of discretion for the court to reopen the hearing absent two things one new every two new legal issues issues that may have come up in the hearing or maybe a change in the case law in the statute  was and then during the hearing itself there was nothing raised in the hearing now what if there had been objections to the r and r in the district cory and remanded citing a need for looking for additional evidence you're hearing we have the same why did it why should i think we have the exact same situation what what what case with that scenario has has reversed for the reason you argue no one but at the same time i doubt that it's done and it's never happened so i'm hiding it may have happened but i can't i haven't found a case where they where the judge said you know this is a bit too vague that you're officer who testified there just wasn't enough information there for even to make a decision i talk about the facts of this case that the prosecutor i can't i know he's a relatively new u s attorney but at the same time i think it's a district attorney for many years prior to that i believe he was assisted in the oh we want to flush out these issues more you know there's never been a reopening on the grounds that the ruling was this was a surprise no court in any you're now no circuit is never addressed that i can't say that no think that's not in your in your list of two exclusive grounds reasonably an anticipated ruling but in this case what i think the course ask themselves i just know is just i don't stick with that word with your exclusive list to why isn't why wouldn't that why wouldn't there be discretion to reopen on that basis anticipate the judge would consider that a material or significant issue i'd like to buy i'd like to put my with my i'd like to present testimony or evidence on what you surprise me with and the court judge says yeah that's what that point is well taken and grants your motion i will be by your standard your exclusive list of two that would be a person a abuse of discretion and i don't think it  i don't think that that works i don't disagree necessarily ok it's what we would but that's the trouble with the with the year per se rule of most every person a rule would particularly on an issue that's where the governing facts i mean you've argued it both ways and i'm all right i'm only questioning your your per se rule that not that i'm not suggesting you don't have an argument on the facts i understand i guess another issue for the court to consider and this is something obviously the circuit courts are much more concerned about than district courts is it has been brought up in cases cited by your interest of justice in the fact that maybe all relevant evidence be in front of a trier of fact but at the same time it's rather frustrating for either side and specially defense when the government gets a chance to fix their case and i'm not alleging anything nefarious was done here by the government in this case but the fact the matter is off the cable when he testified at the second hearing he went back and addressed each one of the magistrate mensa's issues the comparison of peoples testimony second officer with the first officer is rather striking what's striking is what happened regarding the seizure and then the general information officer to go test for almost an hour ago the greater this directly across or martyr on our i don't have to put the on that day because they were partners they were together with the officer that they call it the second here it wasn't say observing this from a different angle or had a longer time to observe it in fact the person who had the most sort of clear picture of the entire incident was the officer the testified the first hearing which is more of the reason i say that is sort of common sense he was the passenger he doesn't have to drive he keep his eyes on these two individuals attorney asked questions of both those hearers suppose there had been objections to the district court it is the district court permitted to receive new evidence i believe that the district court can but in this case this is different this is the point if the district court may receive new evidence is it governed by any of the some rules that you're talking about for reopening hearings could the district court just receive evidence as a view on the request of either party or the court i don't think they should be allowed to once again for more the policy issues that haven't gone into that in depth yet but i'm just wondering if the district court could do it why can't standard should apply to a district court i believe is what you're right is there any authority for that well there is authority the other way which is where the defense is it has to reopen when they believe for and declining to reopen in that case right i believe that's correct but it was first raised to the trial court and then it was first race to the trial court level is also just that i mean on a very specific level cross examination of a witness assuming that win would have held up which i think is a big assumption i think considering the facts of this case considering the way the officers exited the vehicle considering the way th chair about a law that is lurking here that issue but because i think that i did in the district judge ultimately say i mean the magistrate judge was careful to say i was right the first time and the only reason i'm changing my ruling is because of rather compelling and scary frightening jumped out on a bad neighborhood i'm somewhat puzzled but but if the if the seizure doesn't occur until the blade then isn't there reasonable question that you had you asked whether or not the district court would be if we have filed objections to the district court about the report recommendation with the district court have been able to consider additional evidence and the answer that is yes and then answer is found in title twenty eight united states judge may also receive further evidence or recommit the matter to the magistrate judge with instructions so the district court was in a position to hear additional evidence and the district court was in a position to remand the matter or re commit the matter excuse me to the magistrate judge asking that court to consider additional evidence and that dovetails then your honor judge logan and to your question about how was the defendant prejudiced in this case the reality is that if it wasn't prejudice because we could have we have and we have a number of options frankly when we receive judgments as first reported recommendation and one of the options would have been to go to the district court and present a very motion for reconsideration and motion are for supplemental hearing to her and she could very i judge hamilton could very easily actually there is and that's what's kind of interesting when i was going back through rereading all of the cases that you had the thing that i noticed primarily was about at this case as in a very different posture from all of the cases cited by both parties in terms of those courts circuit cour that have set forth the standard of review in terms of motions to reopen and that is in those cases we were dealing with the final orders of the court where the court had ruled on the suppression so the question is could the district court reopen this i'll be  but final order for purposes of the discovery issues none of the cases address the issue when you have a magistrate judge who issued a report no recommendation which by its very title is nothing but a recommendation it's not an order and i think judge logan you have asked if there have been any cases which have held it inappropriate for a magistrate judge to revisit its suppression order and i think the answer is no because i haven't well because i haven't found one now but i mean i certainly didn't find one in my search and that's not to say it's not out there but they certainly are prevalent so we're in a completely different posture and actually i think that title twenty eight u s c section six thirty six allows for the very thing position to assess situations dealing with credibility dealing with continuance is dealing with a whole host of things and i think that and to have a bright line rule that limits a standard to two specific things as judge logan you were shane creates a situation where we are going to bind the hands of the poor to to have to stick with a ruling that may be wrong and there is i don't have a case right for you but there is it was a because it's not binding but there was a district court in pennsylvania that had it in the circuit which does have this binding rule and that district court realized after it read the transcript that it was wrong it had misread the testimony but it was bound by as a relatively new judge that perhaps she should revisit the issue and that is consistent with an interest of justice because what we want the judges to do essentially is to comply with what is the overarching principle in suppression issues which is what's the evidence constitutionally obtained and in this case we believe it was we believe that judgment realize that this is a she she should revisit she did that we believe it was totally within her discretion to do so  level but i think it's a fair standard we need to lift the district court the discretion to determine in the interest of justice what the right answer is on suppression issues and reach the right conclusion as to whether the constitution was violated these areas now i believe with respect to the b when the stop occurred i think that the stop occurred at the time that the defendant belated and put his hand into a pocket that ultimately contained a firearm i think back inclusion is consistent with every case out of the circuit since one thousand nine hundred one starting with united states against peoples all the way up through the united states  that identifying yourself as a police officer shining a flashlight approaching a defendant is not a stop and it can be because then we're going to turn everything into stop and so we would ask the court be to affirm the  decision of the district court both with respect to the suppression issue and with respect to the team in the suppression hearing and unless the court asks any additional questions for me which of course i'm happy to answer i would respectfully waive the remainder of my time