good morning your honors and may it please the court my name's todd borden i'm with the federal public defender's office here in san francisco and i represent the appellant gomery i'm going to try to save two minutes for a bottle and i'll make sure to keep an eye on the clock when san francisco police department officers encountered mr montgomery i guess that they had reasonable suspicion to believe that he was trying to sell a stolen jacket and that they therefore had the authority to detain mr montgomery you considering as a v stop correct your honor yes but really a point of emphasis in this this appeal from our perspective is that we need to distinguish between the terry stop and the terry frisk and the terry frisk as we all know requires reasonable suspicion to believe that mr montgomery was armed and dangerous and on that question i don't think there is sufficient proof and that the district court errored in denying suppression in this case when you look to sort of the totality of the circumstances and i would submit the most probative factor here  has to be what mr montgomery was doing or not doing with his right hand and i think if the court looks cumulatively to the other factors they don't rise to the level of reasonable suspicion so as a result i sort of today as i'm speaking of the court i'm go mr montgomery's hand movements in the testimony around that and the court's analysis of that and then i'm going to go ahead and look at the other factors and i don't intend to discuss whether or not suppression is the appropriate remedy in this matter although if the panel has questions i'm of course happy to entertain them so the basically what happened here is we have two officers to testify somewhat differently about the hand movements in the district court said well there are different angles but they both saw something they thought was suspicious and i am so well why does the co premise that the district court found that they were looking at different angles and therefore sort of harmonize the testimony suggesting well maybe they were saying the officers testified correct correct i'm sorry your honor officers testified as to what they saw right correct both officers took the stand in fact they physically demonstrated what they saw to the district court that's right in the district court concluded although there were some differences in what they saw there was decision about the supreme court you could start by saying the standard i mean i'm sorry roger i'm sorry i thought i was clearing my throat excessively their standard of review is did know though as to whether or not there is reasonable suspicion that it was with deference to the district court's factual findings to the officers but i don't think it but the factual findings here have to be reviewed only for clear and it's only findings of historical fact and here i think it's important that the panel look to the district court's  findings in its order and they're very paltry it only takes up one page of it's order that's an excerpt of record thirteen dollars fourteen cents and on this critical issue of the hand movements the district court did not make any finding of historical facts as to what mr montgomery was actually doing with his hand so your argument as i understood it from your brief was that these officers presented conflicting and irreconcilable accounts of what happened and so you couldn't articulate reasonable suspicion because these two accounts were so different you couldn't reconcile them and i believe you cited one case for that proposition in the facts of that case were one officer presenting testimony that was  conflict believe the testimony was the documents of the vehicle looked at me nervously or the occupants of the vehicle refused to look at me so those are diametrically opposed refused to look at me looked at me nervous y i would think another example would be was running towards me was running away from me was on foot was driving a vehicle i mean you can come up with scenarios where the testimony would be irreconcilable and in conflict but here it seems that the officers testified one was on the left side of mr montgomery one was on the right this is after a year has passed they both recalled there something suspicious about the hand movement that led them to the frisk and  looked at the testimony and i'm looking at the excerpts of record at pictures thirty nine dollars seventy cents officer talked about mr micawber's hand going towards his waist the other officer who was on the other side said that the arm didn't swing the person turns away from you their arm would swing and the arm was unnaturally still so i didn't read that testimony as being in conflict they both saw something suspicious about his movements one talked about the hand one talked about the arm so how do you how do you  how do you explain that this is somehow irreconcilable well i somewhat respectfully disagree that they're not in conflict your honor because as you noted officer frys testimony was that montgomery's hand you know sort of what stood out to him and what really triggered the st in this case was that he thought it just seemed unusually stationary whereas officer matthews testified that it was but i'm sorry that's not what he said and so obviously matthews talks about the hand movement is at thirty nine dollars going straight from up here to down towards his waist down presumably when he says up here to down he's then at that point reenacting this acting this out of the court room and then on page seventy nine the other officer says he turned quickly to the right i didn't see it any swing or movement of the right arm that our right not i guess i just read the record differently and that it but it's critical because your argument is that they can't articulate reasonable suspicions because they can as irreconcilable accounts of what occurred and so the district court heard this testimony saw the officers reenact the what they encountered on the scene and found that even though they had differences in how they describe what occurred they did articulated recent suspicion so why should we find differently well so i want to waistband so i mean white if you take that on and i take your point that the officers testified somewhat differently i may have read the record the way you do but that's that's not unusual in any scenario where we have eyewitness testimony they remember things there's no it's a rare case where you get people remembering the same thing so if they just record concluded that they each officer had separately detected a movement or observed a movement that was consistent with having a gun in the waistband what's wrong with that well your your honor i think that when the district court you know says that well it caused the officers to think something was suspicious or triggered a certain reaction in the officers i'm concerned that that's not the routing at specifically articulable facts but it's sort of just