the court my name is jennifer may parker and i represent the united states the appellant in this case when conducting a reasonable suspicion and alice's a district court is charged with the duty to consider the totality of the evidence as well as all of the reasonable inferences that are made by the police based on his knowledge at the time as well as his training and experience this is not what happened here here the district court discounted key pieces of right yes and we're looking at it from the time of my snake both from the be on the lookout announcement up until mr harley was put under control under the police's at the is that the time period we're looking at yes and what was what mr mccarthy knew during that time  what he knew first of all who was he had any tip from and a reliable form and that is a confidential informant he received a bolo from being received from the informant he received from the reliable you don't correct go back that's what i was trying to find out what was known to mr mccarthy he's received a police boat that says we're looking out for a white officer who received the ball of head also hadn't he seen a photo of mr hall yes there was an outstanding warrant correct he had seen a photograph not a photograph but the picture on a warrant form the defendant mr that he based on my training experience i believe this cadillac was probably the suspect vehicle in the time that it took the assault by pointing the gun this side to called achieved achieved to rela information over the radio there was sufficient time for the suspect caroline to make its way to cross town in the general area where i was this is a minor point but he said basically the amount of time w consistent with the amount of distance but not that he doesn't say like i heard that the car took off going south and i'm standing south and that's how i know it's the same car wreck t v he did not say in the bolo there was no direction in it but what is a reasonable inference from what he's saying is that the car was heading towards him and he was heading towards eden turn and he did say in the herring that he lived in even tina knew where things  were so yes in answer to your question there was no specific information about direction but i think it's implicit it's implicit that bill distance and direction  d flow from what he was calculating at the time they saw this specific cadillac so we get to the point then based on your summary of the evidence so far where the officer gets behind his cadillac and he activates is blue lights the district court did not calculate in what the officer saw and what he reasoned based on his training experience what was going on when the cadillac the officer said that he saw the passenger in the car sitting and acting as if he was trying to conceal his identity and a district court did not take that into consideration instead the district court interjected that that is something that is not on usual for a person to be slump what's important here is to understand what the officer was saying was based on his training and experience it appeared as if that passenger was attempting to hide his identity and so it was it was inco yes they told him to get back in the car he said yes he yielded to be the show of authority at that point but i understood your honest question to really be asking me did he have reasonable suspicion before that the question is  did you have a bowl of sand a white cadillac with an african american yes driving your car with a harley drive i'm not driving in the car in the car in the car you have the officer knowing that it's a white cadillac with an african american that appears at a time in a place consistent with the bolo yes how many cadillacs over that doesn't stop for the light he sees the passenger slouch the car whether that sequence of events creates enough suspicion to have the officer have a temporary stop and the way that suspicion and our position is absolutely it does there's more than sufficient reasonable to suspicion here for this stop it was legal as well within the fourth amendment and none of the defendant's rights were violated in this case once again it's a question just i agree with you i think it's just assuming for a minute that the district court erred the district court held that anything after the siren goes on isn't part of the picture what do we have to judge sort of how suspicious that activity in the car really was because right the defendant is arguing everything you've described it could also be consistent with someone looking for a place to pull over a year they move very slowly the police report says it's not like they took off this is not flight or anything like that they're moving very slowly down the street they pull off they get back on they find a place to pull off that's the defendant the district court never considered any of this kind of factual dispute don't have to send this back and let the district court figure out what really happened here and well suspicious it was and that was our purpose for filing a motion for reconsideration really was to appeal to the district court to take a fresh look at it and to include that information that it had discounted initially but our position here is right now there is sufficient in the evidence based on this cour precedent the supreme court's precedent to find that there was reasonable suspicion now if the court chooses to send it back so the district court can take a look at it again i think this record made a comment if i'm wrong the fourth circuit will tommy says so we're really here for and really saying asking you to tell the district court that it was wrong because that major part