custody because that was the sense he's received and he's been out on bail pending the entirety of the case but it's important for i would submit your honour's for poor communities minority communities because i think a lot of what drove judge faeces decision on this case involving the probable cause issue and the warrant issue involved because mr howard happened to live in the minority community and i think  the same street there was no evidence that mr howard was involved in gang related activity they just saw me on the street allegedly and they decided to stop him and they were on a high profile act patrol blocks away is quite a distance in time and we all know location one was perceived as being within the territory of one of the gangs involved yes it was a high intensity patrol under way and it's who's there because of this high intensity activity happens to see what the patrolling perceives to be criminal activity should the patrolmen stop and think well is this related to gangs or not before proceeding to investigate but that begs the question your honor where did they even perceive criminal activity under the trees that issue but that's the suggestion that that the judge's decision is influenced by this being a minority neighborhood is not one that i think is in those terms supported by the record what is supporting this notion there's intensity patrol because of this episode you can argue whether or not the intent to patrol was justified but there was intensity patrolling going on and the officer saw something which and then we can get to that debate and they are we not have justified what government's testimony was they see him walking and he notices them and throws a gun over a fence into the yard well it was his own house your honor their testimony only one police officer who happened to be the driver of the car farthest away from that side of the street that they were patrolling this was the house was on the north side of the they were patrolling going westbound down the street for drivers to fires this way the other officer in the passenger seat didn't even see my client until he was in the driveway of his own property so what about the guy in the record tells us that when there are two people in the car that the one of the driver's seat normally looks to the left and the other one normally looks to the right because that human experience i don't think necessarily supports that  people look at what they're interested in looking at as they're driving for well that i thank you for being here on what's on the record for this well maybe nothing i usual i don't think about someone in the driver's seat of a car looking off to one of the ox misters approached and went on to his driveway and that's triggered the flight while he was on his own driveway going into his house and when he was heading towards his house he tossed the gun the roof of his house and it landed in the backyard now we read would submit that the ct community clear air and making a finding that he was on the driveway itself can we say that for a number  government didn't even bother to cross examine one of those to clarence was in the driveway himself and the police officers we have a situation where the police officers both testified that they were going outside the property going west bend down and nor are the other individual that's in the driveway itself and yet they detained him they detained in fearing that incident it just doesn't make sense and if he if the person in the police officers explained it and so it's not just that and that basically the credibility of art to clarence they were only challenged basically because they were acquaintances or they says well you can come up with five or six witnesses to contradict the officer that as a matter of law we can say it's clearly erroneous to believe the officers were that's not with no no no that's not the law i would just ask the court to with very carefully at the declarations and the logic underlying the finding by the court i don't think that the logic carries the day because common sense would dictate that the one of the officers would go into taking one person's views in a driveway and that means entering on a driveway was he on the sidewalk and what's interesting another interesting fact that that's clear from the record undisputed he was not arrested for fare in a concealed weapon he was not arrested for carrying a weapon in public he was not a conflict in the testimony it's the issue of whether the police having knowing that the weapon is in is on the property in the back yard knowing mr howard entered the house there of course search for the weapon on this property without a warrant after walking right into the backyard now the government claims somehow to there's a dispute as to whether this weapon was but there's no evidence that the police search anywhere and the evidence is clear of that witness's testimony it was mr richard mr williams as well as what he was in a position to be able to see given the pictures that were submitted at the suppression hearing by the defendant shall i where the defendant was located at the really quite fit the facts of this case here we have a situation where once the gun is thrown the police officer in charge the scene had to respond quickly to what he perceived to be a potential threat to the police officers as well as to other people and anybody as well as what police officers believe that under the circumstances was the very real possibility that that gun would be found somewhere on the other house on the other side of the house by somebody and  so the officers who responded to the situation were responding to to a need to act quickly and they did stop and and that's how ultimately they they find the gun with twenty minutes sometime between ten and twenty minutes after the incident got started like they need to act quickly if they have the backyards around the house around it well the this is it's an unfolding  circumstances you are in the first two police officers have arrived on the scene both that's in the main event as they run down the sidewalk the gun gets thrown and ultimately break they move into position it in a matter of minutes other police officers arrive as well and also mentally there are a large number of police officers on the scene but as that situation is unfolding and the gun remains somewhere in an armload unknown location in a neighborhood perceived reasonably by the officers to be one where that is not a good situation to have and the defendant and other unknown people are inside the house and so the if this search had on for a great deal longer or an hour or or some unknown length of time greater than it did then other other questions would have to be raised as to you know what was the reasonable thing to do at that point but given what was going on when they arrived on the scene and what they could do and were in a position to do it what they felt they needed to do both to protect themselves from individuals in the house from the disappearance of the evidence or it's used against them or others  if they had gone through the whole process of cordoning off the yard and taken all of those measures ultimately they would have been able to determine what that risk was as the events were unfolding however the officers did not know precisely where the gun was what the circumstances in the backyard were in terms of entrances or exits from the house or other people there or really anything at all about the backyard astronomer's things would they know whether somebody in the house could go out into the back yard and grab grab the gun if it's laying in the yard and then come back out of the front with guns blazing they would not have known that until they actually from through the backyard to shoot to determine what was us mr howard throws the gun and then runs into the house that's correct and there are some other people known to be in the house with the police don't know exactly what  means there are to get from the house into the yard the other than mr howard being in the house the police don't know who or what was going on inside the house nor do they know whether that house has a back entrance or the fence situation is like or how it abuts to the other or they don't really know anything at all about the backyard of that house till they actually at the canal i guess what's relevant is what they knew them and what they knew then about the backyard of that house w next door an alley next and could have gone any number of places the first obvious place to look was behind the house the court found that the neighborhood was one with a significant gang presence in this particular block the seven hundred block of east nine hundred seventy three the officers in the record contains information to the effect was it had a particular concentration of members of the gang which was the victim gang of the shooting that had taken place a couple of weeks before