stage versus the h you sure and here are you sorry your honor the police lacked reasonable suspicion to support the warrantless seizure of mr key host person first because the tests that they relied upon were insufficiently reliable and second because the assertion of illegality of criminal behavior within those tests was unsub was entirely on corroborated by the police officers once they got to the r j sports are the establishment on the night in question the supreme court and its decision in j l distinguish between tips that are reliable merely an identifying a determinant person in jail there's a young black man at a bus stop and those that are liable  isn't asserting criminal behavior so in j l the police confirm that that person was at that place but that was the not enough to provide reasonable suspicion that's the same thing that happened here there was a white man in a blue and white striped shirt in the billiards room of this are but the police never corroborated the illegal behavior asserted and that's why there was not reasonable suspicion when they seized his person which was carrying a gun actually your honor it's not just carrying a gun because we're in under the statute in fact the government agrees with this on page twenty two of the red brief you can be armed in a bar in virginia as long as you do not consume alcohol in the bar while you're armed and so the police had to cry break not just that mr keyhole was there and video as you have seen in the video the bar was very loud and it's not clear on the video that his speech was slurred and even if it was i don't think that that's enough i mean could have had a southern accent for example which might sound slightly  there's not your honor if you watch the video he when he stood he was perfectly still and the police allege that he swayed when he walked which i against assert is not clear in the video but anything that happened after the two officers grabbed his arms that it's approximately four minutes and thirty three seconds the time stamp on the video anything that happened after the police grabbed his arm is entirely irrelevant to the reasonable suspicion analysis that that's exactly surveyor yes and so that any swaying or  somebody called him but what you're saying it doesn't say anything about the person but that's all is said all right correct and the other thing i would say first of all is well a couple thing say your honor we don't know that the person who called officer did not know any of the details of the call the officer rider when he went into the bar all he knew what was in the call for service in the supplemental going to and it's officer right who got the call from the bartender officer roger yes no no yes that so but officer we have to go on is what officer let's come knew when he seized mr burrell author list him didn't know any of this he didn't listen to the nine one one calls before the seizure all he knew what was in it isn't what's in the written call for service and office i thought that was ryder he said patrons of his headers or had observed is a gun in the in the bar and why isn't a move that you know locks  so it's not just one call you have to end and you you know they made the point in your in your opening argument it's it's what's a reasonable suspicion or what's reasonably plausible and this is a sports bar and one of his primary purposes is serve alcohol if and how many how many a video and in this clip a video in which rack all of his movements and the mr he the the police enter the bar four minutes after the call and we have a video of exactly what happened we don't need to draw any inference is that all this or he was not at the bar he's in a whole separate room he's sitting by pool tables there's tables next to him with no empty glassware no piers he's not holding a beverage there's no alcohol anywhere in sight so there's no inference to be drawn because there's no alcohol he's not  over so the district edge made a clearly erroneous finding of fact that he leaned to mr right or to the gun which again we have a video that's a clearly erroneous finding he leaned towards the officer who was speaking to him to hear him because there is very music playing which is audible on the video and again you can hear mr key who speak on the video not the entire time or part of the time in his speech is not slurred and so again we don't have to draw inferences just remember tony because we have a video y judge in this case explicitly relied on the race of my client in contrast to the race of his companions as an explicit factor towards his finding because most of us white man in a bar generally decision in brown the police have to corroborate the assertion of illegality whether they got to that or they did they and they did it is that hold on hold on you keep saying that there was no evidence this man was consuming alcohol but the first caller call but the but the worst when he said he was at the bar that's different person know the person doesn't really seem to me it's not it's not truly anonymous even though andre or undress whatever it was said he wanted to be anonymous you're right and we can see that happening creepy does get his name and number but either way with respect to the crab ration the police didn't follow up with him before they stopped mr key how and so they in terms of the reliability of it they never did any of the crop raiding things before the time of the seizure i understand that it still  many instances of people abusing no i wanted one calls and chasing the police off on a different thing while they're committing a crime over here just to play a practical joke and so it's  common knowledge that nine one one calls are abuse and that in order to prevent that abuse the caller perhaps caller who so you call him and it not only that he gives his first that the tip after words which is this we're going to holding him around or ember and jail and the and the bartender did not corroborate the illegality in the tip that's the crucial thing that never happened and that the government and the police failed to do and neither was mr cook and so i contacted the trial counsel from the estranged office when i put together the appendix and she confirmed represents the court that this was the video that i should include that this was the video file that i should include and so i  and i think that a simple mistake was made i'm not certain exactly how this happened but when defense counsel introduced went first interviews the exhibit of the video defense counsel referred to it as officer lips comes body camera video so the court says question did this policeman make this