of the evidence was excluded and it did so incorrectly excluded he just discounted it or yeah  actually excluded the whole siren part he said that is not part of the equation right you need reasonable suspicion at the moment you turn on that siren yes that's the way i read the district court ok and you think that is just a legal error that we should reverse correct and  and not only reverse but to find that the district court made an error and that there was in fact reasonable suspicion in this particular stop in light of what happened after the silent when in light of all of it but  think until the siren goes on i mean there are cases right saying that our although review is do no evil we're really supposed to defer to the district court judge is better understanding of local conditions things like you know i'm telling you there's lots of white cadillacs around so under cases like cornelius and you know we really supposed to sit here and say no the district court was wrong there are very few white cadillacs yeah unless it's clearly erroneous and i think in this case it's that i mean is there something we're supposed to look at about the number of registered cadillacs  well first of all that was not a fact that the officer considered the officer did not just pick arbitrary well he didn't just pick an arbitrary cadillac what we're talking about and you don't have to  be defensive about this is a white cadillac with an african american in it in a town of five thousand at a time and a place the rest consistent with the bolo correct and what we have seen three or four five cadillacs in that area i mean i'll bet you the chances of that occurring a one in a million at that time and place i don't care how many are registered in this little town quite apart from that then you have the guy doesn't stop the guy turns a corner now you can consider the base and instead what with the public say about his not stopping now i think they would find that he was derelict in his duties and i'm agreeing with you that it was that white cadillac at that place at that time what i was attempting to say it wasn't just any of the other white that reasonable suspicion that crime may be a foot and they can allay the suspicion with a shortstop yes that's what the a theory says and in fact here to crime had already occurred and that's also something the would be grounds for the stop i mean isn't that a legal not to pull over when police officer turns on the siren going to be legal not to stop when the officer shows authority but i'm not arguing that that by itself is what we have here i'm argu all of it but i'm just wondering you know you never argued i did any stage that was sufficient i didn't argue that but you probably would have been you think yes i mean if you have actually why do you fly the flight here which would be what occurred the come now i argue it ok because none of those all of those arguments are consistent with the evidence and they support reasonable suspicion here no further questions i thank you and i ask you show that he committed legal error or that on this evidence in the light viewed most favorable to mr holly he clearly erred and the government can show neither of those things what did we conclude that taking the the circumstances is just simply no question that a reasonable officer would have suspicion sufficient to make a stop we're not talking about probable cause or some higher level we're just talking about the right of an officer to allay a suspicion and what we have to determine is whether the suspicion the officer articulated based on the facts were sufficient and in this case the district court basically considered two facts and actually changed them one is that white cadillac driven by an african american and he sort of said well there are a lot of cadillacs around by african americans and basically said that's not enough but that hardly takes into account the fact that this cadillac was at a time and place consistent with a bolo that the officer observed conduct in the vehicle that the control of him at that point it seems to me you take all this in account it's almost i can't figure out what the officer what this people these people would be about except be suspicious you can think  answer your honor's first question if you are if this panel were to hold that note that the district court erred then yes this panel would reverse and this entire appeal is demonstrating that the record does not support that to take in some order first i know there's been questions judge harris about when exactly the seizure occurred and i did a fair amount of research on this and i'm you know the government i'm sure did as well cases are clear that if there's headlong flight in the face of authority that is not a seizure the cases are clear that once there is a submission once someone is physically detained that is a seizure at this point what i could not find is the case saying what happens in the process of being seized the blue lights come on you drive to ten lots of cases people flee people not submitting and resisting dari lays out yes and your honor and seems to me are you taking issue with the fact that a search commenced this seizure occurred before he was put under control may your honor i do not want to be to derail it on this point because i think we must look at the totality of the circumstances which are the but yes you're on your honor i was he sees your honor judge britt found out i want to know your point when he was seized the blue lights came on at that point the with that at that point if if the car had your honor sped up if the car had begun driving evasively it doesn't matter if the car didn't