vehicle was justified based upon specific and articulable facts that warrant to the deputy to wall to stop the vehicle and whether he had a reasonable believe at the time those facts came to his attention whether mr keller had committed some by lesion there are a couple of facts th defer whether they're based on the findings by judge lewis based upon the testimony of the deputy or based on some of the exam so all address those first as you're aware judge lewis initially granted the motion to suppress the evidence that was obtained following vehicles and in doing so he found that the deputy observed no more than defendant's vehicle parked in the middle of a public ro the finding there although mr keller of course agrees with the court's initial ruling granting the motion calls into question whether the vehicle was parked stopped or standing in the roadway and if it was one of those three circumstances was it in the middle of the roadway and this is why i say some of the findings of the court it there like you might be hearing maybe he did say something like that what he said was it appeared as though the vehicle was near the center or the vehicle was positioned in the roadway he also said i didn't see the person your name so there are questions regarding observed those two things well the question is did he observe those could he observe those and he said he did it depends on which part of the transcript you look at initially part well  i don't think that we can select one part and disregard another point i think we have to look at the totality of what evidence because it all questions the credibility of the witness when the witness on the trial judge makes his the findings he bade after the session to reconsider right and there are differences between those findings and the testimony and yet it's the findings that are critical to his reconsideration are set forth in his word are entitled order a motion suppress and among those findings are they out in his order rather than the way he phrased it in because the court on review is entitle to take a look at all of the evidence with that was presented and determine whether or not judge lewis findings are contrary to them and this way that the evidence and what i'm suggesting is what you do th one the exhibits specifically the video recording which is exhibit three and the still images from that video recorder which is exhibit five what you will see is they had in exhibit five the recording now shows that there are some tail that that presumes that there was a left turn off of cherry street and that's one of the other factual findings of judge lewis may that i think is called into question by the exhibits and that is judge lewis in his findings says they had the vehicle travels west down on cherry street and the testimony is that sherry was an east west roadway and turns left from cherry street into the cemetery exhibit one that was admitted in evidence shows cherry street has a westbound roadway shows maple street has a westbound road the officer testifies there at public roadways are excess a pole from the cemetery and he doesn't know whether or not the public roadways continue through the cemetery so there's a question whether cherrie street simply continues westbound rather than turning and going spawn because that east west roadway is maple street so the exhibits and the testimony one considered together suggest that there are well the trial court additionally made it when the judge said all that the deputy observed those facts that he could articulate was that he saw a vehicle and judge lewis characterized it in the first he was parked in the middle of a public group i'll i'll no longer refer to the first ruling in a focus on the second ok in his findings with regard to the ruling on the motion to reconsider he then says it appeared to the de that the vehicle was parked near the center of the roadway now if we end the inquiry there there's not much more to talk about what's really doesn't work for mr keller because that's not what the evidence the evidence is when the deputy was quite in them about how he came to that belief or that conclusion what he said is i can't say where within the role of the trial  exactly where the road it was that's enough to eliminate the first it appeared he was in the center of the room and the trial court is not in town giving me credit to the state i'm not asking the court to use and the inquiry or what i'm asking the court to do then is take a i would like to believe that every time a trial judge issues a ruling that it's accurate it's based upon the law on the facts you know better than i whether that's the case and that's why i got rid of the public courts that's where it has why which suggests you can't tell where the vehicle was in the roadway and frankly perhaps an objective viewing of the video recording would suggest that it's on the right side of the roadway because at least there is a marker visible in the video or there's a sign is a pull in the video and although you can't see where the surface of the roadway is so you can't really tell where in the roadway the vehicle was which may well explain why when the officer was asked do you know where in the roadway the vehicle was he said i don't  vs i can't tell you exactly where in the road the statute that the deputy relies on is a statute that provides for parking standing or stopping a vehicle outside of business or residential history but if we disregard that we just say look at the other parking regulations to see if the vehicle was appropriately parked or stopped or seen in the road those regulations referred to shoulders perps those sort of parking at least the deputy says i'm not aware of any prohibition and there are signs that he's aware so the mere fact that the vehicle may have been parked according to the deputy's own words when he tells another officer he was part of their own longside the roadway doesn't establish reasonable grounds to believe that a violation occurred and if it is alongside the roadway then the only question is was there room for passage around the stopped standing or parked vehicle for other vehicles and the officer said i can't say one way or the other whether another vehicle could have gotten by now all this is very similar to people versus gray in people versus gray the arresting officer first testifies they out the vehicle was pulled off the highway onto a street but the way the vehicle was positioned it was