stand or fall on the facts the officers know at the time they initiate the staff of the defendant in this particular case when the officers shot mr hill they are aware of the following  they are also aware that two individuals that they allege are lookouts for drug activity or for potential buyers are outside of this apartment on the furthest north and they've seen them walk up and he enters the building goes into the apartment at the furthest north end he's there for what we know is a short period of time then exits the building and be a perfect the officers officer kidwell and officer the red s u v exit the area what we don't know at the time or it's not clear from the record is that the driver of the red as you feel after he has talked cocaine is located on him or in his at the trial level and it's not being argued today that this is a consensual locations because they can't see where exactly these people are going into so for our purposes we don't know that they're in the same apartment there's no testimony to that they have to move because they're on the west side of buildings and they have to move to the front of you know how reliable the tip is but really the biggest difference i think between some of those cases with the tape is that in general those cases involve the police actions where a pall over the person because of the actual tip so that it gets to the factory should know is there any injection for a liability you know how much detail did the chips get here none of that's really gotten into because that's not really the reason that's the reason they get there that's not a reason to stop specific weapons offense that he's aware of he knows the defendant has been charged with unlawful discharge of a firearm he's also out numbered and that particular circumstance and he testifies are the defendant is a large individual and that is outweighed any it's also like i said out number in this case mr hill all we have is an i'm specific he says i think he had some drug offenses and weapons offenses he doesn't know what they are and as a matter of fact mr hill as it's obviously it comes up player doesn't have any weapons offenses in his past but it's what the officer thinks at the time but we don't have any specifics they are they outnumber hill they describe cooperated he never attempts to argument is because without the actual seizure i mean if we lose the second issue the first issue really doesn't mean much to this case so at some point in a scene we pretty early on the ops are asked if they could i think so yeah but i guess what i'm saying is without the actual seizure part then we don't have much of an argument here so i feel like our second issue whether the seizure was proper  is really the more important issue in this case so first i wanted we need to look at that in defense counsel went through these facts i think as if there's a few more facts that were relevant in the trial level  i do agree that each of these facts taken individually might not be a whole lot we have so many individual facts that once they pile up i think that become pretty relevant first over the days and weeks prior to this encounter several complaints were taken by the police department in this apartment complex and then on the specific night in question there was a nine one one call to the police department and the informant said that there was drug activity going on in this apartment complex and specifically referred to the apartment toward the north m's and i think defense counsel would have a stronger case here if the officer showed up based on this night when one call showed up  and started arresting people but that's not what they did they after they got this nine one one call they actually went and conducted surveillance they conducted surveillance for an hour twenty minutes and the first thing they saw they were in this three vehicles  apartment complex they saw an individual actually these vehicles walk up the steps the complex and then x of the complex back in their vehicle and the best house i mention this and the records of course that at that time the options can actually see the specific unit that these three individuals went into but they do know that they went to an upstate army unit and exit it so after that happened and so i think it's we're good at this time that the officers are allowed to use their expertise forces reasonable inferences and they saw these people go up stairs and exit quickly so i think they already have this this reason one force that drug activity is likely occurring at this apartment so they move or they can see all the apartment lookouts were entering and exiting and both officers actually testified that these lookouts entered the northernmost apartment and actually did frequently they're walking up and down the stairs and again i think we need to get a lot of credibility to the officers and their expertise officer could well testify that he's been in law enforcement for fifteen years before that he was in a drug enforcement program and he's done these things a lot more than that i haven't i think we need to give him a lot of credibility when when he sees these doing surveillance for an hour and twenty minutes and they are saying what's happened they got a little gas they got people frequently entering an accident and i did get if anything i mean if you want to further that he was in there for a long time then i think you can make a reasonable inference that he was doing the drugs if he was in there for a short time then i think you could probably make an inference that he was buying drugs fixing quickly so i think you can make a reasonable inference i think these officers did based on our twenty minutes of surveillance that that  was dealing with criminal activity so i think that it matters only in the sense of which criminal activity may be officers inferred that the defendant was was taking part the defense a normal i don't drug house and in this case not only do we have a known and i'll call it i mean i think you can make a reason why first a known drug house based on the fact of the officers but will testify that they received numerous complaints about this specific complex talking to no known convicts for i think a period of eight hours but all was ever observed was just communication so he was just talking today to criminals who had drug positions who are expected to act quickly would be justified in stopping defendant and investigating the situation further if your hours have no further questions i can go on to the second issue what the officers recently feared for their safety to want to search jeopardy or in danger and so we look at look at what was known to the officers again at the time that they asked at the time they performed the search of defendant so   i don't think that the facts of this case support that argument when we have in this case is that we have someone who we knew these officers recently inferred that was dealing drugs prior immediately prior to the stop one of the most important things in this is one of the reasons why i cited austin is because the officers once officer kidwell the defendant once they asked if in the first name and he said his name and officer kidwell but i feel like if you go down that line then we could also say that their search the reason one first if this guy was dealing drugs was also accurate and i don't think that we can use the end result to justify there was a history of firearms and weapons and and that's what he is basing his decision to make the search on what he what he feels for safety at that time and what he was recently inferring at that time and the facts in his mind at that time were that this guy it was only then that he recognized that name as someone who was dealing who had a history of weapons and drug offenses so my recollection in my understanding of kid was testimony was that it was only after the one or two years all those murders were drug related and involved a firearm and besides those murders then bill the offs just like there were numerous other shootings in this area involving drug dealings in the day and i mean they did and i think with with these sort of factual cases you're never going to find a case that's directly on point there's always going to be some factual distinguishing this to be made but you know austin the officer had the defendants actually had his hands on a car his hands were on the car and the defendant wasn't making any charlatans or anything that made it seem like he was going to do anything dramatic or a right away in the court and they actually did mention it signs that is one of the things they mentioned one of the things that i mentioned in this case that i think was significant that my daughter made a whole lot of sense of the defend it was actually in the middle the street i believe that that provides  a situation that they could be more dangerous for the officers he's more of a flight risk i think in that situation it's ten thirty at night thirty one at least years yeah it is also  all right so i'm basically i mean the two issues before this court are one of the office have a reasonable articulable suspicion to perform the terror stop i believe they did base in the totality of the circumstances individually maybe not but that that a crime that just been committed specifically by this defendant second issue is what the officers recently fear for their safety i believe based on the drug dealings that you know recently took place that they believe that this defendant actually was dealing drugs i believe that  i believe they asked him if they could search him can we search you all in this case i would say the difference here is that once they say you know they asked for consent he says is it necessary there's no break and then what happens next is they get they once on the right side he's very cooperate both officers describing this pocket they're not worried about him fleeing this so i think they're any if it were reasonable which i don't think it is an inference at this point it was dispelled and so again the defendant has ask