stop with a current ten miles an hour and didn't stop he's not seized you can step on the gas the question in your honored that factual scenario where a car i would say took off certainly that record would be much different than this and we could find the district judge clearly aired the question yes you're on the fourth amendment talks about a seizure and the supreme court has defined a seizure to occur when they achieve control over the person or when he submits to control now tell me how the police had control of a person honor if someone is not under control then they are not under control they are not seized i would say the question in this case is whether on this record driving two tenths of a mile slowing down attempting to pull over twice and then pulling into a driveway on that record did the district judge clearly err in finding and i want you to tell me your argument as to when mr holly was seized in this case and you're under the constitution under the supreme court precedents of having control and your honor and you disagree with me on the no i want you to tell me your position when he was seized when the blue lights came on in the car begin a process of pulling over and at no point acted invasive y he was c s we obviously disagree but i believe because there was no evasive maneuvers it began though as i said i i look for a case involving these specific facts i could not find one ok the seizure occurs when the pull when the car pulls over but nothing that happened in the course of that two tenths of a mile was terribly suspicious because it's consistent with someone trying to pull and these are two slightly different those are two actually i think you judge harris and more to the point it was not for judge britt to find that on this record that that is he put that's no suspicion at all and i may be slightly misquoting him but and also to step back i believe you know your honour's have mentioned several times that the time in the place of the seizure was sort of consistent with the bolo that does make it seem like again that the direction of travel was in any way before the district court it was not the direction of travel the route the car was on whether it made sense for the car that time it was and again looking at this record in the light most favorable to mr holley and whether judge britt clearly erred the record actually shows all we know was that it was a large distance and a significant amount of time the officer's report says the officer's report never says how close he says it was across town the the officer's report that's due in appendix seventeen to twenty and again there's not much he says in the time it took for the assault to take place the c i to call the chief the chief to really the information over the radio there was sufficient time for the suspect cadillac to make it across town in the general area i was those are the facts and you know nothing in there about the highway it was on i knew it was on highway one and that would be the sense the direction it was traveling this occurred two blocks away i knew it would i knew it would take thirty seconds for the bolo to come out and i saw the car two blocks from the mart in fact when you read this and again certainly in the light most favorable mr holley multiple events took place a fair amount of time sufficient time and far away and one of the things about reasonable suspicion that the supreme court has said is an officer's reasonable suspicion cannot the net too widely it cannot capture the majority of citizens behavior and saying that something that happened a long time ago in across town means that as a mathematical possibility this car could have made it  this vehicle could have made it here no idea it was a car could have been a cadillac escalated it could have been an old cadillac new cadillac but just saying well i was far away and it was a long time ago so it was the radically possible for this to be the car that's the hunch that's not reasonable that we're talking about five thousand we're talking about a crown mark a mile and a half away from where he cited him we're talking about a few minutes that the officer calculated we're talking about somebody that knows the whole i do recall where the officer said he was going into town but again i don't recall that he was headed towards the crown martin i apologize if that is in the record that i i missed it but that's kind of the point there's so many little assumptions the government is asking this court to make that aren't in the record certainly had deputy macarthur gotten up we would have a different record and we don't know what it would have shown we don't know she fortenberry we don't know how many white cadillacs were in the town of eden to judge the town i'm talking about out of time and a place the officer estimated in his experience was consistent with the bullet and based on what your honor is our question based is where the crime mark was this is a small town and he knows where the crown mart he was at the mcdonald's right you can look at upwards of one point four tenths of a mile whatever it is but he was at the in front of the mcdonald's and bolos saying the guy had used a gun here in white cadillac to african american and no actually recognize the name of the person use the name and the officer mccarthy sees a white cadillac within a few minutes of that headed in the opposite direction the officer was going and you know again your honor if we're talking about the location of the mcdonald's relative to the location of the krell mart none of that is in this record the question the question isn't that's on a map do i have to put that in the record or can i