school really when ever you are thank you may it please the court and hester representing mario taylor law enforcement officers violated mario taylor's fourth amendment rights when they seized him without any reasonable suspicion under united states versus jones officer skipper and watson sees taylor before skipper asked for taylor's name this case is like jones and three key respects first encounter began with taylor knowing the police officers were following him so it lacked the traditional hallmark of a consensual counter which is the routine approach of a police officer but second to uniformed officers closely follow the car from a public road on to  private property and then position themselves so that the car couldn't leave and in considering this particular factor i'd bite the court to look at the photos in the joint appendix they're on page forty eight and there are two more on six ninety nine and seven hundred heart was parked on a concrete driveway that was fairly close to the street with the front of the car close to the building and the only way that the driver could leave was to back out but he couldn't back out because while skipper was talking to them in he began on the driver's side but then before he talked to mario taylor and got his identifying information he moved to the other side well during this time watson was providing cover off the corner of the car he said on the sidewalk which is about five or six feet away from the car and as skipper moved from one side of the car to the other watson also was moving from one side of the car to the other so during this time any person in the driver's position one of felt free to back out of the driveway because there were officers right next to the car and moving back and forth behind the car no reasonable person would back out of that driveway while the police officers are are moving back and forth because behind the car particularly when they know they've been targeted for questioning the third factor is that the officers didn't ask if they could speak with taylor and his companions and said skipper approached the car and immediately began questioning the driver about their activities and then began asking them for their identifying information so th circumstances here suggested to a reasonable per person in taylor's position that he was not the tossers suspected him of illegal activity and in combination with the officers positions around the car this convey that taylor was the target of a criminal investigation and was not free to leave furthermore the seizure wasn't justified by reasonable suspicion the facts demonstrate the seizure was based on nothing more than an inadequate hunch the district court relied on four factors that under the t circumstances did not create reasonable suspicion in two of those factors the governor the government doesn't even defend one of those is that the officers were in the neighborhood in response to a call concerning a burglary but the officers didn't provide any testimony about a description of the suspect the source of their information the location of the burglary or even the time when the burglary occurred your position that there was a seizure dependent o i think that's a critical critical factor that the person the driver would not have been able to back out of that position and leave and it's very similar to jennings you know in jennings that actually the car was not parked behind the police car was not it was part and ahead of the car there was a one way driveway with parking places on one side and the police car pulled ahead of jones's car there but because of the way the driveway w way because they were on they were next to the car and also moving back and forth behind the car and the timing is pretty critical too because skipper was talking to the driver and the other passenger their testimony was that one of the officers  calls one officer was on the other side of the core looks like or would have been able to back down i'm not saying that there was the officer was positioned directly behind the car but what i'm saying in the timing is critical because skipper talks to the driver first and ask him what he's doing and then to get taylor's identifying information which is the critical critical piece of information here because they use that to find his d n a swabs from a prior arrest so right before he gets that information that's when the officers are moving back and forth but i think you can't look at that in isolation either you have to look at it in the totality of the circumstances of what was happening at the time and that was that these officers had followed had had seen the men they obviously saw each other and then followed them watched them for a while and then approached the car and that was a key factor in jenn's as well that this wasn't some routine encounter that the defendant knew that the officers were targeting them for an investigation so i think you have to consider that in the totality of the circumstances as well it wasn't just that the officers were moving back and forth it's that in combination with the fact these men were targeted for an investigation so when you say targeted for an investigation targeted for investigation because these officers thought there was something fishy going on but they didn't have a reasonable suspicion they were fishing for information to find out if the men had done something wrong and as i said the seizure wasn't justified by reasonable suspicion because these four factors that the district court gave in their totality don't support reasonable suspicion that the first of them being that there had been a burglary in the area well it turns out that the burglary suspect was on foot the burglary had taken place a half mile away in the opposite direction from which these men were traveling so the officers couldn't have reasonably suspected that taylor and his companions committed the burglary simply because they were in the area the second factor that the district court considered that also the government doesn't argue is that the car parked in front of front of a duplex were no other cars were located and occupants of the car didn't leave after they got no answer at the door the police gave gave no explanation for was suspicious and the officers didn't even give them in time to leave they testified both of them and they watched them for about forty five seconds and then they approached the car and began asking questions the government relies on what it calls evasive conduct but the government acknowledges