morning and welcome to the eleventh circuit judge pryor and i are so pleased to welcome to our bench today and this week judge kenneth ripple from the seventh circuit court of appeals we're very privileged and honored to have him joining us and he's helped us out a lot in the past and we're happy to have him here with us today welcome all right we're going to get started with the united states versus patrick h good morning may please the court on march second two thousand and fourteen patrick heard was stopped and then searched by two police officers without any warrant under the totality of the circumstances the officers did not have reasonable suspicion that mr hurd was engaged in criminal activity and so the stop and the subsequent search violated his rights under the fourth amendment i've raised two issues on appeal first the unconstitutionality of the search and second the government's violation of the rule of seaquest ration unless the panel directs me otherwise i intend to address the reasonable suspicion issue first for a stop like this in order to satisfy the fourth amendment under the totality of the circumstances the detaining officer must have a particular ised an objective basis for suspecting an individual of legal wrongdoing kell you know the district court assume that the terry stop began when officer vickery asked for permission to search mr hurd do you agree that that's the moment when the stop began i would agree with that your honor i think that that is a reasonable point to consider the search excuse me the stop to have begun and and let your best authorities support that a reasonable person mr hurd situation at that point in time would not have felt free to terminate in the interrogation or reaction excuse me or i think in this case it's demonstrated by the facts of what happened next the testimony in the evidentiary hearings supported that after that point mr hurd indicated that he wanted to go inside and clearly did not feel free to do so he said i just want to go back and i want to go back into my house or into the house and did not feel free to do so so i think in this case it's demonstrated by the by the facts and circumstances here  and also that this entire encounter from the moment when the officer first interacted with mr hurd until he was on the ground and under arrest was under four minutes so all of these events are are very close in time as well so you don't have a case that's analogous to the facts here no your honor not to hand but i do think that the facts itself show that he did not feel free to leave because the indicated that he wanted to and was unable to the the circumstances here do not support a finding a read of a reasonable suspicion as to the stop nor to the subsequent search and as i've argued to district court clearly erred in its factual findings as to several matters but even if it did not clearly air the t circumstances don't meet the fourth amendment standards here and i think it might be useful to look at what the totality of the circumstances are in this moment the security guard had seen a group of young men on foot into a wooded area several minutes later a security guard heard shots fired from that area briefly went to investigate and then called nine one one police reported to the apartment complex and they met with the security guard at the time and they spoke that security guard for several minutes so at the time that several minutes had passed between the time of the shooting the time of the call and then of course the reporting of the officer the officers spoke with the guard for several minutes at which point the guard described why he had called police what he had seen what happened there after the officer got back into his car and drove around the parking lot before encountering mr hurd mr hurd was in a yard area grassy area between an apartment building and the adjacent parking lot at seven o'clock in the evening he was walking his dog at the time that the officer encountered him according to all testimony it was between fifteen and twenty seven after the shots had occurred mr hurd is standing there and at the time the officer encounters him mr hurd has seen the officers car driving around the parking lot the officer is in uniform and in a marked car he has seen the officer stop his car get out of the car and approach mr hurd had every opportunity to flee or to leave the the scene and he did it he stayed there and in fact when the officer got out of his car to engage with mr hurd mr hurd voluntarily walked over to him in order to answer the officers questions and to interact with him mr hurd did in fact respond to the questions including describing that he too had heard gunshots he indicated that the gunshots had come from the same wooded area as the security guard so the two stories from two different witnesses corroborated each other mr heard was asked for identification and he provided identification and at some point the officer asks where mr her you know where mr hurd lives and he indicated that his mother lived in the apartment complex and pointed to the building that he is standing immediately outside of now obviously from the briefing there was  some confusion about whether or not the officer asked to mr hurd for his mother's apartment complex and the district court found that he did and that mr hurd did not answer that question but i think it's important to know that mr hurd did not refer did not say i'm not going to answer that question or i can't answer that question but merely respond to that question with a question of his own or by changing the subject in a way that was arguably evasive though if he had refused to answer the question would that have been something we could have considered i mean can we consider the fact that that somebody just refuses to ask a question during a consensual encounter on her i would not say that refusing to answer that question would give rise to reasonable suspicion but would point out that that is not the facts of what happened here the clear that at some point the second officer arrives and it's unclear whether that officer arrives prior to or after the first officer asked for mr hurd lived but the second officer arrives on the scene so now we have a scenario where on the scene are two armed uniformed police cars two marked police officers two marked police cars and in within sight a uniformed security guard also in a marked car and then mr heard so that that's the scenario here in this residential