it even if the initial start the tension wherever it is of white is improper at that point why doesn't the office not only have a right to go to spike it why doesn't he have an obligation isn't the three gentlemen were seized by the when the when the police exited the vehicles and approached with their badges trying so mr white is actually seized at the moment the hand goes in the pocket and everything after the seizures are obviously fruits of the unlawful seizure my other response is actually seek issue with some of those facts the officer officer love in fact testified that when mr white shoved his hand in his the question is just putting your hand in your pocket give the ops reasonable suspicions believe that it's a gun when the officer doesn't see the outline of a weapon and his testimony really was i would contrast his testimony here with with respect to corban the officer is saying mr carbon is looking around you know checking out his options he's doing security checks of this package he's touching that pocket in his hands not his pocket but he can tell that the pack is hanging down to the degree that something heavy is in the pocket the officers talk about most people if they're carrying an illegal weapon keep it on their waistband some might keep it in their pocket but most keep it and their waistband so what we have here yes we have a high crime area known for gangs and drug violence but for for these specific gentleman there's no evidence in the record that mr white has known to be somebody engaged in gang activity somebody even let's assume for a moment that when the police got out of the car because there they were in a car with tinted windows and if you were davis corben and white you might think that was a rival gang as opposed to a police car  and the police tell them to to halt and let's assume that they are seized at that moment they don't feel free to leave the very next thing before anything else happens is that you see mr white moving his hand in a way and the bulge and one of the officers yells gun he's got a gun what do you officer well at that moment the officer sees the gun i mean the government actually assumes that some of the facts you positive right now are true and they're not sure there was no evidence that they suspected this was a rival gun gang approaching or even assume that they were seized that's in your favor yes but then the with within you know second almost right at the very same time this is happening police officer through his experience sees something that appears that one of the individuals that turns out to the individuals have a gun what is that police officer supposed to do and act on the again factually the officer s guy after he ordered mr white's take it out and so you see they got of course the officer can take steps to remove the gun from mr white but in fact the officers have reasonable suspicion to believe davis is violating an open open container or that's to say that because they have reasonable suspicion to stop mr davis that they can then detain mr white in some way see that the police officer then sees something that could put this police officer and others with that police officer just he i understand the idea that the officer needs to protect himself but terry addresses that very question you if you're going to approach and then determine you know maintain and under those facts that the officer can seize the guy i guess the question is if the defendant has been unlawfully season here he has been unlawfully can that officers use the got against him or  chance on what the box was and then assume that it was reaching for a gun at that point why wouldn't they have every right under a terry in boston writing or the other cases to detain and subject right yes and what he said to him which was reasonable was take your hand out of your pocket i mean again we're sitting back there just take your hand out of your pocket that's what he's supposed to do n and the strongest evidence that it doesn't in this case is contrasting what they saw with mr y that they saw with mr corben mr corbin we have the packet hanging down significantly here hanging on by virtue of the hand slightly as with the officer white and so there was one gun on scene and they can reasonably assume a second gun it's going to be on scene when they approach mr white and they see the hand in the pocket all they have is as evidence that davis is violating the open container  if we were here and we're talking about this same scenario in a high crime area known for guns and drugs and they had some independent knowledge that mr white was a drug dealer or if they had seen not white not mr davis drinking from an open container but perhaps a suspected hand hand transaction i suggest i'd be in a very different position if you're talking about were suspecting that the violation approaching this guy to talk to him about or stopping this guy for is drugs maybe the court may be excuse me the police officer would be reasonable to assume that what's in mr white's pocket at that moment is not one of the giant samsung phones but a gun because the officers always testify and york so together but here all we have i mean if to take it to its logical conclusion what this means as any time black man is walking down the street of a high crime area which happens to be his neighborhood causing the right side of the structure to deplore than the other side in the game spaces and then assuming the initial stop of the guy with the bottle is ok you know i think you are agreeing in that and what should the officer have done in that and the thing is the record is not clear on all of the timing we know that the district court found that the stop occurred and then the hand went in the packet and so you know again our position is that it's fruit the way our government is saying it right away the officers are where they are and see what they see because of the unlawful stop that's already taking place and so that's fruit of the unlawful stop the and so  when you read officer detective love's testimony and the other officers testimony it can be read a number of different ways that when he puts his hand in his pocket he does say that's when i notice the ball he doesn't say i mean there's a question you know it's flushed out what do you think the ball just consistent with a weapon but actually detective loves testimony is nowhere nowhere close to the level of explicit tech the ball gets when he's describing  corbin's pocket what's in his pocket and when he says pocket down the office in fact if you look at the district court's finding in that regard the district court actually got it wrong detective love testified that the packets dipping slightly it's dipping a little bit which again is consistent with a person just having their hand in their pocket i mean to assume that it's a gun at that moment if it's there is not reasonable suspicion at that moment does that develop as time goes on again you know we're talking about th and the case is aware this court has talked about the idea of you know maintaining superintendence of the scene it's been in the context really of traffic stops you know you're stopping a car  and the police under all the supreme court precedent can take the driver out of the car and invaders and can take the passenger out of the car and there's a recognition that there's been a seizure at that moment when the cars pulled over  so if something bad happens during the course of the