i'm tony x representing alter mayberry and i'd like to reserve two minutes for rebuttal when someone wants to end as consensual encounter one way to do so is by walking away one of mister maybe's companions tried to slowly walk away here and officers promptly stopped him and patted him down stop mister maybe his companion contributed to the totality of the circumstance conveyed to mr may be that he was not free to leave in fact for some time mister maybe did not try to leave but remained against the fence mister maybe was on a limited span of sidewalk multiple officers approached in unison there were three officers they had pulled up abruptly during the course of the encounter another mar police car arrived the car that the officers arrived in and part they parked directly in front of mister maybe and his companions so that mister maybe was had a wrought iron fence behind him and the police car and officers in front of him as the officers exited the car they began to corral mister maybury and his companions stopping one from walking away as i said they got out with purpose and they approached each person directly as though someone hits who committed a crime and s admit that a reasonable person in mister maybe's position would have felt targeted and would not feel free to leave that is especially so given that mister maybe had he witnessed the st person to be physically obstructed and stopped and become irate as officers patted that st person down with regard to the nd person who is right next to mister maybe he is standing as the officer approaches with his hands in the air a sign of submission a sign again that he is not he does not feel free to leave and i understand that that's that's not mister maybe but it's it adds to the atmosphere it adds to the totality of circumstances that would that would  where was it at what point are you saying there was a show of authority i would say there was a show of authority from the very moment that the officers exited the car they didn't walk up in a casual way and say hey guys how are you doing that would be a rather broad rather broad interpretation if we were to say that it wouldn't be i mean when officers get out of the car without their weapons out of me that's not as if they're charging after somebody surely that can't be the show or you know no i'm not saying that there is there there is any one single thing that is the show of authority i know that it makes it more convenient to it to understand like the point of seizure so if i had to identify that the strongest show was initially physically stopping someone who is slowly walking away that was not may bring i know but it conveyed to everyone else there that if you choose not to engage with us you will be stopped and you will be searched it was circumstantial evidence to anyone who was present and and i direct the court united states v drayton where this the circumstances are slightly different there i want to bust but the court was very clear in in in deciding that no seizure had occurred the court one factor was that no one else had been stopped one factor was exit was not blocked anyone else to leave here we essentially have on this limited span of sidewalk the exit being blocked by the police and that conveyed to everyone present we are here to search you and you will comply even if you attempt to walk away even if you exhibit like us a clear sign that you do not want to engage with us so that that was the st most dramatic appoint of seizure of all three while that is going on there are there are two other officers engaged with mister mayberry and the person right next to m say that is the test is whether a reasonable person would feel free to leave and so mister may be subjective belief in whether he could leave or not is not the most relevant it does inform whether a reasonable mister maybe has indicated that he does not wish to continue to comply with the officer specifically at that point that mister maybe says i'm going to leave he starts to take a step to the left or two steps to the left and the officer again with the flashlight shines the flashlight at him and takes steps with him suggesting again that you are not going to leave and mister maybe already has the circumstantial evidence of the stop of the st person and i would submit even that the stop of the nd person who when police arrived is standing as the officer approaches immediately puts his hands up in a moved in such a way as to make that more difficult i would say he did two things he he shined his flashlight on mister mayberry the rd time and what i mean to say about the flashlight flashlight is non verbal and non verbal tools of nonverbal form of communication just as holding your hand up without saying anything would indicate halt the flashlight but officer is using is is flashed in a way to get compliance or to control the situation and at this point when mister maybe starts to leave the officer does again shined the flashlight  waist again and mister maybe in fact lifts his waist again while saying i'm going to leak so he is still submitting he's still in compliance but it's also telling that mister maybe doesn't leave because he doesn't feel that he can to answer your question very directly yes the officer takes steps you can see his shadow move with mister maybe as mister maybe says i'm going to lead and starts to move to the left the officer moves with him in compliance even if you accept that characterization mister maybury i am taking the nd st mister robert was not asked turn your body this way or that way he was these were non verbal commands with a flashlight mayberry left his shirt there's no command you're turning the wrong way if you look at the video you and this is to the st question whether whether there's actually bleeding or trying to hide or manipulate something i think those are very