well now here the first case united states versus twists detained on the basis of a call in which two men are demanding an image he reported that somebody in the car possessed a gun how do you how do you do sting this case your case from navarette versus california where as you know the supreme court held that the police are justified in relying on an ominous nine one one call where the call is one made by an eyewitness to nearly contemporaneous with the event and three recorded in traced by the nine eleven system so a few things on th point first of all navarrette concerned and as you say a call contemporaneous with the event in this case it's not super clear that that was the case  you know that the police officers showed up within and one police officer showed up within a minute the police were there very quick no doubt about that and all of this is the call it's clear these these men are walking away from that scene so how can you say that was not tempering this and in any event in the district court determined that it was more or less contemporaneous with the event i'm much sure that the court made an expressed finding on the i don't know that it was a that was a question for the court  your argument was with what happened here went beyond an ordinary terry stop because he was handcuffed he was on the ground after they found nothing on no gun on make out and a criminal ongoing criminal act and then even if it did the measures used by the police extended terry stop and i'm i'm going to ask you something ok we'll ask more of the government and it's a bit odd shouldn't don't our cases in fact not what we said but in fact have a relationship between the degree of probable cause the degree of likelihood that something is going on and how intensive the terry stop almost arrest that is that we're we have very little information we've filled it enough we're basically one stop in just asked a few questions but we're instead the result of a terrorist stop amounted almost to or no risk even if it didn't we were required much more connection in order to uphold it now i know of a cases don't save that but i wonder whether vet isn't what they do and i agree that that's what they indicate if not expressly state obviously if they did have probable cause the police could have done exactly have where it's reasonable suspicion plus sort of danger where the the subject of the stop is said to be both armed and dangerous than courts to to so they expand the measures courts can take in relation to not just the basis of the reasonable suspicion but characteristics about the person that's being stop and that it's in here what we had was a call about two men call for a moment just looking at the basis of knowledge in this case when you if it's just you looking at the raw data three men or two men and a woman have an a k forty seven like gun in a pistol that's one thing but then when you add how they came to know that and they say that it was just shown to them not displayed but shown to them while either all of them were in the car or one of the men was you're in aiding and we're not sure where the gun was seen if it was like where was it on the person's body was he carrying it was it in the car none of that was elaborated on though the dispatcher questioned the two men about how they came know what they claim to have seen what's the best i see what you're saying but what's the best to help me understand what's the best case that you can make that a report of individuals displaying guns to strangers in a parking lot at two am does not provide officers with reasonable suspicion that the firearms might be used to avoid well i mean i think the men claimed in the movie they day wanted the officers to exercise discretion to cop to to question them and not question them about the guns indicating that the men were not dangerous that the police were free that he's afraid if they go and ask them for the guns that the subject of their call will retaliate for for a couple of them calling the police here are the subject of the call fear for having the police involved in impeding their pride and being you know stopped and interrogated and the rest that comes with the terry stop in this case not necessarily that they were afraid of the men absent the police involvement so i think that's dispatcher could have asked a lot of questions and the police could have done a lot more investigation they didn't even run the license plate for example the truck before and forcing the men out in handcuffing them they pressure could have questioned them further about how they came to know what they were doing who they were where they were going how they what happened at the scene what's who said what what where were the guns were exactly they say they had two guns they only say they were shown one all of that there was reasonable suspicion established by the anonymous phone call in light of the factors that are identified in navarrette why is why is it suspicion after baylor when we get told that somebody has a gun now you know i don't like heller very much but now people have a right to have guns so why is it some other circuits we have but why after heller when somebody says somebody has a gun is vet a statement suspicion of a crime i would say this your honor and if you'll forgive me this is not tethered to the case law this is a personal opinion it seems to me that when there's reasonable suspicion right we don't know if a crime has been committed or not so when an officer sees anyone with a gun there is reasonable suspicion to believe that it might be that it's possible that possible but if it is a constitutional right to have a gun how can an officer have reasonable suspicion i mean it's like saying somebody makes a statement in an office or as a reasonable suspicion that might be more of in free speech i mean you know the supreme court has told us things about about the second amendment and as i say i don't like it but that isn't for me to say well i mean we know that the fact that the circumstances presented to the police might constitute innocent behavior does not defeat reasonable suspicion you know is there a second a memo right and then is there a prohibition in new york state's a somewhat two different questions to carry an a k forty seven the way i understand the law first of all is that the statues that were referenced below from new york state prohibit the carrying of a loaded a k forty seven i suspect there are exceptions in the statute maybe at a sporting event maybe a hunting  but apparently not under these circumstances they say did they say these people had a loaded for a forty seven or did they just say b s people had some good they said these people had what looked