oh well try again good morning and welcome to the nd day of our panel sitting in atlanta it's a busy week we have two panels going on the other one then at the end of the helpless out of town over the years although he told me he hadn't been to atlanta too many times he's been to other locations in the circuit but were thrilled to have him help us with with our work you know the lighting system when the yellow light goes on that means your time is drawing to a close so try to finish up your remarks if we take you beyond the red light then don't worry about it you're on our time and not yours and with that we'll begin our  only on a vague suspicion it has to be an articulable suspicion and one that reasonably points to some specific type of unlawful conduct before you get into the bait part of  argument wendy you i think that mr hunter was st seized in a fourteen in a th amendment sense i believe he was st seized at the time that the officer confronted him with the fact that he's investigating a suspicious incident based on that the fact that he engaged his blue lights and that he parked his car in a way that impeded mr hunters path where he would have to walk between the car in the woods and brushed by the officer to continue i believe at that point a reasonable person would not have felt free to ignore the police officer particularly in light of the blue lights which i recognize the officer testified that that was for a safety concern and i'm sure subjectively that was however that's what headlights are for and taillights are for and what makes blue lights different is that only police cars have them and it's meant to signify authority and so i think that's what a reasonable person  interpreted that to mean it just it made it a lot more like a traffic stop where we're all we all know that when blue lights are pointed at us and that means we're supposed to stop then it did a consensual street encounter so if he hadn't turned on the blue lights restraint it gave him a very narrow eager rest between those woods and that car i think that would have indicated that mr hunter was stopped as well having said that i could what could he have done to not seize mr hunter if he came back to talk to him i think he could have engaged him in the way he did the st time which is to stop and talk to him through the window where on either side of the road he stopped on the opposite side of the road and initially so it wasn't blocking or impeding mr hunter in that way and i think that would have been perfectly miscible but to stop in front of him the way they did especially after already busy speaking to him and turning around in front of and especially when involving wooded on either side i don't think there was there was any testimony there was a lot of other traffic and it was pretty late so i had three in the morning when it or something like that yes it was almost three i think is what the officer said  i want to emphasize however that i'm not sure that this court would have to determine precisely when mr hunter was seized because even at the point that everyone agrees that he was seized which is when the officer placed him in the back of the car for nine or ten minutes while the investigated the firearm even at that point the officer didn't have anything more than a vague suspicion he didn't have a reasonable suspicion and what the georgia legislature has recognized is what the constitutional standard is which is that you need something that points towards unlawful behavior and carrying a concealed firearm doesn't say anything about whether that's lawful or unlawful but the district court thought maybe correctly maybe in correctly  georgia law didn't eliminate common sense to the district courts perspective what it take as a given as we have to that the georgia law is on the books and that you just can't stop and investigate somebody to see whether or not they have permission to carry the firearm a police officer sees somebody walking down the road with two weapons a pistol hanging on each side of the belt police officer can't do anything i think the police officer could have a consensual encounter but a police officer no you cannot just disarm anyone because a those are good looking one thing to say you can't check for a license a specific state type of license it's quite another to say that the police officer can't take any action besides asking a question and i wouldn't say that he can't take any action but what what the reasonable suspicion requires is something just a little bit more than the possession of firearms something that would distinguish between a lawful busy and unlawful behavior an officer could see a police car or a regular car and think some cars are stolen some people don't have licenses but you need something to indicate unlawful behavior to pull that car but the possession of the gun itself need not be unlawful to create reasonable suspicion rather words you could have a gun legally right and be up to no good with a gun that's true and that could give you reasonable suspicion for example in the hypothetical to think that someone is not going to be walking the streets or the countryside with maybe it may be the countryside that may not and not a city street with two guns at three o'clock in the morning right st i want to say that the officer did say that this was a highly populated area although that particular stretch of the road was wooded and there was no testimony it was a high crime area and nd i would i would still say that there needs to be something and yes reasonable suspicion can be based on entirely innocuous factors but they still need to somehow distinguish point toward something unlawful and not be indifferent as to whether it's lawful or unlawful with officer