strong words for what you see in that video because as mr maybe lifts his waist you can see the satchel he is not turning that satchel away if there is a turn if it is ever so slight he does not touch it he doesn't move it he does not manipulate it at all so i think that is just a mischaracterization of the record well even if even if it's not do you think could you make an argument that he really doesn't make any harm and it doesn't make any difference because under your that i think i need to say about that is that the district court said that it didn't have to make a reasonable suspicion determination didn't have to reach that question at all because it found that the entire shirt and i say or or they just come up to me and they start asking me questions and i say i don't have to answer your questions i'm a lawyer i know i don't have to answer your questions i'm going to leave is that submission even if they're surrounding me that's not that's not enough for submission right there's two different me and there's clearly to differ requirements with there as to be shown with already and submission correct yes ok so is that submission if the person says well i'm just not going to answer your questions and i'm going to leave well i think it's very difficult to submit when officers are simply asking questions so you need that condition preceding do what you say i'm a lawyer i know you don't have any and a probable cause or reasonable suspicion i'm leaving is that a submission i would say yes even if you say no i'm going to leave well well i think it depends on what the question is if the question is please stand here will you please stand here and you say no and you leave you have not submitted but i mean i  do that in the time it takes you to answer you have momentarily submitted well i think that if that's the case and there's no separation between the show both already and the submission requirement in some circumstances the separation i think would be very quick yes all right so just to explain why i'm asking this questions i guess it probably seems obvious so on the question i don't have any doubt about a show of authority in this case the question is when there's clearly a show of authority and concern about when the submission occurs or if there is a submission so you say he submits by showing his waist as far as i can tell there's no command to show the waste is that right there is no no no verbal command that we can hear is that right there is no verbal command that we can hear to show show your waist that is correct and the burden as  a defendant on the person who is seen as to show he was seized right that's correct ok so one reading of what he did with respect to the showing of the waste is he knew he didn't have a gun under the jacket and underneath the shirt so he was showing the waist not as a mission but as a way to get out look i don't have any gun here that's what he was doing that because if he wasn't commanded to do it and he did it i had got here i again i strongly disagree that he was not commanded to do it because the use of the flashlight was a non verbal command i  understand that the law has developed so that we are looking for words from the police but the use of the flashlight is is it a non verbal command just like meat spinning my fingers around is means wrapped up or i could turn my head  there someone left behind and i mean you're saying the police can't use a flashlight even to see whether somebody that they're talking to has a gun without that being a command no i'm not saying that but we know that the officer used the flashlight repeated lee here to control mister maybe because you can see the video each time he wants to control him he moves the flashlight around his waist area and each time that happens mister maybe does in fact lift his clothes mister maybe  if the police walked up without a flashlight i think i find it very hard to believe that mister maybe would have just lifted his clothes now i understand but you said it's dark so it doesn't seem maybe if it if there were some other circumstance but in a dark circumstance the use of the flashlight to see is a necessarily come command it's to see and then the question is whether to maybe is responding out of submission responding out of evasion let me ask another question so he says i'm going to leave doesn't that indicate a lack of submission at that point i'm going to leave not until he leaves bill if the police come up to me and start demanding that i say things and i stand there i say i'm a i'm an american citizen i can stand on the sidewalk if i want to and i'm not going to answer you it's not submission i mean normally what might happen after that is a police will put their hands on me but then we have it then we have a physical seizure and we don't have the question of submission at that point submission is no longer an issue but if they don't put my hands i me an we just stand there talking to each other or even yelling at each other that that is there a case that says it best submission i'm not sure that there's a case that says that a police officer walking up to you in commanding that you do something and you standing there is submission but there are cases that say if you are there and the police arrive and they command you  and you are in the same state that you were in the court or i should say a court should look at what you were doing before the police arrived if you were standing there before the police arrived and you're still standing there when the police come even though you have expressed that you do not wish to engage with the police you are submitting by remaining there well and in this case it's about ten seconds after the last time he says well i don't even know if there is a st time because i can't hear exactly and the judge only finds one circumstance in which the