like an a k forty seven and a pistol so maybe there isn't probable cause to believe the gun is loaded your honor but there is certainly k there so we got some problem because of that now comes what they actually did did they do a simple little terry stop or did they defacto arrest or come down aren't close and again i'm asking the question of don't we have to have a meeting to go back to terry terry says yet cannot stop somebody ellis you have some indication of something wrong and then you do a little bit of something here you have something which i might feel is a very serious indication of a crime but after after killer is possibly a crime is being committed no more of and bad after heller and then if they don't arrest him they come darn close i mean they don't find a gun on him they still handcuff him underground they put him in of a car when we still haven't found a gun now why isn't that combination something that given reacted to what supreme court has done something that ought to work well because you have to put it in context of the t circumstances it's not just someone saying this other person has a gun it's two o'clock in the morning it's a parking lot of a hospital the allegation is that the guns were displayed to the caller's enough to make them take off although concededly they say they were not threatened a startling event and why a reasonable police officer i think would say what was going on at two o'clock in the morning with these two types of weapons in a parking lot that this when you say a reasonable police officer we're not dealing with a suit against the police officer we're not confused those two types of cases a bigger part in your honor mean to but aside from having a loaded weapon which was one of the crimes that the officer testified he was suspicious of we also have the crime of menacing right and menacing involves the display of what appears to be a firearm that puts a person in fear of harm i'm paraphrasing but it's but you told us to take didn't menace this be i mean that they didn't say if they had said these people took guns out and scared us and you know they essentially said that not they didn't say scared us they said we were confronted the firearms were displayed and we took off now is that enough to create a reasonable suspicion in an officer that a crime might have been committed under these circumstances i think there's no question but the answer t i wouldn't characterize it as trivial your honor and and at the risk of going awry i would say a reasonable police officer would take those measures have two o'clock in the morning faced with  a truck with three occupants that he doesn't know with the likely presence of two firearms and the need to protect himself and everybody else to say that this type of case is an example of how the exclusionary rule because we always are dealing with people who have been found to have been doing something illegal has pressed the law in a direction where if we didn't exclude this evidence we would never say that this was ok well if the exclusionary rule is having exactly be opposite effect of what people thought it would do i suspect your honor that you say that because there's a view of this conduct that could be viewed as extraordinary but that's not what the exclusionary rule was intended to remedy if there was a fourth amendment violation here he exclusionary rule was not intended to remedy this defendant's fourth amendment rights it's to deter police conduct in the future and while the while we can disagree about the i think we're talking about the scope of the handcuffs when he was room from the car yes how long was he detained before they found on the loaded firearms i apologize for not knowing the exact amount of time but i recall that not very long it was  five minutes total before the firearm was found and found to be loaded who's a minute from the call for the officer to show up the other officers arrived within seconds according to officer cherished they immediately began commanding the occupants of the car to come out each one of those incidents it struck me officer charles said we were moving very slowly it took about a minute apiece and then once they had threatening but i think it's the same caller who says he that is his friend we just got out of there because my buddy's afraid yes he judge shar found that the two callers were not threatened but he did talk about the fact that they were confronted and he did conclude the court who did that it was a startling event if they weren't if they weren't threatened how could there be menacing well if the gun is displayed and it places them in fear that's sufficient right you're hanging your hat on that line i am not i think it's a mistake in analysis to say here is a specific crime that the police were investigating i think it's enough to say that under all of the circumstances present the police had a reasonable suspicion that criminal activity might be afoot maybe it's to rob drugs out of the hospital you know i don't know i don't think we should have been what the police are looking for when they initiate the terry stop it's enough to say that this is suspicious and it might be criminal activity i'm on the question of where that every very broad state just how far does it go and compare it to sort of interesting to go back and read terry and see how far we've come i was giving you a hook to hang your hat on but ok i'm i don't want you to say i didn't disclose something  room you know it's sort of funny because judge sharp and that didn't find menacing could have and then it would make it much easier and found instead that the gun would have been found  anyway which is much harder to to go along with it it would have been much easier if if the district judge had found the opposite of those two things on the inevitable discovery of the rifle wire the rifle as he walked up even if the door was closed and the when the window was set up but then you've got officer charis testimony you talked about officer charis testimony and he says that because the windows were more heavily tinted they had to open the doors to determine whether anyone was inside our isn't our isn't there some tension between those two views there might be some but i don't think officer charles said he had to open the door to to determine if anyone was inside i think he opened the door to make sure somebody wasn't in the car and i think that was a reasonable step where i thought you were going to because the windows in the truck were so tinted did they say that i don't believe so officer charis said when he arrived he could not see if anyone was in the truck he was behind the truck officer i'm going to say so lenny i don't know if i'm