stop you know they see a gun in the car and someone's you know they get out of the car they're out of the car and a gun falls out  yeah they got to grab the gun they have to grab the gun to maintain safety but stop itself was improper is not based on reasonable suspicion then the gun can't be used just the police can grab it to protect themselves the question here is whether they can use it or whether it has to be suppressed in a criminal prosecution under the fourth amendment this is any other questions mr  good morning they have please the court on a coke is a u s a on behalf of the united states counsel the previous cases the wise attorney never concede there's i must not be that wise because in my brief i conceded that the district court erred when it held there was reasonable suspicion to seize mr white at the outset of the encounter however there doesn't make any difference if the district court also erred in finding that mr white was in fact well as a matter of law seized in the first instance at the outset of affirms on any basis supported by the record this is one of those cases where the standard review i guess is my best friend because the record in this case in this case indicates not one but two distinct reasons why this court must  one and this is the second one that i stated in my reply and my response brief but this is the more accessible familiar reason under mendenhall the circumstances of this case would not have conveyed to a reasonable person mr white's position he was being ordered to stop and the second independent reason is that officers in this case did not intentionally direct a show of authority at white with the intention of stopping them taking that first well the first  stop when they see police officers are approaching but it doesn't tell you why they stop whether they don't see and they stopped for judging or you said it could be the shot it could be that it could be i mean i've yet to find a case that says the near approach of police officers even objective person in the circumstances would feel free to leave under mendenhall and mr white his reply what i'm saying is i think my position my subjective statement to you probably is what most people would believe objectively that  hesitate to i'm sorry i think an objective person might hesitate to see what was wanted of them but look at what mr korb and in this case he paused for a second and once he realized the officers weren't interested in him that time he started to walk away even mr white so in this case you have to look at all of the circumstances and here's what they are you have unmarked car no lights or sirens keening three and then four plainclothes detectives get out badges are passively displayed on lanyards around their neck and one of them announces pittsburgh police but nobody's held anybody to stop no he touches their guns nobody blocks there when they say they're going to the car place pittsburgh police no one touches their guns no one blacks eagar s and if you assume for a moment here that actually what they were doing they were stationing themselves in a way that their training so that i mean why isn't that blocking us well it's as detective go they believe in his testimony later on need clear if he wasn't blocking their egos he said you know these guys have walked across the street they could continue down one of the streets it's they position themselves in a way so that the the if the men can't get behind them or that they can't you know they have sort of a tactical advantage if something goes bad is  started to happen in this case but i mean you know what it's to me when i when i look through this it seems like this was a case in search of the reason that persons were stopped two persons who were not allowed to carry weapons actually had weapons and the judge just sitting there going ok what do i do i could say that they were stopped because it's logical that all three of them are drinking from the from the liquor in the in the paper bag which is logical and you know what do you do because these persons clearly have done something that they should not be doing they are felons in possession of a weapon and there are significant penalties for doing that and what i was asking mr parlow was ok so for the moment you said for example there was no reasonable suspicion to stop you can see that at the very cart of the chant hand i'm suggesting the next step was also covered that there actually was a seizure that a reasonable person would not feel free to leave but almost instantaneously the officer observes and that's that that's the finding of fact something that appears to that officer based on this officers training in the officer has been trained appears to be a gun so much so that he yells gun then they go into another mode and then they take away the gun technically if there's a seizure you need probable cause but the real probable cause didn't come until just a second or so after the loves observations where the bolch hanging lower in the pocket mr white's behaviors i mean i'm less they could show any of that is clearly erroneous and i'm not sure how they can then that's what we're we're stuck with but even if effectuating a stop of other people if something happens to give them a reasonable suspicion that their safety is in danger then they can act upon that but in cardiff is very different because they give and take the passengers out as i mentioned to leave probably not unless i mean they see if they see something that gives them a reasonable suspicion to believe these other pedestrians are armed as happened in this is cars are different and you can only point is that in the seizure if this seized illegally and then they see the gun they see the why we're saying that there was no seat at the record sure there wasn't this year in the first place that's why it's kind of important to you know go back to the very beginning counter and as you know what what and where the part where the defendants told at the testified that is soon as we got out of the car and approached announced ourselves that's why they stopped even put those four words in bold quotes him but when you look at page one forty of the record which he's citing i didn't see that it says that's when objective person not feel compelled to stop i mean you're scared out of your wits i mean you've got four people and they're coming at you and they see this for a police i don't care if you are judge or you're of a fell position because well i think you might stop because you're curious about who they want to talk to but in this case really is that because it was short or in it but in this case we have testimony that from all three defendants pages one sixty two one eighty seven two hundred two hundred one all three say at the outset that detective love address addressed himself either said coldly davis or otherwise addressed himself clearly to mr davis they're arguing which found all their credibility to be their credibility to be absent on every issue but if you look at two seventy one the court only found that their general testimony that officers got out just started tackling and first in them that that was incredible if you look at it detective loves testimony it's consistent with this because he says it page one nineteen we got out of the car and we directed our show of authority davis now he doesn't say what he meant means by that then but later on at page one thirty seven he says when i would see davis after having