motion and given that this trial judge's comments it's very difficult to see how you had this motion been filed it would not have enjoyed at least a reasonable probability of success and had the motion been filed and sorry had it been granted and that statement had been surprised the state wouldn't all likelihood not have been able to proceed against the defendant as there was written this statement really was the most damaging piece of evidence and there really wasn't anything else connecting the defendant to that gun  one of the wrongs of this argument is that once the weapon was found in the middle bedroom under the bed that under the circumstances he would have been subject to finding probable  and here the review credits roll is by a limited it's just to see whether there's a reasonable chance that the motion would succeed and given these judge's comments it's hard to see how there couldn't have been i also would submit that  thing if the box cardboard box in which the gun was sitting you know that they also found pills id or something i mean they're trained to look for these things and they they didn't at the point that the gun was recovered the cause i would say that there wasn't probable cause but even if you just completely agree with that analysis you know it it's not that the reviewing court's role in this kind of struggling claim to weigh all the factors and make it a detail probable cause finding and the cases where there was no testimony about someone either going or coming from an apartment and then being arrested about a mile away that that would be permissible to  stop that person well if the search warrant permitted stop but are there any cases that suggest that there would be probable cause where the person was a mile away without any other would be no he does not have the right to bring him back at he certainly had the right stopped him in search and you know he seized the keys we're not we're not challenging challenging that bag but there are many case flight in the event incriminating evidence is discovered in the state would be able to argue at least that that is satisfied and present in these circumstances because having chosen to stop and defend or search him you know that gun that's under the bed get rid of it police run away and he theoretically that those are the justifications two of the three justifications for the the brief detention under under summers and their presence here i think well ok let me let me address the justifications i think if i recall correctly the case out regarding regarding the first justification that you mentioned preventing the flight of occupancy i think the kill is that isn't that the operative word i mean it's been expanded but generally speaking is someone that's either coming or going as opposed to someone who's stopped a mile away that's precisely i mean that was the original link now there's been an expansion but has it ever gone to this level no it's never gone to this level and presumably you know the destruction of evidence i think that that risk is implicated more oil where you have someone at the premises or someone who's just left the premises and and i think the case that even says that the first justification you're talking about is only important insofar as  the connection as the occupants to the premises is what's key here the last of the connection you have are the less evidence you have of the connection between the occupants in the premises the less important that first justification the cons and here we really don't have evidence of much of the connection between the promise and him regarding the i so i was with think if there were you know if they were concerned with the destruction of evidence they would have made a forced entry right away they wouldn't have waited to drag him you know drag him to the apartments they would have you know officer harwood of radio i presumably would have radio absent come in and said you know if that was a  whether if there's a demonstration in the record that that was what they were thinking or not we're talking about the underpinnings of the whole series of cases starting with michigan versus some sure as to why the tension can be justified now it is absolutely true and i would be surprised if the state didn't concede this that what they're arguing in this case would be an expansion of circumstances which have been found to be within the rubric of michigan versus summers because in all the cases that i'm aware of there has been at least some evidence in the record that the person was in the apartment in some proximity to the back of the of the detention all of the cases i looked at that there has been leave the sixth circuit case they it they expand summers to say it in the same way that we're talking about to say that if there is an i q pension that is in the process of leaving or has just left the premises they can be detained as soon as practical as this practicable even if they're not directly on the premises but they say look we enter into a mode of caution sommer's does not give us give license to detain anyone anywhere incident to that search even if there's no evidence that we don't have any evidence of this that hill was at this premises it could have been a few days it could have been a few weeks i mean we really there's nothing here that shows that he was but he was recently there and the status times ten so to speculate this away in their brief they say well i officer colin you know he must have radioed officer hall to stop him because he must of just leave him leaving s the trial record that defense counsel's failure to file the motion did not stem from trial strategy but rather from a misunderstanding of the law because this is actually kind of an unusual record that we have here because we actually he said i understand his argument his argument is gee i didn't know that that officer was actually going to admit and direct examination cross examination that the man was under arrest and wasn't free to leave and your argument is he doesn't have to trial certainly the judge seemed receptive to hearing about it see should we could have asked he could he could have said when when we're filing this motion was defendant's best chance of success it really was his most