please the court my name is jay off the average and i'm here on behalf of barry what are libraries three points in my brief i intend to focus my argument this morning on the february rd two thousand and seventeen traffic stop which resulted in  seizure of contraband and a handgun we respectfully request that you vacate the judgment to remain the case in the district court with instructions to grant mr whitaker suppression motion on the grounds that the police lacked probable cause stop the vehicle and if the evidence seized was thus the fruit of the poisonous tree the underlying this argument was not raised bolos that correct we raised the question i was as to whether or not there was it a violation of the law by the police this particular theory was not presented to the history and what was argued in the district court was effectively a factual argument that the police officers did not see what they say they saw direct your honor yes but your argument has to do with whether there was in fact under new york statutory law a traffic violation correct your honor assuming that the officers saw what the district court found that they saw yes your honor we have to consider your argument on the plane  right i believe that this would still fall under age an over review because there is the question as to whether or not if there was a violation of the law and that was presented if you were to review decide that we are incorrect in your reviewing given the op to the district court should have had the opportunity to correct errors and if the never gave the district court the opportunity to correct the error so as to bring the ship home safely essentially  venue have to persuade the higher court that that this was a plain error that even even without being right is should have been observed by the court yes your honor and we believe that if the court looked at the statue court did in brandt it addresses what it calls a vehicle should do what it is stop at a traffic signal why do you say that actually it it seems to me on reading be that other that i say why do you say that other than the fact be indicating an additional circumstance in which one is required to use a turn signal of the court the court was looking at the question of what a vehicle stopped or park should be doing and viewing a stop vehicle in the same sense being parked we know that courts that have looked at this statute have made exceptions to the rules even in tampa really which the government relies on to say that the court reached the proper conclusion in this case that was that was a situation in which it was effectively impossible to comply with the one hundred dollars foot rule without actually giving the misleading impression that the driver was going to turn at a different corner than you intended  turn it but the question becomes whether or not there are there does become exceptions or there are alternative ways of why would there be in white why would you interpret d at all to be an exception to be be says give the really should be a question for the new york court of appeals but way way way way white why on earth would that be we certify things to the new york court of appeals when we are unable to predict how the new york court of appeals would decide a question of state law but it seems to me you have two problems here one is at least as i read the statute i would think that the because the city quite got it wrong even if i had de novo review for the reasons i've essentially just ask you about but in addition to that there's a plainer standard hears so if it is a question that is so uncertain that we would need to trouble the new york court of appeals about it  why would we find that the district judge obviously should have interpreted it in a particular way i think it was a plate reading the statute would every one would have reached this conclusion failed to comply with the correct your honor that he gave proper notice to the drivers behind him that of his intention to signal which is the whole purpose of the statute to allow other drivers to know what you're going to do on the road and not be surprised by your movements and this also in turn requires you to interpret the term parked position to include stopping for red light yes you're right and that's because you think that literally the definition of park which everyone in drivers at least when i took it was told has to do with the difference between parking standing and stopping for purposes of complying with no parking signs and the like parking regulations that actually because the definition of park in taken literally includes a vehicle standing who is not engaged in loading or unloading and or passengers someone who is at a red light stop for a red light is parked for the purpose of not being in continuous movement correct your own yes and so the whole purpose is to give notice to the driver behind him which mr whitaker had done and the law does seem to allow for that weekend is there ever been a circumstance in which anyone has ever described a a car that stops at a red light as parked but we do have a very bright iraq up side does anybody ever say oh yes i parked right when i came to the red light and i parked and i've never heard that don't park in the middle of the of the driving lane where nearly they park at the curb nor or at the as edge of the roadway they don't park right in the middle of of where people drive now with the vehicle is not in active movement at that time and the idea is to ensure that the driver behind them has proper notice of what the driver is going to do we see analogously in others you haven't you have a a very decent argument that the regulation of signalling one hundred feet in advance doesn't make an awful lot of sense where one is coming to a stop sign and will have to stop but that's a very different thing from saying it there's anything in the rules that compels the conclusion that you don't have to do it in this is this is why i think the question take me through it would do take us that the vehicle as an as as it's stopping at the traffic control device and giving proper notice to the driver behind is sufficient under the rule and we see from tamper no that the exceptions can then apply such as the idea that it was impossible to comply one hundred feet before because there may be confusion to the driver behind so that another signal could take place we see  think i don't put words in your mouth but i think your response to judge laval is it requires you to go into the language and your language argument let me try to state it and see if i have accurately what you are arguing is that de requires the use of a signal when you