before the district court judge and i think that this was a close call for the district court even at the time of sentencing the district court judge in mentioning what she considered to be the blessings that were stowed upon mr mays during the course of this cage mentioned maybe you win this case on appeal the question that troubles me most in the case and the question that i have returned again and again too is if mr mays was not identified by the police until after he was arrested and if the second  right to bear arms what was the crime that the officer believed mr mays what was the crime that he believed was afoot when mr mays walked away from him in broad daylight terry authorizes an investigat stop of a citizen based on a reasonable suspicion that criminal activity is afoot that suspicion must be more than a hunch the purpose of that stop is to verify or does the suspicion that there's criminal activity deemed that that criminal activity has happened or is about to happen so put yourself in the position of mr mays on that day if you can mr mayes walked away from a fight which all parties agree he had no involvement in broad daylight at about six p in indianapolis all parties agree that there was no reasonable suspicion to engage in anything beyond a consensual stop at that point mr mays was walking he was not running he had no torn clothes he had no visible injuries to himself there was no reason to think he was involved in the fight whatsoever he was walking away with his hands in his pockets a citizen may walk with their hands in their pockets he did not comply with the police officers orders but at this point there is no reason why mr mays had to comply with the police officers orders and that does not alone furnish reasonable suspicion he was cursing at the police officer now while that is obviously probably not the best course of action to take with a police officer that is also not illegal the police officer believed his body to be angled away from him as he walked in causing him to believe that mr mason may have been carrying a weapon that is not illegal he did not know mr mays at that point was a person who could not carry a weapon so taken together there is no there are no facts that provide reasonable suspicions that a crime was afoot at that time there is nothing that links mr mays to criminal activity at that moment now there was reason to try to stop mr mays on a consensual basis and say hey we saw you standing there by that fight can you tell us what happened that mr baez was under no obligation to stop and he not as appropriately if you could  vehemently indicated to the police that he did not desire to speak with them and he simply walked away and all parties agree that he was well within his rights to do that at that point and reasonable suspicion should not be based on circumstances that otherwise describe illegal activity and that's exactly what we have here now the next the next issue we get to is once it is what's the standard first stop the resupply suspicion the next day under just what's the standard for frisk aussie officer has a reasonable suspicion that criminal activity is afoot the officer may stop and search for weapons searched purpose person for weapons if there's a reasonable suspicion that that person is armed and dangerous though the government implies that it's not in their brief it is a separate standard and a frisk is a much more it is much more of an intrusion into a person's private life so it must be justified separately from the stop and th that mr mayes walks away with his hand in his pocket may after the sun after reasonable suspicion had been established to stop him may have supported the officer frisking mr mays but it did not support the officer stopping  and both the government and the district court relied very heavily on the standard for a risk rather than the standard for the stop both the government and the district court side of the ogle speak ace and the district court sided pat and the district court sided patent within the section of their order discussing whether reasonable suspicion existed what's important to know about both of those cases is both of those cases the defendants in those cases were already engaged in illegal activity they were violation of city ordinances i think one was drinking on a sidewalk so the officer already had reasonable suspicion to engage in the investigatory stop of those persons those cases centered on whether or not the frisk was appropriate in those cases so the government's reliance the district courts reliance on that standard is is an error the final issue that i wanted to address is at what point the seizure happened because i know your owners have noticed that we raised a clear error against the district court on the basis of what exactly happened at those moments where officer lecky finally confronted  mays an individual a sees when he submitted to a show of authority by an officer that would lead a reasonable person to believe that they are not free to leave or when an officer applies physical force no matter how slight now i think when i was reviewing for this case last night i sort of felt myself that i didn't point out in my pretty strongly enough we actually had two changes in the story two significant changes we have the first story which we relied on in our brief and that first story can be thought of as where officer le approaches mr mays from behind he doesn't mention anything about touching him he just mentions that he pulls his taser out because he believes mr mays is armed now the second significant change that story actually comes when the government replies to mr mays motion to suppress and when as a part of that motion to suppress they submit an affidavit from officer lapsing at that point the story changes to officer left he approaches mr mays from behind taser and asked mr mays to turns lowly around mr mays refuses and then at that point he places his hand on mr may shoulder mr may does not turn at that point he se does he not and that involves the test because if he does if he never turns to confront the officer then we don't have reasonable suspicion in this case because mr mays was perfectly entitled to be a citizen who walked away from the scene of a fight with his hand in his pocket maybe having a gun and that was all perfectly appropriate on his part but it's only if you believe the fact