offered him a ride you think it was a forceful i think it was a submission to authority ok would we have to disagree with the factual conclusion of the district court to agree with you there or did conclude factually that it was an offer rather than a demand i think even if it would otherwise have been involuntary or have been voluntary the fact that it occurred after an unlawful seizure would mean that it was a fruit of that unlawful seizure so i don't believe you'd have to disagree with that particular conclusion that he voluntarily accepted the right to find that if if it followed and if it happened during an unlawful seizure then it and that right did not attend you wait that unlawful seizure thought it did the the fall back position is when the district court said it did ok and i want to emphasize that this report said it was when he responded to the proposed with a little bit of tenseness which was before he asked mr hunter whether he had a firearm and mr hunter said that he did and so the firearm would still have been a product of that seizure and not something that goes into the reasonable suspicion analysis and the reason that i by then is that not only did he start closing that distance between the two of them but he testified that he was saying whatever it is just don't go forward so he ordered mr hunter don't go for not restrained his bodily movement and that made  seizure at that point and then he asked to have a firearm and found and mr one hundred acknowledged that he did if i have been in the size enough i also want to say that even if it the seizure was i thought that last point even if the frisk was lawful and understandable as a safety concern there was no reason to detain him in the back of the car for nine to ten minutes rather than taking him to the death to his destination that's where he was again just acting on it on a vague suspicion about this gun he could have run the information while he gave him a ride and if it came back before he got to his destination that and that and if that robber otherwise voluntary then in that event it would have been an unlawful detention but he attained and for nine to ten minutes he detoured from the purpose of giving him a ride to his destination and he did so based on the fact that there are some guns that are stolen that some people don't have permits without anything to indicate that mr hunter was one of those people  that this was one of those guns do you think there's anything you can do under georgia law on the restriction of detaining someone merely for checking to see if they had a permit do i think there's an i think that with something more movement indicated criminality not just carrying a firearm but i think if all the officer has is that you have a firearm then that other interests come into play in the th amendment in the officer cannot detain a person or or frisk him they could seek consent they could ask questions but they couldn't implicate the th amendment based only on the carrying of a firearm do you think there's any daylight between the th amendment and the georgia rule against detaining someone just to check that i don't think so i think that the georgia rule recognizes reflects a constitutional standard which is again that it needs to point toward something unlawful and near particularly in the concealed firearm doesn't say anything about whether it's lawful or unlawful thank you or thank you very much ms feinberg thank you and i may please the court good morning my name is lindsey feinberg i'm here this morning on behalf of the united states of america as oftentimes when i'm up here at the panels questions like been a change what i thought i was going to talk about so if i may your forgiveness i'm going to change what i thought my remarks to be this morning and i'd like to start by addressing georgia guns everywhere and the reach of georgia guns everywhere now as the court has alluded to in its questions georgia guns everywhere prevents an officer from attaining someone soley to inquire as to whether or not he or she has a valid license to carry a firearm the key statutory language there is of course soling this case does not fall within georgia guns everywhere either  as a factual matter review of the testimony that the district our district court recounted and review of what deputy code actually said at the suppression hearing said that he did not detain mr hunter soley to learn whether or not he had a valid license for the concealed loaded gun  in his waistband the record here helps your position but isn't the likely result going to be that most police officers when put under oath are going to say i didn't do it solely to check that because they know if they say that they did do it solely to check that then the georgia law is going to cause problems so it's an easy out i mean of we're of course bound by the district court's factual findings in this case but i mean you're going to have police officers admit on the stand generally that they yes i violated the law i stopped him and did it for a reason that the georgia legislature said is not permissible i would never put an officer up on the stand to lie to the court and if in considering whether or not to i know you don't but you don't know right but i guess you're either or whether a police officer what sometimes a prosecutor has really good reasons to think that a witness is not being completely can think at this point i would say two things one anytime a police officer is called to the stand he or she is under oath so there is an expectation that what they're telling the court is truthful and i would hope that that oath means something to them as law enforcement officers and just as people in the world and secondarily i would say well you can