unloading then and there's not a violation but it's presumptively illegal under wisconsin lot of park within fifteen feet of a cross walk period full stop except for the purpose of m where becomes tricky but it is the parking violation i understand that under milwaukee law even though it's maybe not common for the police to enforce the parking rules they are empowered to do so they can and they testified that some regularity do even if it's an expired meter or you know you're parked twenty four inches from the curb your bad parallel park or instead of eighteen or whatever it is we've never contested the fact that they can do that but they just can't see they can't see it in the sense of what the issues are that took place here so you conceding that if officer conway had walked up to the car granted it was a cold night that we're all tough in the midwest and so he walks up to the car and then sees everything else that he saw he sees johnson squirming around the gun you don't have a case if that happened because simply walking up to the current peering the window and say hey buddy i'm of the current johnson stanley flips out at that no this is you have two cars box so i understood the question to be somewhat different it's a single officer walks up to the car and says you were parked too close i'm going to write you a ticket do you think at that point the car if there were a driver you think the driver could just excel or eight away and say no you're not and i'm waiting all right that means you think walking up to the car is itself a lawful seizure because a lawful seizure means a prohibition on walking away i think it's actually distinction and that's what i was trying to get which  next question is that that is actually incidental that's where we all agree even the cases we cited say you cannot see for a parking violation the minnesota supreme court and watching the supreme court they all agree once it takes being written nobody can why i guess that's that's where you lose me because that is a seizure for a parking violation if there is a legal rule against departing then you have been seized that's how does one get at at and at issue in enforcing the parking violation but we also have to consider the degree of force that's part of the you know it's to the degree of intrusion of question so for instance could a stop with their guns drawn i don't question that i think when you have to balance that which handedly tells you you have to do you can call them if the government were interested i really want to see people picking people in that crosswalk that you're not allowed to come with the swat team to go and investigate that that that actually takes it outside of what you're really investigating at that moment that show of force is in commensurate with what you're investigating there so much so it's an important part of your theory then that even if in our hypothetical that we've been talking about of walking up to the difference isn't just could you write a ticket that there's actually an independent component in the fourth amendment that relates to the excessive force dimension of this particular seizure i mean that's always balance within harry every case under terry so you have to balance a governmental interest in what you're investigating and what the person knows all it's all terry stop  people it's a terry stop with under way a and the officer decided actually i'm going to shoot you in the thigh because i know that will disable you while i pat you down you would say that even though the legitimate pat down be ok that's excessive force safety interest of times square on new year's eve is such we're going to find our body what are you doing here and that goes more to the community caretaking than anything but it's part of every factor that you have to look at your is not advocating a blanket so you're not advocating a blanket rule no we're saying there's there are exceptions to the rule where there is a public harm central public harm i would yes and i think you got swept away to the fact that a lot of it is just the cops trying to officers aren't going to allow that to obstruct the traffic because once they do that was just gridlock and everybody having a bad day and you're upset and everything else so officers are normally there just trying to direct traffic where there was snow on the snow to get back actually to the core question and i don't want to lose this because i really want to address this if you look at she'll seems almost all remarkable because there are everything they're and that's where when you have that say ok this is legitimate when it's just like hey buddy what are you doing you know what i feel free to leave i don't know you know i usually respect the top to do whatever i'm told and put on the high end where you say you can't come with the swat team you can come up with four tops for this parking violation was mr burdick would it be fair to say that the behavior of the police here if it had been five civilians in two cars with those lights in the aggressive when people go to get liquor on wednesday evening let me ask you this how much time before you think needed to pass before the officers could have ruled out the loading and passenger discharge exception so i think a species of terry stafford it doesn't require criminal activity in a parking violation like any kind of traffic violation is enough to initiate an investigation a temporary detention and that's what happened here before the for this move signing the gun was noticed i don't agree that that like you have the right to investigate it but then that's a geisha is just observation it doesn't need to be the seizure at that point because at this point all you have suspicion but you don't have a reasonable suspicion it's no different than any other now would you accept that a traffic stop in a parking stop at the same thing or is there any reason to distinguish then that you can find in supreme court decisions that they are distinguishable