defendant says i'm going to leave and then ten seconds later he leaves so can't ignore what is happening during that time and during that time mister macmaster maybe is is being accosted by the police borderline harassed by the police and we can't divorce this from what has already happened at that scene someone else has been forcibly stopped someone else has been how to down by holding their hands up but officers have descended in force this is not a casual encounter this is very target and direct and there is an expectation the officers are expressing with all of their behavior they are expressing an expectation of compliance and by remaining there m compliance implicit implicit in the commands that the officer officer is making implicit in the command let me see your satchel is the directive you're not free to go into i see your again if this is consensual mister maybe doesn't have to stay there for one second for half a nd he can immediately walk away but he is staying because there's been issue of authority and implicit in that is remain here until and m  i can't hear you good morning there please the court my name is nick coleman representing the united states i'd like to speak and it seems to me that i want is sort of asserting  there and if he went to his right the other officers are there but he's certainly not being blocked or sort of kept up against a fence i don't think that's a fair characterization of what was happening at that moment as for the pat down of the  from the defendant's point he saw two of his friends stopped and patted down by the police and a reasonable person would conclude from that that they're not the the that show  that's what he saw so the judge friedman certainly considered that argument your honor and i think correctly rejected it because i think you have to take a look at sort of what actually happened particularly with respect to the nd man who  the one who is right next to appeal that nd man isn't just subjected to a pat down without being asked he's not order to be patted down is asked and if you listen to  injury it's not reasonable for a person to assume that simply because the people that he's with some of them it patted down in drayton i think even since it was arrested that doesn't necessarily mean that  everybody there is being seized or won't be allowed to leave without submitting to a pat down effect if anything the fact that officer golson asks and certainly in a tone of voice that isn't a command indicates that the nd man had the option of saying no now i think one of the interesting points that appellant is making is that somehow because the nd man raises his am his hands up as an officer of olson approaches alleged show of authority and that the reason why i think the initial approach is important is because if there has been no show authority up to that point then at most we have and certainly show me your factual let me see your satchel but i see your satchel yes josh freeman did conclude that that was a request and not a command on his word question i'm sorry you are going to say that was a question right a question but again a question is different from a so you know again i don't think i think that what josh freeman was trying to say was he did not interpret it as a command even if this court were to disagree with that assessment the question is even if it was a show of authority there still has to be a command there that i see you have to stay put that such that we can say that if appellant stays put for a nd or two as he does that he somehow submitted to a separate show that they were to show but they're already if there is one at all is let me see your appellant clearly says and with respect to the judge friedman's you know conclusion that appellant was trying to waive his body or turn it away i don't think that that was it that judge friedman found that  sort of some sort of service to reasonable suspicion what he's saying is it's further proof that appellant is not submitting he is not showing that satchel so even if this court were was inside a vehicle is parked and as this court found ruled that the police officers positioned their vehicle in such a way that it was extremely difficult if at all possible for the defendant to be able to move his vehicle and go around the officers so nor the others to be able to leave in his vehicle he had to make several turns and at the same time the officers used a takedown like and the take so that of course if you if you're in a vehicle you're park the officers put their vehicle in a way that it's almost impossible for you to get around and then they shine a very bright light in your face yet you're not really going to be able to move it's going to be very difficult to get out that is what happens here and i disagree with the counts characterization of the use of the flashlight as being some sort of non verbal commands the flashlight again it's designed to be able to see where you can't because it's dark certainly the officer never shines the flashlight in appellants face in a way that would sort of impede appellants ability to see what was going on around him and thus to get out of the way when you s you're you're sure i don't see that we're on her i don't see that and again i i do have to go back and check but i don't think that judge freeman was asked to make a finding that the flashlight was used in such a way or waved around in such a way that it was nonverbal nant appellant lifts his shirt and he does it repeatedly but i think the better interpretation of that is yes he wanted to essentially sort of show the in order to get the officers to let him we so in other words it demonstrates his quoting the defense argument demonstrates his mission he had submitted he was not leaving he was raising his shirt in order  why isn't his constant raising of his shirt evidence of his submission