only be convinced really of one of two propositions of the first either that the stop of doors locked a reasonable articulable suspicion that criminal activity was afoot or alternatively that the risk conducted without a reasonable articulable suspicion that criminal activity was afoot and that melvin george was in fact armed and dangerous this is the kind of case where the description of what happened will take about five or ten times longer than the actual event itself the the events of june fourth two thousand and fifteen occurred really within seconds ops are stunned america got out of his car with another police officer another u s marshal bullet that was a in fact a handgun i first want to dispel but i think the first stage in this analysis is to dispel this idea that this could have possibly been a consensual encounter and i think that this is important because a good number of the cases that the district court and the government rely upon begin with the appellant conceding that the event began as a consensual and under here does not concede that this was a at any time a consensual encounter and the officers including officer son amar approached unmarked vests with badges they were armed they identified themselves as officers mr george gave no indication at all other cases cited by the district court that began as consensual encounters and then morphed into detentions without consent the government must prove that there was some reasonable articulable suspicion that melvin dort engaged in some sort of criminal activity now as the court is aware the thing itself happens in seconds and then minutes and then the reports are written in hours and then it's turned over to the lawyers and we spend weeks and months constructing the justification for what happened in seconds and minutes and here the government has taken a kitchen sink approach to justifying the detention stop and frisk of melvin dortch they begin by saying that his behavior was consistent with street level drug activity they throw out a laundry list of of city ordinances that deal with pedestrians and drivers but mind you no he had no idea what was occurring in the street there so well but the supreme court has said an officer has a right to go up in that choir and if that this part if that does lead to a consensual encounter that is that is correct but this more swithin i mean i don't i don't think there's a differentiation point where this is this turns into at any point that central power let me ask you this this is in the record indicates this is in a drug area these were drug officers in unmarked cars they had been shootings reported me area and guns confiscated in this area and so forth and you've got a pretty  strong case for united states versus jones in two thousand and ten but kind of my question is that things things change you know i think police officers are more targets in two thousand and fifteen sixteen seventeen maybe they were in two thousand and ten and so the question is if you go up in a stop in that environment how do we say that the police officer to protect himself cannot ask if you have a gun and then first that somebody under the circumstances of this case well i think the overwhelming macro trend of crime statistics suggest that it is safer today to be a police officer than any time in recent history to include the tute when in two thousand and ten when when the jones case was decided and i am as the son of a normal police officer i am immensely sympathetic to the safety concerns that go into being a police officer particularly in an area that they have deemed to be a high crime area that said we are a nation of laws and one of the amendments to the constitution says that we shall not be nobody in the city not us in in the better part of the city nor the citizens of north on law are abandon their fourth amendment principle simply based upon crime statistics or trend this is not a situation where it's it's dark where there he is this is a known felon or anything like that this is just then happening upon a situation in broad daylight and the fourth amendment still stands you know suspicion he could have made the inquiries that he did but then he needed something more than reasonable suspicion to move in to search that and your client print pled guilty but reserve the fourth amendment issue for what we're doing now that is correct and so yes or on the first page got to decide whether there was a reasonable articulable suspicion that colonel activity was afoot if there was th then then the officer could properly detain mr dortch but then in order to pat him down or frisk him there had to be there is an additional element that there must be some evidence that mr dortch was armed and dangerous there was pretty clearly enough for a terry into up the passenger window of a park and speaking with someone that's consistent with street level drug activity i mean consistent with this is the great nothing statement of all time i mean everything this consistent with street level drug activity behind ziploc bags is consistent with confronted him the you know but nothing that what these cars were doing was individual eyes or places any individual suspicion upon i don't let me just say obviously alcohol i know is what i they always talk to that person that's correct and so i only understand why you're saying that he didn't have enough that he didn't have constitution he couldn't talk to your client i think he's free to approach them in the central sense but at the mr door shuts down the potential encountered and asked more to that and one of the reasons why the supreme court is permitted passengers of vehicle to challenge not only you know the detention but the stop itself because they recognize that when you're in a park when you're in the car and the pora stopped like in the highway in the middle of nowhere that you've been effectively stops to hear that's not the fact pattern we're not on the interstate in melbourne or just not sitting in the car he's standing in the street next to a stopped car much in the way that i'm sure all of us have been at some time but i've also seen where the officer stops somebody on the street for something and there's another person there they'll turn their inquiry that other person is well i don't i don't i've never seen a case where they said that an officer couldn't come upon two would just be in question is this the terry stop to stop and talk it seems like that's done all the time and we we don't say you cannot do that well i think i get back to my original point that in cases like the stewart case cases that are relied upon by the by the district court that is the general fact pattern it begins as a consensual encounter officers are just you know you talking to anyone and standing around but in this