start from a parked position and that in a separate section vehicle in traffic law one twenty nine dollars park or parking which may be includes being in a parked position means the standing of a vehicle whether uk you pyatt or not otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers so you are maintaining that technically under the law a car that is stopped for a red light is standing otherwise than meaning it is not temporarily engaged in unloading passengers or merchandise and therefore is parked and therefore is in a park position and therefore is required by subsection d to signal but i'm still puzzled as to why that means that if there is another regulation that from the requirement of signaling one hundred feet in advance because the vehicle as the court and very pointed out the vehicle is in the is within the proper position on the roadway and from that point given that i as i was before your question as i was trying to address we do see a now this leak situations from other states that have similar traffic laws and the question becomes a question has arisen in some of those states this goes back a number of years whether or not it's required for a vehicle to use a stop signal brake lights hand signals that they are intend to stop when there is the state directs them to do so via a stop sign or a traffic light and we see laws we see case law out of texas we see case law out of washington in a few other states informing us that because the state has mandated this at this time it is appropriate it is ok for the driver not to have signaled their intention to stop so we see that exceptions do exist in how these laws get interpreted in the use of signaling problem with with all of this excellent discussion about the nuances of how many stop signs appear on the head of opinion is that if this had been raised in the district court the district court the parties could have explored with the officers what they really thought the law was and why as why in this nuanced discussion they decided to issue a ticket and determine whether it was in good faith though  regulations means that it can't be plainer so you want to address that other then then your honor actually though we have i have not asked for this type of relief i would recommend that maybe that you send this back for further fact and if the law is as you say it is there's confusion around and we don't know on this record whether the officer thought in good faith that no they did they didn't  i thought the law was the way i was in forcing at that time and and you're without an argument it seems love that that would be one of the reasons why i think the new york court of appeals she actually dresses because your court of appeals would be in a better position to know whether this would be a reasonable stake for an officer to have made or whether it was actually under reasonable decision that the officer with the new york court of appeals have any other materials than the ones that we have for deciding that which is to say the face of the statute and the poughkeepsie city court decision and the other decision that you referred to about not signaling when you're going to cross and if you comply do you would be crossing another road find them we'd have to go hunting through i can provide well but but also you have you have represented i think if i understood you correctly that these are not about statutes requiring turns are about statutes requiring that you either by stepping on the brake and thus lighting a brake light or by using a hand signal indicate your intention to stop that that is not required when you are legally required to stop because at least in texas they seem to assume that people will comply with the red light and all the other drivers will expect morning your honors may please the court my name is to financially and i represent the united states i st wanted to quickly thank the both the court and this trough for being so accommodating with my request that this matter be calendared st and my kids thank you as well this court should affirm the district court's decision denying mr whittaker's motions to suppress the evidence obtained as a result of the traffic stop on february rd two thousand and seventeen as your honour's have noted this whole discussion statute has been around for a long time and in its history despite the fact that mr out's ya bitch has raised that in i think i believe two thousand and eighteen new york city experienced had like over seventeen thousand traffic violations for issued as a result of failure to signal but there were only been two real i guess discussions on it at the city court level as to how to interpret one thousand one hundred and sixty three b the plain language of the statute states that you had a driver who was going to turn needs to make as the signal within the one hundred feet what do you say in answer to to your adversary's argument that that is  is not know if i don't know if i buy d in the circumstance where the person comes to a stop sign correct correct exactly it is not nullify by d and it's because d doesn't say anything about a car in circumstances but not be flashed on a parked i don't believe that the definition found for part covers some current that's approach and stopped at a stop sign because you're not in the same instance where you're unloading are loading passengers why do you need to even get that far it isn't the better argument for you that d does not create an exception it says that this is an additional circumstance when you're supposed to use a turn signal and the clear and i probably agree with you also on the other items that the clearest meaning of that is that if you are parked by the side of the road put you on the right side of your park by the side of the road and now you're going to pull out into traffic you are going from a parked position and therefore are required to signal act right but even if it does apply as an additional reason to signal when you are at a stop sign nothing in the makes an exception to be it just says this is another time when you have to signal so if you didn't comply with the nothing in the says if you comply and if you comply with this role you don't have to do it one hundred feet in advance exactly it's not an exception not the nd clause what about the nd clause of d it goes on to say and not be flat on one side or on the parked or same right exactly that section does create a time when you're not supposed to signal you're not supposed to do as some people do if you are disabled or parked and interested in this is interesting too it says you are not supposed to flash on one side when you are parked which certainly seems