to the glass wall if you recall consensual that's what the district court found and it's a court makes them findings believe in the officers over your client right now that's correct your honor are we constrained to some extent by some of those findings your honor we are constrained to some extent but only to some extent reason for that is because when officer paragon more approached mr orman at the mall and asked to speak with him that encounter quickly became nonconsensual what the district court said was that the initial encounter and i quote was consensual and that the conversation in the mall was consensual and here in lies the courts are the court paints with a broad brush the entire events at the mall he failed to break down that encounter into its component pieces and the fourth amendment does require that consent to a conversation cannot also encompass consent to search and seizure and a search of mr or man and a seizure of the firearm in the context of a finding of consent would have searched and that he was the farm was seized and what i argued and the government does not respond to that argument is that the seizure of the fire in which is clear of fire and was taken from this person that firearm without having probable cause to do so in fact without there being even reasonable suspicion to do so i cite to the case and i apologize for not really knowing how to pronounce it you believe use from the third circuit exactly the virgin islands case where in the carnival the court found that there was no reasonable suspicion to simply search somebody simply because somebody else said that they had a gun and in fact the issue that stand your argument that all the police officer had to do was say you have a permit and the police officer didn't do that therefore it was an illegal seizure correct your honor and that's it and it's not earlier when the basic fact is that there was no criminal activity of put reasonable suspicion is an objective standard correct yes now why wouldn't the right they had a tip that they put a gun in his boo officer because in arizona it is not illegal to carry a concealed weapon the officer would have had to investigate whether there was a permit and he  he did not ask and then it doesn't happen because he's a convicted felon right i'm sorry you know he doesn't have one because he's a convicted felon your honor i don't know and i presume that that's the case i don't know but he didn't ask him and in fact that is something that the district court found later on was a problem was a problem that is the reason why the district court found there was no probable cause in arizona it is illegal to carry a weapon concealed the officer did not know whether mr orme in fact final my name is michael e i'm a special system united states attorney in on the present in the government in this case morning defense counsel is basically putting the cart before the horse defense counsel has claimed before this court that in order for the officers to do a terry frisk there must be a reasonable suspicion of criminal activity that's not what terri holds terri holds that when the officers are in a lawful place where they have made a lawful contact or they've made a consensus it's there's a consensus you ation or even when there's reasonable suspicion of criminal activity that if they have a step or it fear of safety of their safety or the safety of others then they're allowed to property and that a person has been effectively a seize because of that it does not address an officer safety issue in this particular instance the officers when they make contact with a person who was a concealed weapon in this public mall a mall that by itself has sign the mall correct the issue you you requested me to address is what the specific fear a concern they had regarding mr orme and again he's carrying a concealed weapon in the mall the officers themselves as they make contact with him under the circumstances he has made a consensual contact with him and then talks to him and ask him to confirm whether he has a weapon so that the officer can continue their consensual contact and do it in a safe manner he retrieves the weapon the reality is is that what defense counsel is asking the court to do is that when an officer pull someone over for whatever reason talks to the media in a consensual matter or even a civil traffic stop and the individual has a weapon on their person that somehow the officer supposed to go through a that later to point in time in the security office without asking him regarding whether he had a concealed carry permit without asking him whether he was a convicted felon that was not probable cause that he had violated any statute but it certainly was reasonable suspicion as he was carrying a concealed weapon in this i have a concealed weapons permit and someone has made this complaint against me in some manner fashion some sort of taking of your time or is it i'm sorry i've been caught i don't have a weapons permit i'm a convicted felon we don't know what it leads to the officers reasonable suspicion at that point  and well we have one statement from officer ferragamo indicating at some point time in the past that when he had contact with someone under circumstances and known that he had allowed that person to return that their firearm back to their vehicle we have no context for this was this person carried out on their hip arizona has an open carry law that if a person is carrying a firearm openly and not conceal that that they can do it such as long as there is not an age limitations for the particular person as well as if they're prohibited possessor but we have no context for that and besides the fact if if the officer had asked someone to do that in the past that doesn't change what his personal subjective decision to make at that point time doesn't change how you know he's wearing a white beater t set and certainly is covered with tattoos is that a factor at all i believe that the officer himself he testified that well you're asking for an objective basis because isn't that the ultimate standard not i think you know not to you have to ultimately decided on an objective standard right right and given the fact that we have this individual supposedly concealing a handgun in their boot he is covered with tattoos he's wearing a particular t shirt again these things and he's concealed a deadly weapon on his person and these things can give rise during this particular contact the officer being concerned for his safety and the safety of the patrons in the mall i mean the reality is is that you have this contact being made in that public walkway at three forty five in the afternoon  right next to the victoria's secret window i am not a patron of that particular stablish woman but my understanding is that that is predominately as a number of women and it is a situation where he heard that i've heard that  that was stated in that particular case they received an anonymous tip a million vidual that