area there's no question that there was plenty of light the officers were able to read the identification of the security guard were able to read mr hurd's identification one officer indicated that he looked into the floorboard of a car that was fifteen to twenty feet away and was able to clearly verify that there was no one in the car posing any danger clearly could see to the floorboard everyone indicated no billet no obstruction or inability to see in the light that was available and there were no exit in circumstances present again at the onset were fifteen to twenty seven minutes after the shots were fired in a separate area in the in the woods and there had been no additional criminal activity police at that point had been on the same during the entire time that they spoke with the knew the security guard and drove through the area and there was no evidence of any other criminal activity afoot and then at that point is when officer bisque are asked to pat down mr hurd and again that is where the point where the district court concluded that the stop occurred at that point under the totality of the circumstances even considering all of the circumstances the fact that it was seven o'clock at night the fact that  the officers testified that they believed that that was their understanding because they had been been called to various police calls at that apartment complex in the past that they perceived it to be a high crime area in addition t of the circumstances also clute includes all of those factors that weigh against any finding of reasonable suspicion now he asked your client whether he could he where i think that at that point the reason for the finding that search the earth excuse me that the stop began at that point is because of mr hurd not feeling no longer feeling that it was voluntary by the fact that he indicated he wanted to leave and did not feel free to do so additionally according to the testimony the next the next statement by the officers were for him to put his hands up so even if the panel were not as mr what was your cl reaction to the question to being the request to talk about that before we talk about what the officer did to the how did your client react course so mr hurd's response was to ask what he was according to the testimony he asked what he was doing wrong he asked why they were why they were doing this he said he wanted to go back inside and so he responded in a way that was basically why are you hassling me why are you bothering me and there's also testimony that he physically responded by appearing to be under stress so that happened and what to the officers do well the testimony is a little unclear on this whether the one one officer testified that he instructed mr hurd to keep his hands down the other officer testified that mr hurd was instructed to keep his hands up at some point he was instructed to either keep his hands up or keep his hands down the district court make any precise findings as to the precise sequence of events i believe that  client reacted to the officers request excuse me your honor apologise for interrupting the findings of the district court were that the officers told him to put his hands down and then put his hands up in that sequence and so i think it even if the panel were to disagree that the that the stop occurred at the time that the officers asked for permission to search i don't think there could be any question that at the latest it stopped at the time that mr hurd was instructed to keep his hands down don't want to be patted down he acted throughly defensively and your honor he he the testimony was that he looked uncomfortable and that he asked what he was you know why they were bothering him why a why you know why they were doing this it isn't again i do it would argue that that also does not create rita does not establish objective reasonable suspicion that he had the right to refuse the search at that point and the mere fact of him declining or refusing to consent to the search does not constitute reasonable suspicion manner of his refusing something you officer could take into consideration excuse me i think it could be taken into consideration  honor it still has to be considered in the totality of the circumstances and when we have a situation here where this is a man who is standing in a residential area in the early evening engaging in lawful activity of walking his dog he has voluntarily at least initially voluntarily served as a witness to the police officers his story has been corroborated and he has been cooperative up to that point i think you know that is the the entire view where then when he is you know from his viewpoint presumably seemingly out of nowhere asked to search says you know know what am i what do why are you asking me this i want to i want to leave and so that alone does not tip the scales to reasonable suspicion than others of reasonable suspicion and i would know that the factors that the government relies upon on appeal in the district court relied upon are primarily related to external circumstances not to not to mr hurd himself th good morning may please the court i'm kim dam ors i was the assistant united states attorney that handled this case below the district court correctly found factually that this was a high crime area it was dark the officer was answering a shots fired call when he got to the location where the shots were heard he sees one person mr hurd he goes up to mr hurd and he says what basically what are you doing here mr hurd indicates that he lives there or his mother lives there and he points to an apartment building now the district court found correctly that when asked whether what apartment his mother lived in or where exactly his mother lived in mr hurd did not answer that question he refused to answer he also presented identification to the author let me ask you just the refusal to answer that question is that is there something about that that allows you to draw reasonable suspicion it is a factor in reasonable suspicion as i was under the impression that if it's a consensual encounter that person is well within his or her rights to refuse to answer a question is but but the officer is allowed to take that inability if the testimony was and you didn't know whether mr hurd was unable to answer it or unwilling to answer it was met with silence in other words well well actually i've read through the transcripts and my recollection is that there is not a specific factual finding