bell for sitting on the panel with us today additionally i know that since there are so many students home now homeschooling a lot of them are listening to or circuit arguments as part of their civic education and we're honored to be a part of that and in particular i know that three students are listening hindery charlie and davis and we want to welcome issue this is a case about the unlawful seizure of two men who were sitting in a parked truck in the parking lot of a hotel which one of the men was a guest when they were confronted by a police officer who have actively blocked their when the officer pulled his beer his s u v into the parking lot of the euro sweet so tell ok and you said in that regard you said that he quote effectively blocked their way i think  court found there was a possible way for mr nicely to have gotten out and was there some way he possibly could have gotten out sure but that's not the issue the issue is whether he felt free  leave and effectively block in those language i mean he would have had a very difficult time getting out because there was a one way and turns and a one way x there's a where there are transcri yes yes in response responded yes backers question can you talk a little bit about the standard we're applying here i mean you know the different court judge here finds that there was ample space to back out  you know goes on to talk about i know you want to characterize it differently but that strikes me as sort of a classic fact finding that he had ample space to back out he was able to do so and that means if you like reasonably believe you could but he was very capable of leaving is a classic fact finding that we review extraordinarily deferentially and you seem to be wanting to change those facts  is that do you have to do that in order to win no no judge ah i don't i see the facts are facts the way we see them are different obviously than the district court found and i know that you see facts based on clearly clearly erroneous i don't want to change the facts necessarily but we don't agree with them and i don't need that to when i believe that a reasonable person standard doesn't it no need that's when a reasonable person still could have found it reasonable to leave in that situation with all of the facts that we're looking at combined i'm so now but following up on judge richardson's question did the district court actually find that there was a clear path to bats in a way i thought the this report said that he could have i understand that and that's what i'm trying to identify is is that fat necessary for you to win understand you begin your argument just saying in essence the district court got it wrong on the facts and findings clearly erroneous so that you can prevail no i don't believe i need that to prevail judge but what you are doing that is one ground and then you have an alternative ground he talked for nd about what the alternative is if if i accept the disagreed fact finding sure if we accept that they could have gotten out it's still not reasonable for a reasonable person to believe they could know they should have gotten out that they could have left because about the whole surrounding circumstances of the event so we have to look at it as a as a whole are just a piece of the pie you know whether they felt that they were effectively blocked what a reasonable person want to believe this is the issue and i think that's the issue where the district court got it wrong but but on what basis would they have not felt they could leave looking at the video it appears that the police car is three parking spaces away sure you're looking at the video let me kind of go back a little bit so the video unfortunately doesn't show that the beginning of this encounter so we don't know how how the officer pulled up we don't know how they approached the vehicle we don't know how that started because we don't have that evidence of fortunately but why didn't you mention hell they approached the vehicle we thought that your argument was that the seizure occurred once the one of the of us are pulled into the parking lot and affectively blocked the vehicle yes so when i want to go for the approach that's correct so we don't have any of that on we don't have any any  that so there's we don't know how that all went down but the basic facts that i would like to lay out to show that a reasonable person would have felt free to leave includes not only the way the park the vehicle catty corner the way they park but this officer parked his s u v but also that it was at a hotel where these two men one of these men was aghast at the hotel it was one thirty in the morning this officer was in a fully marked s u v he came from a  tiny tiny perking area and a bank of crossed the way in or directly directly behind mr nice is vehicle there were other parking spots there he could have parked in any parking spot to make it more casual but he parked directly catty  even though a few feet away from mr nicely is vehicle in order to back he still parked in a way that was aggressive instead of just right next to the car in another parking space not in the ingress of the hotel parking lot three the leave it to me that seems like it would weigh the other way that he could simply leave and go back to his room how do i see that as something that matters that was that the question i'm sorry m question i think it's important because as if you were staying overnight somewhere i think you believe when you're in a parking spot of a place that you're spending the night whether it be a hotel or your apartment or your home i think you have of privacy interests there that's different than a public space a lot of