partially blocking the street that was his initial testimony apparently but then he admits that he did not know if there would have been enough room for another power to have gone around via the trial court in grey determine there was no traffic violation the trial court also post some of the appellate court also posts and questions where exactly was defendant's vehicle in the corner then says based upon the facts known to the officer at the time of the stop there was no basis for believing that a traffic violation attica and improper yes there was a curb and the vehicle was not in the proximity related by the statute to the curb or there was a shoulder in the be it wasn't within that proximity referred to in the statute but if none of those exist and there is no prohibition with regard to on street parking then all the statute requires is that there be room for passes of other vehicles and that's one of the questions that the court your public court raised in great so what i'm suggesting to the sport is that the circumstances in mr heller species are very similar to the  and frankly convince the court the first time around the second time around court got it right and i'll explain to you why he examined the totality of circumstances take more time let me answer and just take one issue off the table answer one question justice holder white had early on about the sickeningly into the cemetery and why that means absolutely nothing of course that gave the officer reasonable articulable suspicion to stop him there was plenty articulable suspicion to stop and that the suspect at that time defendant now earlier on but i believe just as turner actually wrote the case that came out several months ago i think it's the it's turning a turning on a signal from a private drive may not be illegal but it certainly rises to the level of reasonable articulable suspicion and i think as justice turner pointed out in that case bersih based on the supreme court case vs north carolina you don't have to be right you just have to be reasonable and it might be a great defense at trial but it means nothing in a pre so i think that takes care of the signal issue of course there's reasonable suspicion to stop him for turning in ok except for i thought mr v v to do was arguing that there was really no evidence that there was a term here go no signal was needed it yes i believe he's arguing that but i disagree that there was no evidence the fact that he just had to approach the bench and show you the map as he would have done if you were a trial judge presents the fact that there was an issue as to whether he had to turn in there and if you watch the video and that sort of leads to my next point about what the testimony of the officer was means absolutely nothing in this rare because there was video an audio recording how do we know what officer duvall deputy paul saul that night it was on video so what he recalled weeks or months later as a trial judge you would recognize means almost absolutely nothing and i know this because i've recently been drafted into the arena of the trial court and some special prosecutions and i know how these pretrial motions work you represent to the judge what you know what the time and you're not sure what your officers exactly going to testify particularly a small county like our county the judge gets it wrong you politely ask the judge to reconsider and say oh by the way when you're reconsidering take a look at the dash cam and when you look at the dash cam you'll see is that of suv all pro choice the car were the defendant rolls down the window and he says was a you taking a leak back there in the road and you know the defendant says yes sir ok that's how the trial court knew what happened here putting together the pieces of the officers testimony recognizing for what it's worth and what was a misremember ince or misunderstanding by the officer combining that with the math the great argument by defense counsel as well as the video presented the court reconsidered and determined yes in fact there was reasonable suspicion and why did the who're feel in this case  where the officer was tapping the suspect on the shoulder this court said and i quote the overarching standard of the fourth amendment is reasonable in this which is measured in objective terms by examining the totality of the circumstances what are the the circumstances here based on what the court found which is reasonable based on what i just presented about what was presented to the trial judge one a car's parked quote in the middle of the street that's  what appeared to be someone you're an aging in the street next to the car he could have been just getting out because he opened the door and something something fell out oh that can be ferreted out of the trial that means nothing he said be reasonable articula suspicion so so this brings me to point that i wanted to make of the correlation of terry spots and community care taking where those two things meet following mcdonogh as  aware and i know this is the last argument that day so i don't want to belabor this point but i do want to launch this as the opening salvo in what will be the state's position as to reasonable suspicion and community care to but i think this case is the right case to do it there are three tiers for police service and encounters one probable cause to terry stops and three consensual encounters now when loud and came out which was the case that proceeded mcdonough the only supreme court said well we're conflating community care taking with these sort of consensual encounters between loud men and mcdonough the court said of all i think we've mess knocked on the window and of course that was a seizure but that seizure was justified as community care he was when just when chester thank you politics for that so basically what we're talking about here is just to frame it for the ct community caretaking and terry stops are analyzed essential in the same way because they're both seizures so when you're talking about reasonable articulable suspicion the framework is of circumstances so when you're dealing with community caretaking you're also dealing to a tally of circumstances and why did the court say that in mcdonough because the point they were trying to make is sometimes these things overlap sometimes you're community caretaking and you have is you don't lose reasonable articulable suspicion when you pass by and you see that suspicion and then it