district court's finding that the terry stop was not or that the disc of course finding that terry stop was justified by reasonable suspicion but when you undertake this review oh i submit that there's two facts found by the district court which should not be included in that review one is the finding that the stop occurred in a high crime area i would contend that this that finding was clearly erroneous the reason being in is that there was no specific testimony that the area where mr rodriguez was stock was a high crime area the only real reference to a high crime area was at one portion during the testimony a police officer said that during the five years that he had worked in that precinct there had been murders robberies felonies burglaries run of the mill crimes but i understand your your argument about the high crime area and also the concern about what weight if any should be given to the fact that they observed your client walking away when the police arrived holding an object that was one of the determinations and that he tried to pass between the officers this time holding the object in below his waistband with with both hands why isn't that enough well i would contend that that alone is not enough certainly the manner while he was walking as well as all acknowledge that they had previously arrested him for possession of a gun  that would perhaps rise to the level of a hunch but in terms of him walking between the two police officers they put they created a situation where that was the only way he could walk there he was walking at a group of five people on a sidewalk the police officers were walking towards him on the sidewalk they indicated that they were not i think you suggested in your brain that he might have had a stomachache or something and was holding his stomach and even assuming that's plausible but wasn't it also plausible that that he was carrying a gun and that's why he was walking it's not whether they were right or wrong right it's just whether it was a reasonable belief i mean it's certainly plausible that he was carrying a gun because he was carrying a gun but it's also a ploy that it's possible that he was acting like he was carrying a gun it's certainly plausible that he was acting like he was carrying a gun but people carry cell phones wallets perhaps other things in their waistband and might hold them while they're  walking right that that's not that's not the task the task is to change is saying is not to say well what else could it be but could it reasonably be interpreted as a weapon just like if it were a bulge in his certainly be a significant factor that would add to the reasonable suspicion the question here is whether or not those factors rise to the level of reasonable suspicion or is it simply a a hunch which is not the same as reasonable so at in if you add in that it was three thirty am that there had been a report of a fine there was a group gather there was the officer officers observed a commotion of sorts and if you add all that in why isn't that reasonable suspicion because i those factors are as this court said in freeman when there was discussion about late at night there are almost two narrative factors of people being outside on the street late at night in new york city is not too significant in a place where businesses are open twenty four hours where the subways run twenty four hours there had been a radio call the commotion there had been people gathering outside but when the police arrived at the scene while it looked like there was a verbal argument and people were holding back they took no action but that in but in this case once mr rodriguez recognized the officers he put both hands over his waistband area and above his crotch  doesn't that seem to suggest that perhaps he was trying to hide something but i don't know if he had recognized the officers and officers they recognize one of them recognized him how to  recognized him i don't know there's no testimony that mr rodriguez recognized him but when a person is confronted by two police officers on the street side by side and almost put i position where he has to walk between whatever he was carrying he might want to hold onto it so that it doesn't fall down just as it would if he was being approached and had to walk which went to other people we have case law as you know united states versus  the dia the two thousand and eight decision of this court where we held that even if the gesture and i'm quoting were consistent with conceivable innocuous adjustments its distinctive consistency with the adjustment of a firearm provided the detective with a reasonable basis is suspect that the defendant was armed and there's testimony here  i not correct that those gestures mr rodriguez is jasper gestures were consistent with the adjustment of a firearm well that certainly was the officers testimony but those factors alone are not sufficient and many of the other factors cited in this case are simply too knock us to be considered in the the determination of reasonable suspicion good morning may please the court my name is jason richmond and i'm an assistant united states attorney here in the southern district of new york i represented the government below and i represent the government in this appeal today absent questions from the the government will be brief the district court applied the correct law to approach could you could you take on the suggestion that we should exclude from the analysis the lower court's determination that it was a high crime area because it's that he says that the findings aren't aren't grounded in the record thank you the government submit that that was properly relied upon i think it's important to remember the context in which judge hellerstein made that finding it wasn't just it was late at night in the high crime area it was also the officers testimony that they were responding to reports of a loud fight or argument well you know what's the what's really the evidence though that it is a high crime area i mean high crime has a certain kind of definition doesn't it doesn't it so what's what's what's the you know what supports your view officer gail i believe your honor testified both to it being a high crime area in generic terms which speaks  also when does it qualify when does a neighborhood qualify as a high crime area is what i think we want to understand i don't know that there is a bright line rule to describe when there is a high crime area your honor in this case officer gale testified both that it was a high crime area based on his experience in the precinct he testified as to what does that mean though and it was it is it high crime with respect to that neighborhood high crime with respect to that borrow high crime with respect to the state with respect to the country i'm trying to get a the contours of the parameters of your your argument i think officer gayle's testimony on here and what the district relied upon was that it was high crime based on his own training experience with the n y p d so i don't know that he did he say he said it was a high crime area he said that he himself had witnessed murder other violent crimes and more generic crimes and they also testified about his knowledge of the family which was a local gang in the neighborhood which was central to the reasonable suspicion that was eventually determined by the officers and was more pointedly involved with certain individuals who were at the scene at which he responded so moving forward your honor the district court correctly applied the law the totality of circumstances test and correctly found a number of factors which supported reasonable suspicion that the officers had when they the stop the defendant you think if we were to just look at the position of the arms walking with two hands on the waist first the one hand and then the other would it be your position that that would be sufficient i think it could be your honor i think in certain circumstances absolutely it could be i think here there was detailed testimony concerning the officer's observation of the defendant initially walking away from the scene with his hand on his waist in a manner that seemed to imply that he was holding something continued testimony that as he walked away from the scene after the police van arrived he kept his arm prone in that position and finally testimony that when he saw the officers and i believe the tell seen in the bench ruling stated that he believed that the defendant recognized the officers he moved both hands to his waist area so in circumstances such as those where that's an isolated factor which it wasn't here i do think there are certain times when that could support reasonable suspicion sandel in addition to these factors that we have discussed of course the officers also testified and to tell or seem credited their knowledge of the local gang the fact that they had arrested the defendant before the fact that he walked away when a police van arrived and the fact that he appeared nervous when they approached him on the sidewalk is there any evidence that his role in the gang was was to carry out gun related crimes your honor the only testimony in the record concerning his gang affiliation was that the officers recognized them from prison set precinct set books and from their previous arrest of him which was for a firearm crime but there was no testimony that his role in the gang so to speak was to carry out gun related crimes considering the totality of the circumstances as this court has long instructed and considering the specific facts that were before the court in their proper context the district court correctly found that there was reasonable suspicion to stop the defendant and subsequently search him for a acknowledge that even if the facts taken out that i wrote should be taken out of the consideration it remains a close case in terms of whether or not there was reasonable suspicion but i submit in this case the only real significant facts are observation of the way he was walking in and the prior knowledge of having arrested him and they knew who he was but even though they had arrested him previously one officer of the hearing tried to testify that he had a p for carrying guns but he acknowledged that his use of that term propensity was really simply the prior us so they only had a really limited knowledge of mr rodriguez they had arrested him once over a year earlier with a guy on it his picture in in a book of more shots in the precinct but had no other knowledge about his involvement in the guy and i submit that that it's my position that those factors alone do not rise to the level of reasonable suspicion was that a good hunch yes it was a reasonable suspicion i argue that it was thank you very much understood thank you both your arguments the court will reserve decision will he