another individual happened to have a weapon on their person the officers in that case go over and discuss with this building start talking with them and then we don't know what that discussion entailed but we know actionable that they simply first i'm at that point on info on weapons the officers there did not make a determination that even to allow for them to have a reasonable apprehension or fear for their particular safety because they just simply had no evidence that this person was carrying a weapon other than the unanimous tip in this particular situation we have the not purely anonymous tip by the a p s worker that occurred at paradise mall that day and further when you have the consensual contact the defendant admits yes i have a weapon and here it is as he points to it concealed on his person the officers had a reasonable apprehension a reasonable for an officer at that time in an objective situation would use that weapon for officer safety for also you're saying for while they're investigating the officer doesn't have to have an even playing field so that they can both decide who drives fastest you can remove that from the from the equation and then go forward investigate but what about the how does that it's pretty obviously i think in arizona it's easier to get a concealed weapons permit then say in the virgin islands because i think there was some testimony that well apparently there's some indication that it's more difficult there in the virgin islands to have a concealed what how does this do you have to ask do you have a permit how does that or is that something that someone has to volunteer or how does that come into  matter to be in violation of the statute of being a person who's carrying concealed and to have the the felony charge arise to carry concealed or being a person person carrying a deadly weapon or concealed fashion the only way you can carry that is if you have a permit the law requires that if an officer requests for an individual to to produce their permit that they have to do a search in fact it's a separate crime if they do not previously but if you don't requ it may negate probable cause and that's what the just report found at this juncture but it certainly doesn't negate reasonable suspicion and moreover reasons to be reasonable every head you know this officer may have for his safety and others allowed him as he's trying to determine what  mind if i took it over he just reached over and seized it and the apprehension of the officer for his safety this is a difficult or nothing i mean here if he had been uncooperative in any way shape or form  the reality is is that for him to sit and ask mr foreman by the way mr norman do you have you committed to me you have a weapon you admitted me you have to conceal your person by the way do you have a permit to carry that this extended conversation that he is supposed to have to make this determination this could put the officer in danger because at this juncture if if mr orme it is less than an affair less than an upstanding citizen by the time he's asking surge you have a permit for a storm it could be reaching a certain point the gun out as has been demonstrated now has been has been any kid by and we don't have to sit here and figure out who's fastest on the draw what the officer has to do is when he is in regional apprehension of his for his safety and for the safety of others he reason i'm ready to meet with you but the status is you know everybody can carry a gun so the statute says that a person can carry a gun if they get a concealed carry permit which requires classes a background check and an actual shooting training the completely anonymous tipster that this person was carrying a farm he confirmed that information through mr orme and and that's when he sees the farm that are you saying that see what i'm hearing you say is that the right to carry with a permit is stink from the right to have it on you at all times that the police are investigating you you know are question you investigating you that doesn't mean you made that and that will prevent you from being charged with a crime but if the police approach you about something else just because there's a statute that allows you to carry that doesn't mean that the police have to put less in their comfort level or put themselves in danger while they're investigating something else right that is correct and that's what terry holt that is the basis for for officer safety purposes that an officer can obtain that weapon for the particular time period while the investigation or as in this case a consensual contact  really it doesn't make a difference with terri whether you're in a state where you can carry a gun or not that's correct i understand your argument then and yet for the questions i thank you for your argument why don't you tell us why should an officer have to worry about his or her safety while there are approaching someone about your honor judge nelson hit the nail on the head the government cannot have it both ways they cannot of the same time argue that everything is cordial and then argue this officer saying to rational i think honestly this is just a red herring here in this case well everything can you that doesn't mean the person was pointing a gun at you but by the same token do you want to question do you want to further investigate a crime which you know allowing someone to have you know that opportunity your honor is perfectly legal to carry a gun concealed in arizona as you said if somebody was accused of but how does that but the question is is terry different in a state where you can legally carry a gun and and a state where you can't you're on a reasonable suspicion for a terry stop requires that there be criminal activity afoot that is something that is required it's not simply being afraid or concerned reasonable suspicion that criminal activity is afoot there was no criminal activity afoot here that the officer knew about the fact the district courts required is not entirely true because your client there was criminal activity afoot because your client was carrying a gun and he was a convicted felon now but what the officers knew when they approached and that's a different but to say that there was no criminal activity afoot i've got it  is criminal activity of put that is the issue in tearing you know he there was criminal activity you put there we agree on that i mean we have a convicted felon with a gun in the mall we agree about it but not that the officer knew and that is the key in all terry and all the ca cited in theory in all the cases that are cited the officers suspected that there was criminal activity afoot here it's perfectly legal for somebody to carry a gun concealed the officer did not know whether mr orman was a concealed weapons permit carrier and in fact the government refers to a diatribe one simple question your honor do you have a permit to carry that one simple question that was tomorrow morning nine o'clock thank you