by the district judge about whether was  but that still worth testified that he answered by saying oh why you got to do this or something like that that in the transcript officer d page eighty says that mr hurd was basically was asking clarifying questions and the fent refused to provide answers to that and also on page ninety five but if you go through it further and then i can't remember whether u s war counsel for mr hurd asked for the court asked but somebody asked him well what was he saying and the answer was something to the effect of why you got to do this what are you doing something like that they guess you could undisputed that it the very least he was being invasive in his answers and so i believe that evasiveness is in fact a factor and that is a factor in by the supreme court held that it was make sure i understand what you're saying your position is if you don't want to answer and officers question during the consensual encounter you have to say i don't want to answer that question you can't answer you can't refuse to answer in a different way and that way your position is i just want to make sure i understand i think i did i don't i do not think that it has to be an explicit i do not want to answer but i think here in the totality of the circumstances and not taking that factor isolated which i think in the recent supreme court case was be reminds that it is not you can't look at these factors in isolation so mr hurd westby is also qualified immunity case it is but it dealt with probable cause for the arrest i mean the court did find that there was probable cause for there is not a hostile because here your point is there is a reasonable suspicion a lower standard correct so that officer is is confronted with mr hurd is is speaking with mr hurd in a consensual relationship in the beginning right there they're having a consensual conversation mr hurd does not answer where he lives he presents identification that shows not the address that they are at twelve fifty west park drive it is a different address or does no address but is not that address by this time officer dilworth has arrived on the scene and he hears it he's a much more experience officer he hears mr hurd being very invasive with the dialogue that's his description of his craft what was said but when he's actually asked what was said he says that mr hurd said why you got to do this why correct but he's but he's not responding to any of the questions of mr officer joe where it says that fiskars asking clarifying simple questions do you live here does your mother live here what about that car with the broken windshield is that yours and that and mr hurd is not responding to any of those so i believe while one of those one of a lot i don't recall there being a factual finding about being asked about the car with  broken when she again i could be mistaken that's a transcript not necessarily the court's find the court's finding was that there was a vehicle with a broken windshield nearby true but there's no indication that mr hurd had any relationship whatsoever to the car with the broken when she'll then he's walking a dog so i mean wouldn't common sense suggest the did not show up in the car with the broken when she told there is no close tie to the car with a broken windshield end there's no tie at all in fairness there is no typewrite that they're in but there is an inference that the windshield could have been broken out i mean has a smash and wind would by the bullet there is a smashed in windshield on the car don't think it's beyond the mere presence of the car yes so there's a presence of the car and now with regard to the dog there is a dog there there is no leash you know the worst that in the record there the absence of a leash makes sense because mr h have to infer and i guess but it's a reasonable absolutely reasonable inference inference because mr hurd's hands are very animated around his waistband if there's no indication from any anywhere that there is a leash which i think you would hear if there was in fact he was walking a dog i think there was a dog there oh mr had also told the officers he was walking his dog right that that was his dog he said this is my dog it's not your position that he wasn't walking the friend says it make if there was a leash i think it just makes it closer tie to the dog and mr hurd if there's a leash i'm not exactly sure what's going on with the dog but there is definitely a dog present at the scene there's some there isn't that also one of the factors we have to consider in the totality of the circumstances that that he does in fact appear to be walking a dog he there is a dog there who says i'm this is my dog or i'm walking th dog the mere fact that there is a plausible explanation doesn't negate the reasonable suspicion in this case well i agree that the mere fact that there's a plausible explanation does not necessarily negate reasonable suspicion if it exists but you still have to get to the point where there is reasonable suspicion and i think you're here because this is shots the nature of the call it's dark you're in a remote area mr hurd is but there are several apartment buildings right nearby there are and it's fifteen to twenty seven minutes after the shots were heard that's correct and he said he ending there with his dog and although the officer has approached him he has in turn walked towards the officer hasn't fled seems to be cooperative intil the officer says exactly where does your mother live and he does not respond and he presents identification that does not match well that was still cooperative he was asked to present identification and he did write he can't help what's on the identification if it doesn't have his address on it it doesn't have a sadder son but it does raise the fact that does this person belong here is he involved in the shots fired call here you're at well let's say he didn't belong there let's say it wasn't really his he didn't really live there wasn't his apartment complex what is the particular lies evidence that points to mr hurd as a suspect other than the fact that he happens to be in a place where he has a reason for being at least as articulate and so the officers are engaging in to finding out why he is there because it appears to be that he's a he isn't doesn't belong there to them he doesn't belong there because he can't say where his mother lives or won't say where his mother lives and because his idea identification does not show that