my name is brian russo i'm here on behalf of the appellant rodney cox your honor what we have is a trial court ruling that allows for a fourth mimic exception based on a first amendment premise what i mean by that is the trial court allowed the police officer to take into consideration in weighing his balancing test the fact that my client was a member the hells angels when he balanced whether or not he could use a threat of deadly force in effecting a traffic violation well in light of all of the circumstances that were apparent to the officer including the fact that cox was feeling sped away from and ignore him i would certainly consider the court that this wasn't a matter of a person pulling over me the officer took off after him but the court remember from the record this entire incident driving past the officer turning right then turning left in the cul de sac was in the officers estimation only thirty seconds to a minute long so if we removed how long it took a wipe out hiroshima i would con certainly pointing a gun at someone doesn't take very long to pull the trigger but my point is that when all of this happened the officer was following mr cox and if you remove the hells angels aspect from the equation then were those circumstances driving past looking at the officer turning right and then turning left in the cul de sac are those enough to turning back around and heading full stop in my hand am i don't think officer ever take into consideration an association of somebody with a rope is that pretty much what you're arguing certainly not but i would say that there must be more remember these two gentlemen are more cycles it's not a situation where mr cox in a car able to hide whatever instruments of death he may have a gun a knife whatever they're on their motorcycles headed in his pocket right but he's driving a motorcycle he's working the clutch he's working the throttle and are testimony everything he knew about the hell's angels his experience and training said that in personal experiences i've never had a problem with them i never learned anything specifically about the hell's angels and in fact he characterized mr cox as cooperative so nothing in that equation the same about the hells angels then cause them to take that into consideration well that was that was what i brought out in cross examination he said generally they're known to be dangerous we know they're a gang and they're dangerous when cross examined he said nothing specifically learned about the hells angels that i learned so that they were dangerous officer where you were asked did you ever have any confrontation have you ever pulled over hell's angels yes i have never had a problem have you ever heard of any other officer having a problem no i never have so his general knowledge is contradicted by what he testified to specifically with regard to mr cox as a hell's angel never any problem with mr cox he characterized him as quote unquote cooperate if you know what informs us about what's reasonable and then what's under reasonable is are generally spirits in life and the general experience is that all our horses and officers have been the funerals of other law enforcement officers who were shot during traffic stops as a matter of fact take a look at the san francisco paper today you'll see there's a trial going on right now where somebody stopped by a police officer with methamphetamine didn't want to go to jail so he shot the police officers police officers dead and the question here in this case is whether it was reasonable under these circumstances when the motorcycle takes off obviously trying to get away comes back for the officer simply point things got out of for ten seconds this is not a situation where you just stop somebody on a motorcycle and walked up to him of the gun pointed at his head it's the behavior of mr cox that triggered the officers concern in the district court as an factual matter found that these things happened well i would submit to the court that had he not been wearing hell's angels patched there would have been a difference in the way the officer approached this person court don't like but the thought tallaght here it adds to the mixture does it i would agree that it adds to the make sure if if you take it out those facts certainly tipping the scale that we're do we stop do we say that if a black officer is seeing a speeder don't have to get into that game because we decide cases based on facts right here correct what we're saying that it's a fact that mr cox is a member of the hell's angels and this court is asking should it not be taken into consideration i don't think in this circumstance it should because the factors that came before it don't tip in the favor of using the extreme threat of deadly force of a gun pointed at the person i just don't think you're saying if somebody is trying to get away from a police officer there are no circumstances under which you can ever point a gun at the person and yell stop no that's not what i'm saying i'm saying that there must be something articulable like a furtive movement or an aggressive gesture you have to wait until somebody reaches for a gun well not necessarily a gun but but mr cox under the author's own testimony made no aggressor gestures or furtive movements that would cause that officer to escalate the situation where there is the risk of death if the officer took command before that was allowed to happen i guess we don't know because we don't know what would have happened but nevertheless we know from the facts of the record that mr cox never removed his hands from those handlebars so i ask another question i understand your position that you're running out and we did case yesterday in your briefs you assume that if there was excessive force there would be a suppression of the drug that was an assumption you made yesterday but that's certainly called into question  why shouldn't we follow her in that case there is another district court case which he's even more specific courses in court case of harrisburg which is is important why is leaving relevant why do we even get t because this is read the cases and i won't go over and you have limited time it's your honor strikes me that that maybe we don't even need to decide the issue because even if there was excessive force we would not see the district court should not suppress the is familiar is a case where there was a fourth and a violation and what's the name of the case that you say is different from our now that you are a united states versus shepherd twenty one f thirty nine thirty three it's a ninth circuit case where footnote eleven is and the cases relied upon by our i don't even relate to the our case painter was a circumstance where there was no standing for fourth violation of the three are situation we have proximity the illegality that i'm asserting is the excessive force if we can see it is that excessive force taking the evidence from the person immediately or contemporaneous with the illegality and certainly create excessive force lasted ten seconds he put the pistol back into his holster and then he was able to secure but excessive force had nothing to do with the stock in the search it had to do with whether he used too much force it seems to me that is right on point but if we have a fourth amount of violation then we have to go through the analysis laid out in shepherd as to