on the government it is not on the defendant to show that such searches did not comply with the th amendment in this case the district court erred in concluding that the government met its burden and i think that in one of either one of two ways one is sort of the best case for the government is the information that the officers were relying on came from reliable sources or at least sources with some edition of reliable but that information still did not suggest that there was reasonable suspicion that criminal activity was the worst case for the government is that there is no evidence that these sources were reliable in which case we think the court can rule on either grounds and vacate the district court's denial of mr mitchell's press without conceding anything about the reliability of the sources i want to start with the reasonable suspicion  analysis assuming the sources were reliable even reliable sources have to provide police with information from which they can determine that criminal activity is afoot or have to stop an individual you have to have a reasonable suspicion that criminal activity is afoot observe it something that they place a neighborhood and then there must be a particular facts why don't we just talk about the facts that the government contends supports that reasonable suspicion that seems like to me to be the central not only issue in this case certainly are and this is this case in originated with a fight at a bar in fight that he broke up the fight because he said hey you know hands i've got a piece or anything like that that he was waving the gun around just a black man red pants who gun walking away from the  to it's own the think the point you're talking about i mean you at least on the call information that was received and i realize that you know we didn't have the  information later but the call said that there was a fight there were someone with a gun who was going was no to store saying about the person who reported the fight and that someone was not dale you're correct there is nothing that said they hit him with a gun but that gun was observed in connection with the report of the fight and the person being not d and then officer howard when he gets there is told by a bystander the description of a black man with the black shirt red pants well can he stop think on the street so that's that's the connection that gun was reported in the same report of the fight and the person being not dale correct i think it's correct of in the initial report of the gun came out of the same report that there was a fight i don't believe it's correct that there was any indication that anybody saw this is this is part of where we get into officer howard's testimony which officer howard was very upfront about the fact that he basically can't remember anything about this not and so we don't know from from the bystander well whether he saw going on with the man said he had a gun whether sure three other people yes i think that's a good point and i'm going to run a problem because that's a situation where the defense in that case when you got to the oman review conceded both of the stop itself  proper i was a traffic violation i can remember what the traffic violation was but they also agree that there is reason suspicion that the gentleman there was arms so the question there really was limited to if we know he's got a gun on him we've had him down otherwise they s information and where he's go and but your position is because neither the boss and or no or the previous report said specifically how he was using the gun or they didn't report any observations that my corroborate that some criminal activity was afoot i didn't suggest he was running away from the scene that maybe he was looking back over shown that when he saw the police he changed direction or any anything like itself the seizure a mr robinson was complied with the th amendment as a question of the pat down and here we are not conceding that it's the stop itself let is the issue standard i think to a certain extent but i'm not sure how much weight it can be given because the officer who stopped mr mitchell said he got all the information on the identity of the person with  morning your argument please the court i'm just fans i'm appearing on behalf of united states today your honour's in this case there was sufficient reasonable suspicion that there was criminal activity afoot and that's not based solely on the face to face tip that was given to officer howard this is not a simple case of a man with a gun this course of course seen cases in the past where it's solely a report of a man with a gun but when this court considers the totality of all the circumstances that were at play in smore then a simple case such as that when you consider the totality of the circumstances the court should initially look at the call that was placed in that had specific information given that is the caller mr smith reported there were approximately thirty people that were involved in this bar fight so the court does have some specific information about the fight beyond cheers but you got this big fight thirty folks defend this stuff i understand the reasonable suspicion particularize that's conclusion why was he stopped the defendant judge was stopped a reasonable suspicion it must be based on sound particularize facts and the totality of the circumstances no matter how you look at it is an all out fight it is nothing wrong let me put this way if he and he could be stopped what else anything else the information contained in the initial calm the officers responding i'm not trying to be trying to get the facts because it's easy to say the information in a call and has mobile that doesn't mean and if they want to know what it is he said that makes it relevant to stop this particular man because you've got thirty folks in  reasonable for the officers responded to conclude that this defendant was also involved in that and that the person who provided this tip to officer howard observed that gun and that's based on the face to face nature the tip as well as the specific s that were provided by the tipster