he belongs there so now they have our space with somebody who is in a place where he's maybe not supposed to be shortly after shots are heard going further with that as judge ripple pointed out the officer then asks do you mind if i pat you down and mr hurd says i didn't do anything why are you doing something to that effect but then his he becomes much more animated again there may be a plausible reason for that but the officers faced with a shots fired call in a high crime area at night have a right to say ok now this person is acting much differently and the district court correctly found that mr hurd then became much more animated his he became defensive his stance was unusual his hands were animated about  weight is a little strange the conflicting statements of the officers one saying he was swaying any other saying he was rigid i mean that did strike me as little i did and i don't think there's are inconsistent in this fact it i think what happens if you remember in truth mr hurd has a class me bag so he's he is a rigid he has a rigid stand i think you can read it doesn't necessarily mean i'm standing still it means i am unnatural in my stance so i don't find it inconsistent that you could be sand very rigid and yet sort of swaying back and forth a little bit i just don't think that their testimony was not on point for everything there's no doubt about it page twenty eight and twenty nine of defense's brief lists all the reasons they were inconsistent right but that's a different issue as to whether there's findings correct i think it's exactly right there was no description of a suspect correct that was never there was no description communicated to the officer none at all including whether there was a scription of a group of individuals and i find it a little bit strange that the district court considered the lack of a description of a suspect to be evidence pointing toward reasonable suspicion can you explain the one think what it does is it it doesn't go against the fact that mr h white male by foot five mr hurd would not a fit that description and so it becomes less reasonable suspicion in this case there is no description other than the security guard says the shooting occurred around this would line which is where mr hurd the district court found is in the area of where the shooting occurred at some time within fifteen to twenty minutes fifteen to twenty seven minutes after the shooting i wanted to address the question of whether the police officers had been provided with a description of the suspect because what was just represented was that there was no no description and that's actually an accurate judge duffy's findings the district court's findings included that in regards to the conversation between the security guard mr sanders and the first reporting officer the district court's fact findings were that the that there was a conversation of about three or  minutes and that it was unclear whether the security guard had mentioned the group of men who'd walked past him moments before the gunfire and the district court cites to the fact that there was conflicting testimony as to that there had been testimony at the first evidentiary hearing that the such a description was provided the responding officer could not remember any of the contents of that conversation at the initial evidentiary hearing at the second eviden hearing he recalled that he had asked the security guard for identification but otherwise again had no recollection of what that conversation was but there was mixed evidence on that issue and i think looking at the facts here this is the security guard who called nine one one to report the crime he then made himself available to meet with the officer when the officer arrived when the officer arrived the officer got out of his car and they stood outside of their vehicles and had a conversation for several minutes about the facts of what the call was so i think there is no reasonable conclusion other than that the that the guard described the events that led up to him calling the police officer so i would argue that there is no reasonable conclusion other than that he had provided a description of the suspects and there certainly is no factual finding at the district court or by the district court that no description was given so presumably i would i would argue that the description was given but even if it was not if the panel were to find that it was not then it at worst there is no description of the of the suspects and again the description of the suspects in no way met mr hurd's physical description they were a group of three or four young men and they had travelled into the woods and not come out of the woods where the mr hurd is standing alone as an older man the officers testified that they they formed a stance called a safety around mr h d is there any significance to that as far as when mr hurd might have felt that he had been stopped or that he was not free to leave your honor again i think that i think it does create what it did was it physically trapped mr heard he had either his back or his side to the building and then he is surrounded by police officers one in front of him and one to the side of him between himself and the parking lot so he was in fact physically surrounded at that point and again that is the point at which the officer or the first officer asks you know that indicates that he wants to pass mr her down so i think that that factor contributes to a conclusion that mr heard was stopped at that point i did want to briefly touch upon some of the factual findings by the support by the district court that were clearly errors because the government relies upon those as as arguing that the they support in the totality of the circumstances a finding of reasonable suspicion and that is the conclusion that this occurred in a remote area one witness one police officer made that statement but that statement was completely shown by all other evidence about where this happened to be absurd this was a large apartment complex and this interaction happened between a building and the and the parking lot which is adjacent to the driveway within the first four buildings of the complex it is within view of the gated entrance the complex went back twenty one buildings back had a lake had trails and there were remote areas but submitted into evidence was at least a partial map of the complex showing that this was not a remote location it was within view of the entry thank