one and only case thirteen twelve fifty eight united states of america versus lewis kevin bell arguments that exceed fifteen minutes for side mr allen for  fifteen year mandatory minimum sentence at the very least therefore this case must be remanded for recent it seems less the panel has specific questions regarding that sentencing your focus my argument today on the suppression issue the legality of the terri stop in this case turns on the application of a straightforward rule although police officers can search a suspicious boat as an incident to another was lawful stop they cannot initiate a terry stop for the sole purpose of searching a boulder in a person's pocket at least were there not much stronger in disha of criminal activity than were present in this case so what do we do i mean the you know the bogus argument makes some sense but we have this law that says when you know that it's a little bit like a jury verdict you know that whatever the district court does on the suppression most soon we run the evidence or inferences in favor of the district court decision so in light of the language of dunning's police report and in light of dixon's testimony so  you know make sure i'm right about this but the report dunning says writer observed a large bulge in the shape of the hand and dixon testimony the bolt appeared to be a gun to me i think dunning's testimonies somewhat similar but forget if they exactly said that doesn't first of all the district court specific finding on this was that the officers had testified that the bolt was in the shape of a gun so the district court was placing particular emphasis on what he heard the officers testify to if you go back and listen and look at read the suppression discretionary transcript there is no testimony that the bolt was in a gun shape or even something resembling that in fact officer dunning the one who actually wrote in his report that he thought the bolt was gun shape in this police report was specifically asked on cross examination what did the board look like and he didn't was in the shape of a gun he said it was an object bigger that made the pocket look bigger than it should be or something along those lines so when specifically asked to describe the bald officer dunning didn't repeat what he said in the report which was that it was a gun shoot examination when asked to describe the bold said quote the bold appeared to be a gun to me the factual basis for that statement however only two fold one is he observed a bold into is he said it was heavy it way down the jacket he did not  factual underpinnings of that of that belief of his perception that it was a bolt in the factual are that it was a gun that he was looking at and the factual underpinnings of it only word that it was large and it was heading in that's if that's those two statements one said it was gun shaped or shaped like a gun or n n l they repeatedly said it was heavy it was large those are the two factual findings that this court should accept as true for purposes of this appeal and ruling on the legality of the terry stop here but you would give up on this argument if the testimony had banned by dixon say the bolt was in the shape of a gun so it's really the distinctions told she would look straight at the bull's you say that's the shape of a gun versus it appeared to factual finding here or should but if it did i think i should still win and i will explain why seeing a boulder that's even in the shape of a gun has been helped by several courts to not be so you know to not give rise to reasonable suspicion than individuals armed and dangerous because with those courts said is there officers in those cases they observed a bulge in individuals pocket they said they testified it looked like a gun to me the court said it's not enough for terry stop in that case because there are too many things that can look like a gun and in fact in those cases when the officer actually investigated the pocket in either case was it a gun in one case it was a a lighter and a pocket a pot a penknife i believe in the other case it was a wad of paper with ten foil so even if there was even if you don't category because in those cases the officers have an independent lawful basis on which to stop to stop someone in mens in arizona be john it's a traffic stop and in those circumstances what the court has said is we want police officers to put themselves in that situation they have to fulfill their duty and so we lowered the standard of of what's of what when a search is permitted because they have to put themselves in a dangerous because she gets the same terror terry standard i do not your honor and the reason is that this is in this case the a crime whereas it might be in connection with a traffic stop to believe that someone's arm is that what's in the most traffic stop like an expired license or something that's correct i believe those aren't typically gun wielding people that they're not sure i don't understand why i mean i guess i'm struggling a little bit with why you know maybe in some settings it wouldn't be the same as the terry stop terry frisking corey but i guess i'm not sure i understand why this isn't exactly the same  is the license expired and you're allowed to get out of the car for your own safety but that doesn't let you allow us so for us them again i think it goes to the to the reason the officer is in that position in mims versus the reason the officers were in this position here menswear when when when officers have to stop someone for a traffic citation or they have to investigate drug trafficking activities they're compelled to put themselves in what's an inherently dangerous situation and in that circumstance we lower the bar a little bit