these cases talk about consensual encounters being in public spaces this was not a public space this was a private space this is private property a hotel where you're spending the night in a hotel i think you have a different privacy interest than you do on a public street count on only go back to the you make sort of a insinuation about the manner in which he approached your brief talks about it being in haste but again i want to sort of try to distinguish and understand whether you're making a factual argument or not there's nothing in the record that approach so his approach was in he's in the way that he immediately decided to drive park and in the ingress egress of a hotel parking lot parking his car catty corner instead of finding a regular spot to park in so he could have gotten his walker out and he could have very slowly moved to his car and driven it very slowly and it still up that could have been done similarly in the problem of god is  you know based on our president we have to stick to facts most favorable to the government here and if you don't have evidence that he acted in haste again i don't understand how we get that factual finding i am i'm not i don't think i need any take into the st part your question why am i putting this as a factual argument for clear air no that's not the standard of review i'm hoping that you're using i'm i don't see the facts the same way as the government does or that the district court did but i don't believe that this panel should so we look at my argument based on the facts what i'm i think the facts are important to make up whether there was a consensual encounter because the facts are how we get there the facts the way the facts came through is how we get to whether a reasonable person would feel free to leave ok ms gross you think you have some time in rebuttal in your and your time is up so i so when you look at that you consider yes your teen or fifteen steps is two or three feet is that what you said yeah i think so you know if you walk out oh i'm sorry i'm sorry mr nicely would have been able to back out and leave the area and he said that he could have but he clearly would have had to have maneuvered his vehicle around the officers marked vehicle and so i just want to haney were the two other police officers that arrived in two other separate vehicles able to maneuver around and get into the parking lot i believe that the  i can't specifically recall that and i'm sort of digressing from my argument but you know i just wanted to reiterate that the fact that they could have left is not what this court has looked at before they talked about the fact that maneuvering being able to maneuver still doesn't take away the of the reasonable person's feeling that they're not free to leave and i think that when the cruiser pulled up with the lights are on at that point it's dark there and lights are on the back and he's the vehicle think any reasonable person would have felt that they were not allowed to or they should not exit the vehicle and try to leave the area so based upon the interaction that  that the officer had with my clients after searching him from that after the detention he located some items which leads him to believe that mr watkins was a guest at the hotel based upon the search of the vehicle and the information that the op asserting for my client they obtained search warrants for the hotel and my clients and mr trapp cell phones the search as this court knows revealed d in the hotel room methamphetamine other drugs cash and some firearms that district judge clearly did not address the leon good faith exception in this case because obviously he found that there was no illegal detention but if this were to agree with proper under the th amendment do you agree that the warrant issue also fails yes i do agree i don't i thought to do it i just wanted to make sure there wasn't you not making an alternative argument it's really dependent on versus mollett d where this are reported dress the issue as to whether or not the good leon good faith exception applies in the case where the illegal or the the when the entirety of the contents of the this court should continue to hold what we believe be sound law and that the good faith exception should not apply in this case  you thank you all right ms wesley may it please the court my name the wesley and i'm an attorney for the government the circumstances as they unfolded made it clear that officer break arn on the regular basis patrol the area behind two year old suites particularly the parking lot the record makes it abundantly clear that law enforcement was familiar with that location because of other activities that took place in that area in prior wire interception investigations officers watched numerous drug transactions take place in that area but more specifically the staff of urals we communicated to the working time police department and the essence several spoke with officer break our about the activities that took place in that back parking lot so so anybody in the back parking lot of a hotel with a number of rooms in it is subject to suspicion is that the government's argument no what is not this was at one thirty in the morning officer how we got our so anybody in that hotel parking lot at one thirty in the morning is subject to suspicion no your honor but  officer break car as he watched install someone exit the area of the hotel and he saw someone seated in the car and he saw the interior lights go on a couple of times as someone entered the vehicle with also some brake are new was that an interior light always go on when somebody enters the vehicle yes it does but his testimony was that the