and someone close the door please it please the court the th amendment allows police officers who have a reasonable suspicion that to temporarily detain that individual for investigations reasonable suspicion is a very low standard it only requires some minimal level objective justification that is not based solely on a hunch or a gut feeling the doctor and deals with suspicions not certainties reasonable suspicion make this even if it is more likely than not that a suspect is not engaging in criminal activity there's a prima court has held that the terry doctrine specifically accept the risk that sometimes innocent people are going to be stopped that there may be innocent reasons for suspects conduct does not mean there is no reasonable suspicion and it does not mean there is a th amendment violation when officers approach that individual to investigate because qualified immunity defense this court must decide the legal question of whether considering the facts of this case plaintiff has overcome his burden of establishing that the officers conduct violated the th amendment and whether the constitutional violation was clearly established at the time mr jones has not carried his burden and the district court her innocent and clued in that he had where where do we look for the undisputed facts that will give us a basis for your reasonable suspicion that is complicated this case by the nature of the written order by be just a court judge there was no specific section these are the industry defects that we are considering under these circumstances the court may look behind the judge's order to find the facts that determine the totality of the circumstances which is essential for th amendment fiery and determine the end of the undisputed facts the district court adopted some facts that were found by the magistrate judge in a motion to dismiss and to the extent that th could we imply that when she said the defendant alleges this and or the plate i'm sorry the plaintiff alleges this and she makes some findings can we imply that those were factual findings that she was essentially saying when the pla alleges something i'm finding that i'm looking at it in a light most favorable to the plaintiffs could we imply that because there's a lot of that in this district court order correct out of there is a lot of that in this order and i think under certain circumstances the pinning on how she phrases those factual findings it might be a reasonable assumption to make and other times i don't know if it is or not what do you think are the undisputed material facts here that although early morning hours of able to two hundred and sixty two thousand and sixteen mr jones was seated behind the wheel of a parked car in a spot reserved for a business in the parking garage an apartment building posed with no trespassing signs and which was known for trespass offenses the manager of that apartment building had specifically requested the denver police department to provide extra patrols and enforce the trespass ordinance officer saw mr jones park where he was ran the license plate and discovered that the car was not registered to that address but to an address in wonder which the officers determine that there wasn't that reasonable suspicion to approach mr jones and investigate does the plaintiff dispute any of those facts those are undisputed fact is there any dispute about when mr jones told officer rica's said he was waiting for a friend or somebody it's phrased both ways the district court made no specific finding as to the timing of that statement and it did not come out during the sky every exactly when that statement was made to mist to the office by mr jones there is no dispute that he did in fact make that statement to the officer some time during the encounter what impact would that statement have had upon reasonable suspicion if if the officers let's say the officers didn't have reasonable suspicion up to that point would that have are you are this is all about the lack of can consent to be there essentially or did he have authorization he parked in that space that's the element that's missing is the officers approach what when he says to them i'm waiting on a friend or i'm waiting on somebody whichever it was what does that mean in your view took towards reasonable suspicion as your other just wrote in bailey versus told me that the officer have no obligation to accept suspects innocent explanation or of innocent pond and that doesn't mean it's not i didn't i don't think that means it's not relevant however correct you are but they are allowed to continue their investigation until they resolve the ambiguity is about whether mr jones has permission to be there and his statement that he's waiting for a friend does not and there are reasonable suspicion they are allowed to continue their investigation and under these circumstances their investigation was stymied by mr jones as conduct they were never allowed to complete their investigation and that's mr jones was eventually charged with interference but his statement in and of itself that he's waiting for a friend doesn't this she a reasonable suspicion for trespass where did the district court are in its analysis here there are several ways that this record erred in her analysis one of the main ways according to the defendants is that she undertook a divide and conquer approach to the totality of the circumstances in the biting conquer have reasonable suspicion and when the judge is going through the individual factors rather than the tally of the circumstances she gave the