no articulable facts that would lead to a reasonable suspicion of zero eight that mr claypool had been involved in or was about to be involved in any form of criminal activity or as the only supreme court did in henderson we do have to perform the full three factor analysis for attenuation and that factor includes both the time between the initial seizure and the discovery of the evidence it also includes a discussion and this of the u s supreme court is not a particularly the purposefulness and the flavoring c of the police conduct involved in this action because of course when we talk about the exclusionary rule one of the prime purposes of the exclusionary rule is to deter purposeful police conduct purposeful conduct intended to violate the fourth amendment for the purpose of trying to get evidence that you don't have a guy was locked out of his car i mean this is not suspicious this is somebody tried one car door he didn't have somebody walking down the street trying you know multiple doors looking like he's trying to get into something he attempted to enter one car offer insistence saw him sees him walking away and then calls out and says hey hold on this and i think that was those were his words hold on a second hold on and at that point mr claypool slips and falls leaning motion while somebody is in the process of slipping in phones and lines i mean you're trying to check your balance there's all sorts of things happening however even exactly and i think this is where and this is where we really hit on the crucial moment in this  even accepting that maybe there was something suspicious about this motion that led to this fall what happens after that immediately dispels that that's what happens and again we have  some ice and one council asked you know also going out was that a reasonable explanation yeah that was a reasonable explanation for that so at that point even if you had some i would call it a fairly vague suspicion based on the week but even if that mean gave you some basis fission hey something's not right here you ask the question you got yourself and it was a was a reasonable answer now no they at this point there has not been any notice of any kind of hostile activity no suspicious boulders in the clothing nothing that would lead any reasonable person to presume the presence of a weapon and yet having just received a recent reasonable suspicion for a stop on the first place even granting that there could have been some basis for a stop at this point you have nothing to suggest that this individual on the endangers you have nothing and  and there's really only one reason to do that and you do that because you're fishing for you do that if you stop the guy it's late at night and you thought well i've got him let's batten down let's see if we find  that's what officer benoit did and that falls under the definition of waiver and misconduct it's a purposeful decision to violate our client's fourth amendment rights in the hopes that you'll come up with some other and that is precisely what separates this case from people the hundreds of people the henderson was a bit sick you had a report of a deadly weapon you had a report that somebody had a gun in this car the supreme court says that was a close call where the screamer was ultimately persuaded yes this was probably not justified stuff but it's a close call we don't have anything like flavor coming here officers made a not running he's not doing anything you asked were you trying to run for me no what is the next logical step then either terminate the encounter and say ok well i guess i thought that was suspicious i three questions that could have either served to further completely dispel any suspicion you have and you let this man go on his way or maybe he does something suspicious maybe he says something to the suspicious in which case now maybe you have a better reason to go forward with further action but he didn't do any of those things officer benoit simply took this man no evidence that he was on no indication and area of a home invasion and i guess he was walking in an area where you don't normally see the best friends but when they approached him they called do you comply he walked over officer immediately seizes him to go to first and this court held under those circumstances you just don't have any reason at this point the believe that there is a dangerous weapon bill and the right to frisk does not follow the right to stop it takes more and so we talk about the news and we talk about  engage in a robbery of a business and i mean you're talking about of businesses open there's really only one way around business and that with a weapon i mean it's pretty hard to do it all which is and therefore in that case the fact that you are suspecting that said well i thought he might have had burglary tools and i guess some of those could be used as a weapon be a screwdriver or something but notably first of all he tried the hands on a car and he walked away he didn't have a screwdriver  you know presumably he would have used it which he did more importantly and the illinois supreme court has been very clear about this you can't simply presume because you think somebody might have been involved in some kind of after some kind of burglary what is not inherently violent offense so i mean it was immediate so the temporal proximity is is very small and really the most important factor here is that the the issue of the police conduct because that's what exclusionary rule is all about exclusionary rule is all about  the police from engaging in these fishing expeditions that violate citizens fourth amendment rights just in the hopes that they'll be able to come up with something i believe was the ninth circuit or possibly the circuit will know in wilson  noticed noted that allow them this kind of evidence and is in essence incentivizing police doing gaijin provocative stops in the hopes that you'll find something and they will find some way to justify maybe you'll scare the guy and he will rebel and then after that it's display game you can do what you like and the notion is when you have no basis to stop it is clearly a fishing expedition at that point that the going to run the store and he stepped in because he was going to stop us in our case the guy tried the doors and then he blocked off the officers involved in trying to break into a vehicle or not and he's there's nothing flagrant about what he's doing this type of thing that we're going to  serious you're saying you're not limited to the initial reaction but what if there are other explanations that are not criminal explanations for that but it's the ndis echoed a reasonable run so really what we've got ok because there are a couple other explanations ok it's not like cars used to have in my car i'm a homeless person i want to sleep somewhere all that night but testified about it that  up a little bit well i think so but i think of the more important question is why on earth would you have this guy putting his hands up on the car seat at first in the first place that's what was unjustified and you can say well he hadn't started frisky just  allowed in a court of law support a conviction you might have resisting arrest conviction here but should you have a conviction for drugs that were only discovered because this officer decided to go on fishing expedition and try to first some that he didn't have reasonable suspicion and i would but i'd like to address just a few of the points that were up there no he was not brought the car to talk he was brought to the car and told the put his hand up on the hood so he can be for us that's not a i'd like to talk with you more that's a i'm going to search you which people the gallon the later pace pretty clearly said you cannot just coming down to justify a serve any time you suspect someone of activity there has never been any suggestion of what mr claypool what sign there was that he was of base it moved and as it was the second district in people he ever noted your always walk away from the police until they take some action to detain you that's every citizen's right it's not suspicious the man probably just wanted to turn down the alley but whether he want do that because he doesn't like police officers or because where he was going it was down the alley that's not a reasonable suspicion so that i mean even though that so there was some discussion of the fact that this was late at night i would know this was saturday night this was not you know what tuesday in a whirl area this was saturday night in a residential area it's not unusual for someone to be out shortly before one am on saturday night similarly the fact that he walked past the house i mean i can't i can't speak for everyone but i certainly often park several houses away from my home i or again it might have been a mistake as to what car was or if you walk your keys in the car you might  yes it's a reasonable was you but where you have infinitely more innocent explanations for an action then perhaps one suspicious one at that point that strongly suggest that it's simply not reasonable  result of that should have been suppressed and because his conviction cannot be proven without those drugs mr played was conviction should be reversed thank you very much we think both of you for your arguments this morning will take the matter under advisement and will issue a written decision as quickly as possible the court will not stand in