video did this officer make this video defense council response yes your honor that's correct this is  say yes there are my initials on that and and we offered it as body camera and my review the record we have exhibit three that is lipscomb body camera and you can tell it's him because unlike the other video you can't see lipscomb in it but think the other women i think the other one is another officer who was right behind so i don't dispute in any fashion that that video that also think that it in terms of visually what happened it has everything that is relevant to this case and it but the audio there is a difference in my view the court doesn't have the government's exhibit three from li the audio of lipscomb because he's close to the bartender and then he's close to the defendant when speaking is superior i think that government exhibit three because you have the testimony of lipscomb himself saying there's my initials on government exhibit three and we introduced that that's in the record defense counsel i think does not agree i would suggest that the appropriate way to resolve this is to have the district court make a determination about this that's what i will be  and if the court wanted to do that you could also clean up a point that we agree was error which is that the defendant does not have the burden of persuasion here and i don't think that's harmless but if the video issue you may as well clean up that issue as well which i don't again think it makes a difference in this case but we may as well have the correct completely accurate record have the fact finder determine exactly what the videos are and rectify this problem with your word i don't think it makes a difference i mean i think the record before the court is sufficient also to rule in the government's call for service but you know that from looking at the video that he was informed that the bartender had passed along this tip because the first thing he does when he goes in the bar is go to the bartender and  inform lipscomb right the bartender had related to the officers entered and that the bar is there any evidence that they knew they knew the second hundred nine and spoke with what is obviously andreas the caller and andrea said no i don't want to give you any more information about my name but barnes knew who to contact and did speak with  person so it's after that's after but what it shows is that they were well aware that there was this andreas person that was reported in the calls for service and they were well aware that they should talk to the bartender so they obviously knew asked the bartender or any in the right i think that that is a fact that isn't the government's exhibit three but the court doesn't have that what is in the record is that what's i think why this court on the existing r government was looking to and i just don't think that the government knew that the officers knew that there's nothing in this record that they knew it or they actually i would agree that there's no testimony on that point it would have to come out of the video the defendant later admitted that in the statement of facts in his guilty plea yeah but that's not in question you're quite right they are right and but i mean not in the suppression yeah i mean this court has precedent like gray and hahn and the supreme court carol that when trial evidence or supply sentencing evidence supports the findings and the suppression hearing you can rely on that but i don't think it's really essential to get into this nitty got there but i don't i think you're quite correct there's no evidence that they determined that he'd been drinking there's no evidence in this record or they may be right that again that would be in my view and and at what in fact the government's exhibit three but but i think that what matters here and that's the actual body cam officer lipscomb because officer lipscomb is right next to the bartender and so he leans forward to talk to the position because you could follow up with the person and in this case you know that you could follow up because in fact office ops are barnes did follow up after the incident so in that sense it really is clearly not anonymous i would al or he did and ops are lipscomb not only do you have that in the yes yes and so that's not only in the recording of that nine one one call it is also in the call for service report where there's the word intoxicated and it says that you know drinking and intoxicated individuals that's in the supplemental and then the lipscomb testified at the suppression hearing on the next page seventy seven that the call for service reports said that the subject was drinking they said that he was intoxicated i believe is what was stated and then lipscomb also testified that when he went to the defendant his speech was slightly stir slurred and then we stood i'm up to move him outside so he noticed that the defendant speech was slurred even before they stood him up and took him out of the bar and and that's that appendix page opinion where they treated a tip as anonymous they said well this is sufficiently reliable even though anonymous because of centrally three factors that they identified that the person had claimed i witnessed knowledge and that was never it was the case with the person who was driving dangerously and could be suspected of drunk driving someone called in to nine one one report that they said well the tip anonymous tip that we're treating as anonymous has claimed i witnessed the knowledge knowledge second was it was contemporaneous which they said was especially reliable and then the third thing was they said they called in the nine one one which has a greater reliability to it and in this case that's all true the the callers were claiming  right if i was dispatched that is france and it was a friend of the caller who was a bartender and our days and called him worried about of that oxygenated white male carrying a zero one two you can like to virginia right and you centrally need you know four things under that statute that you've got to have a person with a handgun it's got to be concealed the person has to be consuming alcohol and that's the difference with the subsection b of that statute is that if you don't have the difference between a and b if that statute is a is if you are intoxicated in a public place then you even if you have the concealed permit you can't have the god being is if you were in a restaurant bar here then simply drinking isn't up even if you have a concealed permit which of course th the police officer didn't know when they enter the bar but the guy didn't have a permit and so all we need to know