only two to three seconds now the fact that really on the night of january eighth two thousand and fourteen during the polar vortex winter of two years ago five police officers and two squad cars surrounded and sees an s that was stopped in a loading zone specifically it was stopped within fifteen feet of an unmarked crosswalk an area which under wisconsin law is designated as a loading zone the s u v was in front of an open store its lights were on and it's motor was running and the officers admitted to watching that s u v for only a split second before season a time period of roughly two to three seconds now both the law and common sense show that under these circumstances officers did not have a reasonable suspicion to make a stop specifically black letter law provides that officers cannot seize a person based on facts that apply to large portions of the law abiding public so for example officers can't stop every person they see standing on a lawn in a suburban neighborhood for trespassing because that would apply to far too many people and in this case they can stop every vehicle they see in a loading zone where they just because they don't see activity for two or three seconds and that's because every vehicle that legally stops in a no officer testified the witness seen the back of the driver in the seat prior to the seizure i've read the i've i was president and i was present at the evidence or here and i read the transcript very closely and there was no testimony that was observed or to the seizure which is prior to the point where the two squad cars surrounded the vehicle and spotted but to answer your question more directly are assuming that they had made that observation prior to the seizure but i don't think the record supports i think that could cut both ways i think that that shows that somebody might have hopped out and gone in and made a delivery it i think it suggests given the other facts at hand the fact that the vehicle was running that its lights were on that it was in fact again now trying to kind of my example of what i would give  door and gets out and that takes far more than two or three seconds so the observation made by the officers here it really would apply to any vehicle that ever stops in a loading zone something that i would imagine everyone in this courtroom has done we've all been present in a car  a loading zone either as the passenger is the driver and we know from common experience that it takes more than a few seconds to start unloading or it takes more than a few seconds when someone gets in the car for you to get moving again or it takes more than a few seconds when you go in to make a delivery to come right out again that is simply not a reasonable basis for a stop here and i think that's also suggested by the lack of case law that's anywhere close to this situation and by that i mean the government has identified no cases in a parking context where such a short period of observation is is viewed as ok and not even come close the close as i found have dealt with the length of about a minute and i believe there's a reason for that it's because officers in forcing these infractions they know that it's not reasonable to run up and seize a vehicle in the parking context after watching it for only a couple seconds because those observations and reasonable suspicion in those kinds of cases it depends on an activity and how long that's been going on depends on a length of time so instead what officers do is they sit back and watch or they initiate a voluntary encounter like in the thorne case that was discussed in the briefs or maybe they drive past and do you turn and drive back again whatever it is they extend the observation period so they have a real basis to make a stop and that wasn't done here instead what the officers did was they swarmed the police car five of them all at once surrounded them ignoring the fact that was in a living zone in front of an open store with  violation it doesn't authorize the sort of full blown seizure of one and the police can't even arrest for this violation yes that's correct i think they start it well the second at least seems to me to raise questions about some language in our shields opinion and was wondering if you'd want to address that oh well your honor shields i believe is relied on by the government to say you know it is ok to use a terry stop to in investigate a parking fraction and we dispute that we don't think that's a clear holding up shields i think that's an assumption kind of made in shields where the the decision there didn't depend on it what was it issue there was whether a person who had been stopped and was being questioned by police was in a position where he would have felt free to leave as he'd given his driver's license to the police and they were asking him questions so i think she had sort of made that assumption without it being directly addressed by the briefing or a specific threats and with regard to my kind of two tiered argument your honor so i think the way i would look at it is that when you analyze the general propriety of the terry stop itself you have to look at at the point of seizure whether there were facts justifying the stop at that point i do not think there were given the brevity of stop here but in addition you look at whether the degree of intrusion was reasonably related to the known facts and certainly i think the actions of the officers who did not seem a furtive movements those were extreme actions they ran up to the car they opened the door they shined lights in the faces of the occupants and put on them but the answer here and this was just they believe they were just investigating a parking infraction at that point it's very clearly record yes there's a fictional assumption