case you know the rubber hits the road almost immediately we're mr  not want to speak with the officers and at that point if they want to restrain him from leaving they have to be at that point able to define some reasonable articulable suspicion that is individual lived three hundred or two but he did answer the officers questions i mean he didn't say i'm not going to talk to you or walk away or anything he did answer the question the answer that where the officer asked what are you doing which is you know not a greeting common to individuals and then mr dortch turned his head and said i'm talking to my girlfriend and then turned his back on him when he will turn their back on me when i talk to them which is not going to ask them do you have a gun and he answered that question that was asked he was patting them down the detention it's already been at this point the fact that i see him in the matter but all time if i may reserve few minutes the officer was legally justified to be in contact with mr gorst there in the street as they were and second the officer did develop a reasonable suspicion that this defendant may be armed and therefore dangerous the legal justification for this officer to be in proximity to this defendant there's three bases they're independent they're legally sufficient in in our estimation basis number one consensual contact consensual contact is based on the circumstances that a reasonable person would believe to be the case based on the circumstances what i mean is there is no justification required for an officer to walk up to somebody industry and ask him a question literally that's where the defendant was and literally that's what the officer dead remember the scene two vehicles that are passenger window sunda meyer is the sole officer who purchases the van gets out of his vehicle doesn't run he walks there's no lights there's no sirens there's no commands there's no halt police there's no stay where you are there's an approach on foot he asks two questions of this defendant and up to the point where the pat down occurs that encounter is consensual so that's basis number one basis number two is that the officer is legally justified to maintain the status quo at the scene of at least this van and i would suggest both the van and the pontiac to figure out what's going on and to investigate the apparent last mile ations rules of the road the parking violations of the driver the van and the driver of the pontiac i've cited cases where a defendant was a passenger inside the vehicle i can't find where we have this circumstance where the defendant is leaning into the open window of a vehicle that the officer approaches and that vehicle is one that  is for lack of a better phrase stop for a traffic violation in the stop yes reporters on foot but i think the legal principle is the same that is the officer is legally justified to maintain the status quo mr dortch and the driver while trying to figure out what's going on with this van is it is a violation of the fourth amendment to who if you've done a terry stop and as i understand it counsel indicates that the judge if there is not a sufficient legal basis to detain the person then i would say you're but you're going beyond my he is i understand the facts here he did terry stop and he talked with him and then he said i'm going to patch it down he hadn't done that before he could do that he said it's in i'm going to pat you down for a weapon and he said it's in my pocket it's in my pocket judge the there was a report that was written by a second officer and i think that might be where the court is deriving that but my understanding of the facts are as i've described the officer walks up he engages mr dorsey in conversation meaning two questions what what's going on or what are you doing question one question two are you armed the officer then does conduct the pat down he has the defendant put his hands on the vehicle so i think as a matter of law the defendant detained at that point because there's a pat down i don't think it's consensual and i don't think that there was an admission of the firearm prior to the officer placing her here thanks for clearing me up on that how do you distinguish this from united states  jones judge it's as simple i think as reason to stop versus reason to for us the jones decision turned entirely on whether or not the operatives had a reasonable suspicion sufficient to stop mr jones in the first instance this is different for two reasons three i would say driver and the pontiac driver certainly at least the van driver the defendant is part of that scene i think the officer has the legal authority to maintain the status quo that's basis number two three is  that there were potential violations having been committed by this defendant who's standing in the street how did he get to all the officers don't know they testify they don't know what's going on was the defendant soliciting a ride he soliciting a contribution those would be violations of particular ordinances of the of the city was he walking down the street rather than on the shoulder did he cross rather that at some point other than the traffic control device which is at the next corner doctors don't know that so that would be the third differentiation this is not an individual like mr jones was who was simply walking down the street clutching his torso oh he's got to got that decision turned entirely on the analysis of was there a reasonable sufficient excuse me reasonable suspicion sufficient to detain before they even get to the best search though the second issue judge of my second point there is a legally sufficient basis for the officer to be in contact with mr to work second the officer did have a reasonable suspicion that this defendant was armed he was already in proximity to the defendant in a justified and legally appropriate way  reasonable suspicion is that but probable cause to search you right judge i do don't believe the officer needs probable cause to conduct a pat search  outer clothing frisk so if there's evidence if there seems to be evidence of same if there are specific circumstances that warrant a reasonable person reasonably prudent person to believe that his safety or that of others is in danger and there was here the circumstances i think can be grouped into three the officer is supposed to consider and may consider the totality of the circumstances this court is to do likewise group number one was this defendant's coat versus the weather conditions the coat or jacket it's canvas out or it's insulated it's described in the record by the officers as thick or bulky this is not a  sweatshirt that was inconsistent with the weather conditions inconsistent in the opinion of the officer who had been on duty for about four hours that day hadn't