that's sort of more of a legal conclusions that the officers ultimately you know subjectively decided that there was something suspicious going on but terry does tell us that it's important that you know we don't look at him quite hunches or on particular i suspicion but that we look at specific articulable facts and here i think this report sort of abdicated its responsibility of of resolving this these disputed facts  important we do acknowledge the government chose to put on the government evidence a government chose to put on and it did bear the burden of showing that this warrantless search fell into a th amendment exception and when you put on testimony of two officers who you know i maybe i think there is a bit more of a conflict there but there there are two officers who are standing on opposite sides of the individual ones on the left ones on the right and they see the arm movement the hand movement differently but they both see something suspicious that leads  to believe that there could be contraband or weapon and they don't consult with each other they will stop and talk about it they both reach that conclusion based on what they've seen occur and it's not just that factor there were four or five other factors that i don't think anybody was arguing standing alone any of those factors would have been reasonable suspicion but under the totality of the circumstances which included the officer's observation of how the different was moving they thought there was reasonable suspicion so i'm merely running out of time but i just do want to make one point about the different vantage points and that's to point out that excerpts of record eighty four dollars matthews does say that right next to each other you know they are to the left of the right but they are in very close proximity so i think that does make it a bit harder to sort of take the approach of harmonizing their testimony  good morning your honor smith please the court jonas lerman for the united states after watching both of these officers and the defendant physically react to these events and considering the testimony of all the witnesses the district judge believe the officers except he said they saw different movements well he did say they observed different things and then he went on to say that even considering and this is that we are sixteen even considering the differences in the officers observations of montgomery's hand movements both officers saw a movement that appeared suspicious and an ordinary indicating to them that montgomery had a weapon in his waistband and he also found that their testimony was coherent and plausible so let's assume hypothetically and i know you may disagree with this hypothetically that they're describing they both had the same vantage point and they recall that you can't reconcile what they saw how are we supposed to resolve that on appeal in the same way that juries can convict someone beyond a reasonable doubt even though witnesses memories vary if that can be true for the beyond a reasonable doubt standard it must be true for the much much lower standard of reasonable suspicion person on a jury so i mean that the district court did not resolve i mean and in that circumstance of the just what's the duty of the just record it seemed to me you have to determine the astronomical facts well i think the duty is to determine is there enough overlap between what these two officers observed to create reasonable suspicion and is each officer credible and here at the district court answer both of those questions in the affirmative that he found both of the officers credible and he didn't find anything that was so conflicting about their testimony to obviate reasonable suspicion here and i think it's important to look at the vantage points i know you were asking me about a counterfactual but  matthew said he could directly see on the right hand side of the defendant here thirty five the right hand was fully visible to officer matthews so the vantage point i think is important here and the testimony was not irreconcilable as judge brady's questions were found that each officer observed facts that simultaneously and independently caused each after district court said though he said they remembered different movements he said they did they observe different movements i mean the if i think your case would be stronger if they just recorded so just what you said but it's pretty cryptic well i'm not quarreling with the i'm just saying that the us reading a lot into one sentence well i think also you know we're focusing on the hand movements but he also looked at circumstances but without the observation probably the rest on out your truth that i'm not sure that's true i we we would certainly agree this is the most important factor but i think for example it has to be viewed through the lens of the officers training and experience they know this corner very well it's a corner notorious for drug crimes are sorry for gun crimes i think we're all familiar with the corner yes yes i walked in there this morning so good let me ask you a question about the it correct that the hand movement in question was most gummer's right hand yes and one officer saw the hand move toward the waistband that was officer matthews and the other officer saw the right hand not move at all he saw the arm not moving during the turn which looked suspicious to him an unnatural both of them saw an unnatural movement on the right side officer mathews the hand reaching an officer fried the arm not moving but again this could have been at different moments and they had different vantage points there one thing on the standard of review judge hawkins you asked about that and my my friend on the other side was going to talk about or nameless and i think that's actually a very helpful case for us here because it talks about how ultimately the reasonable suspicion question is a legal question of you do novo but then he goes on to say that this is not really normal de novo review  we hasten to point out that a reviewing court should take care both to review findings of historical fact only for a clear error and to give to weight to inferences drawn from those facts by resident judges and local law enforcement officers and goes on to say that  inferences including the inferences by the local district judge deserve deference and here judge also has been a judge here you know for twenty years he's very familiar with with the northwest corner of th and market and the chronic crime problems there so those inferences that he drew from the historical facts those deserve deference if the court has other questions i'm happy to answer them but i'd submit and thank you historical fact finding here and again i would reiterate that we just don't have any historical fact finding by judge also on this critical point and i think that really makes it difficult here and that therefore the government has not sustained its burden so i respectfully ask the court