court's denial of mr cowan's motion to suppress because his mere acquiescence to be searched was not sufficient to establish voluntary consent to be served further this court should consider race as one of the totality of circumstances that undermines mr coersion here if this court accept the facts presented by the government through officer rogers even assuming that judge dawn of the district court level made factual determination if that were correct adopting all of judge rogers testimony as being a true reflection of what happened the totality of the circumstances still do not reflect sufficient in disha a voluntary can and in bumper verses california and then adopted by this court in united states versus was sort of easy in morley which i was on officer at least he was sufficient orotate is that the man has the classic you've got the badge i guess you can the question here is thank your honor and again this court doesn't need to find the judge gone as factual determinations are wrong but certainly the legal determination of whether their consent is a dyno consideration for this court's view so even putting aside the legal conclusions the judge gone question but whether there is consent is a mixed question of fact in law so whether the facts are sufficient to establish consent does have a legal dimension what what is sufficient to establish consent is partly a legal  question to return to judge boggs question and since you were on the panel on worley of course that statement of you have the gun i guess you can is a little bit more unequivocal in terms of establishing an acquiescence to authority however another great example is united states versus jones where this court again found there was a request for a search there was a response allowed for that search but the jones court determined this was just an expression  approval and submission to authority and not an unequivocal and specific allowance of a consent to search and a few examples on the other side of that that helped to highlight this issue so for example in united states versus moon this court found that there was voluntary consent because officers arrived at the defendant doctor's office and request a search or files she was able to ask what the nature of the complaint was against her and then to directed them to where the files were kept and advise them she would continue to see patients while that search was conducted in that case this court said that this the facts there unequivocally established consent similarly in a case cited by the government united states versus chambers which is an unreported case from this court there was a request whether or not the officers could search the person and the defendant said go ahead and this court said the the expression go ahead is an unequivocal expression of consent now i'm sure that mr katz is going to get up here and say well gestures can imply consent without a verbal need for consent and i agree with that as a general principle of law however the the facts of this individual case again even adopting officer roberts testimony which is that he asked mr callan to place his hands on the wall and he did it is not sufficient to what do you think make this case different thank your honor several things we have a very close physical proximity between my client in the officer when h from the bathroom we have a very short span of time from my client emerges from the bathroom to when he is immediately asked for his name and then immediately upon answering that question asked to place his hands on the  and then we also have the racial dimension which of course this court has never addressed whether or not ray should be a factor we're asking the court to consider race today mr cowen is the only african american in a situation where both officers present are white as well as the residents of the home he's also the only person being searched now again i'm sure that mr katz will get up here and say well he was the only person being searched because the residents of the home were known to the officers however the record also indicates that the suppression hearing this is a one sided evidentiary hearing with only officer rogers testimony being presented however defense counsel did extensively question officer rogers about the racial dynamics in the home if there were other african americans present he also pointed out  that mr kaun was the only african american present during this encounter in his motion to suppress although he does not believe virtually make race a factor in his totality argument he certainly implying the race is one factor that  well you can't really believe that why did you go there and your honor if it actually is a relevant as a legal matter whether officer rogers intended to racially profile mr cowan or not nothing in the record suggests that but honor no your honor not at all certainly mr cowan does not suggest that any time there is an even this in the racial makeup of a police encounter that that would ultimately undermine consent that would be entirely too broad based of a rule asserting that in his case being the only african american in addition to other factors which include the very short time frame in which he encountered this officer before being asked whether or not he could search whether he be perfectly reasonable here and if he's voluntary at that point how can the failure to search the white afterwards effect because in other words if immediately confronting we've come without officers never seen before any lack of equality happens after that can sit well with some clarifications i partly agree with that with that factual characterization the officers walk into the home while mr cowan is still in the bathroom the record is clear about that and they make contact with both of the homeowners or both of the residents and it is true that when mr cowen emerges from the bathroom he is the