to kill your in light of the prior thing the put that to one side you're not supposed to like pull up next to a parked car and flinch your right hand signal to indicate that you are stopped or disabled that's not something you're supposed to do and you're not supposed to flash your turn signals to tell the guy behind you to pass or as some kind of courtesy that is for a vote and you can get a ticket for doing that act that's when you're not supposed to signal and you are supposed to signal in the other conditions like changing lanes or to requirement of b that says when you're going to turn you should signal a one hundred feet in advance so the duplicate be in a variety of ways and overlaps be in a variety of ways correct and actually signaling on the side to which you are going to turn on it parked vehicle no i do not read i don't i do not read that to be the case but in any  not it's not on a parked on one side only on a parked vehicle or disabled vehicle so if you have a car that you cannot get off the road you're not going to signal and intentionality other that you are able to go someplace when you're you're basically stuck in the road courses depends on whether the definition of parked in one hundred and twenty nine can apply to the kind of vehicle we're talking about these come to a stop  would of course i think put it in conflict with the with with the requirement that you signal the turn of that you're going to make at the time that you stop i don't think it puts it in conflict i think you i think  anytime you're approaching a stop sign you have to signal your turn within one hundred feet period and then if you're at the stop sign and you're about to make the turn your signal is on i mean you have to make the signal  don't agree with you is not relying on that nd clause as to when he should not signal because if that were the riprap or reading of that then mr winokur committed a different violation because grammar isn't very good here a start from a parked position correct and to indicate there is no to indicate start from a parked position that's that's the way i interpret it or less is an intention to try and see as intention they the meaning advocated is not the error here is an if there were error is not playing and then as to the whole idea of the certifying to the new york state court of appeals again as i mentioned there's only very it would have been it would have meant that the individual there who was going through a bunch of intersections would have conveyed a signal that he could have been turning at any one and he only flashed on his signals as soon as he came to the stop sign but that court said it doesn't matter that he would have liked practically common sense wise would have given the wrong meaning to either the driver behind or the driver in front the reality is that he still is not absolve flushing on the signal and to clarify the state of the record and my right that the police officers did testify as to their understanding of the law that is to say they testified that they gave the man a ticket because they understood that he was supposed to signal in compliance with the one hundred feet in advance and he did not they were not asked by anyone about whether they had they interpreted the because that wasn't raised but they certainly did say what their understanding of the law was exactly and precise issue as framed below by counsel below was the issue is not whether or not he committed th infraction the issue is whether or not the officers could credibly have observed the violations so it all stand on whether or not the officers were able to see the standard credibility argument and they said he didn't comply technically and that gave them the pretext and i think there's no doubt that they were interested in stopping him for another reason to stop him which is perfectly lawful and the defendant said no that can't be true because of where the cars were positioned or the state of the lighting or whatever else was relevant circumstances at the time and therefore the challenge to the credibility of the officers statement that he did not signal one hundred feet in advance direct your honor i see i'm out of time the government respectfully request that that judgment and conviction be affirmed unless there are any further questions the government rests let me just observe for the parties are that as as i read it there is an argument regarding sentencing as mr olson overcharge gave us a letter helpful letter thank you very much that sort of indicates  and so when a decision comes down we may ask you for supplemental letter briefing depending upon what that decision is so i understand stand by while there thank you very much  just just a few brief comments to address one of the points actually there was no ticket issued for the for the underlying basis of the traffic stop it was often happens when are actually interested in something else that doesn't affect whether it's a level stop and right now and we're not we're not making an argument along those lines just to point out for the record that there was no ticket issued  interesting only the officer who initiated the traffic stop i believe it was officer zelikow who was directly behind the vehicle he never testified that he observed this particular violation was officer raymond who yes correct your honor just to clarify what this is about in part of the government's plan or argument alternatively as i addressed in my main argument is that you could send this back to the just record to fully address this legal question as to whether or not there was actually a violation of the law and that may be the the appropriate way would we do that we because there is the question as  there an actual violation of the law and give the district court the opportunity to weigh in on the matter if the this panel feels that that is problematic it seems to me that you have not provided any answered to judge lynch's judge lynch reading of d is that all d d has is is is imposing an additional requirement here for signalling that it doesn't and by doing that and that the nd half of it all simply doesn't apply to the hundred feet it talks about a vehicle that is parked and even if even if not in compass is a vehicle stopped and stopped at the stop sign it doesn't relate to what happens in the one hundred feet preceding because again it's based on the ability to pick up the common sense of what this statute is about to give the driver behind you the fair opportunity to know what actions you are going to be taking on the road and that this should provide the clear opportunity for doing so thank you your honor thank you both will reserve decision