counsel you may proceed when you're ready good morning may it please the court i'm william welsh and i am representing the tallent a silly by the court's appointment in this matter i'd like to speak with you this morning about land government agents seized mistily then interrogated him without parental warnings then searched him and his belongings all without a warrant or probable cause mr lee's position is that the court should have granted his motions to suppress and the district court should have taken the brown hand roll marijuana cigarette which is a claim to have smelled and seen from across the street somehow just disappearing is inherently incredible trial also made apparent that the agents did not seize marijuana at all like they had claimed that they did not test for d n a as they had promised that the district court should have reconsidered its suppression ruling because by the time mistily made motion for judgment of acquittal all of this should have been apparent to the district court first officers made a constraint and seized miss to lick mr wells can i ask you you you were heard to the officers claiming to have seen and smelled the marijuana from across the street but the district court after a hearing held that the officers saw least smoking what smelled to them like a marijuana cigarette that's a day ninety eight and that's a factual determination based on the bench you're hearing so don't we have to accept for purposes of this appeal that that factual findings you would judge hillary if that had been the entire record but while that was perhaps all the court had the district court had  of the suppression hearing when it made its ruling to jury trials later by the time we may post trial motions made apparent that that wasn't all of the information that what came out during cross examination in the trials was that there never was a marijuana cigarette and so although ordinarily appeals court would be reluctant to consider the additional evidence if the district court had the opportunity to correct itself or at least  the th circuit has decided that the appeals court should consider the complete record when the district court did have that opportunity and the authority that i would cite changed their testimony by saying it never was a sighting well i didn't and i'm glad you asked because i didn't mean to say that they never said they saw  they claimed to have seen one and the argument that mr lee is making is that well how can that be right if they never recovered it that it just disappeared it was never any testimony that was different in the sense that you care about your papers and you're working with them whereas here it doesn't seem like they were going to arrest mr lee simply for for the marijuana they were going to say to him and then by the time they had and arrest in the in the crime scene detective coming around to secure evidence the the gun was the focus it's not that not the single marijuana cigarette so why  would they i mean it just seems correct explain to me why it isn't fully plausible to think that honest and well meaning officers would have disregarded citroen arge and the possession with intent to distribute charges so for trial purposes yes the focus was the gun but during the investigation i would disagree that the gun was the focus of this investigation i would do respect and millard question was going to what the officers were confronting at the time there in the bus shelter in other words i didn't see any suggestion that they thought they had a major drug use or beater sitting in the bus shelter rather they were going to cite him poor smoking you legally in their presence well i hear you judge rogers but and that was ultimately what they were saying when it got down to just denying twenty two g b trial but that's not what they wrote in the affidavit for instance seeking the still least d n a oh i understand that and what they thought they smelled and then they spoke to your client and they asked him what he was smoking he said we'd  in their presence well except just another was it marijuana cigarette and ultimately the lack of any being seized would indicate that they would not have had a basis to cite you well they said they saw a brown apparently wrapped cigarette but they smelled marijuana and as they got closer to him they smelled it more and they said we're trance and police what are you smoking y well there is a denny's thing immediately on point like identical facts but our position is the cases that we cited in the brief lewis case nine hundred and twenty one federal nd one thousand two hundred and ninety four that this wasn't some friendly conversation this is officers immediately seizing the person making a constraint and then proceeding right to an incriminating interrogation so way way way that doesn't actually even make sense so if so the theory is assuming that there was no marijuana cigarette the areas that the officers approach that they put him and i think to a sandwich he does not feel free to leave on the bus shelter which has the three sides and they're sort of facing him and then they ask him what he's smoking which which is what triggers the incriminating information but why would they ask him what he's smoking if he doesn't have a marijuana cigarette or you think or that the theory is that it's oh it's a tobacco cigarette bass because they get a confession from him they get an acknowledgement from him and you know i mean it makes sense even he explains that he doesn't think that's illegal but it turns out smoking in public a why don't we hear from the government give you a couple of minutes in