issue and the gun and the statements that were made and then the nd issue is the brady by lation the motion to dismiss taking up the the st issue it's pretty straightforward united states versus smith i didn't see anything basically distinguishable other than the two bicycles from the police officers sort of blocking the defendant in an alley here mr holley was walking through the art built gardens on the pathway purportedly he was seen and saw two police officers officers because s approach from about forty feet away and then when he got within visual distance he saw that he recognized the two officers being police officers cocked his head backwards his eyes widened and  gave this ole ship luck and made a media turn to his left and walked out of sight at a rapid pace immediately upon that occurring officer bernard gets out of his car has testified that he did not run after mr holley but he didn't walk either he jogged that was his words he jogged after mr holley until he was able to see mr holly repeatedly ringing the doorbell to a unit that was right off to the side of where the car was parked where the police officers were at that point officer byrne asked mr holley do you have any guns or drugs on you and mr holley right away answered yes i have a gun at the courts found this compelling said that even though there was no terry violation here there was no prob that because the question was asked so quickly and the answer came back so rapidly that this was a purely consensual stop and therefore unlike smith he was free to leave or sorry i didn't speak over it and a person is the officer that remained for up a few seconds behind allowing his partner coffield to run up on who is the one that asked the question caulfield are c of law there's a th amendment violation yes judge i am not saying that the district court's factual findings are one hundred percent wrong or one hundred percent correct but to the extent that your honor is asking me are they perec enough yeah they are correct and so for a pellate purposes for your appeal here today you are not arguing that the district court special findings were clearly erroneous is that correct that's correct you're saying except in those factual findings there's still a th amendment violation under smith what about the fact that unlike smith there was no attempt to block his path it was he was in a public place there was no tone issue there were no guns drawn doesn't that take the sound of the smith round well in smith there were no guns drawn either judge there was no touch i think it's meant he had his hand on his gun there's no testimony here and the jets and find that he had his hand on his gun when he asked the question are approached him that's correct judge and we're saying that regardless of whether coffeeville had his hand on his gun he was definitely armed he had on the bulletproof vest they looked like they were ready for bear they were armed for whatever encounter happened this was a they by their own admission they they decided to travel in tandem for their own safety they wore bright or not bright but well marked bulletproof vests that identify themselves as police and that mr holly his and his position is that he was going into that house that he was going to talk to somebody in that house so when you say free to go unlike in the smith case where he was sort of boxed in by two police officers and bicycle  mr holley if he would have been allowed to continue to go he would have rang the doorbell and spoke to the woman inside an ass about his friend who may or may not have been there the problem with that is though that at the same time that this occurred afterburn is running in from from his side he could definitely be seen and heard and then officer solace is coming in from the other direction he's already answered the question at that point he's a question when it's one on one when you're sitting there judge asking me questions you're about ten feet away in the smith case they were about five feet away in this case there's testimony that within two for that strike that that mr holly and officer byrne were within two feet of each other so is it your position that mr gutierrez that whenever a police officer who's armed and is in police garb and clearly a police officer asks an individual a question about illegal activity that it is not consensual i'm not saying that in every situation it's not consensual judge but by the mere asking of that question as your st apre blue as your st statement to the individual that's an interrogation mr and the law also suggests that each individual has to be taken as the individual being questioned in other words in this case mr holley had just come out of jail and these two officers were the same officers that has arrested him before  have arrested him before but is there any evidence that he knew that well there's evidence that both of them said afterwards that they recognize each other and i don't know exactly at what point they recognize each other but certainly when you're two feet away from the individual that arrested you the year before you would know who that individual is how do we deal with our decision in brega and so in brazil and you may recall the police say to this fella brillant who matched the description of somebody that he dealing drugs in front of a home or something you know quote police i want to talk to you unquote you know you could look at that and say gee saying something like that to you you know you better stop it at least engage in some discussion but we but we hold that that's a voluntary encounter that's not a seizure well so i don't know how if that it prevents correctly decided and i think we have to accept it as such i don't know how you get around that i don't judge and breal and i believe that this case they were investigating a specific incident a specific crime similar to smith well  there is an alternative holding a breather if that's what you're right that they're it's a valid terry stop but there's also a crime and there's a separate you know primary holding this is even a seizure when judge in this case the court held immediately that there wasn't a terry stop so we have to look at it purely in the lens right of a person being stopped not stopped because mr holley was stopped he wasn't going anywhere other than trying to get into  that apartment and speak with the resident inside