goes out of you for a short time and then you find the car again right if that were the standard then every time someone speeds down the interstate at seventy eight miles an hour and then the police officer safely moves into traffic and by that time of course we know from common experience that everyone on the interstate slows down to forty five right now no crime being committed so you can't pull the person over for speeding that's an absurd standard and that's what the court the supreme court recognizes and mcdonough says there could very well be an instance where when you pull someone over for going one hundred ten miles per hour you have reasonable suspicion to believe that they have committed a traffic violation but guess what you're also community care taking a right because that person is dangerous and that's why this comes up in the context of do you watts because as in this case tip it was the drive through person at a wendy's called and said that someone that the defendant was causing a quote disturbance and might be drunk and the driver that was relayed to a dispatcher we'll call it the third person to the second person the long course an officer in the car who didn't witness any of it right and in that case in shape for the trial court actually granted the defendant's motion to suppress in that case we appealed it and this court said what are you talking about that's reasonable suspicion right it doesn't have to be a right it just has to be a reasonable suspicion and the reason why based on the totality of circumstances that was the right call is that even if the officer doesn't see it although he did see it in this case or what he perceived was the case is that that folds in the community care take if someone calls nine one one and says hey there's someone drunk and causing a disturbance in the drive through wendy's and here's the description of the car and you pull him over two miles away is that what we want police officer to this to do it's always a balancing test again the touchstone of the fourth amendment is reasonable yes and it's not unreasonable based on a call like that or a situation like this to have a police officer momentarily detain someone to assure himself or herself as the police officer that everything's ok no one's hurt and no one is making society unsafe for someone else totally reasonable on that note i would only add that i think there was some talk in the reply brief findings referred to by the state were the findings of judge lewis or some other judge judge lewis heard the evidence that was presented at the hearing the motion suppress there was also a motion to suppress statements judge rash heard that motion those findings that the state set forth in its brief are the findings of judge rash that are really dicked of with regard to the motion suppressed so one judge reschke in his record sheet entry refers to the vehicle being in the middle of the road judge rush didn't hear the motion to suppress evidence he wasn't present when the deputy testified in the exhibits were admitted so that was the reference to the fine as the findings of judge lewis are findings that are relevant here not some pick the judge rush may have put in the record sheet entry with regard to emotions a state with regard to community care taking is justification for the stop your supreme court said one of the elements of community caretaking is the officer is involved in a function other than the investigation of criminal or attentional criminal activity and the testimony in that case was that the officer didn't suspect anything he thought maybe exhibits specifically provide the at the deputy notified the dispatcher that he was stopping a suspicious vehicle he was not stopping a vehicle because he thought the motor there's nothing wrong with that it's just not community  i mean are we looking at here officer not not completely clear but sees a vehicle is parked maybe in the middle road maybe impeding traf he can articulate that he thinks maybe the guy that urinating which probably this were common that drives through there and sees a wet spot in the road which would tend to corroborate his belief was then the same vehicle goes into sees a wet spot in the road gets hijacked if it's august so he sees that he says as he's been following the vehicle it's august it should be no surprise if you've got your air conditioner on and you're stop condensation from your air conditioner is going to be on the road so he is making assumptions the standard back know that there was water on the road right the fact is that he testified he saw a wet spot ok that's that's the fan ok so he's making assumptions it's the vehicle pulls into a dark cemetery the testimony is there those street lights along the road there was dark you look at the exhibit you can't see anything other than what's illuminated by the officers headlights so it's like saying he was driving down a dark road there are  not the road that the vehicle travelled on to enter the cemetery was cherry street or not so cherry street was dark before the cemetery cherry street may have been dark in a cemetery so all know what it was that's it and if it was alongside the road as the deputy told the other officer it's not a violation in the middle of your position if that's not enough it demonstrated that that was a reasonable calculation part so well i would ask you to consider whether it's reasonable when on the one hand he says they are but then when he was asked tell us essentially you know whether you could tell if it was in the middle of the road or not he says no tell us did you see the person you're in a thing and he says no is it reasonable to say it  i mean those are veils all he says is i saw somebody standing outside the bia there's there's no reasonable basis to believe that at the time he stopped the vehicle he could articulate facts that the person committed some by a lation of urine a gun rolled it in the article so i'm asking the court to do is take a look at the evidence here and just like in grapes where the officer on the one hand says vehicles blocking the roadway and on the other hand says he didn't know whether or not there was a path for other vehicles the court looked at all of the facts then just select the ones that happen to be consistent with the ruling that the trial court made that's why we're here i'm asking you to examine all the facts all the evidence is there thank you thanks both of you good arguments that