to allow them to conduct searches because we're concerned about officer safety that's not what happened here here the officers observed an individual walking down the street lawfully there no no no independent basis to suspect him of criminal activity and the implosion to engage in a consensual encounter and observe the bulge there is no case that i'm aware of your honor that holds that terry for a supreme it it doesn't incident to a consensual encounter just because an officer thinks well bolt might have a weapon i'm particularly concerned about it the differences between circumstances in which an officer has an independent basis to suspect criminal activity in is violating the law and doesn't have a permit i i don't get you so you seem to be agreeing that if the police officer testified accurately that the bulge in the pocket look like an outline of a gun that that would provide reasonable suspicion and you may very well be right i'm just wondering whether that is  that so i will ask your question about what michigan state law says about carrying a pistol it's it's only a crime to carry a concealed weapon in michigan if you don't have a license so the statute specifically says this is m c l seven five zero point two two seven a person shall not carry a pistol concealed on or about his or her person without a license to carry the pistol so the point you make about it's not necessarily criminal for someone to be carrying a one carrying opponent as a crime is defined in michigan because you can do so lawfully with with a license but it gives rise to reasonable i don't think seeing the outline of a gun are a gun shaped bulge in someone's jacket gives rise to reasonable suspicion because there's too many innocent items that could be they could make that outline  basis for reasonable suspicion in a state or where you can carry a pistol or good if you have a license i think that's a difficult question and the reason i say that is because the courts of appeals are actually divided on that question really the fourth circuit has held in the open carry context that merely observing someone open carrying a weapon doesn't give rise to reasonable suspicion at least in north carolina because it's legal to open carry with a license j becker has of a decision from the third circuit where he said that concealed carry in the virgin islands didn't give rise to reasonable suspicion because it's illegal to conceal carry in the virgin islands other courts have reached other conclusions the tenth circuit and the eleventh of the second i believe have said even if it's legal to carry with with a with am with a license it's at least reasonable suspicion to believe that someone is filing a law so i think that question is not said anything i don't think if the reach that question here for a number of reasons that i've played on the brief scene here today but i do think it's a very difficult question so you mention the sentencing you mentioned suppression you want to talk for a minute about the loss of the code you want to save it for i was going to rest of my response to what happened today but could could that be as well that's true but under these facts it's putting particularly an innocent bernard particularly doesn't give much rise to reasonable suspicion or doesn't add much to the reasonable suspicion calculus and i should say given that he was approached this could be a wallet or a cell phone if you're in a high crime area at night in your approach to unawares by individuals you might be think you're being robbed you might might be subconscious the right bill kind of reasons to do it in the last point i'd make on that is there at least three decisions and i know of that i al mr chesty in good afternoon mark just for the united states i'd like to i think go pick up near the end of where mr allen left off in the court left off on this question of michigan state law the court actually has spoken or visited this issue before in two cases or this court of the both of those cases involved traffic stops and finding a gun in a car but under the same law it's illegal to carry a pistol in a in a vehicle in michigan those cases are legal to carry a pistol in michigan on your person if you have weiss that's correct obviate reasonable articulable suspicion in the court because said because it's on the burden of the person carrying the weapon to produce their permit if they're stopped under michigan state law that seeing somebody carrying  essentially what it was saying is it's an affirmative defense to a carrying a concealed weapon charge that it's the burden on the person to show that they have a permit to void that charge because that's the case this court has decided in the two cases that i mentioned before that it is in fact reasonable suspicion that someone is violating that michigan law if the police observe a gun where it shouldn't be in those two cases it was in a car but i'd submit to the same analysis always it's not supposed to be in a car correct you can't carry a pistol in a person's ok it's the same law you can't carry it in a car you can't carry a gun in on your person without a permit in michigan so which what do you say about the bolts argument peel so the report itself isn't evidence so what it says in the record and the argument today was that testimony did not totally support it but it didn't totally contradict it either i guess that it did not that we can rely on the report no officer testified no witness testified that it did not appear to be a gun in fact the only testimony is consistent with the officer's report where on cross examination officer dixon when asked by defense counsel what it looked like said it appeared to him to be a gun coupled with the officers reports in