the defendant ran and dropped a loaded twenty two caliber weapon and the ground is to record and drop there's testimony from the police officer and initially that he dropped it and then there's testimony that it fell from his waistband the testimony is a little bit difficult to discern because during cross examination a counselor just repeated questions about whether or not the police officer actually saw the gun in his hand or saw the gun when it hit the ground the police officer testified that he saw the the gun when it hit the ground he never saw it in his hands and so it's a little bit unclear as to whether he threw the gun to the ground or if battle is he was running however it's the people's position that doubt they act really doesn't change the analysis here because under any set of circumstances the defendant ran from the police and terminated the seizure but initially i'd like to address the defense's position that because there  this court she conducted and the time you wish an analysis to determine whether or not the gun was properly admitted at trial people submit that the record in this case is deficient for that type of analysis the police officers here testified to certain facts regarding the information that they received from the citizen informant but they weren't able to testify to chill a operate on those facts because this wasn't a motion trial and when the state tried to listen to testimony about that defense counsel objected which was proper as it would have been improper hearsay the record demonstrates that while the trial  actually sustain the objections in the sense that he said objection sustained he did direct the police officer who was testifying to just explain what he had done next so there is no testimony here where the police wasn't filed or wasn't it here and all of these facts yes i think that that is a problem quite frequently around and i think that's why this court in view discussed those discussed the exact situation and they referred to my sorrow and explain they had an effective assistance of counsel claims for failing to file a motion to suppress or think frequently better suited for post conviction review let me ask you this if that's your position what kind of conviction petition in this case a say you get with the sisters office and you're on the other side what kind of post conviction petition could this defendant frame that would not be dismissed as being frivolous or would get past the stage well i think your honor that the def probably raise very much the same arguments that he's raised here but i think that when we're considering reviewing claims on post conviction we should not only be considering them from the defendant's point of view and massaro tells us that in this court discusses it and you it's not only to flash the facts of the case from the defendant's position but it's also a question of fairness to the state and in this case this case the state wasn't permitted to elicit testimony constitutional claim so based on the facts that are in the record the defendant could probably meet that initial rush old burden on at the second stage of the defendant could allege more facts  the people filed a motion to dismiss as possibly granted possibly not granted but if as the case per seated there would be additional facts that could come in from both sides and that's where the fairness issue comes in the state also should have the opportunity to flesh out their claims and explain what the police officers saw and did knew at the time and they don't have that opportunity based on the record before this court  at this point i'd also like to address another issue regarding the sufficiency of the record that was brought up in the reply brief that defined and filed the defendant's position is that people forfeited the the argument that the record is insufficient to review this on direct appeal and that it's a matter for post conviction review on the people would like to point out that this claim is out for if it was true that we didn't raise that issue in the appellate court on the people's now people are now barred from raising that claim before this court and the cases cited by the defendant to show forfeiture are cases that demonstrate that the people are barred from from raising the defendant's forfeiture if they haven't raised it below but we're not we're not barred from proceeding on a different theory of the case before this court moving on to the next issue while the people do not concede that the defendant was unlawfully detained in the first instance because again we believe that the record was insufficient to make that determination and fourth amendment protection that defendant may have had if we are seeing that there was a seizure and an illegal seizure and a fourth moment that the defendant would have had dissipated when he made the independent decision to run from the police the weapon fell to the ground and he was subsequently arrested the defense talks about how the exclusionary rule is designed to make sure th police officers don't engage in misconduct but the united states supreme court has recently side in hudson versus michigan that the exclusionary rule is supposed to be a last resort and hudson also made clear that in this case there was an independent factor defendant's decision to run away from the police as a manner of public policy while it is true that we don't want police officers to stop to finance for no good reason on the street or citizens from hell good reason on the street we also want to we also don't want citizens particularly armed criminals like defendant to make the decision as to whether or not they're going to abide by the rules that this court has set forth or cut and and public policy dictates that we don't want citizens and police officers to be put in that kind of danger when we're weighing the exclusionary rules pottle see against deterring police misconduct against citizen safety as this court as the court said in people versus kids in the appellate court we want that to terminations made by judges in court courtrooms we don't want their determination made on the street so your suggestion that this is a way that we must do here that sounds like defense argument that we should look at this in terms of attenuation we should weigh all of that is that analysis comes into play when the defendant has been seized for purposes of the fourth amendment and fourth amendment protections than come into play in this case the seizure was over when the define it made the decision to run the seizure and did and any fourth amendment protection that he had dissipated and the fourth amendment should not be viewed on a continuum as if there is an illegal seizure we keep looking to see down the line but for but for but for that's not how it's intended to be done it's not about foreign else to us in this case the defendant mean to decision to run and once he ran the seizure was over the police than have probable cause to arrest him when they saw the guy hit the ground  and that is an intent it's not an attenuation analysis and i think that this court's precedent supports that position there's people versus thomas people versus morris and both of those cases while it's true point as the defense points out that the defendants in those cases were not seized to begin with and in this case that were assuming that the defendant was seized to begin with that is the distinction however the court this court in those cases did not look to see the issue wasn't that there was a seizure and then the defendant ran the issue was that the defendant right now and that was what the court looked at if the hands the people so bad that defense counsel in this case made a prudent strategic decision not to file a motion to suppress because there was no reasonable likelihood of success on that motion criminal defense attorneys are not required to file futile motions and defense counsel in this case made a reasonable decision if there's no questions from this court people ask that this court rejected penance ineffective assistance of trial just like to make a few brief points for honors first i'd like to address the state's arguments about the sufficiency of the record and whether this claim can be addressed on direct appeal the state took the position in argument and also in its briefs that it was restricted from eliciting evidence about the informant in the tip because defense counsel had objected to a question about that on hearsay grounds and the state kind of recognizes that that objection was that substance sustained the judge in ruling on that objection allowed the officers to answer the questions that the state was posing but simply said that he would consider that evidence only for a non substantive non hearsay purpose to show why the officers acted as they did so that ruling didn't restrict the state's ability to present evidence in any way the officers were still permitted to testify about their interaction with the informant the state also argues that in fairness to the state it would not be in this situation if we were to address this claim on direct appeal it doesn't have a chance to present facts to support its position about the legality of the seizure but i would just point out the state we're not asking for mr henderson's conviction to be reversed in the gun to be suppressed we're not asking for an end to his prosecution we're asking for him and for suppression hearing in the state would have an opportunity at that point to litigate all of these issues that it's concerned about i think the state also underestimates the difficulty that defendant would face in raising this claim in a post conviction petition if the defendant were to simply file a post conviction petition based on the evidence that was in the record similar to what we have argued in our briefs i  think there's very little likelihood that a judge would let that get past first stage rather than finding that it's part by restraint cotta if your honour's have no further questions we covered matters of attenuation pretty closely in the opening argument i would just ask that this court remand the case for a suppression hearing after finding that the defense counsel was ineffective thank you thank you case number one one four zero four zero people versus karl henderson taking und