that is he raised it because he wanted them to let him go so i think he wanted to use it to see if you get the officers to go away but i don't think that that means that he's trying to leave there's no indication here that appellant doesn't think he's able to leave in fact he tells the officer i'm going to leave you have nothing on me and so again i don't think that his constant raising of his shirt which the officer never asks him to do never says lift your shirt show me your waistband he doesn't do that appellant chooses to do that just as the nd man who is with him he's never told put your hands in the air he just does that and you know that doesn't now render what would otherwise be you know officers are entitled in the supreme court's been very clear this court's been very clear officers can approach citizens on the sidewalk they can do that they can approach them they can ask them questions and the fact that the person whom they approach decides to do things like lift his hands or in the air or show his waistband doesn't now turn what would otherwise be a consensual encounter  nonconsensual again it takes two to tango here and i don't think that you know that unilateral act of the person on the sidewalk renders what would otherwise be a consensual encounter to a non consensual what if there that the video is always on the officers in order to but in order for it to be recorded they have to hit a button which right actually record the data and sort of say it and then the audio  the video gets saved through video feed gets saved before the audio feed speak ends to get say all right that's my understanding of how it works so even again he didn't hit the button between the st encounter is that even if he hits his button at that point there's going to be a lag in the audio hole that's thirty seconds right so be cut and that you know unfortunately of course that means that not everything gets it's recorded but after all you know in terms of going back to the question of what could you know how is the defendant supposed to be able to prove otherwise well it is kind of how like everybody had to prove these things before that was spotted one camera footage or are in a case where there isn't video it's done by testimony and the judge hears the testimony and draws conclusions based on as to whether he credits testimony and makes factual findings now in this case my understanding is that appellant did not seek to introduce any testimony  to whether or not officer bowls and commanded him to show his waistband or not during that brief period of time but again that's you know that that's just the evidence that was presented to judge friedman and he did clearly error in finding that the lifting of the waistbands or the raising of the hands by the nd man who was and was not in response to a command there certainly isn't clear error here as to that point so of authority st and was there submission and i think you know certainly what is clear on this record we submit is that there certainly wasn't any submission to any show of authority with respect to the satchel and without that without those two findings or without those two sort of pieces of the puzzle we don't have a seizure and when appellant runs and then discards the satchel there are no grounds one minute if you are i'm a with regard to the by warren cameras i believe that officer goss testified and it's my understanding that press the button the last two minutes are are recording the previous two minutes because the recorder is always running the previous two minutes are recorded without sound so if you look at officer  you'll see at two minutes you hit you start to hear the sound but you can see video from before the two minutes from from before the sound starts so it's it's a two minute b t o with no sound and then when they press the button when they hit it the sound starts that is recording with sound so if the officers chose not to press their recorders when they got out the car  which appears to have happened here you only get it once you only get sound once they press record i think that's correct at the j f k one tracks that says just that yes thank you on  assumption the seizure is on us but what i'm what we have submitted is that the use of the flashlight is a non verbal command like mister mayor he wasn't standing on the street and just flipping his clothes up and down  had truly walked up in a casual fashion to say hey what's going on how's it going i find it very hard to believe that mister maybe would have just lifted his clothes but here you have an added factor you have the flashlight being directed it is waste and it's not the record it is waste once twice is to recognize waste three times and every single time in that video that it's directed at his waist he lists his cl there's only one inference to be drawn from that and that is at the initial point when he gets out and the do but officer shines it is waste he is indicating show me your waist the last thing i want to say night about the point at which the officer is is actually making commands and a mystery says come on i'm going to leave because i don't have anything on me and i'm going to leave and the officer command if if we believe that up until that point the entire encounter is consensual with mister maybe is saying i don't want to show you my satchel and i'm going to leave he has withdrawn consent and when the officer continues to insist that is seizure that that you see her as mister maybe remains there saying i don't want to be involved with this but i am remaining because implicit in your commands is that i must remain to negotiate my way out of this because i've already seen someone else's stop just as the government said he wanted to get the officers to go away he wanted to get the officers to go away is correct because if not feel free to leave