all we need to establish under b is that he's got a gun it's concealed the tips easily provided that and that was all confirmed by their observation that they did see the gun when they approached the defendant and so then you really need just that he's consuming alcohol in the tip says that the call for service report says the subject was drinking and that he was intoxicated and lipscomb testified in testimony that's credited on appendix page seventy seven he was aware of that information from the call for service report  ok so if you were looking i mean the supplemental yes so if you look at the second line of the first sentence in all caps it's got subj drinking right and then if you go down and look over in the right in the next her graph and all caps individuals yes and then i realize that's a little cryptic but if you go to if you go to lipscomb to testimony on page seventy seven of the appendix he says that that he was aware of those facts and on the other it doesn't really matter when i get it right right you don't have to go that far it's enough that he's drank it and the test and what test were you in was there when he arrived at the bar the call for service report that refers to the ranking officer lipscomb testified that he knew first members both of them yeah and this is as you said taking the inference that you can read that call for service as point judge wilkinson that this is a bar after midnight i mean it's some corroboration that people in a bar after midnight could be drinking so in conjunction with the other evidence you don't have to infer that  met on fortune but it's but but you've also been many individual instances probably far more numerous where tempers flare up somebody perceives an insult or somebody perceived then slighted him in some way or that someone who makes software someone else's day their whole lot of things that can and happen and make a combination of  drinking and they have a gun at their disposal and their inhibitions are lesson and their judgment is affected and bad things happen one small qualification on that your honor so when they grab him and take him out of the bar yes initially they are asking him can we talk to you and he's not agreeing to move outside because they can't hear at that point i think you can say two things first of all to the extent you were to read that as an order to go outside it doesn't apply and so until he actually complies on tell you matt yes once they're moving him out of the bar yes  so and i don't know that person exactly when that occurs matters so much because i don't know that you get a ton of additional information in that phase i mean they approach him the testimony  tell that the guy's got slurred speech and if you look at the video before i think that there is contact with the defendant two minutes and six seconds he stands up at three minutes and thirty six  seconds and they touch him and lead him outside four minutes and thirty two seconds so there is a period of time where they're interacting with the guy that i don't think you could say that there was a seizure but as they're escorting him out of the bar that's clearly a seizure at that point i would lipscomb about why he didn't go to the nine one one call or first and and bar and he said you know my initial thought was that if someone had a firearm and i want to establish that and and then i would go and investigate friends which is a reflection of this is dangerous and they wanted to neutralize drunk guy with the gun before they did a whole lot more and that's that appendix page so it's like your hon it's by the by the dispatcher not what the caller said which does say subject drinking of course the i believe my colleague mistakenly just said that the police themselves saw the bolger the gun on mr  black people who were surrounding him in the pool hall and he did so in a way that was not to identify who was the subject of these nine one one calls it is very clear to the police and to the council and to everybody involved there was only one person that was the subject of the  our knowledge and so in all the cases that i found which i cited the evidence was suppressed that's the remedy and the standard is because it's unconstitutional and it's so unconstitutional i would argue that it's akin to a structural air there is nothing that is more damaging in the united states of america than the use of race in a criminal suspicion and so i don't think that there's anything that could ever make that harmless because it damages the integrity of the judicial proceedings are a phrase from a different legal standard in a way that is inexcusable and again we do not  best i just i just don't i don't i think it's like him to a structural aryana i think that especially because as you indicated this is a close case on reasonable suspicion in either event particularly given the lack of evidence of corroboration of the consumption of alcohol portion of the alleged criminal behavior this is at best for the government a close case on reasonable suspicion it's not a slam dunk if you had video of him drinking shots of jack daniels in that pool room i think that's a harder case for me but we don't have that we do not have the crab ration of the drinking and so because i think it's a close case on reasonable suspicion i think these things tie together and i don't think that using race as a criminal factor can ever be harmless error i don't know how to say it more clearly than that so h distinguished the defendant i think was more than that your honor i mean that's that's certainly part of what he did but there are parts places where the district judge actually says the race of the defendant goes towards the reasonable suspicion it's not just you suspicion of criminal activity you know we can't stop an incident like occurred in south carolina unless we wait until they shoot them and then he said there's collars about a man having a gun they say it's a white man after midnight numb looking at these pictures and there are no other white men there i the point is and whether it be a dispatching car or call from police or whether it be a call from a as it was here it would be them go is a factor in his legal analysis which is a different thing to say and i want to be careful i just would urge the court again to look at the joint appendix at pages seventy nine one twelve one sixteen one eighteen one one thousand the fact that this was an illegal factor is clear that i think that the best case your honor is that in a in an otherwise close case where given the contents of the calls and all of the the allegations of criminality they were largely uncorroborated by