wrong legal significance to some of those factors for instance of the opposition did not know for certain the mr jones did not have permission to be in the parking garage officers should not need know anything for certain before they approach reasonable speed he's an investigation based on reasonable suspicion it is suspicions not certainty also the operative encounter and rd that mr jones is waiting for a friend i just talked about that would judge merits that and that and not this year a reasonable suspicion under these circumstances so so this parking garage it was for lack of a better term like a multi purpose drain i mean it served commercial clients and there were also residential people who had a right to use it c don't you think under that circumstance there's there some limited license for the public to enter that garage if they have business in the building or if they have someone there visiting in the building curr did this and that mr jones may have had that innocent reason for being there but the supreme court allows officers to approach to resolve any such ambiguity and that based on reasonable suspicion what what if he what if they would have been sitting and watched him poleon and said we're going to follow him in an immediate lee question him about why is here is that ok if that are the only circumstances you have your on what if he's in there and he's driving out in the police say i wonder if he had permission to be in there and they block him and go up to his car and say excuse me sir do you have permission to be here and what transpires happens then that's a much closer call i admit but those are not the facts of this case well it's real close to this one where they only had a very short period of  no trespassing right so as long as we've got a parking lot posted no trespassing in a high crime area they pretty much can question anyone with her and sit in snot just it's not just questioning it's not just voluntary it's reasonable suspicion you're under under the facts of this case that's not all they had they had the the knowledge that he did not belong there his car did when i don't know they don't know he doesn't belong there just based on where it's tags or red light or yard and there's  whether he's allowed there or not and the reasonable suspicion doctrine allows officers to resolve the ambiguity and if there aren't no more questions i would like to save the remaining many of my time for rebuttal thank you thank you lacked reasonable suspicion when they detained mr jones for example the denver city attorney in refusing to prosecute mr jones and this is an appendix page eighty nine dollars concluded that there was insufficient articles suspicion of a criminal offense during the st encounter and therefore there was no legal basis for the officers to seize detain or search the suspect we've been told that reasonable suspicion is a very low standard we agree with that it has to be some standard there has to be something just more as you pointed out there is no distinction between this parking garage and any number of parking garages a lot of parking garages especially in places that have businesses as well as apartments connected to them have no trespassing signs if that means someone is parked in a parking garage like that and i suppose also that they're not from around here is the idea then not only can we go question them because of course a police officer is always welcome to go question a citizen a person on the street about anything they'd like that's called a consensual encounter the trouble here is they immediately detained mr jones they ordered him to stay he was not free to leave the order well i don't know how are all that evolved after the conversation and he i guess you could say he was not obeying their commands or at least they thought he was not i mean i think we need to continue our focus on the initial encounter and whether they could do that and we have more here we have one thirty in the morning right and we have the landlord of the building has encourage directed perhaps police to survey this area and these particular officers were told to do that when they started their shift to go to this parking lot check it out is that part of our picture here yes that is and that adds to the high crime because the landlord said they'd had trouble in that area is that right yes it's so the officers had all of that and that's still not reasonable suspicion to stop and question the driver of the car no your honor virtually none of that has anything to do with mr jones he was present parked in a parking lot right those were facts about the that law and here at that time and that place in that area we were told that the officers did not have reason to know for a certainty whether or not he had permission to be there it's more than that they really had no idea either way and in fact that is that what isn't that what officers do all the time is they investigate they don't know the full facts before they start asking questions again the distinction between a consensual encounter and them ordering someone to answer their questions them ordering someone put that would put the end a lot of criminal investigations your officers are yobs are having a gun i have no drugs i am good here yes your honor of course that would the case is that they say and we agree that officers are not required to blindly accept a suspect explanation for what it is they are doing or not doing all of those cases had innumerable extra facts and evidence that made pretty clear at the time that the person spoke that what