that the court must consider the totality of the circumstances and in totality the behavior of taylor and his companions was not invasive because any suspicion of evasion is completely dispelled by the fact that after passing the police officers taylor and his companions parked their car right next to the street a couple blocks away and went about their business while the officers watched them and again i think that the photos of the area are helpful because that shows how close the car was to the street nobody would pull off right next to the street two blocks from seeing after seeing the police an attempt to avoid them that just doesn't make any sense finally under the totality of the circumstances the open car from unfortunately that the district court didn't make any factual findings so i think that the courts review is still the never even from that particular determination but the court can take into consideration that the district court did think that there was a stop and th explained still that the evidence says that there was a seizure because of the way that the officers admittedly were positioned around the car and the way they targeted the car for investigation and of course the standard is to tell it to the circumstance and i'm trying to think about other cases because i think for you to get where you want to go you need to point us to an ace that you think is most of  to this type of situation in which we have you know if you would like what the supreme court is feel because i think when you when you when you look at all the facts here yeah roland when the down not a big deal  well i still think james is probably the most analogous position ok so i don't think there's a case on all fours i mean every time the court has to do this it has to analyze each factor separately and then put them all together i think massenburg is probably a good example of that so as i cited in the brief you know there are just different aspects of this case that line up with other cases but i can't cite a particular case that has all of these factors together but i w i think that jones a similar because there you have the police saying a car that's got people on it the don't seem like they belong in the area but this case is different in another way from that because this is broad daylight and that was at night in a high crime area and this wasn't a high crime area case when they saw the individuals looking away because of the position of the car it was a traffic hazard because they should have been looking the other way for traffic and they thought it was odd because they were looking forward to the oncoming traffic would be coming when their testimony that the fact there was that just doesn't even make any sense the officers didn't agree about how the car was situated when they saw and that officer said the car was stopped at a stop sign and it should have been looking left to see traffic but it was stopped at the stop sign it didn't pull out it waited for the officers to go past before it pulled out so it just doesn't make any sense that he would be doing something dangerous by not looking he either r d looked or he was positive a stop sign for a minute and then and then would argument for the district court judge but since we're here wouldn't we have to conclude that in the light was favorable to the government th e district court judge credited that testimony from the police officer well you know maybe but then you have to look at the totality of the circumstances and what they did next they drove two blocks and then they pulled over into a driveway that's right next to the street and went up to somebody is house so how is that of a sieve i mean the looking away from the officers is relevant only in terms of evasion this court has repeatedly said that that could be interpreted either way so that it's only  in connection with other circumstances that it can become suspicious so i really think you have to look at you know you've got the looking away you've got the accelerating stopping at in a location that's right next to the road while the police are looking at him and then you've got two windows down not just the passenger window but you got the driver's window down two so how does that how does that give rise to any suspicion that something's been thrown out of the car they didn't know at the time that there was any contraband around how  suspicious that two windows of the car are rolled down and officers were consistent in saying the driver's window was also dow this case is because the window was rolled down and presumably the contraband had been ditched so the fact that they pulled over right there actually added to or it certainly didn't detract from the totality of the circumstances that suggested reasonable suspicion i definitely want to address the seizure issue with respect to jones the reason that that case is distinguishable is because the the police car was parked in such a way that while it wasn't immediately behind the vehicle it was blocking the exit because it was a one way street and the court in jones met found that that was particularly critical here we have both officers testifying that never n time was an officer or a car stationary be in such a way that these folks couldn't leave and officer watson testified that within about two minutes of the beginning of the encounter he had gone down the street to find that done because there was a report of a gun and that was within two minutes and that's on j of joining the next for fifty six in terms of the timing of that so what we have is we office only two officers one of them is behind but he testifies that he was about five to six feet away from the car at any given point and off to the side back and off to the side there was they didn't display weapons they are tone was cordial actually only officer sprinkle he ever interacted with these folks and there is no evidence that they went back and forth numerous times they encountered they talked to the driver they went around because the driver agreed to consent t sprinkle testified that he is that officer getting that name wrong i'm sorry he testified that they when he went off and stood by the motorcycles and still they did not leave there's no indication that those gentlemen ever intended to leave once they had parked the car and the gun so on the seizure issue the reason that miss hester jones is her best case but jones is fundamentally distinguishable in terms of the reasonable suspicion of the circumstances and in addition to the fact that they were