pronouncing his name correctly also was behind the truck and he also said he couldn't see into the truck the two officers that described their position as perpendicular to the truck  said from from both sides of the car that they could see the occupants in the car one said specifically three occupants i believe that was officer a can and officer serino said he could see people inside and i believe even said hand movements so depending on your position compared to the car you might see or you might not see through the tinted windows from behind the truck you would not see it according to the officers both officers who were on the side said they accordance with the protocols are correct yes would you agree that a certain point regardless of whether the police officers abided by this protocol because it could have become before they found the loaded firearms us yes i will point is that well i'm not sure at what point given the fact that the concern here was two in the morning in the presence of guns i did have a thought on the train coming down your honor which is not in my brief and i do recall in this court's decision in bailey it was out a point where the person being questioned in a terry stop was handcuffed but the court found it turned into an arrest so that's not in my rebuttal but it struck me now in bailey the circumstances were not that the questioning officers were faced with the possibility that there was a gun in the car which is charged indicated earlier there might be a sliding scale depending upon the nature of the threat that the officers faced they found he didn't have any gun on him and at that point is handcuffed and put in the police car does that amount in voce circumstances to a defect or arrest it weer is it that we say this fellow clearly didn't think he could just get up and leave i mean reasonably for your handcuffed and put in a car you don't think you could leave but even without the handcuffs he would not have thought himself yeah but the handcuffs make it a bit more dramatic and i've never seen it listed as a factor but i note that when officer charles put twists in handcuffs he told you're not under arrest yeah but my point my point being that when we get to the argument officer charis did not intend to effect an arrest when he only had reasonable suspicion is intent of the police the matter is it objective really what has happened that's i think intent is a factor in other words i don't deny that i just wonder whether that is a factor together we have what the person believes is going on i'm way over my time i would like to make one point with perspective the nature of the measures taken that is my hudson versus michigan argument that if the police had not acted so extraordinarily for lack of a better word if they had toned down their response they still would have found the gun it's the the tactics employed did not result in so you can do anything is what you're saying but i'm saying that the supreme court has said in applying the exclusionary rule where the deprivation of the fourth amendment right occurred has to result in the in the evidence that sought to be excluded i wouldn't say you have to do it and you have the right to do anything  without handcuffs and had talked about the weather with him during that time and during that time had opened the car door and had seen the gun they would have found  that if that had happened then the suspicion was enough for a vet kind of light hearted conversation and the gun would have been found it's very different from saying we would see the gun directly we've argued both i apologize for taking the time knowing we've taken your thank you mystery senos testimony about seeing in through the window i just point out that the testimony the question that this is that testimony was simply would you have been able to see through the window  touch on hudson quickly i think your honour's understand my point but if it's a de facto arrest if we were questioning whether something was a de facto arrest and we would it would be pointless questioning if it never led to  n and then on menacing it's not raised in the brief because it wasn't touched below by the district court but it gets into whether terry can be used for past crimes which is a hensley supreme court case there they said it can be used for past felonies menacing as i think the government understands in this case would be a misdemeanor and i think if you look carefully at the record called the transcript and both listen to the audio when they talk about taking off and being afraid it's really in response they took off because they were cutting through the parking lot according to them anyway so they took off after happened and they just walked away and their fear was more as i said in my opening about retaliation after the police became involved  be exclusionary right i guess i don't know exactly how that would a played out the hypothetical sort of old fashioned terry stop what who would have been taken out of the car which officers would have been near the car w had been located in relation to the gun and and and all of those sorts of questions but i think it really i don't know that that's an important point i mean i think hudson is talking about the knock and announce rule which is sort of and just  terminology is really not important it's not you know happy keeping your house safe from police and government intrusion here the reason we talk about the fact of the rest because we don't want police to  you know more intrusive detentions and than necessary so i think that that's a reason that the whole but for sort of causes i don't know we make of the fact that the officers here police conduct in that you wouldn't your argument and that be the protocol would protect the police from any right made against them because we were behaving as if the protocol itself is a protocol that goes beyond what he's appropriate right and it becomes all the more reason for saying that i'll take that is that isn't there isn't that a isn't a factor in determining whether there is a inappropriate defacto arrest after i don't think i don't think so i think if it's a factor at all maybe it's in the last step of the analysis as to you know exclusionary rule and the level of whether this was intentional reckless or grossly negligent i would used by police departments around the country in connection with legitimate police so there's a call about a gun and this is the protocol you use in connection with a case for whatever it is can do a de facto arrest because then you're you're abandoning the very the very essence of the terry stop which is individual assessment based on the particular factors of each case so that's my response thank you ok