commands out of pocket before any two men take their hands at the park it may be you can help me and if that question cannot be answered why should we send this back to your trainer yet again well i don't think it's entirely clear from you would agree that if on that first command that your client turned around and fled that at that point there would be reasonable suspicion the fleeing would give the command and you have a submission right to the show right and you have the submission to the show already before any movement that he makes so if you have the submission to the show the question is where will we stop where we look at the timing right so we don't have training around including here but we do have a finding by the district court not staying in place but of retreating several st like your independent view on that that question whether there is invasive action in not staying put but retreating several steps until he was prevented from retreating further by the construction and well let's look at exactly what the this report found in that regard if you look at finding of fact number sets you have the fact that the officers get out of their hearts fifty or sixty feet away from the law that's where they start their approach from a couple steps several steps a few steps back into the fence right behind them then this is critical in finding of fact number twenty the court finds one of the officers got into close proximity to him that's one of the started making the commands for raises hand by that point he's already stopped there is no finding by the district court that mr lowe ever took a step away from the officers after they made their first command to him  raises hands but this is the s and p is pointed out the district court men didn't provide us with that particular sequencing of those events it says nineteen twenty that those occurred but are  the officer growing six to eight feet away from mr love officers and again it's in campbell when they were giving him these commands so the disregard is found that as the officers beginner approach he takes a couple steps back that's almost instantaneous when they offer to get to close proximity they then start making their commands is already stopped at that point so we have a show of authority that's at the first command know this about that and he's already submitted b the officers testimony occurs within two minutes and that at least one minute of that involves the struggle of the fence after he's already turned himself or been turned around and he struggled for the weapon so then then we're talking about a period of thirty to sixty seconds where the officers are approaching they're giving the command show hands according to the findings of the district court he was officer campbell testified he had an opportunity to try to run away if he wanted to retreat from the officers in get away from them he could've ran out into the street the officer coming from the south he could've ran up the block to the north but he didn't do that or that and stop the district court found that he was prevented from moving farther back he was prevented from moving further back on the sidewalk but officer campbell testified and this was on this unit he certainly could have run into the street and r of the government the most important point i would like to make it today's argument is that it doesn't matter when you identify the seizure here there was reasonable suspicion at that moment why have a seizure to show the priority of everybody here seems to agree including the district court is the command show us your hands this is not a case of that's what makes this different from some of the others this is not a case where the with a very important filing but it didn't make is that he did not initially show his hands when he was asked and i took at least several commands and backing up before he did so we know he's really making out that's not clear but it's not and that's tell the struggle and the recovery of the gun because all he did was first back he had nowhere to go he slowly reluctantly went to the wall his hands around the office sakit before he's reaching for the gun in his waistba go put your hands on the wall why isn't that those two acts the submission to authority before you get to the jostle well i could answer that but i don't think it's like trying to answer trying to put it has the benefit of before i get to if i may the best case scenario for the defense is that none of this happens the backing up the struggle nothing what happens is they come up on him they say show us your hands at that moment where his hand they are stuffed into the pocket of his jacket that's what's happening simultaneously if that's a scenario ok so if it so you would read that line johnson that would be a submission to a shield or it that's what happened yes now that's not the district court's fin when the district court describes taking several steps back but if it were in the morning with four people running after in the dark and yelling things that may well be consistent too with trying to just a know what were these things actually happened here on it would be helpful to have more specific findings but what the reason i'm trying to say that that's not necessary is again this benefit of the doubt that if you go back if you say that the backing up never happened reasonable suspicion and how can that be the tipping factor but it does give you a reasonable suspicion because what the supreme court has repeatedly health is the officer can consider all facts whether that innocent conduct illegal  happened i agree but the moment of seizure here your honor is simultaneous with him not showing his hands if they want to show of authority to be show us your hands the officers can consider the response which is simultaneous they look at that listen milliseconds this is happening they can see immediately whether he's comply with the commander not as it turns out according