rebuttal thank you ron good morning your honor is and may please the court i'm daniel randolph on behalf of united states the district court correctly ruled that this was not a seizure prior to appellants arrest in fact nearly all of the relevant factors here indicate that this wasn't a seizure there was no physical contact prior to the actual and cuffing the officers had their weapons and their equipment concealed throughout the encounter they were wearing plain clothes they used to call tone of voice and never raised their voices throughout the encounter and this happened in broad daylight and this was around four  we were to discredit the sight and smell of the marijuana cigarette and we can assume that it was a seizure a lot of terry stop and there but if there was reasonable suspicion for them to stop him we don't we don't actually have to get into whether this is different or the same as bostic or drayton or lewis or any other case right that's correct your honor  we think there are several grounds that this court could affirm the district court's ruling on and a separate independent ground would be that there was probable cause or reasonable suspicion at the outset of the encounter and we certainly think there was here i mean the officers especially when this commit a criminal offense in front of them they saw him smoking a cigarette across the street he was the only one in the vicinity who was smoking and they both were experienced officers they had intimate with the transit police for over ten years each of them and they had experience in forcing these types of violations they certainly knew  what marijuana smoke smelled like and they identified the smell of smoke as marijuana smoke we cited a few cases that are not on all fours here but certainly we think there was probable cause and at least reasonable suspicion for this  encounter at the very outset and your honour's correct that in light of that ruling never be there would be no reason to there be no need to reach the seizure inquiry here and just to be clear the officers were not preparing to arrest him for that offense they were preparing to give him the citation but when they couldn't identify him with any reliability they then they felt that they had to arrest him that's correct your honor and believe it was officer will either testified about this at trial that it was sort of sort of standard procedure that they would generally write a criminal citation which i believe was twenty five dollars ticket for smoking marijuana in public but that one appellant provided false false name false date of birth lied about  having about not having he said he had no idea but he did have an i d when the police were not able to identify him that's when they followed their standard protocols and proceeded to arrest him because they were that could i just be clear you said they followed their standard protocol because they were not able to write a citation why not because they his name he ran they ran the name and date of birth that he gave them through the links database and there was no match they also ran a warrant check for the name and there was no match so they were on it will be clear i haven't seen the citation but you put the person's name on the citation and some identifying information i don't believe that's in the record yes around about i assume so yes but you can't cite a person without knowing who they are and presumably the or i don't know does the police department keep a record of the individuals to whom they issue citations your honor i believe the testimony was that this links database and included prepare you know previous arrests and other sort of interfaces with law enforcement and so based on the negative results in that database and based on the fact that there was a negative return on that warrant check as well they were unable to confirm his identity and so at that point there was there was a conclusion that most likely this was a false name that had been provided and so without being able to confirm his identity it was not possible to to write a criminal citation and just out of curiosity in the record before the district court was there any information about the nature of eight there were there was certainly testimony about there being off onlookers on the other side of the street opposite where the bus shelter was this close what i'm getting at is is in a residential area as opposed to a commercial area in width of the street your honor it's i can't pinpoint this in the record but both streets are two lane streets there in a residential a residential area unless there are further questions on the th amendment question i did want to briefly address the inherent in credibility argument i think it's important to emphasize here that in addition to the argument  there is not a single mention in that motion of ever quest that the district court reconsider its suppression ruling and there's not in fact the word reconsiders not even used in the motion  the government read the motion as it was as it was written the just the district court read the motion as it was written and ruled on those on the rule twenty nine and wrote thirty three motions and there was never any follow up from appellant saying you know what we really meant to file here was a motion to reconsider the suppression ruling i don't understand this argument and that the whole point that the whole basis of the route he wants judgment acquittal he doesn't care he doesn't need to care about the motion to suppress ruling at that point we've we've go beyond that he's gone to trial twice your honor his argument in the rule twenty nine