that was presented only at the time of the suppression hearing that was the third story that mr mays turned to round on the police officer and that the police officer had to touch him in order to stop him from turning because that's the only point when we believe that there may have been a crime afoot and that crime that might have been afoot if he's got all these facts to maybe lead him to believe that mr maze is armed he could be armed but the only time when there might be criminal activity is if he believes at that point he's turning to round on him and he might be about to confront him with violence so i think that if this court of reasonable approach would be to believe the second set i believe the second story the story presented by the government and their response to the motion to the press and supported by the affidavit filed by the officer in support of one quick question if you will is there a dispute about whether mr ray's rounds were turns to face the officer and i understand there's a dispute about the touching but is there a dispute about the fact that he rounds to face the officer and i think that there in the first version of this it just depends on which i guess in my in my estimation yes he does not in the first credible version of the story he never turns around he simply stops and complies even in the unreasonable for an officer approaching the situation to conclude that there's a possibility that the individual mays is involved in some way i'm sol and i don't think that that's difficult to say i think the facts that are in front of this court at this point is that all parties agree that there was no reasonable suspicion to believe he was involved at that point and so that's the that's the the crux that we have in front of us today that everybody agrees no good afternoon your honour's may please the court or spry on behalf of the government the issue presented before the court today is whether or not officer lecky had reasonable suspicion to stop mr mays the facts of this case which are to be reviewed under clear them the second one is not a direct quote to say i did question him where did you get a whole i need to question him your honor and i can go grab the transcript but that it was i we need to question a part of the assault he was simply a witness when you go in question continued walking ahead of the officer yelling profanity over his shoulder and refusing to take his hands out of his pocket because a seizure is not a continuous act but of single one the lower court was correct in finding that the seizure did not  to place his hand on may's shoulder under the totality of the circumstances that's the analysis not to piecemeal it apart but at the under the totality of the circumstances at the time that he touched him what did  mays was that first off solecki knew that he was patrolling in a high crime area mayes was part of a group that was openly violating the law mays was the only one out of the group that singled him out by walking away when asked to stop by police the district court was correct that may simply walking away was allowed however as the district court stressed it was not that mr mays simply walked away or simply told the officer i refuse it was what happened what fact was also left a cube serving on mr mays walking away counsel committed at the suppression hearing this was not unreasonable or unlawful for also left to do and this occurred over a short short window of time it was during this window of time that officer lecky asked mays remove will you remove your hands out of your pocket removed his left hand but refused to remove his right hand at this point in his training and experience of the left who notices that mazes blighty the right side of his body attempting to shield it from the officer his tone is becoming more combative and more agitated and mr mays is beginning to take of this aggressive stand as the court found at that point it was reasonable for obsolescent use fact that mayes was possibly concealing a weapon view of his right side because of his concern that mays might have a weapon in his right pocket of solecki then put his left hand on mazes right shoulder and shortly thereafter start gun in mazes right hand it was not until this point that there was a seizure and them without license and more importantly that at the time that he began to turn and turn around and also left he placed his hand on his shoulder that there was reasonable suspicion that he was armed and danger critical distinction then between the government's position and mr ray's position is that the crime that was afoot was not possession of a gun by a felon because the defenses discovered that the doctor didn't know it was a felon on reasonable suspicion was it reasonable that someone behaving in this manner potentially that there was criminal activity afoot and there's one other question if let's say the stop had been illegal that it was not a reasonable suspicion on me are they concealed the concealed weapon if after in their legal carry stopped mr mays had rounded toward the officer in a threatening way with a gun in his factors outlined in smith because in smith unlike the officers unlike the facts here in this case there was his view i mean i'm sorry his his path of freedom of movement was never physically obstructed he was approached from behind so he was free he understood there were reasonable person would understand that he was free to go and i believe that the show of authority at that at that point he did and just not point out one quick thing here never does the district court say that there was a reasonable suspicion that the criminal activity afoot was carrying a handgun without a license that's not in the record what the district court said was court says then further cites patents saying yeah it's true that the officer hadn't seen the gun at that point but terry rejects the notion that an officer must be certain that the individual is armed for reasonable suspicion to exist again cite for a standard there is no reason there was no reasonable suspicion at the time that mr mays was illegally stopped to believe that criminal activity was afoot mr mays be eminently been a legal yeah i mean mr mays threaten the officer with the gun would we have to suppress the gun your honor and i believe so i don't have a case i don't have research to support my view on that right now but i