also say that about criminal defendants when they're put under oath in the government often contends that their testimony is not worthy of belief so i take what you're saying and i understand  t but there are times when witnesses are completely straight forward exactly and that is why we have an adversarial system so in such an instance your honor that gets to my nd point i suppose you would hope that you have a robust defense lawyer going after that exact point that isn't in fact true officer so and so that you did detain mr such and such soley because he had you realized he had a concealed weapon i mean that is why we have an adversarial system and that's also why we let district courts view everything in the st in and we defer to their credibility determinations and their factual findings and here we've got great facts in the government's favor and in fact when we look at sort of the eight factors that this court typically looks at for when a detention occurs or when and it's a police citizen encounter that's consensual just the district court's findings here weighed in on seven of those eight factors and all of them favor the government's position which is that mr hunter had not been detained until as the district court found at the earliest some time after he reacted to the statement of the protective pat down now opposing counsel spent some time talking about factors in his view that change that analysis but those factors are the same eight factors that this court is set forth and as to one of them the one that he emphasized in particular the blue lights i would point out that in a previous decision the lewis case which side in the government's brief this court went out of its way to say that the presence of blue lights and high beams do not in and of itself take a consensual encounter and make it a investigatory seizure what about blocking his path his path i think that's actually just simply inaccurate judge grant that his path was blocked the testimony from the suppression hearing that deputy cody gave was that he specifically parked his vehicle in the road in the way path and that when officers are trying to block someone's path they do so in a different way that sort of put their vehicle on an angle and so he went out of his way to not prevent mr hunter from leaving when he was speaking to  testimony to show that that the car blocked the path or was it just the position that that is the position of the defendant because of the nature of the roadway and the fact that there are no sidewalks that his path was somehow blocked because he would have had to continue walking along the side of the road that's true the country road yes your honor and it's also true that he was initially walking along the side of the road you know deputy cody did not testify that he saw him walking in the roadway where the vehicle subsequently park to testify that he was walking along the of a dark roadway between two and three in the morning in a largely residential area where a crime had been reported less than an hour ago your summer of argument says the encounter escalated into an investigatory seizure when hunter reacted to deputy a statement about protocol requiring the deputy co to pat one hundred down this year saying the seizure occurred when the defendant reacted to the seizure required some action by the authorities i actually agree with opposing counsel all that position here that if i were to drill down on that exact moment i think when mr hunter put his hands up and deputy kota said whatever it is don't reach for it i'm going to go for it i'm going to take it from you when he learned that there was a weapon tucked in the front of his pants that at that point what had previously been a consensual encounter did transform into i would say a terry frisk at that moment and then it blossomed into a brief investigatory seizure which is completely consistent with here deputy closed the five and between five to six feet that were between them and said whatever it is don't go for it and then he explained that he had a gun in tucked in his waistband and then the deputy went and sees that gun to separate mr hunter from the weapon which deputy hunter further excuse me deputy kota further testified was soley done for safety reasons went on her st say the weapon was it when the search was going on or when he said he had to search him to get back in the car he did not say that he had so the timeline of events your honor as well though the the testimony at the hearing is not perfect in this respect appears to be that deputy kota offered mr hunter a ride to his girlfriend's house in union ville which is over five miles away at that point mr hunter said sure i'll take a ride and after accepting the ride deputy go to said ok just so you understand in order to put you in the back of my vehicle department policy requires that i do a protective pat down to make sure you don't have anything that can hurt me now after that statement was made according to the district court's factual findings mr hunter's demeanor immediately changed he became tense and the whole tenor of the encounter which at that point up until that point had been very calm and cooperative shifted and reading the situation in a split nd deputy hunter then said whatever it is don't go for it and then add proceeded to ask mr hunter if he had a gun mr hunter responded in the affirmative that he did that it was tucked in his belt loop up front and he put up his hands and then the deputy once and separated mr hunter from his concealed weapon couldn't anyone have a nervous reaction to being to being searched or patted down i know people don't love the t s a line for instance even though all the people who don't love the t s a a lot are carrying