whether the exclusionary rule applies and that analysis says was their proximity and this court said that there can be no closer proximity  taking the evidence at the moment of the illegal search that's what we have here and it was very closely removed and shepherd have the only well sort of the sort of start when he conducted the search it was in close proximity to the illegality which and it's not connected there's no question that it was appropriate for the officer to stop mr cox on the motorcycle no question about that at all and no problem with asking him if he had a gun and he said yes and so once he said i've got a gun there's what what what is served by allowing this to be be kicked out the seizure was ok asking for the gun is ok achnanthes ok finding the gun is all right finding the methamphetamine is all right i don't did this was going to happen no it wasn't because not every stop results in an officer asking a person i mean this was going to happen meaning ask i'm not sure it was going to happen he didn't ask them for a gun because he pointed the gun a for if he had a gun because of the circumstances the flight the hells angels this the location the fact there were just two of them well i don't concede that it was flight because the officers on testimony says it was not flight but certainly every traffic stop is different but we know routinely that were not asked for carry a gun for a traffic stop well he wasn't asked if he was carrying a gun because the officer pointed a gun at him he was asked who was carrying a gun because the officer was concerned for his safety because he was a member of the hell's angels and that's what's critical here is that enough to to ask for the officers didn't know that it's the totality of the circumstances it's the it's the speeding it's the behavior then it's the turning around it's the confrontation face on and the hells angels thing well again i go back to my point that had he not been wearing a held angels patch this circumstance would not have occurred and the officer conceded that so then we go back to that same point is advertising you know that you're a you're an outlaw then you're going to have to pay the price for that's like the nazis in toledo people take into consideration all the time participation in groups if you're the nazis and you want to march society allows the police to do one thing if you're the mothers against drunk driving it's a whole different deal if you take your chances when you declare your your hand well i suppose that that has two problems number one it infringes upon his first amendment right to be associate argued that case in the supreme court in the able case the last case i argued we got a nine nothing decision out of the supreme court saying it's perfectly appropriate to bring up association on cross examination when it's relevant and the court here decided this was relevant but the other thing your question assume that every member of the hell's angels is an outlaw every member of the hell's angels that's what you're dealing with things like probable cause of reasonable suspicion you know nothing perhaps conclusive proof certainly but in order to paint a broad brush on every member such that they are now allowed to use the threat maybe every parry member of the nazi party is not and not an evil person either but you don't know that until you have the circumstance under control but does that get to the point where we're allowed to say the officer go ahead and point you're going to them because they are a member of a certain organization and i think that's what the trial court's ruling essentially does it says the police that if you have that one xtra factor you don't need anything else go ahead and use the threat of deadly force and i think that's a very dangerous your idea was the officers that waited until it made a furtive move yes and i don't know exactly what that sort of movement is other than if he removed his hands from the handlebars on a motorcycle if you're stretched out here it's a long distance to grab your gun when the officer already has his hand on so yes we use the threat of deadly force that is a flaw you know thing i think there must be something more than just not point over when the officer felt he should a law enforcement officer and that is what brought us to this situation today if the defendant techs simply followed the rules well your posting counsel hell's angels vest but the remember that this defendant was driving at presently sixty five miles per hour sixty four miles per hour through a school zone he made a rapid advance for block quick right turn quick left turn and as the motorcycle officer testified he got up to eighty miles per hour and barely saw the defendant making these turns the defendant does not challenge any of the factual findings of the district court we are therefore talking about a challenge to ten seconds of a threat actually force that ten seconds or less that was officer amounted to just the time it took for the officer to determine whether or not the defendant in this case was going to be compliant he had every reason to doubt that the defendant would be compliant because he had already failed to comply with the siren and the red and blue flashing lights to pull over and stop it was not until they were on a head on c that the defendant in fact stopped this officer and therefore was left alone with what alternative he didn't know if he was going to face a physical altercation a weapon or a fight he could have been run over with a motorcycle when they both start to didn't know what he was going to face the district court did conduct the proper announced just in this case violence a danger to his stay fifty he didn't know what the offense might be but we were certainly past the stop just past the point of a simple stop for speeding and as it turned out his into intuition was correct because the defendant turned out to have a weapon and on his person but as the court has noted once it appeared that the defendant was going to circuit court has pointed out there are alternatives because society has an important interest in putting away criminals having has pointed out to this court that all the facts are necessary defense counsel wants this court to focus only on the fact that the defendant was wearing a healthy angel's vest but that was not the overriding  in which is a very very well written case in which the district court says a lot of damages are available in a civil section one hundred eighty three action of the officers conduct fall short of  spaces unless the shot crashes we don't even get to whether or not there was reasonable missed on the circumstances just a non issue it would have been helpful i think the government has taken the time to give this adequate test that you were given in your grief so we kind of knew we needed some assistance here which we usually hope to get from the lawyers in this case you are the government's position is that you did not have an reasonable force and that there was no challenge at all to the findings of the district court that you were only faced with whether or not this ten seconds was reasonable or not and we had less than ten seconds possibly and even if you did find it force as this court has unfortunately had to point out to the government there shouldn't be suppression in this case because there are alternative actions that could be