ok thank you council we appreciate your participation by conference call today i suspect you heard the previous arguments i'll try not to repeat anything that mr ruben i'll give you around three minutes to  court opposing counsel the district court in denying mr shelton's motion to suppress made multiple determinations including one whether there was a sufficient basis for reasonable suspicion of a potential burglary to whether there was probable cause and exit in circumstances to enter the curtilage of someone's home without a warrant sorry whether to impound the vehicle in a private driveway under a community caretaker rationale and for light most favorable to the government this was a legal error it also was not fair and it was not just we ask this court to deny the district court's denial of mr shelton's motion to suppress and remand proceedings consistent with this court's decision i begin with the lack of reasonable suspicion by officer strada the district court determined that on the night of january th two thousand and eighteen because it was late at night in a high crime area a vehicle had its doors open and there were picked three people who were standing by the car with flashlights that this was enough for officer strada to have reasonable suspicion that a vehicle burglary was occurring while it wasn't enough there was no vehicle burglary instead it was mr manifestation that the person stopped is or is about to be engaged in criminal activity the fact that the officer here subjectively thought he might be observing a vehicle burglary is irrelevant to determining whether there was an object objective basis to detain the participants of the vehicle i next turn to officers officer straught as entry into the curtilage of a private residence without a warrant this was not justified because he had one no probable cause car walked away and he did not heed mr shelton did not heed his on lawful instruction of come here mr shelton had the right to not talk to the officer and he had the right to walk through his own backyard the th circuit instruction of come here was not lawful so therefore mr shelton did not disobey it because you cannot disobey and on lawful order the lockable in the will suspicion to begin with again did not write that in the probable cause based on mr shelton not believe that the officer in the incident happened january th and the officer wrote up a search warrant on january th he did not figure out the him vehicle owner until the  attention that he was allowed to be in the home but it wasn't that evening is my understanding of the record i i was i was on probable cause in extreme circumstances in the court  crime in that case you have sources jackson the underlying offense was an objectively confirmed armed bank robbery bank robbery not a subjectively incorrectly subject suspect vehicle burglary off it begins with that and i think it's not much harder and harder to ripen into probable cause but i think it was standalone argument it's fine as well because of my age and circumstances falls on he walked away from the is allowed to walk to his own backyard he's allowed to walk away from an officer and he's allowed to go on an instruction of come here when it's not a lawful order it's recorded however in incorrectly determining that this was hot pursuit site a very important case of us versus them on cold mongul apologies which help that an officer has a heavy burden of demonstrating exigent circumstances that require top pursuit here the fact that someone walks away and does not listen to an on level order does only justified by both a standardized policy and a reasonable non pretextual community caretaking rationale here the stated purpose of the impalement id officer himself was for purposes of searching the car it was in a private driveway the car could have been turned off and locked there was no reason for that car to be impounded but for the fact that the officer wanted to take it away and search it immediately officer strada did not even bothered to contact the owner before pounding the car as was for drug paraphernalia illegal narcotics proof of ownership proof of ought to be in c and burglary tools were guarding the drugs and drug paraphernalia one of the officers that evening found a syringe on one of the other car occupant occupants m shelton had access to the car and he was legally allowed to access it but there was no reference in the affidavit that the car was or was not stolen which would have been helpful although of course we know it was not there was also in the affidavit no indication of whether the correct so the officer on the night of the floor and counting the vehicle did not even reach out to the other did not figure out who it was i don't think definitely did not contact now the officer said that between writing up the search warrant he   but if i may start with the standard that was addressed originally at the beginning of his defense counsel's argument the government does admit the standard of review or she'd meet the standard that was used by the district court was incorrect in this case it did look at the evidence in the light most favorable to the government but st of all i will say that all of this was argued in footnotes in the briefing it wasn't fully briefed by either party but secondly there are no contested facts in this case the defense the defense has didn't contest it below and really doesn't contest them here in the court of appeals additionally what this court has before it is what is pertinent to minute time frame video that it can look at to determine the facts and how they comport with what the district court found so the fact that that the that the facts are not contested really  helps to not have that helps that the standard does not impact the court's decision here and more importantly the ultimate determination to resume illness under the th amendment is going to be a question of law review to novo and so this courthouse the opportunity to look at those facts and review whether the district courts determination of original list was appropriate in that case that all being said going back to the actual substance of the district court's opinion that did the government st contends that shelton wasn't seized