so if you look at it in terms of anally he's blocked by his own purpose trying to get somewhere and officer byrne approaches him fully dressed fully armed whether he was holding his gun at his side or whether he had it out i know that that makes some difference but when you have a person who's walking around in a high crime area on new year's eve and it's a person that had from his point of view from mr holly's point of view been arrested the year before on the drug charge where he did wrong in that case he did run this case he walked away and he was chased down by the police so there's no way a police officer could come up on you and stand within two feet of you and not say you're free to leave a message on the police i want to ask you some questions there was no there was no tete a tete prior to just say do you have any guns or are drugs on you and mr holly knew enough to know those encounters aren't that free to go he's not he wasn't at liberty to walk away and when asked that specifically the court the police officer said no i didn't tell him so i mean that's pretty straightforward we'll give you never please the court that afternoon and this report correctly decided that the counter in which the defendant admitted that he had it guys was a consensual one after careful review very very meticulous review of the record including the testimony of the witnesses which included both officer coffield who was the one who did the questioning that's that primarily at issue and officer byrne who was his partner driving the car who followed afterward at the time of the questioning to be clear the evidence showed him the just were found there was a single officer present there was no officer coming up behind there was no officer coming from no officers not tell the defendant that he was free to leave and that's one of the factors this court has said is relevant to the question of is the encounter conscious or not what impact should that have on our analysis well that is a factor to be considered  that there was no blocking no touching the defendant no hand on the gun no display of weapons no multiple there were there was a single officer not most officers no show of force no r was there any statement made to suggest that the defendant himself was was under investigation other than just to ask the question do you have a gun or an iconic sign you what happened instead was that the officer approached the defendant a cement pad in front of one of the residence which is a square but it's at it's at ground level it's not there is it i think we may have referred to it as a stoop in the in a break but i don't think that's quite the court's factual findings but the course of the briefs spend quite a lot of time on arguments that do suggest that that is that that's the main import and the result of that i think is  of all of the evidence including and also a detailed analysis of the credibility questions of whether the district or it should have credited the the defendants testimony over the officers or vice versa  and there's nothing and the courts analysis that could even remotely be considered clear error here just to make that point clear none of that the vast majority of the factors and smith weigh in our favor or way and in the favor of the district court's decision and there's there's nothing that's been argued to suggest that there's any discrepancy so with in agent with no reason for the defendant to believe that he was talking to the police there would have been other problems the part of the state gets hard it's hard for me and i i mean i very much understand your emphasis on the multi factor  that's identified identifiable as a uniformed police officer that asks a question i understand it's not the factual findings here but it asks a question that can really only be heard as  accusatory because of the tone in which it's the manner the way that the officer approaches the individual that seems highly highly relevant to me and answering the question was the individual seized i don't think that that's unfair your honor i mean in terms of it being a factor and and important one in certain cases but there was no evidence that any of that occurred in this case to be  absolutely none whatsoever and the evidence in fact demonstrated the opposite and the question that was asked here is actually a question that would be asked in virtually any circumstance particularly with respect to the gun just for officer safety i mean it it it was not asked there is no evidence that it was as an accusatory tone and even the defendant's testimony on that was vague you know because it wasn't there a finding to the contrary yes yes that's a better way of saying but so perhaps but it is hard i think it's going to be very hard to parse these circumstances and if that if we're going to say that the police are allowed to  and we're going to and we must say that the police are allowed to ask a citizen a question on the street in a public place then then they have to be permitted to do that and trying to parse between that particular tones and as the defendant tries to suggest try to analyze what the said this defendant subjective reaction to that might be it's not with the law requires or provides and it's not what the law should be dio involves nothing more than leaving a voicemail for someone who may or may not just feeds the message it isn't a reasonable effort  preserve the evidence i thought that the finding of negligence when there was no follow up by the officer was quite generous seems to me that if you are in contact with the c ha that they ought to at the very least be requiring employees to leave an out of office message on their voicemail so that isn't a question and if it's getting something off my chest well your honor i do believe that everybody who reviewed that situation found that it should not have happened that way and i think i can say that i mean there was there was action taken by the police and i assume there was action taken by the c a j but that you're absolutely right it should not have occurred that way but of course and  i just wanted to say back there also it's hard to imagine a scenario where a police officer in a high crime area it's an accusatory tone and regular speech whether it's an accusatory tone or gentle flurry whether it's an accusatory tone in a nice way that's an accusatory question and move to our final