looking down or away it's distinguishable from massenburg because they were in a traffic context and officer watson testified that because of where they were located it just it was odd he also testified by the way that both of the officers thought the skipper that's the name both of the officers noticed immediately that something was strange they were independently riding their motorcycles they looked at each other like that was odd and they decided to follow and at least check it out then they drove past and in the defendant's brief she suggests that miss hester suggests that the officers did not notice the window down until they were beside the car but that's not what the evidence was in the light most favorable to the government officer skipper testified that he noticed after they pulled past the car if you noticed that the window was down so before they ever approached they had the window down and the handout they had the officers speeding both officers testified that the car was speeding they both hat were aware that there was a break in and judge  district court found that the fact that the break and suspect was on foot and in a different direction did not preclude the possibility that these folks have picked up the robbery said specht and gone the other direction  and we argued in the district court that it wasn't a seizure i suppose finitely for us in the posture on appeal he made no findings of fact to support that or maybe unfortunately because then we only there are but we don't know what they are i mean yes implicit in that conclusion is the fact that some fact that results in his finding that they were seized but we don't know whether he made no finding the fact that any officer was standing immediately behind he made no finding a fact that the questioning was coercive he made i mean i think that what what he determined was that this was an appropriate police citizen interaction and he went and said i think it's a terry stop and then he decided that you found that they were factors facts that supported reasonable suspicion when we have a break in in the area and i suspect on foot and we have two officers and dependently finding their behavior initially to be a little suspicious it's it's difficult for me to imagine what these officers should have done they they made the encounter a usually while you're on a judge when only one of the officers actually walked up to the car and it's not that they there's no duty for a police officer to tell them they'd have to leave the question is whether reasonable that would be if this encounter wasn't voluntary it's difficult for me to imagine one that would be i in other words is at least in the context where you have a car that's part to assume it is a terrorist you'll pardon me if it is a brief seizure because it certainly was brief if we if we accept the district court's determination there was a very stop isn't an implication of that at least for some period of time defendants were not  at least that a reasonable person in their situation would not feel free to believe yes and i think the difficulties let's just assume that that that's we that's a conclusion that the court comes to those where we go well from there we go to the question of whether reasonable suspicion supported that brief terry stop and the factors that the government and that the district court has posited well scuse me to be fair in the district court the government argued that there was no seizure and really didn't make an argument about reasonable suspicion but the district court found the factors of the break in and then as you look at the totality of the circumstances from what in the light most favorable to the district court's decision those for circumstances support reasonable suspicion because the officers testified that that there they looked away in a way that wouldn't make sense it wasn't simply a massenburg situation where they looked down and sort of was avoiding confrontation here he was in a traffic context and it didn't make sense that he was looking away and that the other two were looking down as well and that's a minor  bigger factor is they increased their speed they abruptly stopped they did a nosedive they stopped so quickly they whipped into this place that didn't appear to have any hope anyone home in the district court found that there were no cars of course there's a bus stop there that doesn't mean that it's not feasible that there could have been someone home but there was no evidence an indication that anyone was actually home they whip into that that spot and at the same time that mr taylor's hands were out of the car they get the idea they hand it right back and it's not they really just want to officer and there and then they he goes around after that encounter and then the the driver says sure you can and that's when he gets the name or he may have even gotten the name at the very beginning really doesn't matter i don't think in terms of the timing of it but it was early in the encounter that he gets mr taylor's name which is all they needed because then they compared they were able to find his old d n a from two thousand and seven and compare it to the d n a found on the gun the defendant has raised two other issues the bats and challenging the constructive possession instruction miss hester has not made any argument on those points if i think that our our brief probably is adequate unless your honour's have questions about those two issues the district court i would know one thing about that the district court did make a comparative juror or an analysis which i believe was on page three thirty eight he notes that this particular juror or was did seem more distracted and sort of he compares her situation to what he witnessed in the other jurors so he did make a comparative juror analysis to the extent that's necessary but more importantly he found that the reasons given by the prosecutor were credible and then the court acted within its discretion in starting on constructive possession under these circumstances  well i think it was i think that it was more of an actual possession case i suppose because we had the d n a but at the same time we did not i don't know that i would characterize it as more of one or the other we didn't have a direct evidence other than d n a we didn't have him putting the gun we don't know how the gun got from the car to the street we presume that mario taylor through it there given that his arm was out the window and the jury could presume that but there's been no case cited