in the driveway when officers tried to st pulled up in order to have been seized on this court knows that under hood already to or only can occur if there is one a show of authority which clearly there was here but two that there submission to authority and it's the government's contention that neither mr shelton nor any of his compatriots submitted to any authority that officers tried to showed on the evening of january th two thousand and eighteen that all being said though moving and really only needs a minimal level of objective justification to reach that reasonable suspicion stand cantered here what officer a straw to observed as he drove by the home in question was a number of subjects surrounding a vehicle they doors were open open they were looking in with a flashlight the address in roswell is a high crime area testified to b observed that the doors were then closed at the headlights until lights were on the vehicle was running but interestingly the individuals were not visible anymore almost as if they were trying to conceal themselves in the vehicle the individuals then as  your honor in this particular case the district court found that the driveway was not the curtilage of the house that that it was is the fact that he was in the driveway and was not a factor in this case in terms of and and  that was in terms of the hot pursuit and i also said the district court did but the fact that he was in his driveway at the time the officer shot it was you know had pulled into the driveway or back behind the car  nudes living the drugs and yes i don't know that at the time he was arrested and whether or not he answered that question going back to your question i think it was about whether or not to vehicle w kids he actually and you can find this set the record on appeal at page one hundred and four he actually said he didn't know whose vehicle the car was so i'm not i and not entirely sure what he was after that home was his although i do know that there were some question about that throughout the evening he certainly told the officer directly that he didn't know whose car was and furthermore he said anything that was found in the vehicle was not his  moving on from that your honor it's the government's contention that with those facts as officer scott is getting out of his vehicle he absolutely had the reasonable suspicion to believe that there was a crime a felony crime taking place and then and  again i urge you to go back to the video and watch it takes less than two minutes from start to finish in terms of his apprehension what you'll see is officer shot is getting out of the vehicle and as he's getting out of his vehicle the three individuals inside the vehicle open the doors begin to m basing that off of off of you know particularly illinois the word low you know that's a long standing case that while not necessarily indicative of wrong doing that is quite is certainly suggestive of such and and based on the fact that  to believe that all had all of this come this constellation of factors that were taking place and then he calls out to these individuals and they begin to run away from him fleeing from law enforcement that at that point rose to a level of probable cause which then you know funnels into our next our next issue which is whether or not officers trotter was in hot pursuit of shelton at the time that he decided to run into the back yard of the the home and so it's the contention of the united states but at that point there is probable cause to believe that a crime is taking place and that officers thought it was him in immediate and continuous pursuit of shelton at that point and was justified in going into the backyard of the house to try and  apprehend mr shelton at that point and then from there your honor you will see from the video he briefly is able to grab him and then he and then mr shelton again takes off he leaves the backyard he goes to another home and he  found later underneath a trailer at which point he's pulled out and that's at the point where he's asked about the vehicle and who that is and and that kind of thing moving on to the search warrant issue your honor it's our intention obviously that the officer shot to had probable cause when he began to teach chase shelton into the backyard all of that information and then submit it in the search warrant and that they the car was properly and counted awaiting official or torrent as this court knows officer shot actually given the fact that he had probable cause at the time had two choices he could have exercised the automobile exception and actually search the vehicle right then and there but gun because they were went into the vehicle they saw the gun they didn't want to take it to they submitted a nd search warrant to ensure that that would be an appropriate seizure and so it's the united states contention here that the community caretaking many years ago in that in that case we have the same problem with the legal standard yes you apply again ok well i hope i hope that's being corrected in the district of new mexico yes your honor if i may and i realize this is somewhat anecdotal coming from a lowly usa but i do understand that there are at least four or five cases that have come up with that same standard and that the district court has been made well aware and is well aware that the question a bit more but ultimately when we believe strongly that the court errored in determining that there was reasonable suspicion and it makes it that much harder there will tend to get to probable  find that there was you still need exigent circumstances we can rely on our argument that there were no extreme temperatures circumstances and so so again without the law without the original reasonable suspicion i think it makes it arrested with there and that question wasn't asked so i don't think our legal analysis changes whatsoever and holding to the officer to standards of people suspicion and probable cause simply based on mr i'd have to look back at the video my understanding is that when they found it means under the trailer i think the officer probably would have immediately arrested and dan and then mr shelton what it's made that statement but i have to go back and look at the video you are