viable defense i don't think i don't think correct and that was based on the allegations in a search warrant that we don't have rights but either way i don't know how you can say it was probable cause at that point there was certainly a search warrant to search and once that was done there were no drugs recovered and there were keys recovered that's it how do you go from that it's in the record to tell us there i w like you should move on to the next argument so we don't waste your time well just i just was a brief in bringing the court's attention one of the cases in the motion was people versus also you know it was a similar situation where there was a awarded search to defend its person and then there was a warrant to search the defendants for the sense of the warrant where the time tense of the warrant before the court to review i don't know that would seem to be a very critical question because there could be a great no facts as to why the search warrant was issued what it was based upon and what you're really doing is you're trying to get us to extrapolate from the fact that if the judge signed a search warrant then there must have been probable cause that not only satisfy that judge but would satisfy the law well that's a first step there is a judicial determination of probable cause made when the search warrants but it wasn't an arrest warrant that was it that's correct they find a key and you say we have to say except i'm faith that there was actual probable cause the knowledge that there were drugs in the apartment at that time  police had never entered and the fact that this man had a key and nothing more to that apartment would be probable cause to arrest him for something without any knowledge of it doesn't matter in the absolute belief  just a reasonable belief and based upon that you dish will determination plus the finding of the keys i would suggest it was reasonable but if we're if we're not going to accept the probable cause at the time of the roadside tended move them next to certainly i think we could all agree that this was a proper terrorist out and that the police acted reasonably now a lot of the summer's cases come out that were made there's a search warrant but we don't have a warrant to search the defendant's person were dismissed i mean this is that this is a this is a surcharge this  a search warrant it's not a terry stop situation and read anything in your brief that argued that the the there's a this was a terry stop well again i would i would direct the court to the motion that was filed in addition to the  brief it's definitely a proper terry stop and what the police officers did in this case was fix the problem that was that was saul summers or where there wasn't a right to detain the individual whose house was premises they were going to we know that it's proper to detain and transport socks for a shell with a big if this search warrant would supply you with enough information to a stamp which probable cause to arrest at the time if the key is found on him why would it not be in the state's interest to have agreement it so that you can introduce all of that evidence and tell the trial judge why there isn't sufficient probable cause to arrest of the time of the stop because we already have a the defendant hasn't met the two prong burden in strictly there's no prejudice here because there's a myriad of reasons why this transportation was proper lift the court now the prejudice here is simply this that if the trial judge no probable cause there is a likelihood that the court at some further point would determine that the statement doesn't come in or they wouldn't have come in if there had been a motion to suppress i'm not really putting any faith in the statements we're just looking at the record ok but let me ask you this in any of the cases that you referred to us was there any but is there any case that you sacket where summers has been extended to someone who's a rested a mile away who was never ever seen either going or coming well all those cases but what basically all the federal cases in fall motion here where it was relevant for the officer to get up and testify we saw him leaving the francis and he was arrested a mile away here we that someone observed this person going or coming and that her justification under summers well if you take the argument the council made which is a reasonable thing to that that there's no evidence before us that  been anything other than days or maybe even weeks since mr hill had been in those promises even longer i don't know then there's certainly no case that if it were days or weeks that has extended summers to that think you know really expound that because i think everyone sitting up here is where of the at that that's permissive what i'm just trying to encourage this court is that we don't have to be talking as dramatically as an expansion of summers when we can justify the but the shark has a completely different reason you could never you could have a felon who really did the crime running away and the underlying basis of the of the contention for show off is to try to get rid of somebody who is innocent quickly and very importantly continue the search for the guilty person and that is something that really doesn't exist in this fact well it's better here the wait let me tell you something about what of cases we had an individual who had said to the police a guy just robbed me this is his physical description and i just saw him running half way the police go find someone within a short distance in a short period of time return the person to the victim or a shot for that person to say one way or the other that's the person who robbed me or that's definitely not the person now wait in this case the police have not recovered that gun they recovered any drugs when they bring him from such a to spot b that's the difference between your shot cases and this case although i think you probably argue well the search warrant said there were drugs in the house but again that was wrong wasn't there weren't any pills recovered from that apartment but it was a got in a box under a bed but in the show up cases we have an individual who has just reported  we don't have that here we don't have someone reporting we don't even