to officer have no reasonable suspicion in this case centers around this fight that's what brought the officers to the scene to begin with and the information about the gun from a simple fight to an assault victim the information that was reported to officers who were responding is that there was a victim that was knocked out laying on the ground so the officers as they're coming to the sa been right i'm not trying to be out of minutes i'm just trying to find out what it is the tips the said and i don't see anything that says that this man was involved in that fight still be in a fight but it is not legal to the gun itself unless what you want to start typically something like that and a lot of folks don't have to like us to say that i don't know how you skate in this case this is not roberson where there was a conceded little lawful stop this is contesting the stop in the st instance of thirty people and that troubles me to some extent and i can see you bob a little bit too because if you gotta walk around on a sting you can't be in a bar would have done if you get in it least the implication from the call that the gun was it does a poll in connection with this fight and then say it's not a lone drawn out deposition it's in the narrative but you have at least a reasonable interpretation of the information provided was that you have a big fight you have someone with a gun that is divisible and that and then you have someone knocked out then the guy gets to the sane he's given specific information about this particular individual who is then fail you block or so away so is that the fact that doesn't the call about someone being seen with a gun in connection with  at least give a reasonable suspicion that that gun is being used in connection with the fight i would agree your honor and i'm saying the issue you want to group with that because think about what that says is says gun he can then be stopped everything is owned a gun there's nothing here but good i mean i'm at and if you want to go that way i'm just i'm just saying are you sure that's what you say because i so in the in the lot about thirty people involved heard someone say they had a gun i read that as i heard someone with a gun say they happened so i'm in a fight i hear someone else in the fight say i got a gun is am i reading that the right way it's not that someone said they saw someone with a gun they heard someone declare i have a gun and that suggests that person is threatening or interested in using that gun or they're not just walkin in a park and saying someone said but not this  correct and it's always going to come down to that and you can you can dance around it all you all and and try to infer fact and bring all the stuff is not done in other cases to that degree you cannot do that i mean  and provided different information and did not simply say he had a gun it's entirely reasonable that he could have been stalled imagine that they can report in the lot as about thirty people involved advise someone was wearing there's a lot of college bars and it's in close proximity to marshall university now and again that information is not on the record i certainly appreciate court's concern again outside of the record comes in officer howard is at that bar once and minutes and he almost immediately is able to relate this suspect description also felix described as a suspect as it was called out to him he almost immediately is able to relate the suspect description based on information provided to him at the time so we have two separate reports of this firearm one of the reports that specifically links it to this defendant description and what the government is saying is that if you're an officer and also black's position having the knowledge of the facts that he has it is entirely reason for him to conclude at that point when he sees this defendant within a minute he testified of receiving that suspect description  a block away from the bar was being in the same direction that was reported to him it's entirely reasonable for officer lie to conclude that defendant was involved in this fight where there reported victim beyond that it's entirely reasonable to conclude whether he used the gun in the fight or not that he was armed and dangerous and i have the concern how does this affect other types of cases and this is not a section one hundred and eighty three case of course but when you're dealing with the clearly established prong six hundred and ten thousand and eighty three the opposite of it is in this case would be well from now on the police look close he was involved in a fight or and does that change it that he was involved in the fight because if you don't say the gun was involved in the fight and  together from from the facts reasonable suspicion i'd be particularly vigilant to not simply say oh well the totality of the circumstances here and use that as a as a way for anything to happen  but we also have a standard be that makes us construe this in the white most favorable to the government here and you're certainly correct that we can't just cobble together a bunch of circumstances i mean we have some to that and we can't have something that you know would essentially implicate law abiding citizens the question here is when you have a report about a fight and the report that someone stole a gun in connection with that and that someone was not doubt is those two things i mean that's not just cop on stuff together best talking to report and didn't see a individual come up to a police officer within minutes given a description of a person that is somewhat consistent with that certainly that gun part of so i mean yes you do i think judge w right there there probably is some in threats that needs to own to that that the gun was displayed perhaps in some way or reasonable suspicion that it was displayed but doesn't the law let that type of  what i think and i would agree with that and one of the one of the things i wanted to point out in talking about the fight memory thing my my colleague cross the aisle described mr mitchell as leaving the scene which as this implication like you know