lights went on and off a couple of times after someone was seated in question counsel so i just i'm again i'm just trying to understand what why does why or why do you begin your argument and i just i'm trying to understand talking about the suspicion the officer had before he pulled up i thought the district court below none of that matter right he just he pulled up and he made a consensual walk up to the vehicle and it didn't matter if  had any suspicion it that at that juncture and so i am just curious why is it that you think this is sort of the inverse of what i asked your colleague you know she wanted to change the district court's  suggest you know a different set of scenarios but you're also trying to like a little bit turnit and talk about the suspicion prior to pulling up in the parking lot and i thought the district court found that it needed no heated no suspicion to pull into the parking lot and walk up to the vehicle and ask what was going on now and i agree with that i was just setting the stage for as to why he was there i absolutely agree with that i agree with the district he was there at all i mean so is it that it is imagine that like he dropped a hat and he was looking for his hat does it make any difference for us why he was there it does not your honor he approached the vehicle i think is important just six out which was he was there because in his mind he's there just because it's a part of his routine duties that's the only reason why set the stage for that one scene observe what he observed and he approached the vehicle in the consensual manner of he does not use his emergency lights he does not pull his weapon he parses the  nothing in his demeanor or the manner in which he parked his vehicle that would suggest to get suggested to a reasonable person that they were in any way detained or not free to leave moment he approached the vehicle and the window was down he immediately smells of marijuana once he smelled of marijuana he now has probable cause to search and also there's reasonable suspicion from that moment on those men are not free to leave and what's often break aren't good at that point in time after he questioned them and their stories didn't match he contacted the canine officer  conduct a free air sniff around the vehicle before it right so we're familiar i think with the fact that my question is the reverse of what judge richardson asked opposing counsel do you c vehicle it was you're on there but of in essence there was effect work officer who conducted that into the investigation and the affidavit for that search warrant spelled out all of these details so even if that were the case i still think that the officers can rely upon leon because nothing with hidden in that affidavit the affidavit spelled out the details of what transpired your opposing counsel described it as possible but difficult to maneuver around the officer speak what was the district court's finding about maneuverability of the district court specifically vehicles parked side by side so there with ample room for their vehicle to pull out if it was so inclined to do so in addition to that one of the things that's important is  l was there ever under stover we asked two different questions we asked was there a show of authority and was there submission to that show of authority in the district court below seem to find both there was no show of authority and that there was no submission to authority by the defendants and i could you to help me a little bit i take that that was based on the fact that there was no evidence in the record that they saw the vehicle approaching and they by the time they saw the opposite of the officer was that they are and so they didn't have time to sort of passively submit to whatever authority was being shown that that's correct or on their there is no evidence that they observed the officer approach there is no evidence that in any way they questioned whether he was doing the record if he waits anything from the defendant suggesting that honestly that they felt that they had to submit to his children forty by contrast the evidence that we do have was that he approached he questioned them about what was going on he immediately felt marijuana  as soon as he drives into the parking lot there was the seizure your position is that the seizure effectively occurred when he began questioning them because that's when he had smelled marijuana and he had the ability to do that and that's where he testified once i smelled the marijuana in a fact that they couldn't leave at that point as i was doing a drug investigation that's correct your honor the nd he failed marijuana he understood that there was going to be from follow up his testimony was that he called an officer helms with a canine officer so after he fell to marijuana they were not going to be free to leave there's no evidence though that they wanted to leave or that they thought to leave we know his his intention based upon his testimony which was the nd if not marijuana he was not going to let them leave that scene but there's no evidence to the contrary one that they felt like they needed to leave or that they wanted to leave so the testimony is after he purchased the vehicle he felt the marijuana and from then on they were in essence detained in essence to search he had probable cause to search and he also had reasonable suspicions simultaneously based upon the smell of marijuana which was not legal north that legal in west virginia at this point in time  been approved for medicinal purposes which didn't take a back until two thousand and nineteen so at that point in time even if there was a suggestion that they had the marijuana