seizure and motions prosecution or illinois state law as was mr was a mr pugh's claims of illegal seizure and illegal search now the issues in this case involve the jurisdictional aspect of course of whether mr who is a mr pugh are proper parties to the law and then the issue of whether reasonable suspicion and probably cause existed for the seizure and search of mr holmes and mr pugh i want to go into the jurisdictional aspect first as that issue will determine what claims will actually be on the record and that will require a little bit of history as the procedure and the filings in this case all the claims were original valid big for the big problem here is jose and prove should have filed an appeal in case one refiled is unlawful seizure clearly and so i don't see how you can resurrect those claims now that should have been raised in case one that's the bottom line we understand the procedural history of the case right but judge  did the rule forty one which is the judgment that was entered into in the first case states that a action that's dismissed with and without prejudice can be refiled which is exactly as the judgments in the original first case to the second circuit within thirty days of that order and the seventh circuit issued an order saying that it appeared that i did not have jurisdiction based on a final order at that time and upon referred to explicitly and in the johnson the first case you will forty one would have allowed us to refile the entire action in the fifteen case the tapi case now to your point judge in the appeal and that if there is an error in form but not in substance that that should should rule the day and so the notice of appeal that was filed in the fifteen case explicitly referred to jose and he was claims that were s appealed to this court explicitly referred to the orders that said the history as to which claims were filed and the district court specifically in the fifteen case the new case referred to the fact that this was a refile case and all parties understood that it was a refile case when it was refile so there was the understanding of the part of plaintiff opponents consistent with rule forty one consistent with  all the the language of the notice specifically informed all parties and this court what was to be appealed we do have the record is that what you're saying now that is another issue judge that's a it is it is i have knowledge of course that it is and i did call the district court i have spoken specifically to the clerk of the district court in the twelfth case and the twelfth case inform me specifically that the record was sent on the first notice of appeal which was a fourteen appeal that was filed i looked of course at the record from back ace and it was unclear whether the record was sent back so good so they told me specifically that they didn't have to record the record in the twelve case was unclear frankly as to what was sent back or if anything was sent back but the clerk told me that it was already sent so that unfortunately you do not have portions of the record i don't have that we don't forty one and the whether the notice should have been filed you know in the fifteen case or the twelve case and the actual notice that was provided did meet the substance of federal rule three if not in for to the record in their briefs so as to as to the issue of mr chappies stop itself and and before it before i do bad i do want to go into the issue of was granted on summary judgment as it believed that the officers could reason to believe that there was probable cause in the fifteen case the second case that was filed the district court reversed itself essentially and said that there was no problem caused to i'm sorry there was probable cause to stop mr tapley and this was due to an issue of whether he was speeding in the first decision the issue was whether his music was loud whether he was needing whether there was other reasons to stop this vehicle so both summary judgment orders both the twelve summary judgment order and the fifteen summary judgment border dealt with the exact same issues and so  order to determine the fifteen summary judgment decision this quarter will have to look at the an extra quickly intertwined decision from the twelve case and which deal with the same exact issue same sex facts officers from bloomington were in the area and they indicate that they were surveilling that location for possible narcotics or other loud music violations off of stanfield was the individual the say he had to go to catch up to him but again he didn't immediately follow him when mr tapley left the price right he decided to go after him after mr tapley was several blocks away so even if you had to speed to catch up to go to several blocks away that doesn't mean that he personally observed the speeding occur and so my offer stanfield approaches the vehicle and  we believe that the evidence will show that this is a genuine issue a material fact and that mr tapley is claimed should proceed to go to trial in the summary judgment ruling should be overturned now if this joses drive and mr jose stops at a lights puts on the flashing lights to indicate that he's going to actually work he gets out of the car with mr pugh they start filling a pothole simple stop and then you nothing about mr clark whether he was selling drugs or anything else and so at that point mr stanfield doesn't have down search goes in to take hasn't take off the boots goes in the pockets there are a number of issues to be addressed in this case obviously the first one is the question of a college jurisdiction and when was case when the final judgment that could be appealed case one became a final judgment either seventeen that became a final judgment when that one year period to refile expired so i think that judgment did become final that point and even if it did not the plaintiff did not refile any of the other claims as they've indicated they could have refile those claims but they did not do so did not resolve the twenty fifteen claims case jose and q were never mentioned in the caption in the complaint on the court's docket there were never  you no record is absolutely something that we have pointed out and relied upon the twenty twelve cases not of record in this case has not been made part of the record of the twenty fifty case so the court has no record on which you could review y first of your speeding and second that he had a loud music plaintiff trunk case officer stanfield response to the question when he indicates that officer stanfield did not know how fast the tap it was going he was asked  knew how fast tempo was going he said no but he was moving at a pretty good rate i didn't think i could catch him i heard his engine revving very high the speed limits thirty miles an hour he was going well over the speed limit forty or fifty miles an hour so if you look at his answer in total it's very clear that he was very convinced that he did use those who are he's going over the speed he did use those were just well over the speed limit i believe was his exact words and mr tapley did not dispute that he listed that as a disputed fact but he did not cite any evidence or any testimony that would dispute the fact that he was speeding can you get to the search didn't walk all the way up to the truck officer mayor indicated to officer stanfield that she saw him come all the way up to the truck and peered by his hands inside the truck so off stanfield said that he would try to locate  the truck and his initial thought was that he would just go get the number on the truck and call the city garage and let them know but the truck as mr testified after leaving  clark made a couple of turns and stanfield had little trouble locating the truck initially and finally came across it kind of going opposite directions in the truck stop the intersection jose and pew had not been filling potholes they weren't you know one into the street you know working their way down they just pulled up at the end of the street when they saw officer stanfield or at least appear to them the two of them reached that point they stopped turned on their overhead lights hopped out and started filling a pothole and the brick street officer stanfield looked at that he didn't think there was really any hole that need to be filling your and appeared odd to him they did seem to kind of stop at a random point when he encountered them and appeared to try to fill the spot so  have mr jose and mr pugh disputed that they gave a consent to that search our position has been that dispute is immaterial and that the church was proper regardless of their consent based upon well i mean there is some indication you know that they had been involved in drug transactions or whatever no guns had been seen or anything like that no there was no report of a gun or women at that point i mean if you know we go to the o'connor versus overtaking station supreme court you know the court reminds us that the the fundamental command of the fourth amendment is that the search be reasonable and we're talking about city police officers dealing with some city employees you know on a brief reasonable encounter to investigate the individuals the search of the individuals is different i think that's within the general command reason on this under terry to conduct a brief pat down in that situation and even if the court did not agree with that i think the officers are entitled to qualify and unity because a reasonable officer could have believed that their actions under those circumstances were propri in just a touch briefly on the a malicious prosecution claim it's not it's not before the court i don't think the court reaches that discussion but it can't be the case that the court did reach that that i don't think that's the situation here in this case play of passion for me to any motive that the officers had to prosecute templi other than a legitimate law enforcement motive i don't think this is the kind of case where males can be of briefly speak to some of the issues counsel raised as to when there was a final judgment in this case there was no rule fifty four language in the first case judgement so if counsel is correct that  appeal should have been filed within the one year refile and deadline the notice if of people in this case was filed within that time period so that would be time to file and so if it's not our belief that it should have been filed within the thirty days of the first case you actually went up to mr carter mr clark came to their vehicle mr jose mr pugh there was no physical contact between the two of them which would not have give the defendants any reason to believe that there was a drug transaction no reason he was going to stop him for speeding only reason he was stopping him was for the loud music and then in his deposition later on that's when he gave a testimony as to you know i believe he was going fast i couldn't say how fast but me you know forty fifty so