and here's the real big one under a parking violation the same thing doesn't hold true it's also not a crime in wisconsin it's actually just a forfeiture or forfeiture is not a criminal act so that takes it outside of the realm that we say this is exactly what you're dealing with here and that that's because all those are specific to the violations you should see it right away i see the red flags up and so then i'm like you're meter's expired body or shields your partner in the middle of the crosswalk so i can see it right there you could never be in those two different files a toll is ours and we both know that that's where the questions gone and so i want to make sure i don't get tripped up all right the ones where there is an emergency you have the fire department and you're not allowed to be right in front of their you know it doesn't take much to knock down the of their cars parked right is part of this outstanding it's not stopping you know so that somebody can load it on load here you have it where you have none of those in dish there's somebody parking now i'd also say going back to my point because i was like a lot  what they say what they think they're stopping for it isn't really matter no question of a think they're stopping to move the car along and do a community caretaking kind of investigation or if they think they're there doing a problem cause you've got to get a reasonable suspicion you have to have enough time of that observation to make your suspicion reasonable if you don't get there it's not objective lee reasonable and that's what it is right here it's that you haven't allowed to develop the facts that you  need to make that call whether it's reasonable suspicion that that person is actually not on loading or unloading and that person is actually parked there and you can't make that until you observe longer until you actually go and see you know whether it's two trips around the block whether it's sitting there across the street observing for two minutes whether it's just walking up as a casual encounter when asking the court to say look it has to be one of the other sink that has to be done you can't come in with five police officers to squad cars and box somebody and after five to ten seconds a lobster tail so it's been an assumption of this part of your argument that if the use of two cars was an excessive force and no force was actually used but if it's an excessive show of force then exclusion of evidence follow does any case in the supreme court support that proposition if the same evidence would have turned up without excessive force  o the comparison is the officer walks up to the car and you can see the car can drive away is there any support in the supreme court for saying if excessive force was used then the evidence must be suppressed rather than for example used as an award of damages by a question i know that there is no answer to their walking up but i will say that you look at them i'm just interested in whether the supreme court has ever held that an excessive use of force justifies exclusion of evidence as opposed to an award of damages no they've never never know the theory is that it's unreasonable weeks and that is that the police having the involved or engaged in illegal activity and evidence is derived directly from that it is not that they couldn't have gone and got a warrant in weeks and seen gone through his papers or with this ma actually counsel the case i was particularly thinking is hudson against michigan where on a lawful force was plainly used in order to enter the house instead of knocking in announcing the constitution requires the police just knock down the door the supreme court issued that that was excessive force unreasonable entry and nonetheless held the key evidence must not be suppressed that the remedy is damages because if they had announced they would have found the same stuff and the question i'm asking is why isn't that the general approach where excessive force we have damages remedy has worked well but let me ask you a different way around that question suppose you agreed with judge easterbrook yeah that's what hudson says on the facts of this case is it clear that the gun would have been found anyway mr johnson's response to being seized with two cars in the spotlight or somebody's going knocking on the window well that's where the government's doing it for the district court they never did it so we don't have that record to be able to make that inevitable discovery or you know argument so i down to the constitutional right and in that case they had a lawyer so they had already gone through all that that wasn't the court's point the court's point was that the unlawful entry with the unlawful force was not in the chain of causation to finding the evidence now that drives us back to chief judge would question we would need to figure out whether the appearance of two cars if that's on lawful and unlawful show of force was in the chain of causation my question you said that the record isn't there to show you what you said as i understood you to say that the record in this case isn't there that the gun would have been found had it not been for the cars zooming in and boxing  i think it's like it's like two man cars rather one man cars i'm no good if they want to park across the street not walk over and they want to engage in a casual encounter that's one thing but it's a show of force it's the boxing in  what's reasonable when it comes to a parking violation we have no problem with the n f t the neighborhood task force and what you know there are allowed to go and look around and drive around to have that but when they don't engage in parking violations with that windows government says they could see him which is right could they see through the windows when they walked up the i mean there in the window there came to the district court this is because your question's a good one there is the liquor store like all right then you also have the