person fist closest physical proximity to there isn't the white gentleman in that same area because that was the way gentlemen was opening the door because no one with stuck in the back yes your honor that's absolutely correct bradley mckenzie was also standing in that same space and officer rogers is very unequivocal to motion to suppress that although he did not know mr cowan that when he emerged from the bathroom mr cowen did nothing to make him think his personal safety was issue he did nothing to make the officer think that he was doing anything illegal that he possessed contraband or he in any other way was involved in in any criminal activity or needed to be searched and in fact the government at the motion to suppress hearing can see did that there was no reasonable suspicion to stand against the wall yes your honor so the the first thing that the officer does is a stablish that authority what is your date which calendar spawns two and then immediately would you please place your hands on the wall now an analogy that i believe would assist this court is looking at some of the case law where this court has determined whether or not a defendant is felt free to leave because again we're looking at what a reasonable person would believe in terms of consent if in this in their shoes under the totality of the circumstances  this court has previously recognized and several cases that overt intimidation is not required for a defendant to not feel free to leave and that it can be inferred from other circumstances and other things that an officer might say to establish their authority and in fact in united states versus richards and this court construed the incredibly friendly statement just hang out there for me ok as being enough of an exercise of authority that a defendant would not feel free to leave the we and we we would judge the a question that i had after the money is discovered in one pocket and the gun is discovered in another park why would the police officers piri interesting question your honor there's been some conversation in defense circles about challenges to that i apologize i don't have the supreme court case loaded because we didn't raise a particular issue but i do believe that the supreme court has said that there is some authority for officers to make an initial detainment of some as a gun to make sure that gun is lawfully possessed and certainly if that's a question that the court has i would be happy to provide the chorus up in a briefing to flesh that issue out as i read it you really did not challenge what happened after the fact that they handcuffed him took him to the cruiser that wasn't that part of it wasn't directly out of the sole issue in this case is consent and not to put too fine a point on it but if we're looking at factors that undermine consent someone who knows that there person is that possesses contraband wouldn't have a reason to want to voluntarily consent that was argued in a lot of cases and usually usually doesn't succeed i think you' it please the court counsel my name is jason katz and i represent the appellee on this case the united states of america judges the district court did not commit clear error when it deny mr cowan suppression motion finding that mr cowen had freely and voluntarily consented to the pat down search the evidence presented at trial showed that mr officer rogers had asked mr cowen if he would move to the side to be right after mr condit emerged from the bathroom and was in close proximity mr rogers if you could move to the side so he could be patted down officer safety mr cowan did so moved to the side and voluntarily without being told what it was assumed a position of his hands against the wall patdown of mr cowan showed that a gun person or through heard everywhere i judge he did not live in this residence the two people who lived in that residence were the person who gave consent and the other person who was opening the bathroom door trial a test trial testimony show that mr cowan was actually from cleveland this took place in columbiana county which is about an hour forty five two hours from their order to demonstrate no can then would mean what would mr cameron have had to why he could have said no i'm not moving over you could have stood there in defiance there were many steps to mr cowan could have done to not show concern he could have squawked right out of the bathroom right past the wall were eventually put his hands on right out of the right out of the building so he didn't even make an effort to try and leave the situation could he have left the building in the visit the officer was not blocking the way he could have left the building terms the officer was not blocking the way there was and he asked him to he merge in the bathroom and ask him to move to the side document twenty nine page i d two seventeen mr mr rogers to testify during the prelim i didn't want to be backed up you know up against the steps so i asked him to move over and i asked him if i could put him down for my safety and then during the grand jury testimony two seventeen of the twenty nine i asked him if you could move over to the side of the dining room area so i could pat him down for weapons for safety he went ahead and put his hands up against the wall and i pad the left side of his pants i noticed on that page to seventeen that you're referring to that the district judge referred to four different versions of what officer rogers said he said to mr cowan are those four items in the record i was having trouble actually finding them there's a police report dated february twenty second a preliminary hearing testimony of march second another thing in march the grand jury i think are most a political here were actually quoted by judge gone so i think they're part of the record in terms of that your honor but they were they were offered to the district court judge in