man please the court my name is nancy tenney and i represent the appellant here mr richard you and i would like to reserve five minutes for rebuttal your honour's to affirm the district court's ruling in this case would allow police police officers to invade a person's privacy and nothing more than a time and the fourth amendment does not allow that this is a somewhat unusual case given the circumstances it's not the typical traffic stop where an officer pulls a car over or the typical stop and frisk situation where an officer approaches an individual on the street the critical moment to focus on for the fourth amendment analysis here is when the officers in the rear of mr hugh instructs simply threw open the door and thus because this was more than simply an investigatory stop but rose to the level of the search as well the officers needed to have both reasonable d that approaching the truck throwing open the door and revealing the interior of that truck which was otherwise not open to the public is certainly a search and we relied on arizona versus hicks is showing even the slightest movements arizona versus hits was when police officers were lawfully in an apartment and made us slightly move some stereo equipment to look at the serial number and that was held to be a search that was not permit here there's obviously much greater movement much greater exposure to something not in public view by simply throwing open the door however for the purposes of the appeal we did focus on a terry analysis and i would argue that this these from an individual they had never known before while he gave his name they had no idea who this person was whether he actually was the person who he stated that he was transfigured think that really the report did not report any criminal discuss where the reasonable fear came from the and certainly your honor and what we have here is a truck parked in a public parking lot of a store that's opened in the middle of the day i believe the call came in approximately one fifteen in the afternoon there was no testimony that this was a high crime area or that there was any concerns for the terror alert and again they weren't responding to someone hearing gunshots or that the individual getting in the back of the van was seen with a gun or anything of that nature and i think it's significant to look at what the officers did when they first received the citizens the information from the citizen they thought it doesn't really seem to be much of anything they approached the truck they  don't have the license plate the citizen report of the license plate they never checked the plate before they arrived once they arrive and see the truck they never they don't do anything further to ask what it to run the license plate they don't call the citizen back to ask for any further details who was this person should we be afraid of this person they don't call for backup and i think most significantly when they plan to open the rear door they don't have their weapons  in fact their testimony was at no point during the entire encounter did they even touch their weapons i think perhaps what happened here was the officers took somewhat of a short cut that they received a call they didn't think it was much of anything and they were afraid and simply approached the car and threw open the door and then later may have been surprised by what they found there their actions do not show anything to be protecting themselves from any type of fear and i think in a given the circumstance specially when came out thing there was never any frisk there was never any pat down and in fact what the officer the the second officer officer klein who remained ewing went to the front of the cab provided his license provided his registration it's only once the officer ascertains that there is marijuana in the back he states that he then became fearful for the other officer safety up until that point there's simply nothing for them to be fearful of and their actions speak to their lack of fear good morning please the court counsel my name is lee only granted i represent the united states in this case there are the basic issue in dispute the fundamental dispute in the parties is with respect to the facts in this identified citizen who gave his name his cell phone number and requested that he be apprised and ultimately from the record as you know returns to the scene within ten minutes of the defendant's arrest to give a false statement to the officers he reported that there was an unmarked truck with out of state plates suspiciously parked backed up into the bushes in the lowe's parking lot and that he had seen a person and a male climb into the back of the truck and that was reported as suspicious counsel is correct in saying that initially the officers weren't unduly alarmed but the testimony in the record is that as they arrived at the scene they could immediately see why the citizen had made the call because the truck did appear to be parked in and manner that was suspicious and unusual while it was probably a parking lot it's in a public parking lot your honor and as the court found parked as far away from the entrance to the story as it could possibly have been parked and if you look closely at the pictures you can see that as officer hatfield testified it was apparent that somebody took pains to back this truck in to what is basically a u shaped flower bed area that's true that it was concealed on two sides and there are no cars parked to the right of it and no cars park to the other side of the the u shaped flower bed dangerous going on to go and throw open the door and startle the person and give them a chance to win you had no idea what was or what they were doing doesn't seem like a safe way to proceed i understand your point but respectfully the district court disagreed he thought that it was appropriate for the officers to use the element of surprise recall that officer hatfield describes that he standing on a berber that is but arm excuse me that is tilted above the rear of as is pointed out in the defense brief when they told him to step down the process was fluid an ongoing as he went around the corner with officer hatfield an