lights from the two squad cars right you have a tinted window just a liquor store without the seizure problem not just i publicize in there but if you have the seizure with all the lights out which is really the critical point right that's when the they say yeah we could see it at that point because our argument in the district court of the evidence you're hearing was different our argument was tiger opens the door so the dull light comes on and he has a flashlight and that's when they strike everything with the action and when you think about what mr johnson is doing that's a reaction somebody has to look you know flashes followed in your face well wait what's going on and that's the moment a seizure that we kept on going back here's what the brief says infractions because you think there's something amiss going on of a greater of a criminal nature right i disagree that is the case with about but that is exactly what happened but we all we all know that what they're doing says i look for bigger and better things he says about so much more this case is not just about bigger and better things this case is about what kind of force him the officers use what kind of show force can the officers use for a parking violation and how much do they need to observe because if you allow for reasona suspicion to just be up for a second glance seems like he's there and everything else goes against it the reasonable plausible thing is he in the liquor store somebody in a liquor store getting a six pack of highlife and they're going to come out with a second if we  big that's why we're all here what would you do done as a regional police officer no circumstance i was i would be part right on the right side and i would have watched i would watch for two to three minutes and i would just seen what happened why the one guy who was just you know i was bigger and better there's nobody else is going out on the streets right now in this high crime neighborhood you know what i'm going to do i'm going to create something where i can go look for something bigger and better nobody can be harassed and it's negative twenty because we're all bundled thank you may please the court my name is keith alexander i represent the united states to get to the question that was just asked if this were to go to the supreme court terry would that have been the issue the issue would have been rand unanimous supreme court decision that it held and its pacifically set that courts should not try to distinguish between more important and less important ballot issues that would justify an investigatory stop before the car is iran well what do we make details of their own personal security against the importance of the governmental interests alleged to justify the intrusion what are the governmental interests to justify this intrusion on the occupants of the vehicle the is permitted parking is prohibited but the statute is very clear it says no person stop or it leave your vehicle standing it's interesting why did the statue add that extra phrase or leave your vehicle standing permissible standing parking as tradition is halting your vehicle whether temporary otherwise so typically you think of somebody pulling their keys out of the car walking away coming back and then later store yes that is permitted because the statute says you can leave your vehicle standing if you're actually engaged in the receiving or discharging of passengers here ok once she's in the store the her out where the where the snow was not after she could walk into the into the store and go in there and shop the door she would call the door and then i would drive for work that i couldn't just stay there and so she's  the parking prohibition in this case is generally enforced by the department of public works not the police that it can only result in a thirty dollar fine and no undercover officer who was attempting to pull over somebody for a civil traffic violation so remember in renda supreme court said that there was actually even probable cause now maybe hyun chain you know down shift to reasonable suspicion that the backdrop against which the court wrote all of that and rent was one in which the officers had probable cause that was corrected that that is absolutely correct it probably cause rent so there's a short matter here that the also your argument is that the level of the government interest makes no difference if it is in downtown chicago all of the police decide we really need to crack down on jaywalking so we're going to a st and terry frisk every person who we think is about to cross the street without the little white light on that says you can cross so we can all just be stopped now that's fine with you even though you know it i mean because there's a law that says don't jaywalk up to and including you know somebody who's planning a murder but you think that that the government interest means nothing well i think i do well let me answer way in iran the supreme court said courts are nat generally supposed to be balancing doing the balancing because it would be apparent because like you said when i was probable cause for the st absent extraordinary circumstances court shouldn't be balancing because it is the thing is that what worries me about your position inside from the fact that you know it seems to me to give the police a blank check to stop anybody at all times for no reason at all but the other thing that worries me about it is that if there is no correlation between the level of force the police are allowed to use and the significance of the government interest now the police could have shot out all the tires of this car they could have tossed a grenade into it they could have done anything and as far as you're concerned that doesn't matter whatever level of see who was in if there are people inside the vehicle and how many there's no claim by the appellate that was an unconstitutional act by the by the police for randy johnson's perspective whose fourth amendment interesting