the lower court because the first one police report of february twenty second date and he did it so he had him do it i asked i asked my kid to take out the garbage he took out the garbage and i had him do it i mean it's a little hard is a much more authoritative do it kind of thing then ask you know if you ask your child to do something they might  reports that he consistently but for that one instance was directing i asked i asked i asked and that was seems unequivocal but for the one time so i think at one point where he said had was just a matter of semantics that it was a poorly worded choice  of a report but i think what actually happened what judge gone found to be credible testimony was asked him to make the side with respect to the ferber of twenty second excuse me here is it just that in that one he's speaking of himself in the third person you know reports is that he was referring to self himself in the third person that mr riehl had written reports that mr officer real was not present during this encounter so officer rail would not have been in position to write that report would have been officer rogers and the guy with the guy with the butter  jimmy in the lock yesterday were the other inhabitants of the home around when he was there so there was some reason the officers would think he was ok or would they have thought that was suspicious i'm sorry just i guess cavanagh mckenzie were boyfriend girlfriend or cohabitants of the house that i see her so they keep testified that he knew both of them knew them both to be non threats to him he'd have dealt with them before he knew mckenzie before yes and he moved to  try and jimmy open a door that may become walked though mackenzie was when kenzie equally close to mr rogers at that exact moment well during the course of  mckenzie was trying to rouse the door open so they were similarly close so the only reason then by the officer didn't ask me kenzie to go against the wall and be searched for weapons is that the officer trusted mackenzie based on prior contact never had an issue with mr mckenzie before and prior dealings all non meeting of the guard at the grocery store but why would the officer hear how and when mackenzie was helping cowling get out of the bathroom because as a believe mr rogers officer rogers testified he did not know him he was the unknown in the room but if he know but if mackenzie is trusted and the kenzie's friend we can see is helping him get out of the bathroom mackenzie had had any thought of any danger mckenzie would have told the officer who's right there hey there's a bad guy in the bathroom and mckenzie wouldn't even been trying to get him out we can't he would have called the police that this is a bad guy but it's seems so improbable as to why there has to be an immediate search of cow and given that mackenzie is right there and isn't complaining about you know because judge i think you have to understand the dynamics of this house this is a house in columbia county where drug dealers come down from cleveland to sell their wares in mr will then mackenzie shouldn't be trustworthy while mackenzie is something he is a  cohabit and he made me have it and i have an with a known drug house so this guy is living in a known drug house and he's considered trustworthy i think judge you have to draw a distinction between drug users and drug dealers mr mckenzie possibly a drug dealer because he's living in the house were drug mr there is no evidence that mr clancy sells drugs he come to the people come down to to sell drugs to mr mckenzie people come to house to buy often buy drugs off of people come down so mr mckenzie by by letting drug people come into the house we can these facilities in the drug trade that this is he has he is letting the drug trade take place in his house but he is a drug user he is someone who relies upon the drugs he's not someone who's protecting the drugs or selling the you've got the badge obviously that would call into question whether or not the person was consenting there's nothing in the up in nothing in the record that shows mr cohen did or said anything at the time the question the authority in fact he did exactly what was what was part of the question in with your request if you want to consent move to the side he moved to the side that exactly what was asked so if anything it mitigates towards the fact that he was not acquiescing but was in fact consenting and as suppose that you know in bed as he moved to the side and put his hands again i am doing this under objection would that show it's not a voluntary i don't know if it would be definitively show but it would certainly show evidence that would help things you can do to show that you're consenting based upon a show of authority or that you don't want to consent or you're refusing to consent i mean obviously mr cowan could have said and done a litany of things all that shows the hey if you're going to i'm doing this but only because you're telling me to do this nothing like that was said and in fact and as just bugs noted in bumper there wasn't a claim of i have a search warrant for you there was a claim about going to arrest warrant for there was nothing that said that all right well since you've got the paper back it up i'm going to do it anyway there's nothing here that indicates that was the case in fact and united states vs chambers this court wrote that chambers placed his hands on troopers vehicle does not demonstrate that he was merely acquiesce in a true post lawful authority rather as the just a cork included it could be viewed as further evidence of this course recognise that you can look to actions that shows the concern i'm not i'm not debating that but i think you are you are using the ultimate determination word here when there was no word then and what we're trying to decide is was there in fact   three cases that quote recognize that even