they're said they were saying about what they were doing wasn't true for example the woman was at a house there was a big house party going on she said oh yeah i invited all these people here like this is my house the cops look around it was basically vet didn't there was nothing in it she was nervous in a vase of that entire time they had a couple of other reasons that slipped my mind now that made it pretty clear that she was not being truthful in that moment when this points me to the clearly established and even if you know we might agree with you it's a close question clearly about the reasonable suspicion and whether there was a violation here how is it that the district court in error on the clearly established pronk she looked at it from a very high level of generality she said the law is clearly established that people can be detained against their will when officers lack reasonable suspicion we've got to look at it from a far less general level what cases can you point to that would indicate that these officers were on notice in this case that they lacked reasonable suspicion your honor i think with respect to his presence in what has been deemed a high crime area i think that's been clearly is that was for decades that presence in a high crime area is not enough reasonable suspicion that's brown versus texas for forty looking for a case that says one thirty in the morning no trespassing sign i'm not looking for that case mom looking for something similar according to the supreme court i've got to do that your honor i think the supreme court all those cases has also said that there are cases in which general principles  amendment law can apply with obvious clarity i think that i don't think this is i mean this discussion seems to indicate to me it's not obvious not obvious at all i believe that the denver city attorney's decision to refuse to prosecute mr jones for a felony because the officers clearly lacked reasonable suspicion is important on a couple levels one i think it's a commonsense analysis of the facts by someone who does it every day it's an expert in the field the city attorney looks through these facts out and all the time knows the law backwards or can you point to stanley law that indicates that subsequent decision whether to prosecute or not has any impact on the clearly established analysis that's a later decision when looking at it from the point of view of the officers at the moment that they decide to approach or your honor i think it's also important for purposes of supporting the obviousness angle a case like this a case that has this tiny amount of suspicion virtually no suspicion at all doesn't get to a court we've cited in our briefs cases from around the country that say the most obvious cases are not litigated specifically in the criminal procedure realm a case like this doesn't even make it past the st hurdle you never get to a judge on a motion to suppress you've seen in both of our briefs a lot of our cases are united states versus their motion to suppress cases we didn't even get there here because a prosecutor whose job it is to prosecute these cases and know what will or will not well i have to tell you from our point of view almost every nine hundred and eighty three dollars case involving the th amendment usually comes to us after a decision not to prosecute or dismissal of charges so i think if we just say that's enough we're done we we'd have decisions quite readily resolved in these cases but that's not how it works i mean it's possibly something we could look at but that isn't the end all and be all no i understand your honor and this is not i'm not citing to panix page eighty nine dollars because they refused to prosecute him i'm citing to it because of the pretty specific and explicit reasoning that they gave for it which i don't think is a is a post hoc thing i think it's when it's that level it's so it strikes me as so obvious so i just more it's i don't believe that i have a parking garage no trespassing one thirty in the morning well i'm not asking and i'm asking what's something similar and i think the only case you pointed to in your briefing was dow first of all it's an unpublished case so can't really clearly establish the law but and that case seem to me to be factually not analogous yet that that case is i think helpful to us mostly for its reasoning basically what mr jones did was purely innocent calm and he was parked in a parking garage waiting for a friend he told them that they had no reason whatsoever to disbelieve him based on the surrounding circumstances he was in fact waiting for and there is plenty of record evidence of that so they're not in when you say he was in fact waiting for a friend we don't have a what what do you mean other than his own testimony that's what you're referring to in something else that i did a friend appear there's nothing like that i mean what b n else do we have about him waiting for a friend we have the deposition testimony of his friend at the time one of the officer is what i'm asking what were the what did they have to dispel their suspicions i don't know that they had anything your honor i think his it isn't his statement that he was waiting for a friend but you indicated there was something else and i thought maybe that was of the officers at the time ok my point about them disbelieving what people say is that all of those cases are based on extra facts i believe the bailey case that you recently wrote if i recall correctly that's a case in which a woman touched and or hit an officer and then said something