which they describe it as gun shaped the evidence was clearly sufficient for the district court to determine that it was a gun shaped he testified that so there's just one thing i mean i you know the reports there are i'm not sure the cross examination testimony of donning i'm not sure how much it changes things but i guess i would have thought the whole point of cross examination is you file this report and now we get to ask why and what did you mean and isn't that what did you mean the best evidence on this score and there he's not saying shape any more he's being asked to explain what he mean by this he could have said well it was in an shape like a gun that's not what he said so i'm not sure makes a difference but i guess i would have thought even running all the inferences you in your way which i think you know we have to do we have to figure out what to run him off of and if one person is saying different things when in cross examination be the place to look i don't think that he's saying anything different he's saying clearly we've been profitable if he had said that it was a gun shapes bolger would have clarified but he doesn't say anything that's inconsistent with his report he was a sort of a general question what it would look like or or could you describe the bulge and he said it was a big bulge as though something was protruding from the pocket which would be consistent with a firearm which he later in his testimony described was a what exactly happened and you should see mr bell's attorney attached it to his opening brief on his motion to suppress and again on his reply brief the attached both dunning's report that described this as well as officer dixon's activity log described objection and that way it would be part of the evidence the fact that you attach something to your brief doesn't mean that it's in evidence anymore i mean it doesn't mean  it's means you've attached brief whatever purpose that is but ok so we are i think if you look at the evidence at the suppression hearing you are limited to the testimony because that's the only thing under oath i mean they could stipulate and that's what i thought that they did here that while we stipulate to admit into evidence the report they do that fine it's not hearsay anymore it's it's a bit of evidence by stipulation but attach it to a brief i don't think well i don't believe it was stipulated be happy to go back and check the record on that but any of that submitted by the defense submitting this evidence to the court for its review the kind of sense i can cannot now stand on  some sort of objection saying that's not evidence when they when they are the ones who gave the report clearly wanting the district court to rely on that in deciding the motion and a different question i doubt they admitted everything in that report i don't think that was the purpose that we hear by stipulate to all the facts in the report i don't know why they would attach it but i don't have the motion in front of me but i think clearly they wanted the district what he was doing so well i don't know what the lawyers there are on that but we've seen in the case of one appeal that a very different theory has come forward about when exactly the sequence of events happened and what the actually going to be a change in this case i would like to address that although the government has agreed that this needs to be remanded because mr bell is not eligible for sentencing under the arm career criminal act so our position that this should be a about what difference could it make i don't versus specific here i know i know the distinction of drawing but i i'm puzzled why you're worried about anything i just don't think that what's his range going to be under the new i think it would be probably at the top of the guidelines ranch i think it would sentenced over the otherwise applicable statutory maximum and according to a guideline that did not apply so therefore correcting that error there she comes back to the district court to reset and based on that error being corrected  course the district court is going to apply the thirty five fifty three a factors in light of the new guidelines i guess my point is this should be an opportunity for the defendant to come in now and argue all those other factors that he's already had an opportunity to argue and does not contest on a appropriately decide the what are you afraid of i don't know what he's going to say on sentencing if you want to come in with a whole new raft of evidence of saying that he's got some other thirty five fifty three a factors this is if he had those if he thinks that the district court should have considered them he should have raised them in the first instance this shouldn't be a second bite at the apple just because the district court erred in this regard in a way that the defendant didn't even challenge below i'd like to get back to  the defense theory in this case which really rests on the remarkable promise that the police made a show of authority when they pulled up behind mr bell took place when they told him to raise hold up your brain no that's that's the government's position position his position is very clearly at least in his reply or if you kind of comes forward that at last that the the police made a show of authority to seize mr bell when as he was walking away from them they pulled behind him and shined their flashlight and that's very clearly in the defense brief whole whole difference between theories of the approaches of the winner when he was seized is th the reason that i think the defense is said that he was seized as soon as he turned around is because pretty much all of the evidence comes after he turned around including the clutching but also