good morning your honour's may it please the court my name is elizabeth cruz shack i'm appearing on behalf of mario willingness i will watch the clock and try to reserve about two minutes for rebuttal the district court erred in denying mr motion to suppress for two independent and equally fatal reasons st the pat down that was conducted was unsupported by reasonable suspicion that mr lane this was armed and dangerous  nd even if you assume that the pat down was supported by reasonable suspicion it exceeded the constitutionally permissible scope of a terry pat down and for either or both of the those reasons the course of vacate mr lane this is conviction and re d for further proceedings first as to the issue of reasonable suspicion as to armed and dangerous notice the entire basis on which the officer provided his specific facts that he believe that mr alain s was armed and dangerous were based on what he considered was a misperception of what happened at the hotel he believed that mr  pointed what he thought was a firearm but it turned out to be a stick when the officer approached the car he realized before he ordered mr lane as out of the car that what he had believed to be a firearm was actually a stick was not in fact a firearm and at that point the entire analysis changes because any reasonable suspicion that he might have had up to that point has now been dispelled because what he believes that he saw the whole reason that he pulled over the car the whole reason that he wanted to follow the car was a misperception on his part now when he saw the stick not the st time when he was a st time he just took in he testified he thought it was a gun is it correct he acknowledge that his testimony isn't exactly a model of clarity but the way it reads as he sees the object that he thought mr lane us was holding he does testify when he st saw it he still wasn't sure but then he says clearly and unequivocally before he ordered him out of the car he realized that it was a stick and that is really supported the whole idea of this misperception is supported by the fact that the officer then does nothing with the stick he doesn't impound doesn't seize it in any way he doesn't take pictures of it there's nothing and so it seems pretty clear from his testimony that whatever he might have thought at st by the time he ordered mr lang us out of the car and certainly by the time he patted him down that's what the object he was holding at the motel was because it was sort of a long object with a flashlight so it so there's no indication that it was that apparently scared to the people who hold up their hands as if they were being threatened it was a stick that had a flashlight on the end so i'm not disputing what happened at the motel that the officer genuinely believed that there was something going on at the hotel yes he held up the stick it appeared that two men held up their hands and backed away that was the officer a flashlight on the in which the officer understood to be typical add on's so it looked to him like it might have been a firearm but he did say later that the one of the reasons he didn't perform a high felony or a felony stop was because he still wasn't completely sure what had happened so that indicates that while he did think that might have happened that it wasn't entirely clear and i don't think there's any dispute in the record that what he saw in the backseat of the car he believed that that was the same thing that he had seen mr lane as a point but you know  a nd another weapon such as a knife or a handgun on his person so i think that the district court the what that testimony that that ruling was predicated on was the officer saying well if someone has one firearm they might have another one well at the time that the pat down was conducted the officer knew that he didn't have a firearm and there were no other i understand that the district court says this was a high crime area he had seen these alter cations but at that point that suspicion is  spelled because at that point the officer doesn't believe there's been a crime so the whole point of the pat down is gone he doesn't believe it was a crime yes right because the officer didn't do anything with the stick once he realizes that he hasn't pointed  firearm at the two men the officer doesn't do anything behaving as though there's a crime at that point that makes sense there's no indication that he believed once the firearm was out of the picture that a crime had been committed and so i don't think the district court has enough once the decision has been says this is painted as to the issue of the firearm the mere fact that he had been in a high crime area the fact that he had had these verbal altercation that now have a different analysis to them i think changes everything and now you have a traffic stop with multiple officers mr lane as his mother is present is allowed to access the glove compartment and her purse there's no testimony that mr lane as makes any furtive movements was reaching for anything does any of the other things that generally uphold the pat down so i think once the firearm is out of the picture i think that that alters the district court's analysis and makes it insufficient to support a conclusion of reasonable suspicion i also want to briefly address the nd issue is the scope of the patdown itself even if you disagree with me that on the reasonable suspicion issue i still contend that the pat down exceeded its scope because the officer testified that he st felt the power which and then shook the pouch and his testimony at e r i think it's ninety eight says he agrees it didn't feel like a gun it didn't feel like a knife when he felt  with his fingers the only thing that the officers are allowed to do in these pot down is determine whether a weapon is present they don't have to determine the contents of the pouch and i think there was a lot of confusion in the district court's ruling about  officers ability to determine the contents of the pouch but that's not the question the question is could the officer determine whether a weapon was present and he said that it wasn't a gun or a knife it didn't feel like that when he felt it with his fingers at that point it's unclear what else he would have been worried about and so therefore our contention is that the shaking of the pout went too far and then that of course led to the incriminating statements that mr lantos made properly limited in scope additionally the officer did not seize any evidence as a direct result of the frisk but rather as a result of the defendant's subsequent statements accordingly the officer did not violate the defendant's