to the additional court is it takes many commands and one officer pulls his gun and i'm going to get away from the benefit of the got a minute because i don't  it but i'm trying to suggest why this case is not difficult the officer can assess at the moment he stopped what's he doing and his hands are still in this pocket and that's where at this moment this is an incredibly dangerous not what these police officers are doing there was one of these officers with guns looking at him at a person or all they're looking at him you know you're right it is a situation  but you know there has to be a point in time where we have to say is this a seizure and i haven't heard anything to convince me that after he's up against the fence it's not a seizure  that point the officers have made multiple commands that he has not complied and that not comply with taking his hands out has already happened the district court says and therefore it says you can consider it in a reasonable suspicion calculus there's no other logical way to read because of course findings as far as the four officers go your honor they're doing their job they get a report of a man with a gun at four in the morning they don't head off in the other direction they go to the scene to to find out what's happening and to protect the public they come upon this man who matches the description and the one command they give him is the most obvious i mean take your hands out of your pockets so we can safely investigate this what we really have to emphasize here is we're dealing with us but themselves and the people around us so it's a it's a reasonable suspicion standard it is less than probable cause it is less and preponderance less than reasonable doubt it is saying what a reasonably prudent at which is shows your hands show us your hands shows your hands refusing to comply refusing to comply refusal to comply and you say he's up against it's ok it's a seizure doubt so if we can't use those referring to that statement is in the context of the take offense to that case in which the only not compliance is not rolling down the window the man just sitting in his car in the parking lot if that this court has never explicitly said you can't consider the refusal to comply person and yet the supreme court considers the results of that chase and because the seizure hasn't happened yet it can be clear on our visa with supreme court makes explicit you can't slice and dice you have to look at all things that happen including innocent things in the totality of the circumstances so it is flatly incorrect i respectfully suggest that you can't consider the response of the command that's what this is all that where we said that you can consider that simultaneously with the submission point that he turns to the fence and put his hands on the fence what is that what is your position before us late edition what is correct the submission happens after the first commands after he backs up a bit it doesn't say that time exp is after he's backed up by that point he has to well to comply with commands to take out his hands you can consider that failure i also suggest as an alternative that even if he stopped until it take his hands out at the first command is the seizure the totality of the circumstances include the refusal to take his hands out which creates reasonable suspicion and that's the last point i want to make if i may which is most most interesting in this case is that the defense has never disputed what i just said about reasonable suspicion that if you add in not showing your hands to the other circumstances that we know they'd never disputed it instead we had changing positions here the first position to lead us to the first appeal the defense argument was he did show his they needed to get away from that fact they relied on campbell's testimony and on this wish to and said he did show his hands in response to the command that's the important thing that comes from british courts new findings it rejected that and so we come here now with a new argument which is they actually did make it in their main argument here but the main argument in the reef was well they should never learn not to show his hands at all something we haven't discussed and the reason we keep dancing around all this is because we think everybody has to agree and they seem to that if you have a high crime area for a an exact description shots fired and you won't show your hands when the police ask you to that's the best case that voluntarily placed his hands against the wall before reaching for his waistband or whether it was forced to place and against the wall so it's after he's shown his hands when the judge is saying whether he'd bought the whether he voluntarily complied there was an order by the officer and put his hands up against the wall in response to the command to use l mcginnis said he was walking slowly to the wall so then they help in any event the shooting inside that the that the record not the district or its findings but the testimony profile couple of steps back against the the court never found never found that mr low took any steps backwards after any orders were given right by the kindly orders were given mr lowell was already back suspicion analysis but the court didn't factor in any steps backwards at all into the reasonable suspicion analysis and the reason for that was he is she is as soon as the officers made the first command for him to show his hands and he submitted already by scumming to a stop against the facts it's for a practical perspective the rule that you're asking the court to adopt would mean that officers who get a tip that someone has a firearm at a particular address for me in the morning high crime neighborhood a shooting that has been verified and taken place with the shooter not not yet found apprehended just a block and a half away as they approach someone who has hands i can very address they're told the person has a fire