officer kline realized he was looking at then his testimony was that he immediately was concerned about weapons because of the marijuana and his experience that often involves weapons and that's why he ran around the side of the truck to immediately put him in handcuffs in any rate you have officer hatfield standing at this awkward position where he could not safely put his face down to the truck he also testified that they used the element of surprise because they didn't want to give somebody the opportunity to arm themselves or whatever and the or whatever is because they didn't know whether they were dealing with terrorists with a mobile nest lab with a drug transaction that was taking place somebody being attacked in the back and they simply didn't know and they were concerned about how prudently to intervene to establish what was going on remember that it's district courts final conclusion was there was absolutely nothing reasonable about the way this truck was parked the way the door was pulled down and somebody was obviously doing something inside with no light it was a dreary overcast day and the only light inside the truck was what w realizes he's never really looked inside the truck because mr ewing came forward so rapidly and stood right at the edge of the truck as officer have felt testified he had just his toes right at the edge of the truck above them with the drill gun in his hand he was focused on mr u and after mr ewing got down he glanced back and he said something didn't seem right and he looked at the back and he thought his statement is what is that insulation or what and then realizes he's looking at plastic bags at the picture which was admitted into evidence this plaintiff's exhibit five it's page three of the government's supplemental excerpt of records that's a good depiction of this protruding bumper that came out behind the truck and it shows a little bit of the angle of the berm that the officer was standing on you can see from the spota graph that he's standing at the left rear corner of the truck because that's the side he was starting to walk around when he was following officer hatfield and the defendant district court made a finding that he did not make an explicit finding but what he did reject your honor was ms tenney's argument that the defendant must have gotten inside the truck and walked in to see the rear of the truck except to reject the argument that he had entered the truck and that he had remained at the rear and took what the government believes to have been his first look inside the truck the  the the one thing i wanted to point out about the anonymous allegedly anonymous tip is that this was not an anonymous tip it was a nine one one call from a citizen very much like the circumstances of the terry crisp zero case in which  court found that a call from a citizen is much different from an anonymous tip it's not like florida versus j l or the other cases i don't think that's what he report even any kind of suspicion i agree your honor of a defense wants you to disregard the students who call completely and in the government's position is that is simply one additional factor in this totality of circumstances that the district court was persuaded stated sufficient reasonable suspicion and they present the terry crespo case gives reasons why a nine one one call is more reliable than an anonymous informant step and i wanted to point that out to the court so that it wouldn't disregard what i think is an important factor but one of very many the officers made their own observations when they arrived at the scene starting with their first conclusion that they could see why the citizen who made the call that then they did their own investigation they looked at where the truck was located they looked at the by saying it is unique your honor it's not going to be the run of the mill situation where somebody is pulled over in a car which has windows where you can assess the number of people inside typically and what's going on just address a few points your honor first with respect to the location and the manner in which the truck was parked being backed into the bushes i would refer the court to the government's supplemental excerpt of records and plaintiff's exhibit for a picture taken that day it shows how many other vehicles were in very close proximity to mr you one struck it also shows pretty much not quite directly across but it shows another pickup truck a standard yet large pickup truck that has backed into the space that it's an it's completely regular usual for a car for a large vehicle to back into a space to facilitate that and leaving that space later moreover once the officers did approach the truck and heard noises and side which they expected because the citizen had said someone went into the back of the truck what they heard they when pushed what they described just construction noises which i would say with less than any suspicion of illegal activity there in lowe's home improvement store that is what you might expect somebody to be doing in the back of their truck with respect to seeing light in the back of the truck and whether mr ewing was drilling in the dark i would refer to again government supplemental e their plaintiff's exhibit number shows that there was a light in the vehicle up close to the area in which mr ewing was working the officers their testimony at the hearing was that they tried to look into the truck but they really couldn't see they couldn't tell whether or not there was light further inside the truck and finally the government stresses that the need to open open the door was that the officer was in an awkward location standing on somewhat of an incline behind the truck the only reason the officer was standing behind the truck was because he had gone behind the truck in order to open it up the other officer stayed on the on the parking lot level  could have tried to look inside the truck could have knocked on the truck and asked mr ewing to come out they could clearly hear what was going on inside the truck so it's reasonable to assume he would have heard them and come forward as the record indicates mr ewing was completely compliant came forward