like oh well actually what i meant to do was this this this and she said well i should have been arrested because my explanation that was what happened right but the officer felt being touched and or hit so does not need to take her word for well i didn't mean it somehow that's not this case they have no reason to believe that when they approach him but he's not waiting for a friend and then he tells them th once they don't have reasonable suspicion it's very well established that all of the orders that they defend and they basically immediately start to give him orders he has the constitutional right to disregard those orders they say get out of the car he's sitting there with his i d and his hands he's ready to give his i d over they can see into his car they can talk with him they are talking with him he says you need my i d they're like give me an idea you can get a card out of the car he questions it for about twenty seconds then officer black opens his door mr jones begins to voluntarily leave his car with his id still in his hand as he's getting out of the car he either moves to put his id back in his pocket or pull up his pants in a way that people might and coming out of the car i would point officer black screamed at him pulled his gun on him and mr jones terrified closes the door behind him he was constitutionally entitled because the officers did not have legal authority to detain him to disregard the orders that the officers gave that could not be more clearly established for decades and decades worth of supreme court precedent to if they don't have probable cause to arrest him because he is exercising his constitutional right to disregard their unlawful orders once they do arrest him they also have no legal grounds to search his person or to search his car all of the cases that authorize such searches are based on at the very least a legitimate detention so the protective sweep of a car has to have at least at its foundation you have to have been lawfully detaining them in the st place  would if we disagreed with you when we found there was reasonable suspicion do you have an argument to made on any of the other issues specifically the car there is that the car search was still improper well under gannett the you didn't really make a separate argument i think you tied them all together relied on the lack of reasonable suspicion and i'm just saying if we disagree with you doing everything else you lose on everything else too i think your point about gant is correct that there is an argument still there call as you recall them what happened after mr jones was arrested i believe he's handcuffed i'm not sure whether he's in the back of the squad car already or if he's risen from his  yes ok he's both of those things officer man rica's who had been on the passenger side the entire time then opens the passenger side door and scams just surface are physically searches with his hands i believe he only looked but i'm not entirely sure but you are but so yes if if there is reasonable suspicion then things cascade not in our favor i'm perfectly happy to concede that reasonable suspicion if ok all right which do you have do you have a case where there's a chua's i public garage i've i'm sure you're posing councils not going to agree with that with that terminology better than a garage that's meant to serve but that's private but meant to serve members of the public who have business and that do you have any cases about trespass in those garages i don't believe so if there are no further questions for the reason stated in the district court's opinion for the reasons perfectly summed up by the prosecuting attorney not just in refusing to prosecute but in explaining why there could be no prosecution this court should honors i would like to address the vehicle search there's a question whether under these circumstances arizona versus antar michigan versus plies i assert that it's michigan versus long because the officers had a reasonable began is unclear and this circuit has never decided that interplay under those circumstances i think we went on clearly established however the michigan versus long court said that the time period that this is clearly within michigan versus long authority do we consider what happens to the hackle after you take the driver into custody and we have the vehicle then basically abandoned in a public garage should the officers look look i mean counsel saying they looked i don't know if a sickly you at all they did was they looked or did they physically you know peered into the front passenger compartment of the vehicle he did not move anything he did not go under the seats he was looking for the gun that they thought was going to be present true they were going to arrest mr jones and take him out of the garage and that car was going to stay there at least temporarily that it ultimately can go it and detain and seize the car but under those circumstances they could not leave your honour's correct a weapon a car with a weapon in it for the anything to happen to it after they left the clearly established element even if you find that there was reasonable there was not reasonable suspicion we went on clearly established there are no cases even close to these circumstances that would tell the officers are put beyond debate that their their conduct in relation to mr jones violated the th amendment there simply is not anything close mr jones it's completely felt to carriers burden in that regard and unless or any other questions i'm going to sit down and thank you thank you both well argued case