police interactions can undermine voluntary consent richardson he cites the can and smith i implore the court asked the court to read those three cases all three of those cases are seizure cases which are an obviously not search cases and obviously not consent to search cases as caesar cases they employ the reasonable person standard which as this court is recognized in the united states versus lee is a mix question of law in fact that being whether or not there is a seizure and whether or not a reasonable person would do it reasonable person viewing the legal question as united states versus lee recognized this is a purely factual inquiry and that's why the clear error standard is what this court must use and therefore because it's a clear standard all three of those cases richardson buchanan smith they're all in apple in opposite here they have no bearing here to what is an issue here a fourth amendment issue of search is not what was a play in richardson is not was a play it could be canon and it was not a in smith so therefore i think when this court trast its opinion i ask the court to be careful in making sure that the authority that's drafted actually goes to the actual search issue and not the seizure issue as mr counts just this court i could ask ever ohio law may be about people who have had some kind of scrutiny being able to carry fire around let me preface all this to in that i'm not obvious i know state court and i don't know what i understand from talking to police officers when doing preparing for cases such as this is that they have a right to detain the person until they as i believe might counsel indicate they can make some type of verification that they have the proper  they have the proper authority to carry the gun but the gun is in the proper condition so once they find the gun they can detain the person make the requisite terminations as to whether or not this person is in fact someone who is eligible to carry the gun in the manner and method by which they were carrying the gun and then they can proceed as a kind of analogous to asking for your driver's license i mean obviously not exactly the same be required to have a gun permit i believe i believe believe judge in ohio and once again i this is what i understand so i do not know i believe you are quite when you have a gun you required to carry the permit on you so if you have the permit law in ohio then that would help but you know something analogous would be is this your is this your gun something that you know off the top of your head under state law judge all right as i believe counsel the kids and i believe this was raised i am not prepared so i cases are in order to speak on the matter other than what i know of what i don't know what i understand thank you your honor three brief points on rebuttal to clarify any questions about the standard this court held both in united states versus moon and in united states versus caruthers that the ultimate legal determination of whether or not there is consent is considered to novo this court is not simply considering this court for clear error that applies only to factual determinations and this is a mix question of lack of fact and law secondly it is not mr callan's burden to affirmatively reject a request to search rather it is law enforcement burden to establish that voluntary consent before searching and the factors in addition to what i've previously pointed out to this court that supported totality undermining consent are also that mr cowan was not advised of his right to reject that request now this court has said and worry that that is not determine if that's not a dispositive factor but it is one factor along with the physical proximity and time additionally as a factor officer rogers testified that mr cowan was not actually free to leave now mr katz points out in his briefing that his the his subjective intentions are not known to mr callan however mr callan's position is that that officers  mindset would feed and influence the way in which he interacts with others and if he knows he's going to search mr kalin regardless of whether mr count consents that's going to impact the way that he speaks to mr cowan his body language and other things that are going to communicate to mr kalighat he's not in a position to reject that request the only the only case in which this court has considered gestures only unlike chambers where there was an unequivocal yes go ahead verbal consent is united states versus bowzer which the government relied on at the district court level however and bowzer those gestures were much more unequivocal in bows the defendant led the officers to the back room of his apartment when they requested that search and then continue to cooperate with them both during their search and afterwards at the precinct and this court held that those gestures even though there were no words that accompany them were sufficient to establish an unequivocal specific and intelligently given consent that is my third point there is a factual dispute here judge gone determine that judge that officer rogers testimony was credible however officer rogers first report when the interaction is freshest in his mind is that he had mr callan places hands on the wall this is not a semantic difference whether i have you place your hands on the wall or i ask you to place your hands on the wall it's literally the difference between whether your consent and whether i force you by a display of law enforcement authority i'm see that i'm out of time a break we conclude that discrepancy is case determinative so certainly this court needs to consider that discrepancy and consider that officer rogers was in the best position during that first report to make an accurate description of what happened and there is legally dispositive difference between those no those two reports not to mention there is nothing in the