take judicial notice of a map your honor putting a map on the record at the level putting a fact on the record at the appellate level when that is the exact sort of thing that could have come out at the hearing and i don't want that loss you mentioned in our brief several times the officers testimony would have been subjected to cross examination there wouldn't it's so easy to complain we couldn't take judicial notice of a man i'm saying your honor that in this police report and my saying you can't i'm sorry i actually am not as familiar with the law of judicial notice so i don't know the answer i i would say that in this context when if this court were to find that the map w determined it fact in the proceeding then the answer would be well that wasn't the evidence the party with the burden of proof did not put that in front of the district court and you lose this isn't a clean not supposed to look at determin slouching on off is the fact the cadillac is there enough is the fact that a person was pulled didn't stop or that went off the highway the answer is we've indicated several times we don't look at those and parson what we do is black letter law and judge britt correctly found that the officer did not have reasonable suspicion the officer had a hunch it's just another piece of a factual question about the hearing below was was there any testimony taken or was there any even discussion what happened after the siren went into the dispute consider that all the district court did after the district court issued its oral ruling from the bench it said two things first it clarified that it did even though he did not receive every single piece of evidence in the record he did consider at all and that is this court's aware district courts are under no obligation it also the government after the court announced its ruling ask the court to express  at yes because that was in the police report and judge ridge said judge said he considered everything so i believe judge britt considered it and again it was arguably invasive i think you could look at that in fact finder having looked at it could certainly say that seems of a sieve the fact finder in this case looked at it and said it did not seem of a sieve but it was in the record i do not your honor believe that it was discussed much if at all orally by the finders already looked at it so there's no need for me to send it back when judge britt says i've considered the entire record in this case i mean the government's evidence was a two page police report so i think we can say that the judge read the entire police report and i do not see a need certainly your honour's for reaming all the evidence was in front of the district court and the district court made his finding in that finding that someone drives two tenths of a mile tries to pull over finds a goes off on the off on the shoulder comes back onto the highway goes off on the shoulder all the mean time the blue lights going the sirens going comes back on the highway goes down the highway and turns left into a driveway a reasonable officer could certainly your honor have the opinion that that was a base of but his opinion is not entitle it is not a fact and what i would have appreciated and i think we all would have appreciated is to have officer holly on the stand  sorry officer macarthur on the stand she fortenberry on the stand and say ok what was the area like he pulled over on the shoulder well you know it was a very busy road it was a very narrow shoulder or maybe he would have said actually  that's where the light went on i'll trust her on that and the point is your honor the government witnesses up there suddenly the question of well you thought it was of a sieve but wasn't where he tried to pull over a dangerous area well sort of was in the driveway a say in that the first place he could really pull off the road entirely we don't know what he would have said but that that's why we really want the party with the burden of production to put witnesses on at a hearing because all of this factual record could be developed the factual record wasn't developed and so here we are on appeal just trying to say on a two page police report did judge britt clearly err in making his findings of fact and i think the answer is no i would also your honor just point out you know i think your honor speculated about the number of white cadillacs you know i think judge justice since august asking you what's the probability of a white cadillac with african american and it appearing at a time honor i do not know i certainly know that even ten is if not a majority certainly close to majority african american city so you know seeing a black male in a car is not going to have as much suspicion is it's a would in suburban raleigh where i live there lot of those little facts and i think justice scalia is never at dissent when he is sort of in his way humorously speculating about the likelihood of an officer and a white cadillac was just involved in this very serious crime here an african american and mr holley leaving the crown mart and another officer a few minutes later one point four miles away as i see a white cadillac with an officer and he should stop that  car and an officer be also lives in that small town and so would very well know how long it should take to get from the mcdonald's to that location and again your honor i would say that's not what the record shows that the report shows far distance significant time google map shows one point four miles and we've taken judicial notice of google maps and cost a lot less and the second circuit has done it paul versus thomas  testified to that and so that coupled with