weapons with them couldn't that just be a natural reaction that anyone would have to the idea of being patted down yes it could but we don't look at things in isolation or this court certainly doesn't rather we look at the totality of the circumstances and i think when you are an officer alone on the side of a dark road with another person at three in the morning who you thought you were just going to put your car and do him a favor when everything sort of changes in that minute we have to defer to what officers are reading about what the totality of the circumstances leads them to conclude and whether or not they believe objective lay that their safety has been threatened and the fact that mr hunter was carrying a  armed means that he was there for dangerous until an officer knows that someone is does not pose a danger to him whether that person be carrying a weapon lawfully or whether they be carrying a weapon on lawfully it's the existence of the deadly weapon i would say it's existence of the gun changes this from a t s a encounter wouldn't that couldn't this be a a ticket for an officer to search anyone in this circumstance let's say let's say the officer offers the person a ride if someone turns down a ride for five miles isn't that itself suspicious couldn't couldn't the officer think well why wouldn't they want to ride with me if they're if they're just really want to have a way to go five miles with all due respect a deputy go to i wouldn't get in a strange man's car at three in the morning so i would have felt free to say no but again the question is what a reasonable person would say and the testimony at the suppression hearing was that in deputy codas estimation people regularly walk away from him and they regularly may accept or may not accept a ride and he just defers to what that individual doesn't that instance he does not believe it's reason for him to continue some sort of seizure or expedition into whether or why that person does not want to ride to their destination and going back to the notion of ga guns everywhere i just want to make clear that in addition for it not really being factually on all fours with what transpired here that as a legal matter  and again this was brought up in my brief that even though under georgia law an officer can't detain someone who's carrying a concealed weapon solely to determine whether they have a valid weapons permit i think supreme court precedent makes it clear that police officers have every right to frisk a suspect if they reasonably believe that suspect to be armed even when that suspect possesses that weapon lawfully under state law or lawfully under state law and those two cases would be of course adams versus williams in which the supreme court emphasized that the purpose of a terry frisk is not to be discovering evidence of a particular crime but quote to allow the officer to pursue his investigation without fear of violence and thus the frisk for weapons might be equally necessary and reasonable whether or not carrying a concealed weapon violated any appreciable state law that nd case would be michigan versus long in which the supreme court again made clear that we have expressed rejected the view that the validity of a terry search depends on whether the weapon is possessed in accordance with state law so the fact that georgia law permits people to carry a gun does not mean that that is carte blanche for officers to ignore objective and legitimate reasons to become concerned about their safety but the thing is that here tricky because of that what what information did he have to suggest that mr before he sees he did not have any to answer a question he did not have any reasonable suspicion that he had a concealed weapon at the is they happened almost contemporaneously so we have a situation where an officer has an objective belief that his safety maybe didn't meet may be in danger because of a sudden change in a situation and that leads that officer to seize the weapon pursuant to a terry frisk now it is true that a time in matter these happened perhaps bang bang one at right after the other but practically speaking your honor i think the truth of the matter is we don't want officers trying to nd guess themselves when they're making the split nd decisions about whether they have sufficient reasonable suspicion if they feel like their lives are in danger or if they feel like people around them may be in danger and i think any time someone is faced with a situation like this with an individual who's armed and unknown to them we'd rather err on the side of voluntary when mr hunter accepted the ride and when he was told of the protective pat down he did not reject the offer of a ride and say you know what i'm good i don't want to protect a pat down i'm going to keep walking on my way and what happened next while the suppression testimony the testimony  hearing is now perfectly clear about the exact timeline of events is that within seconds deputy kota had to make a decision and that decision was do i put this person in my car when there's demeanor and body language suddenly change and they may have something that will pose a risk to me which of course we don't want to happen for anyone or do i terminate the encounter and say actually i can't give you a ride after all that it's incumbent upon the officer to renounce the offer in that to yes and if i may i see my time's about to expire may i say two things in response are true st that what deputy could was doing in that instance was consistent with the community caretaking function that's what he thought he was doing he thought he was helping someone who needed to get five miles away something he'd done previously it was not as though it was a pretextual elaborate subterfuge