and rule thirty three motion wasn't because there was a missing cigarette but because the government could not present physical evidence of the cigarette but at trial that that meant that the trial testimony all of the trial testimony of the officers was inherently incredible including on the issue and this is this is critical here the only thing that mattered when it came to the motion for judgment of acquittal and  motion for a new trial was evidence of guilt and on that there was only there were only two contested elements here and really only one it was whether appellant knowingly possessed a firearm the firearm in question on and nineteen and to support that elements of guilt the government produced the direct testimony of two officers the government produce physical evidence including the gun itself the corroborated direct testimony and the government listen to testimony from a rd officer officer channon who was the crime scene technician who who respond to the scene within fifteen minutes  who processed the evidence and recovered processed the gun and processed the other physical evidence and that was also consistent with the testimony of officer was an officer well it so the ultimate question  the district court result was whether there was sufficient evidence for a rational juror to find that appellant knowingly possessed a weapon on march th two thousand and nineteen a firearm and so  you know i think that there's really no doubt here that the district court's ruling on that question that was presented to it was correct and the issue that appellant it's a separate issue that appellant's raising on appeal here it still it still fails on the merits but i do think it's important to point out that there's a procedural problem with the argument that appellant is making here for the st time on appeal is what you're saying that that the new trial motion wasn't framed in terms of the error in failing to suppress it it was framed only in terms of this separate inherent incredibility are going to have the two were kind of working together that they were seeking to suppress for the on the th amendment grounds and they were saying that there was inherent in credibility your honor the way that the government read the motion below and the way the district court read the motion below was that this was going to the credibility of the officers trial testimony as it related to the question of guilt and there was no motion to reconsider the suppression ruling and you know to the extent there is any ambiguity there i think i think the other point to emphasize here is just that this court would have to find just on the merits even if even assuming that the the motion to reconsider the suppression ruling had somehow been properly properly presented this court would have to find it would have to be firmly convinced that two officers came in and took to the stand and lied under oath and i think it's far more plausible that the cigarette was knocked off the trial i think that there are any number of plausible reasons why they were not able to find the cigarette but at the end of the day and as as your honour's pointed out earlier this was not their primary concern and they testified to that at trial that once they had recovered a firearm on appellant that became their primary concern and was recovering the firearm and processing the other physical evidence that was recovered at the scene i see that my time  expired your honour's there are no further questions we would ask that the court affirmed the judgment of the district court thank you just as i just wanted to follow up on that your argument about them not having about the defendant not having raised  challenge the suppression as such i don't call that the way you framed it in your brief that may be correct your honor i think we i think you did not specifically address that point in our brief i however i do think our brief consistent with the fact that this was read by the government throughout as a motion challenging the credibility of the officers trial testimony on the questions of you know and the fact is missing one way to read the motion there's another way to read the question but we don't need to get into all that that's why i'm not sure why you're arguing this but in any event i think your argument is judge pillared did you want something done thanks all right judge walker now thanks all right counsel thank you very much counselor can't give you a couple of minutes thank you judge rogers i do recall from the wasn't the focus that a certain point they the officers concluded that that mr lee was a fairly high level drug dealer can you explain that the plant substance recovered they testified how they suspected that that was marijuana however when it was tested and analyzed the chemist testified it was not so there was never any marijuana in this case one of the other problems with the officers testimony is the officer saying that he saw mistily smoking a marijuana cigarette and the smell of marijuana is the same one said they came back that it wasn't it was not marijuana which is which is part of the reason why the drug trafficking charges and the nine hundred and twenty four c number one forward this was by the time we got even to the st trial only a nine  not truthful with the magistrate who he filled out an affidavit and gone warrant for d n a a lot so how do you believe this guy's specially because no marijuana cigarette was ever recovered none of the other evidence that they claim to have seen was lost how come this one critical piece of evidence that gets the whole thing going is the only thing that doesn't exist