the police report that says based on his experience and you know did it did he move there a week before the hearing did he move there twenty years ago again facts cross examination think things that would have been in the record that possibly could have been a scaffolding upon which to build a clearly erroneous argument i do your honors or somebody from your office crosses only on the point that was miss pereira and only on the point that was brought out by the district court which was two about the mug shot one thing i do but your honour's it did not because judge britt did not have to really go to the reliability of the tip this was not really part of the argument but certainly to the extent you know this was a simply point the court to footnote two of never read where the supreme court majority in the dissent agrees with this that it is an open question as to whether a tip concerning a completed crime can lead to a terry stop certainly an ongoing crime i am carrying drugs i am driving while intoxicated can lead to terry it's not as easy to say skyler how he committed a crime at some point it's the officer who got the tip is making the mean yes of course he's not going behind and i ask you no good your tip now and and your honor my time is up i again i would only be to the extent the court really needs to reach that issue i would just point out that it is a very open issue footnote to a never read just two quick points to make a point you to join appendix page forty three had a very bottom where the district court said in fact that this car took off and didn't stop is not a part of the equation as far as i'm concerned so yes the district court did specifically this regard you have a dense of the the cadillacs failure to stop when there was a show of authority by the police secondly in lender this court held as well as california versus hidari that when there is a show of authority by a police and a defendant or the person does not submit or yield to that show of authority that there is no seizure so that it is clear from the case law that what happened here when the officer put on his blue rights and sirens and that car did not feel that there was no earlier when the car stops that's when the driver stops the question is in this case there was also the fact that mr holley who was the passenger immediately opened the door and got right he mean the officer said to get back in that's right things under control now the question is had holly gotten out of the car and fled we would not have argued that the seizure of the stopping of the vehicle was a seizure of the passenger that's correct that's correct when he submitted to the effect to the the the least officer control yes yes there has to be an exercise of control i think that's in the spring court case that's correct when he told him to get back in the car and he submitted to try to put his hands up that's when a seizure occurred because i'm not in the car pulls over when he gets back and that's right because he was in the passenger not well he was a passenger and not the driver straight and i think the difference here was that he was a passenger not the driver and if we get as long as we're distinguishing passengers and drivers does it make any difference then in thinking about whatever you call that point in the two tenths of a mile is it a base of driving was it someone trying to pull over either way it wasn't holly driving the car so how does that add to the suspicion of the passenger that it takes two tenths of a mile for the driver to pull over as long as we're splitting them up you look at the totality of the circumstances it's not the suspicion of the passenger  of the circumstance as the officer is viewing this using his training and experience and his commonsense he's looking at what are they doing how are they responding so it's not necessarily decision as to the passenger that's in the car the passenger however was trying to hide his identity and that's why it all comes to i'm just getting to one side the time in the place the hiding of the identity everything that was sort of specific if we're just talking about the two tenths of a mile where takes a long time to pull over either because it's a vase of activity or as the defendant would have it because it's looking for someone to pull over we can attribute that to the past and absolutely and how come i'm sure that's right but why because he was in that car and because he there was no submission to the authority no i by him get that we can look at that time period that there has been no submission for for purposes of argument i'm assuming the seizure doesn't take place until when you just said it takes place when they get holly under control but i'm just talking about how much suspicion you attach to the fact that it took somebody natalee two tenths of a mile to pull over you're saying it doesn't make any difference how he could have been driving he could be the passenger it's all the same yes ok one more point that i'd like to address is the contemporaneous nature of what happened here contemporaneous responses have always been given some degree of reliability and this is not a crime or it's not a confidential informant information that occurred a day before an hour before or even half an hour before this was a reaction by the officer within a very short time of receiving that information so that in and of itself is important in the officer calculating and looking at this car at that place and time so your honour's i think that  we submit to you as i did before that there was reasonable suspicion to pull this car over and we ask you to vacate the judgment of the district court thank you