the view of the gun shaped vault that's not what mr allen said just now i was listening to the argument that was in the way put it well it's kind of pushing to be a little bit of a moving target here but in the in the brief at least he's very clear that he says mr bell that the officers made a show with already when they signed their flashlights on him and that he was he for example he writes in his opening brief age page nineteen of his opening brief that mr bell was seized at the moment you stop walking down the sidewalk and turn to face the officers in response to their overt display of nonphysical seizure when the officers make a show of authority in this case it's the government's position that it's when they told him to put up his hands and then when did the person submit to that show of authority in this case it was after it's when he put up his hands in response of those commands up to learn all the police had done was shine a flashlight on him from behind without saying anything observed him turned around and walked toward them with a gun shaped bulge in his pocket and as they got out of their car saw him clutching this bolt that's what i thought you said it all happened together no it didn't happen together clutched after they got over here if i said i misspoke what i meant is it all happened after the point at which mr allen wants to say he was already  was clutching his balls the officers got out of the car saw him might be an issue getting out of the car was that a seizure i mean there's issue of flash in the stop in your car flashing the flashlight and then the third action they did was exit the car without saying anything and  i think it would be a remarkable extension or i should say we're traction of police authority to say that by getting out of a police car behind somebody the officers have made a show of authority to seize them such when that person has voluntarily turned around and started walking they commanded him to do something that would be a show of authority and the such as the johnson case that mr allen heavily relies upon in that case the officers repeatedly ordered him to stop so they were the police theory is they stopped a flash this realized that these were the police when he turned around to figure out why somebody was shining a light where he's going to approach people on the street to ask them questions whether or not they have reasonable suspicion correct that would be the case from supreme court in case from this i see them out of time which i'm getting the point of this the point of this distinction is tell he turns around and you can't see bulges that's that's why this this fight is important and  if you call a stop before then it's pretty hard to have a whole lot of reasonable suspicion ok i got it but they let the defense argues that even at that point and then after they clutch it they have no reasonable suspicion to detain  don't get reasonable suspicion from the boulder clutching and i think there's a little bit of misunderstanding i just want clips of so mr bell's position on what he was sees as very clearly on page seven of his reply brief in the paragraph in the in the on the bottom that says  be a second to turn to it begins with yes sir the reply brief and begin to appear if the begins that is wrong in the descendants after that is the proper point of seizure in this case was not mr ball physically raised his hands was instead when the officers exited their car confronted mr bell and ordered him to raise his hands so that the point of seizure in this case was when the officers ordered him to raise his hands and just give an answer your question it at that point this is what they knew they knew mr bell was present in a high crime area then he was walking down the sidewalk they knew we had a bolt in his pocket and they knew he had clutch the bolt when they exited their vehicle that is the state of facts first for ascertaining reasonable certain genes central encounter stuff before that i am not know and it's my submission in that state of facts if you actually go back and look at some of this court's other terrorists to restock cases that's a remarkably thin basis  stop terry how much evidence you need for a terry stop is relatively thin i mean facts in terril versus ohio is that these guys that late at night were looking at windows display windows downtown where they were they not and it was not not a very serious indication that criminal activity was afoot i mean the supreme court doesn't require a heck of a lot for terry stuff to do that i believe is actually a pretty over for ten to twelve minutes to me or i submitted that's much more indicative of criminal behavior at least reasonable suspicion of criminal behavior than pulling up someone seeing a bold seeing him grab it which all happens probably within the span of thirty seconds  correct that the ball was in the shape of a gun because that's not in evidence just your way you want the lawyer below but do you know what we do with this report i don't i mean there's a couple options i think one is i think that the proper weight is to be given to the officers testimony not to what's in this report that as we've explored here may not be in it actually in the report to the to the motion i do not know what the the motion reference this attachment did what it say it did to describe the facts and circumstances of the the i believe that i believe the suppression motion was filed before the hearing and so in order to establish the facts of the encounter ok the lawyer needed to mean these are the true facts i believe that's what happened yesterday and then you say well then we had ever denture e hearing later on that supersedes this assuming but not deciding these are the