have to find the evidence they haven't done that yet but this is like you say it's better because not only do we know definitively this is the individual who we're looking for he said yes the key to the place and then as we mentioned in the defense counsel's opening arguments so much better to transport them back so that we don't have to make a forced entry into his building that's essentially what they're arguing for not seize the key right without seizing him sure they could let him go on his merry way and then arrested about ten minutes later after they found the gun and he makes the same say well then you're giving him to be issue of whether there was actual probable cause after they found him and they found the gun in an apartment that nobody had seen him in a question of whether there was constructive possession in the judge's mind of under those circumstances and and that's really that's something we have to do to look at this stage is it not in this because what the judge could never relied upon under those circumstances was the very statement that was sought to be or should have been sought to be sick suppressed by abortion but the additional reasons is the additional reason why that motion wouldn't have been granted the trial or can speculate well you know in my mind i think i  probably thought this arrest was illegal but if the defense wants to tie themselves to the extraneous stuff in the trial court and they also have to go back to the statement that the trap or also expressed that i believe it was reasonable for the defense counsel not to file this motion because there was a good reason there's a good chance that he doesn't make that statement because the arrest akes place without him even being there and so the police have to go out get him and there's a good chance that he's not going to make that statement when the gun is recovered in a is that the trial court would determine our issue is whether or not there's a reasonable probability that this motion might have succeeded and i would argue that there's not because there are several reasons why this transportation of  cause one stay security event took heat there there was no probable cause because there was no fruits recovered from him but so if he couldn't be arrested at that point now this terri argument is all you find is the key is a result of the terrorist and then you can bring him to the place where the search warrant is going to be executed or as you mentioned earlier the proper justifications under summers to facilitate the execution of the search wor prevent flight of the defendant and protect the officers the summers reasons are still there i'm just saying we don't have to expand summers to say we don't have to have testimony seeing him leave we've got other reasons to properly detain and transport an individual should we decide this case based on a theory stopped when the other side had an opportunity to respond to your terry suggestion now they didn't respond to it in the motion and you could be free to ask them questions on rebuttal but again it's not as dramatic as expanding southerners defend  that we don't have a record to disclose that we have a record that says a search warrant was issued we don't know what it was we always looking for substances controlled substances and then we have the police stopping him and there's no substance this motion should not and would not have been granted because the officers did seek a search warrant poorest person they transported him briefly to help them execute a search warrant for his apartment there's nothing else the police officers could have done here in granting this motion would been absolutely improper because that the defendant can't show precious you also can't show there was an objectively and reasonable because based upon what trial counsel knew at the time this was a proper transportation of his life and therefore even the trial court stated there were reasonable reasons why he should have filed this motion he can't meet either prong under stricklin or remains completely unnecessary without taking the step of expanding summers to include a case that doesn't include testimony about seeing the comings or going to of the defendant from his premises based on and so i just want to say that i don't want to say too much about the state's argument that alan there is probable cause based on finding these keys on this on this defendant i'll just say that you know it's seems that they are conflating the search warrant with an arrest warrant and the trial judge said the same thing on the on the in the trial record i think there's a point where he says look the police converted a search warrant into an arrest warrant and they did that improperly and i would go further and say it the keys i also don't support it there's a reasonable suspicion for a terry stop because they haven't even searched the apartment yet so they hadn't even found anything incriminating yet so based at least based on the facts we have in this record i don't think that supports probable cause or a reasonable suspicion of the state mentioned people being maxi this this show of situation and you know sheriff's detentions are justified where the police are searching for a flu culprit rob the trail is still fresh immediately after an offense has just occurred  clearly this is not that situation there was no eyewitness joining offense this just occurred no flaying culprit i don't think this can be justified as a show up situation regarding summers you know i dramatic expansion to say that you know you can put someone off the street it may have been weeks since they've been at this residence at that point it starts to you start to get away from those justification ceases to have a connection with that with the search warrant that's being executed so right there and went public teary eyed i don't know what you said in your i don't think that the recovery of a pair of keys i don't think that that supports a reasonable suspicion of any criminal activity it's not i mean it's not there when just because he's got a set of keys to his great friend's apartment i don't i'm not sure how that suggests any criminal activity on his part sufficient to warrant a reasonable suspicion of criminal activity that would