seen anybody else wearing outerwear similar to what this defendant was wearing patrolling in that area  we had the weather records that were introduced that's exhibit one and about twenty minutes to me from about forty minutes before to about twenty minutes after this event that's the closest in time we have readings for this that the time of the encounter was in the range of seventy to seventy three degrees and the wind was zero well earlier in the day had been warmer it also had some traces of rain reflected on the weather report it had been windy at various times but the point is at the time the officer is there making contact with this defendant and he's got this bulky coat on that's not consistent with the weather conditions and he hadn't seen anybody else dressed with similar outerwear so that would be circumstance number one oh beyond that the officers own experience which i think he's entitled to draw on and that is when people want to conceal something sometimes they'll wear a bulky item and that's a circumstance that an officer is entitled to consider so that would be circumstance number one circumstance number two is the defendant's own conduct and the description of this to begin with the consistent with street level drug trafficking absolutely that's if this defendant is standing at a window of a passenger vehicle stopped in the street as opposed to the ice cream truck you know or the ding dong man or as opposed to you know on his knees with a jack in his hands where he's standing where these cars are he's an adult at cetera this is all these are all facts that the officer observed and drew a conclusion which he is allowed to draw and that is this appears to be consistent with drug trafficking so that's part of the conduct the georgian test is an objective one a subjective one of course it is judged but i think the officer is able to draw on his own experience and draw sufficient to pat him down yes because terry doesn't give you that authorization unless advances to some point that you have reasonable suspicion that there may be a dangerous weapon or something like that and then you can p unless i missed misunderstand terry well this officer did believe that the defendant may be armed based on what the circumstances that i'm just going through now judge number one the coach versus the condition of number two the defendant's ow conduct he's at this vehicle window i just described beyond that was the defendant's own conduct as the officer approaches the defendant is standing at the open window of this passenger van and the officer is approaching from the direction of the court the officer testified that the defendant initially turns his head completely and makes eye contact with the officer the officer approaches on foot and asked the question you know what are you doing or what's going on or what the record reflects exactly what the question is the defendant as the officer is approaching he presses his body up against the door of the van he frees up his hands meaning he had a cell phone in his hands which he places on the street the passenger seat through the open window of this van as the officers are approaching and then when the officer gets to within i think you testified about four feet asks what are you doing or what's going on the defendant doesn't turn and face the officer he doesn't even turn his head completely to face and look make eye contact with the officer he keeps his body pressed up against the door of the van and he turns his head part way and officer was very specific about the defendant not turning his head even far enough to make eye contact with the officer why does that matter when he's got an object a bulky object and weapon that would be an excellent way to keep someone from seeing the bulge to stop from if you turn your coat swings open oh my goodness this thing sitting on the interior pocket which is exactly where it was found you know it bangs against the door of the of the van and then the jig is up so the conduct of the defendant the third circumstance which i think the officer is entitled to consider are the recent events not in the city not in that neighborhood but specifically at that location this encounter occurs right in front of an apartment twenty ninth and parker in approximately the three weeks preceding that encounter there had been two firearms recovered the officers testified at that location in the vicinity of that specific apartment and also a shot fired hall in addition they were aware the officers were that that location was within the territory claimed by one criminal street gang but there was specific there are indications that another members of a different criminal street gang were moving into that apartment and resulting in friction so those that's the third group of circumstances that the magistrate accepted the district court accepted and were asking this court accept as a reasonable basis for this officer to conclude that the defendant was armed so therefore they were pat down recovery of the firearm we contend is proper and we're asking that this court affirm the decision of the district court denying the defendant's motion to suppress ok thank you very much thank you mcwilliams almost three minutes as the reason he stopped melvin dortch those are say the same they give you it's an objective test and a reasonable officer could have done that correct but if you look at the elements of all of those offenses there was not even a scintilla of suggestion of endorsers violating any of those ordinances all of those ordinances and i and i in my brief it catalogs it goes through them one by one explaining what the elements of those ordinances are and how was not was not violating any of them and if you know officers under maher when he was testifying only testified that he believed that standing in the roadway was a violation of the  in one or two of the elements of say a four element ordinance that does not reasonable suspicion make you know it's not like if you're dry if you're a police officer and you see someone operating a motor vehicle you get to stop them so you can find out if th higgins distinction of the jones case i i i heard it i disagree with it you know in the jones case it's a say it's the same general fact pattern the distinction between the stop was bad but even setting aside that the ensuing first was also about what the jones court hung its had upon was that there was no there was no that it was remarkable the court said that there was no basis given for the water and therefore it's not just in the jones case i don't see how you are a police officer you can walk out of the jones being good law and this being the law and know what to do at all if there are no further questions i think the court for its time ok thank you very much thank you