here well you don't know that that's what they testified to they said we were there to investigate a potential parking infraction oh certainly this group of officers i mean they are out to make as many citizen contacts as possible what they're interested in doing is talking to people conducting searches and looking for guns and drugs things like that and i  that's the reason they probably stopped the car in this case was because it was an incredibly cold night and they probably didn't have much to do and they found one heck of a gun and they did find a gun you know yes twenty two are in magazine that's correct on this very question raised whether it honor there wasn't a question i think in the injuring transcript that they said that that was kind of a matter of course for this kind of patrol they would have these two cars together and that they wanted a large amount of officers they could kind of do an overwhelming stop and they stopped  i please the court my name is keith alexander represent united states to answer your question not judge hamilton united states versus shields does control here it wasn't just assumed it was the issue there was a car was parked within a crosswalk and and there was an a and and the there was an entire paragraph of the court dealt with on that the cart that squad car pulled parallel to that car just like it did here the challenge was at the stop was illegal among other issues in the case discuss the question of whether or not there should be a distinction between a moving violation in a parking violation but there was a challenge to the legality of the seizure one of the issues and in in shield was whether there was a seizure the court determined that there was then there had to be a justification for the seizure and that's what led the court to have a discussion for about a paragraph about whether or not there was reasonable suspicion for the seizure so we would hold th united states versus shield forecloses at least that argument of the appellant let's let's focus on the first part of the agreement suppose i'm driving a car and i pull over to stop and check your mail room lost i mean answering phone call whatever the case would be you saw the hypotheticals and the defense brief is that enough for a swat team to surround my car open the door tell me to put my hands up keep me from leaving well within the law then the question arises whether or not it falls within the exception to stopping the exception under the wisconsin statute here is being having the purpose and actually being engaged in loading and unloading items with a passenger so to answer your question the officer what if my question is yes you could get swat team can surround me open the doors sure and flashlights in my shoes who told me to put my hands up when all of gun is pull over to take a phone call or check them out the answer to your question i think would be no they would have a right to seize a vehicle they would have a right to stop the vehicle all of the things i just described happened before anybody saw any movement regretting it going to correct that's incorrect mr mr  officer conway the second officer who saw the gun directed the defendant out of page i think it's nine and ten of the magistrate judges brief the magistrate judge clearly finds that it is it is there record was insufficient to know who opened the door first whether was officer kaiser or officer conway and in any event even if officer comm i opened the door it was happening so quickly such a marriage was mere seconds that it would have made any difference either way so i  would say your honor that the presumption here that officer kaiser opened the door flashed the lights in people's faces their hands are opened all before there was a discovery of the firearm is not a factual finding it was  well what the government did meet and what the factual findings were was that the vehicle pulls up next to the s u v officer conway's in the backs seat of the squad car he is immediately next to where the defendant the palin is sitting and as the light is shined then he immediately sees that the the defendant is pulling a gun out of his waistband and trying to hide it and that's what leads him to direct to the other part of it is that this happened as a matter of mere seconds that's part of the defendant's argument here is that this happened so quickly well that cuts both ways to because that was the state law allowed to rest for this offense no it does not allow arrest for this offense so why is a terry stop justifiable for it well an investigatory traffic stop would be it would be justified i think there is a distinction there well where you can where you are seizing the vehicle in the people within it they are not the driver is potentially liable why on earth would you stop the driver well to see if it fits one of the exceptions and yet they have to show that there's a purpose that they were stopped with the purpose of loading or unloading asking the occupants what's your purpose for stopping here would be a legitimate question for the officers said to me so that your theory that the the presence in the loading zone or the no stopping zone is enough to put the burden on the driver occupants of the car after they've been seized to justify that they should not get a parking ticket and i'm starting to repeat question if i understand your theory it is i maybe maybe i maybe you're not used relying on this i thought you were relying on the theory that the structure of the statute was that you're not supposed to do this but there is an exception in that the burden is on the driver or other occupants to explain that they fall within the exception is a right that that's correct that they have to investigate what the purpose of the st is that