for some sort of legitimate medical purpose which there is no weapon in that it does at that point in time it would not have been legal in west virginia in addition to that there certainly is no suggestion that  that either mr nicely or mr watkins even knew that the defendant i'm sorry that that the officer was present is interesting in the manner that he approached and there's a good overheard the occupants of the vehicle say i can't believe this cop is coming to talk to us i did not evidence that they had seen that he was a cop before he got to the window or should i read that testimony of the officer differently i believe that that testimony was a listen to in response to him approaching them once he approached them i got the impression from his testimony that they found that there was humor in the fact that he was approaching them and that was the essence of that conversation so i don't have it in front of me but your recollection at least is that that testimony is after they're talking or is it before they're talking you do i'm saying i get that you know either before or after he smelled the marijuana is the core question my recollection of it was that it was while he was out the window and that may not be accurate but that was my recollection was that they seem to been amused that the officer approached them in the midst of what was going on in any event none of that  recognized and i have quite a bit of time left if there's any questions from the court i'm certainly happy to answer  them don't think we have any further questions ms wesley thank you for your argument more here again from ms gross thank you i want to quickly go over some of those facts that i find extremely important that we just discussed  so these facts leading up to i think judge you are right the there are facts in the record that say in i read it obviously i read it the way i think my my client intended it  the officer heard them talking as he approached the vehicle also you know in the joint appendix it says in many places that you know officer break i had intended a drug y before he would up and smell marijuana let's get this straight he was thinking right away it was a drug investigation and when asked if they could leave that they could've left but he wasn't going to leave because i was there and i was going to talk to them so the intent matters because it shows what his actions were his actions are affected by his intent so just because what he thinks that his head isn't something we consider it doesn't affect his actions so that i think those things are important i think our clients dan no police were around the record shows that while they couldn't have seen them well there was a guy leaving a hotel walked across the parking lot into a vehicle he definitely could have seen a police officer it's not in the record but that doesn't mean it's not possible we're talking about a reasonable person standard i want to quickly talk about the factors nobody's discussed the factors i was unable to do so at the beginning the united states built the black factor is whether a reasonable person would feel free to leave if you know there are seven factors this court set out we went over a lot of them because this is very fact based but you know i think it's important t show of authority here is just as powerful as physical force just because there's no physical force he didn't point is gone doesn't mean there wasn't a show of authority he had his lights on judge that are mentioned i said his life right yes his head lights were blazing on to the back of my client's truck he never worked turned off that's that's pretty aggressive imagine one thirty in the morning blazing headlight shining on your truck in an officer comes to your truck window with a flashlight shining in your eyes e in this case under the yes that's what is the evidence with respect to what your clients knew the positioning of the officers vehicle and whether they would be able to as you say maneuver around it  my clients did not testified to any of this so there are thoughts personal or not in evidence judged however you know what is the evidence of them not feeling free to leave i just think if the reasonable person standard we have to look at we look at  that's what i'm getting at is if they had to say for your argument they had to feel reasonably that they could not leave them and looking for the evidence that would have led a reasonable person to believe they could no believe even if you look at the facts in the way it must be able the government the way he pulled up what he was wearing how he had his lights on shining the flashlight and here is car lights shining on the defendants as well as asking pointed questions it wasn't hey how you doing it was what are you doing here did you do anything illegal  and i just want to tell this court i think if this case fits in between this court's findings in its past cases on the sites that the government arm had they have they're very different they're very different than our case  sites it's because the vehicle specifically in united states v lewis and it was a different set of facts that that police vehicle was parked on the opposite side of the road that's nowhere close to the way that the police vehicle was parked and they saw something in the vehicle before even approaching client but you're over time certainly and and less know i appreciate your enthusiasm on your zealous representation of your client but unless any of the other judges have questions greet you even though we can't do that in person please know that the the three of us appreciate your arguments and greet you from afar and liz cheney i understand that you are