work that's fine to see if someone comes out of the liquor store and if there's a delay then ok they should probably just go into the little store see this is someone you know shopping here in this school are they to say look make your purchase and go back to the car because it's sitting there for too long and that's what may have happened if they would have got to that point but the magistrate court finding in fact was very clear at that point all i had to these flashing lights in their vehicles added to the point of whether they should have waited a couple more minutes there's no requirement under the fourth amendment they have had a there is to because they want that's your position well mystery that required this deployment of force was these flashing lights two things one the quote that the fact that somebody went into a liquor store to purchase liquor that was not on the record ok that's first secondly as i said that anytime the police have a parking violation like this they don't have to wait it all they can surround the car they can do that they can so just the mere fact of a parking violation they wait just a few seconds and build there in there they can go in and around the car do whatever they need to do well given that they really want us to adopt given the fact here i think given the given the circumstances that the fifteen foot perimeter that was it and that's all they had three seconds so you couldn't even determine whether it was there to load or not load or anything so that's what i want to know what kind of rule you want us to adopt because it sounds to me like you're saying it's a parking was only three seconds i and i just want you to clarify what your position is on this mr putney said that when they make the initial decision to zoom in with the two cars they do not at that point have enough of a sight line to know whether there's anybody sitting in the driver's seat whether there's anybody in fact inside the car they make the decision to surround the car and it's only then when they get out that they see well there's nobody in the driver seat there are these other people th pull up next to the car he might see the other one behind it he probably notices the spot lights it does no spot light shining in and for and that last seconds before officer conway sees him pulling a gun out this is not an excessive display of force from from especially considering the fact that the supreme court in maryland versus wilson said that officers can direct people all the people in the vehicle out  vehicle for nothing more than a minor traffic violation was nothing more given the concern for officer safety so now the family has now do we have a situation where in the streets of any of our major cit since a certain number of cars are going to be overstaying their welcome at a parking meter that the officers can just go down car by car and command everybody to get out of the car might be violating the law after all might be parked illegally because the meter expired well if somebody is a somebody they observe somebody violating a parking all they can certainly stop them for a long enough period of time to write a check at i mean if you're saying they can also order them out of the car and they could also block the cars access to the road and they can also perhaps take other forceful measures maryland versus waltz in a squarely on point direct all the passengers out of a pickle well in the special context of traffic stops we obviously have special rules the supreme court has developed special rules as in ran as innocent for moving violations and to stretch those two parking practices is something the supreme court has never done and i have to say as i said in the panel dissent would really be an extraordinary extension in terms of what could happen on the streets of our cities i don't think it would be at first i don't think it would be an extension of rand at all i don't think so at all because every federal circuit that has considered the issue has held that ran applies to partner violations if we start doing if the courts start doing what rand directed courts not to do which is try to distinguish between what's more important less important we come up with unworkable standards and th hensley and the general reasonable a standard under terry which tells us to worry about governmental interests what i'm suggesting is that that analysis takes on a special tone special fundamental approach under the fourth amendment which is protective of individual liberty and privacy which say that we do not want to go to the scenario the chief judge would just described with jaywalkers were people sitting in part cars expired parking meters well i think what would happen with if this car was operating park and stopped and there wasn't a license plate or the registration was expired the officers would be able to conduct an investigatory stop  that operating and happen to have their car stopped and they notice a ten inch crack in the windshield this court is held in cash in that they could do an investigatory stop moreover this particular statute as i indicated earlier prohibits parking and standing which are two separate concepts under wisconsin law standing is actually treated under was constant lies a moving violation parking is a non moving violation if we try to draw these distinctions to become the first court federal circuit court since renda do that we're going to come up with all types of unworkable tests that that just will not be clear when the violations it's serious enough or not i think at the end i so i would say best i think rand calculus i think this court should take ran into account of the sixth circuit case the ninth circuit case on this issue also is instructive those were clearly parking violations the questions they asked where was the traffic violation under the state law and to whether the officer convey to investigator and force that law the answer to both questions given those particular state statutes