arrested him six months earlier if i saw him and i wanted to talk to him i would call out his name in this case i submit it's a reasonable inference at least maybe the only agree with you let me put it like this if i saw several police officers approaching me i might stop as a fact as a practical matter to see what it was they wanted that doesn't mean it's a for we do in a way the way that you could have in theory the police officers could have a car and said excuse me can we call the daves can we talk to you for second and that might have been reasonable suspicion that he had a liquor open liquor a public street and but they didn't and that's why you have the problem that you have and that's why you made the concession that you did which i appreciate so you are really and are good lawyer and professional men  that's not what they did they did something different they made that they had a show of authority they said pittsburgh police and they got in various positions very quickly and then one of them says i saw this bulge in his pocket i saw him moving his hand with is what right and so i mean again it seems like it's it's a case if the interest is ease of what our law is and there's a search for reason as i said some of the reasons given by the judge here to me didn't make sense that it's logical that all three were well and that's why i said at the outset your honor that the standard to refuse my best friend we look at the whole record and and we do that in the light most favorable to the government i think that was from the reasonable to infer based on detective loves testimony even put aside what the what the plaintiffs the defendants all said which is detective love indicates that he addressed himself in some way the colli davis at the outset now that changes things for me because if i'm on the street with two other guys and police show up and they say one of the other guys names i might hang around because i'm curious what's going to happen to him maybe i'm going to you know maybe i'll experience some shouting for it or something when i see what happens but the bottom line is do i feel compelled to stop within the meaning of the fourth amendment and i don't think that i do i mean i don't think our law gets us there yet so i in this case i think the the first the arguably the first time that mr white is seized is when detective love says take your hand at your pocket now corey whether that's a seizure because under the we know there has to be a submission to the show but the wording and his submission is by taking is in plus starting to take a gun out of his pocket i think it be very dangerous to say that that was a submission to show with henri in even if you say at the outset these officers intended to seize all of these guys which is contrary to detective galt's testimony and contrary to any testimony the difficulty and the kind of what you know that's what he's supposed to say i didn't again i guess say for the third or fourth time it's a case in search of a reason these two persons besides davis had guns and they shouldn't there be big penalties for it and they're giving testimony that indicates that they they saw something that indicated to them that these persons had weapons and there were some very specific about that testimony and none of it has been shown to be clearly erroneous i mean remember the record itself we were before clear air even though of legal issue but then the question is does it get suppressed because they should have been seized to begin with i said no i don't think it does because and i don't think you have a submission to the show of authority even at the moment officers get out of the car when member when they tell you that that there was a seizure i i want to sleep don't know war more remain under fire get for the fact finding as to whether there was a c well in this case we don't need any more fact finding because you had both the officers testify what happened start to finish all of the defendants testify and start to finish i mean at this point what i think we have is we have a pretty complete vacuum of factual record where this court you know can examine that question de novo remember and affirm on any basis supported by the record briefly to address judge ambrose question first the supreme court has made clear that a citizen can be detained even momentarily without reasonable objective grounds for doing so so even if you national seizure was momentarily and then things started to happen it's still a seizure and my an earlier position stands that it's less theoretical object but practically speaking i mean that's why i ask you what your police officer practically do ok so maybe they seized them a little too quickly but then it turns out that they find almost immediately that there's a real problem this guy one of the resident with a few seconds they find the other one has a go and so well the court found that the officers had a show of authority that all three submitted to the show and that they stopped walking at this moment and for now as such is the case talks about standards are reviewed for a problem because reasonable suspicion cases says even if we're talking historical facts of course are entitled to deference we're talking about inferences drawn from those facts those two are entitled to great deference and the reason as the judge she's drawing and friends that they are submitting to of authority is he's in the community he knows the community and so his even though heights project just recently officer left testifies there was a police shooting and killing a black man who they thought was running away so these are it's not just the actions of really it's not the action just the action have given that it hasn't been briefed in any way shape or form the government's position really all along has been one that's based on some the statements of the fact of out us today that officer love actually testified he did not call out to he was specifically asked question and he denied speaking with mr davis this is appendix one forty three but the at the government's position all along has been there's no seizure because the officers didn't intend to target mr white they intended to target mr love and although i talk about factually why that's not a part of the theory i would do also want to point out to this court that the united states supreme court and brandon versus california expressly considered and rejected that want it's always been the reasonable person standard in the totality of the circumstances and given the approach sort of the aggressive use of the car pulling within steps of these three gentleman the fanning out by four police officers to approach the tactical shooting the detective to cut off any avenue to provide cover he said and to pursue someone if they start to run that's what makes this a seizure and not just a stop detective one of the detectives i forget which actually talked about sometimes they'll just approach or yell out from the car you know and i'm not suggesting they need to do that in this case i'm suggesting they chose to conduct  seizure in a way they knew and this is detectable testimony we know when we pursue when we initiate a stop like this multiple officers displaying our badges we know that most people stop that's the choice they made and and gauging in the show of force and it resulted in a seizure here of all three time a man and that was the finding by the district court and it isn't titled to deferen