it and and that the police are entitled to seize the entire vehicle and all occupants while they investigate that terrible crime and we're not claiming it's a terrible crime one but yes i can't they can stop it for traffic for minor traffic violations this court is hell and a number of instances you know and high on the supreme court's last parting and while shield it was a parking violation there was a seizure for and shields for parking within a cross walk so let me suppose i stop in the middle of the street for people crossing in the crosswalk if i violated the statute  suspicion you know somebody is over on the side you're kind of in that you know waving at each other you go ahead of you go ahead and officer can't see any of that commission and he still sees everybody well it again if if they're waving at somebody to walk ahead across and that's that would not justify i think a stop but that's not the circumstance here here they didn't see anybody outside the vehicle that the doors were closed it was it was clearly stopped well within the fifteen  that the the magistrate judge and the government addressed the hensley test which essentially is a balancing test between the intrusion made with the government interest here and the government interest the intrusion may for just the parking violation was pulling a vehicle to the side of it and behind it and flashing a light of the few seconds that that is a minimal intrusion when oxycontin sees the gun say that's a minimal intrusion when they pull up next side to it and behind it and block it in and they don't seizure to stop them from moving ahead so they could ask a couple questions that stop us for a mere seconds the additional intrusion of directing the defendant outside of the vehicle put your hands up or handcuffing him was when the officer conway saw the fire i also think it's important to note here this i mean up we see a lot of fourth amendment cases this is one of the most extreme cases of tactics to justify harassment  found a gun this time but i but if if suspected parking violations are enough to justify this sort of tactic i don't see why everybody on the street is in any drivers and subject to just be stopped essentially it will i mean this is this is extraordinary where i don't think i think it's very clear to make sure we don't  a parking violation this court upheld it as as as not running afoul the fourth amendment and this in the supreme court has said a number of times including maryland vs wellstone that it roadside encounter in extremely high crime neighborhood as this was is an inherently dangerous situation and so much so that they can direct occupants out of the vehicle with nothing more than a traffic violation so i mean i understand we have to accept pretextual stops with the pretextual stops have to have a for legal basis and i don't see it well again your honor i would rely on the fact that that wisconsin law prohibits generally stopping within fifteen feet of a crosswalk they didn't see any evidence justifying the exception that they want to be undertaken moment to stop to even ask that question right but it doesn't take long to see a vehicle stopped well within fifteen feet though there was a lot of lights there was a couple headlights in the street at the time so i can make that determination very quickly they could see very quickly that there's nobody outside the vehicle at the doors are not open they're close so there's no loading and unloading the officer said he was trained  you him or i or anybody was parked within fifteen feet of a crosswalk and we're stopped there and the doors are closed the officers can pull up and ask me questions are asked to shine the lights open the doors he ends up for a few seconds they pulled parallel behind it not in front of it they did not pull in front of it so they weren't sure what country we're talking about here but ok go ahead well it again we're talking about a few seconds of asking the question what are you doing here if there's an innocent explanation for it then the officers have to move on the officers then cannot pull the person out handcuff him the gun is what caused that behavior here by the officers no doubt about that  testimony that the officer saw in advance that somebody was in the driver's seat they don't they they discovered that when they when they stopped the vehicle well vehicle stop they pull  parallel that's correct they look to the right because the car is at the curb that's correct so they can see if someone's in the driver's right that's correct and that's at that point that they i think you notice that one of the officers does but my point is that i want to be clear that the officers when they are driving up that northwest road and see the car park south you know on the other other street it they did not see at that time that nobody was in the driver see if that makes sense so that is to say that that was not part of their decision but you're right when they pulled up next to the vehicle i think it was i think it was an officer has that stop or seizure occurs when they pull up there all right that's correct and it's really pull a parallel and they look at the car to the right when they see there's no one in this driver's that's correct situation of wisconsin law in terms of whether you can stop or park in a loading zone it's not an exception it's either one thing or the other if you look at the definition of wisconsin law parking means altering your vehicle without loading and no standing  temporary halting of a vehicle whether occupied or not suggesting you can leave your vehicle while you're loading to go into a store for example run or as long as you're actually engaged in let me know if this court has no further questions and i would ask that the