was yes the firman of response is the same here it's a yes this law is a state statute under chapter three forty six in title rules of the road the same chapter that governs stoplight violations lane deviations other traditionally understood traffic violations that the state of wisconsin treats this as a traffic violation and so and  officers were to stop somebody to terry stop somebody the there would be a significant difference they would be able to see the person in front of them they would be able to see their hands not so when they're conducting even the minor traffic violation as maryland that citing statistics from one thousand nine hundred four but it illustrates something that i think at least i don't often consider when officers pulling up they are facing a good and inherently dangerous situation they can't see people's hands and that's why the supreme court has said that the officer should take unquestioned command of the situation for their safety they could direct passengers who aren't committing any violation whatsoever and i don't have a vehicle for their safety the officers here never even got to the point of ordering randy johnson out of the vehicle because he immediately showed the officer that he was trying to hide a gun and that completely changed the landscape so for the few seconds that he was  high crime low income areas and are utilized to pursue our interests that certainly seem to be unrelated to any concern with our parking violations and center and the supreme court he anatomist court ran address that very question that they discussed it and they said that because that was a concern for any traffic violation on registered license plate cracked windshield whatever it may be that's a concern and the supreme court unanimously said that that is a equal protection violation no question that would if somebody isn't forcing the law based on race or investigating based on race that is a violation of the constitution but that that very question and if and unanimously said it doesn't matter in the context of the fourth amendment the subject of intense of the officers is out of bounds for regard to the fourth amendment the question is what objective facts they observed and whether those court doesn't seem to be backing away from land but it seems that actually the embracing it behind decision recently demonstrates that there the supreme court in an eight one decision upheld the staff of a vehicle when the officer was wrong about the law the officer thought that if one brake light was out relevant to that that would be of that would be a violation north carolina law the officer was wrong about that the court said that so long as a mistake was reasonable to stop the still myth there was an eight one decision there was no balancing of the government interests in this mistaken understanding of the law that the officer was trying to enforce versus the intrusion of a person's something about this line of supreme court decisions in the question how much do they really encompass and how much are we being asked to push them beyond their original boundaries it is the question whether there are actually any meaningful limitations on police behavior in this and i take it from your argument that the answer is really no we just have to have good and trustworthy police officers well i think the answer is yes i think there are extraordinary cases around talks about this where that would then invite the balancing test that out the actually saying for me what's an extraordinary case is that one percent of cases the rest of the time since this is an object of test and subjective what those are examples that you you raised earlier i'd also be extraordinary and that would be something that would render says we should look into but the typical traffic stop isn't that that isn't the case here and the fourth amendment authority it makes it clear that nobody is free to walk away and that's that's really the critical point it seems to me we have a seizure was there a foundation for and so thank you cars make a left hand turn they pull up to the to the car the officer rapidly run out of the car answer no to jump out of the car answer no they approach the vehicle and before officer conway after he testified of to what he thought it would be turned out he was right but the critical point is there's a there's a seizure of everybody in the car including johnson and the question is what is the factual legal foundation for that seizure that that's the focus we want that's al it and for that level of the seizure what i'm saying is that when randy johnson completely changed his fourth amendment interest when he was observed with a gun that occurred at officer kind i was getting out of the vehicle he wasn't even he was just approaching the vehicle agree he was already seized at that point yet for a few seconds yes he was thank you and then what's your best argument that the gun would have been discovered at the seizure had been less aggressive in terms of facts we don't know on this record whether he had the gun in his pants under a cold or anywhere that an officer could see it so how do we know it's inevitable well if it had been a less aggressive seizure if that the government didn't  argument a lot i think the panel i think decision on that so it is justified and can be reasonably and hurt from the fact that randy johnson upon seeing the police his first reaction was to get back on office person that was his first reaction he didn't and so whether it was one squad car or two squad cars or three officers or one officer or an officer coming up and flashing a light in he one can reasonably infer from this record he would have done the same thing try to get that guy off of his i think the option then the officer to have to face was either to issue a citation for your legal standing or say watch you just move forward eighty and i'll give you a warning and be on our way it could have been over in a matter of a minute or two but gran