arm they instruct them because they have hands in their pockets to take any hands out and show them so that they know that they and the others are safe the person refuses to comply you're saying that at that point there is an eight that he sees a seizure such that they have the option risk were someone may well given that the tip in the information have a firearm how is it as a practical matter is a commonsense matter could we adopt that well first of all the officers have to operate within the parameters of the fourth amendment and the supreme court has been a clear what those parameters are in a case like this florida versus jail in court make clear that an anonymous tip of a man with a gun does not provide reasonable suspicion for a and there is no this that they do not have reasonable suspicion at the time that they ordered him to show his hands so we know that's parameter number one from a number two is that the recorder said this over and over again or more th that of officers approach without reasonable suspicion a man woman is in hydel to ignore the police to keep his hands in his pockets to go about his business the officer has no more authority than any other individual so with those parameters if you're asked what should the police there judge back or writing for this court in the united states versus a row person and gave the alternative the alternative a surveillance if the officers don't have reasonable suspicion to go up to him at that moment and stop and frisk them which they don't there's no dispute about that they don't have reasonable suspicion then you're back the alternative a surveillance and if they take up or surveillance position they may very well see some kind of suspicious movement as officers often testify that some kind of furtive gesture maybe mr weller any individual sees the police and he decides to run and maybe the flight plus the anonymous tip plus the other information gives an unreasonable suspicion now obviously the philadelphia police department is in a better position than to come up with the exact procedures officer follow an anonymous tip cases but what's absolutely clear from far versus on the other case they cannot just go off on an anonymous step regardless of the other circumstances here because they plainly do not provide reasonable suspicion they can't fill up and make that kind of show of authority and command that he take this and that was the one they did that he at the moment of the show over thirty itself mr johnson's refusal to roll down that window for the second time wasn't even consider so here if mr lowell with see is at the precise moment of the show commander he raises hands he submits i now blooming just like johnson submitted by not moving not getting up out of us har just like in johnson this court didn't consider the second refusal to roll down the window this court wouldn't even get to the refusal to take the hands out of the pocket the second point of johnson versus campbell is an individual like johnson like lol like any of us if the police come up to us without reasonable suspicion we are entitled to say no we're on title not for roll down the window  entitle not to take the hands out of the pocket and by doing that we're exercising our constitutional rights there's nothing suspicious about it this result was right the police can consider innocent act if they're suspicious so in tarried individuals looking in the windows over and over again of the store it's innocent but it's suspicious nothing suspicious about saying no to an officer about ignoring an officer who's approached you without reason most especially case after case we or clear from the record because if you look at the sequence of the findings if you look at the fact that the court found that the officer didn't make the commands until they got into close proximity the time they got into close proximity he's up against who said the commands were being made when they were sixty eight feet away or approaching from sixty by the founder get this if they see what was up against the fence the court if the court you know the somewhat disturbing thing about is the government a judge dorner to make that finding which would make the finding that he was walking backwards that he continued to walk outwards after the commands to hammer again and which imagine judge or you can't make that critical mcginnis says that he was frozen the entire fact that he negs maybe this takes us full circle because if we have those in one part of the findings of fact and then we have one thousand and twenty with some important facts as to the stepping back how far it is you suggest it was a couple of steps we have no information about the distance if there was if it was as this record seems to describe it more of a retreat because he was prevented from moving farther in gauging attempting to engage you in a consensual encounter and asking you to do something or not is something that's part of the consensual encounter there's a difference between that and the officer making a show with already once he makes a show useless encounter there was there were no other factors that the speaker did to reasonable suspicion but so that the thing that we have to decide is whether and you can take account of the refusal to comply and whether the refusal to comply when combined with all of the other factual circumstances here that whether that need it go over the tipping point for reasonable suspicion yeah right and so if you look at the framing case the second circuit just lots of additional circumstances there probably more than what we have here you have two nine one one calls a man with a gun you have the defendant matching the description of the collar if the defendant walking past the police officers  refuses he's ultimately tackled they recover a gun and the government argues well his refusal to stop that's us over the reasonable suspicion line and the second circuit said no it doesn't he