conviction was reversed based on the giving of a constructive possession instruction where they are we're it's not really clear we don't have direct evidence of actual possession we do know that his d was on it and that's some evidence but without that it just made sense under these circumstances a look at the very minimum it wasn't reversible error because the  are oh well i would say that if there's absolutely no if all we have is evidence for example one witness testifies i saw him holding the gun in that case it would be odd and perhaps error to instruct on crowd constructive possession but if as in this case the defense counsel made the argument to the jury there's no evidence of constructive possession so you don't really need to worry about that probably would be harmless error and there's and i and i couldn't find a case where that was considered reversible error it's a correct statement of the law and particularly under the circumstances of practice or it sure and this is the facts in this case are we don't quite know how the gun got from the car to the street that's just saying there's no evidence to support you don't know if there is evidence to explain it to support the charge that george should have you know well your honor we do have evidence well i think that is it's a fair inference that he had possessed that gun and time of it was sometime in the past and on that particular day with his hand out the window and it's being found right there right after he  facts supported the possession and so the court would have to hold that giving the constraint you know that sort of adding to giving a correct statement of the law is reversible error under the circumstances of this case he instructed on constructive possession he also said instructed at the request of defense counsel on the fact that mere touching is not enough to show possession and at the end of the day the jury found that there was possession and i think that it was not an abus even actually you could find possession in one of two ways it could either be actual possession or it could be constructive you know the judge instructed in the alternative because that's the way that instruction is given and the but they the defense counsel argued vigorously that there was no evidence of constructive possession and the judicial court said well in the circumstances of this case where we're not exactly sure how it got from one place to the next i'm going to go ahead and give the constructive possession instruction and the government's main point is that's not reversible error particularly given the discretion of the district court if your honour's have no further want to start where you all left off with the constructive possession because the air here was was prejudicial as judge tracks or points out there was no evidence of constructive possession  mission to make the determination as to whether it was actually that actual or constructive possession and the government argued made an argument to the jury that it was constructive possession so constructive  jury that gives the government a less difficult burden to satisfy with proving i mean basically that the prosecutor argued she put the gun on the table and said you know the guns over there but i can still get it i've got constructive possession of  that comparing it to the gun over on the street you might display with that the only evidence of actual possession is the presence of the unit but i was trying to figure out reading this while the window was dale and i think the jury could take the view of the council argued a trial so as the district court acknowledged the evidence of actual possession was not particularly strong and the government felt it was weak enough that it used to constructive possession argument to the jury at trial and there's no i mean it could have been just on knows what the jury does in the jury room when they're given a constructive possession instruction they could they could have a point when you say it could have been only one your book wrist action well because they were instructed that the element they had to find was possession and that the possession could be constructive or actual so the jury doesn't have to agree about whether possession was constructive or actual they just have to find possession under one of those theories so there's no way to know you know whether one or more jurors found possession by constructive possession rather than by actual possession so none of those no i'm not saying that i'm just i'm just saying that you know anything one juror could have found a constructive possession in this case and there's just no way to know but it is presidential because of the quantum of evidence and the fact that the government used it and its argument try to persuade the jury i want to go back to the suppression issue for a minute here that the government kind of got the facts a little bit out of order when i was talking about what happened but the frisk of them in their quest to search happened only after skipper asked taylor for his name that happened right at the beginning he approached the driver side of the car asked what are you doing then he walked around and got taylor's information before he asked for permission to search the car to frisk the men and watson left the car only after taylor's name had been obtained so that's not a factor to consider is turning whether taylor was was seized at the time that he gave his name i also point out with respect to reasonable suspicion the officers have to give factual underpinning for their reasonable suspicion and they never did that with they said that they were investigating a burglary but they never said that they suspected these men of participating in the burglary and it in any way and again with the windows down the government wants to say that that was reasonable suspicion but both windows were down and i also point out that officer six skipper said that after the frisk which happened before before the gun was found he says he had no reasonable suspicion that these men had done anything wrong and even in the light most favorable to the government that demonstrates that the officers didn't have any reasonable suspicion that something had been thrown out the window he's acknowledging that he did not anyone is a home but the officers never testified that they suspected that that's something that the district court said but the officers never satisfied we thought that they might be casing this house they didn't say that they didn't even say that they thought that