to try and figure out whether mr hunter had any contraband on him that would form the basis of a criminal conviction and nd the district court's factual finding was not clearly erroneous and that was in that regard and it's true getting back to a question that judge grant asked opposing counsel that to rule in mr hunter favor you would have to find the district court's factual finding that it was benevolent offer as opposed to an order or command was position that that transformed what might have been a voluntary frisk into an involuntary one because mr hunter never had an opportunity to decline it happened quickly that the officer was asked did you tell him you have to accept this risk no matter what and he said i don't believe i said anything else after that he saw the tense reaction and he moved closer to him and told him don't go for it so even if it had been voluntary you met your client agree to accept the  rod yes i don't think that i can nd guess the district court's factual finding that he it seemed he hesitated but the officer testified he did except the right but he didn't get an opportunity to accept or decline once he knew that it was going to that's something he always says that that's his way of doing things he said he specifically said even if i don't think they have anything when in about the st someone i say i tell them don't go for it don't reach and so i don't know that that would that would indicate that  a legitimate safety concern has to be premised upon a legitimate stop a reasonable suspicion i don't think terry authorizes a freestanding frisks just based on possible safety concerns when it's not premise illegitimate stop i think that the case that the government cited in its supplemental star the simmons provides a really good example of an officer handling situation just right he saw a clip on the defendant in a car that he knew was probably associated with a weapon but he did not immediately pull the finding out of the car because it's not the same thing to be armed and to be armed and a safety threat it was after he question the defendant acquit the defendant didn't wasn't responsive and he made some furtive movements and turned his back to the officer that was the point when he concluded this is a safety concern and he pulled him out of the car here and that the government suggest that the entire tenor of the st changed when the officer when the officer noticed a little bit of tenseness but what the officer said was it was a little bit of tenseness not a dramatic scene or anything and then later when the officer was being questioned and the transcript at page thirty eight l fourteen he said the whole time he was cooperative we never had any confrontation or any situations like that so i felt a little bit more relaxed during the situation only because like i said he was cooperating he wasn't giving me any signs he was going to do harm or anything officer was refused even saying that that it was a cooperative and calm encounter throughout and the last thing i want to highlight again is that even if he wasn't seized until even if he could frisk lawfully again that he was detained for nine to ten minutes based only on investigating the firearm and he testified this is page thirty nine line twenty three i wasn't trying to build a case at the time i mean if it came to the circumstances for instance for the lawn mowers and all that being stalling if i had evidence that led to it i would have furthered that investigation but once i realized that i didn't really feel like he was that individual it was just merely to help i'm going to take you a little bit beyond your time ok given that argument you just made how does that help you if the gun was obtained before the other detention the back of the car right the gun is the evidence that led to the charges the detention in the back of the car would have suppressed what well i don't believe he had reasonable suspicion to investigate the gun he could separate him from the gun and take him to his destination but i again i would say that the carrying a concealed firearm alone is not evidence of a crime it's not reasonable suspicion of a crime and so for that reason to detain him there instead of just taking him to his destination i mean he had already any safety concern was now neutralized he was separated from the gun but then to detain him to pursue a separate investigation into that gun without any evidence that the gun was the officer posed to do at that point give him back the gun and he testified intended to if it came back he yes he would take it without does know what i'm saying without checking anything he says he just takes the gun and then he says ok you're go going back i think so without evidence that the properties unlawful any more than an officer  could keep couldn't vest again any property without reasonable suspicion wouldn't put them in the back of the car with a gun no you would you keep it separate as incident into a voluntary if it was a voluntary right i think you know if there was a legitimate safety concern he could keep the  gun separate and keep it in the front which i think he testified he would have done and then return it to him upon getting into his destination but i do not think that he could investigate because even if he'd even if he could investigate the gun  d did he have a right to to check it out to see if he was a fugitive or anything like that while i think driving him down the road i think if he'd done it while he was driving home he could but if he if he if he delayed the detention and that is a detour and he's prolonging the scope of the detention without reasonable suspicion to support that right thank you very much thank you both thank you our next case is number eight