constitutional rights in this court should affirm the district court's ruling with respect to the officers reasonable suspicion that the defendant was armed and dangerous before he conducted the frisk the defense counsel makes the argument that the officers reasonable suspicion was dispelled because he misperceived the nature of what he saw at the at the motel the government's position is that whether the object was a firearm or whether as it turned wrapping paper or something like that it turned out not to be a firearm but it turned out to be a wooden club with spikes going through the end with a flashlight mounted on the end of it the officer witnessed when the off when the defendant pointed this object at the two men at the motel they reacted and they were in very close proximity they reacted as though it were a weapon they raised their hands they backed away additionally it's important to remember the context with the glove qualified as a dangerous weapon on the arizona law it went under arizona law your honor it would qualify as a dangerous instrument because it was readily capable of causing either death or serious physical injury additionally there is no question that under terry analysis a club constitutes a weapon so whether the officer saw the defendant use a firearm or use a spiked wooden club at the motel either way the officer had a reasonable belief that the defendant had violated arizona law by using a weapon and that conclusion should end this court's inquiry for this court has held repeatedly that certain crimes are so frequently associated with the use of a weapon that the mere suspicion a person has committed them justifies a pat down surely the crime of aggravated assault with a weapon is one of those crimes and because the officer had a reasonable suspicion or a reasonable belief that the defendant had committed that crime at the motel the pat down in this case was justified at its inception with respect to the scope of the pat down the testimony that the defendant cites in his briefing and also argued before the court at the are ninety eight with respect to what the officer felt with his fingers it's important to look at the context in which that testimony occurred that testimony occurred in the midst of the officer discussing when he shook the bag the timeline is clear from the record that the officer st patted the bag and that he subsequently shook the bag when the officer testified that it didn't feel like a gun or didn't feel like a knife that could unfold he was in the midst of talking about when he shook the bag the immediately preceding questions were when you shook the bag you knew at that point there were bullets correct the officer said that he believes there to be b and then he was asked so you continued to manipulate the bag and he answered i believe i asked what was inside the bag and that was the context of the conversation in which he said he felt it did not feel like a gun and it did not feel like a kni unfold additionally with respect to that testimony and the officer did not say that it did not feel like there was a weapon in the bag he said that it did not feel like a gun or a knife that could on fold there are a lit of other weapons that it could have been it could have been a fixed blade knife ashamed of throwing starr a shift brass knuckles and after that testimony on redirect the officer was asked specifically and this is it your warning for before you shook the bag did you know if the bag contained a weapon and his answer was i did not with respect to the scope of the for risk the district court made factual findings two of the factual findings are key for this argument and based on the record they're supported by the record and they were not clear error on the district court's part those two factual findings are as follows and these factual findings were made at our fifteen and sixteen in the district court's written ruling the st factual finding is that the officer could not tell whether the defendant's leather pouch contained a weapon by padding it that is a factual finding made by the district court it is supported by the record it  not clear error the nd factual finding the district court made is that soon as the officer determined that the bag did or the pouch did not contain a weapon but rather as soon as he believed that it's a contained bullets the officer stopped he did not continue manipulating the bag he did not continue with this risk again that factual finding by the district court is also supported by the record and it is not clear error those two factual findings in combination are fatal to the defendant's argument that the frisk was improper in its scope and if the panel has no further questions for the government the government asks you to affirm so st to address the government's general argument that the evidence wasn't seized as a result of the frisk simply isn't supported by the facts i think the record clearly shows that the only reason that the officer discovered the ammunition in the pouch w as a result of the pat down he had no idea what was in the pouch as he said until the pat down was conducted and there's no question based on the testimony that he provided that the ammunition was discovered during and as a result of the shook the bag ask the questions and then there's some lack of clarity as to how much more of the pat down he had to determine had to continue until he asked one of the later questions and then took the pat down but the discovery of the emulation was unquestionably as a part of the pat down and so i cited a number of cases about the fruit of the poisonous tree doctoring which him is familiar to the court regarding the way in which is discovered and the government hasn't made any effort to show that any taint was was purged so my position is that argument simply doesn't hold water with respect to the factual findings one of the problems the court relied on a statement in the defendant's motion that said that you couldn't determine the contents of the leather pouch without manipulating it in some way which trial counsel contended was improper and the court relied on that saying that the bag the officer was permitted to determine whether the back and taint a weapon when that fact could not be determined as defendant's motion admits then the officer was permitted to go forward but that's not even what defendant's motion that it didn't feel like a gun or a knife when he felt it with his fingers and in the context of this encounter the court isn't allowed to speculate as to every single weapon that it could be this officer was concerned about the presence of firearms and other larger weapons and so