this case is that there really was a lack of clarity the trial judge expressed significant confusion what his role should be which is obvious said well i am of knowledge ing that this was offered prior this was discussed this is offered is an ill turn heard of basis at the motion to suppress i didn't make a ruling on it because i thought i was i clearly believe that my ruling based on totality of circumstances was sufficient after this court made a definitive finding that i was wrong with all due respect i don't think it's findings of fact was based on the alternative argument and when it went back and remained argument was made in the trial court correct we must presume that the trial court was aware of the arguments that he read the pleadings and that he b the state's attorney did sag please consider this now we didn't we address we addressed it previously this court did not make a determination based on that and we are now asking pointing out that the state attorney misspoke that he was wrong that they were not to believe the street they were as is a statute provides walking in schools as possible to the edge of the roadway where the sidewalks ar walking is correct if it is not practical if the sidewalks are not claire and again that is something that alternatively would ask  you agree and have a look at the record here that there was no evidence presented to support your position that the sidewalk was clear there was no max there was evidence presented i mean with the tacit one i want was clear yes the officer testif to that again that could very well be a finding of fact that that if the and that was months later the original hearing and if the original hearing the officer testified they were doing nothing illegal correct correct that was his ok i don't think the state's attorney at least initially thought they were going to lose the motion well i think they they were pretty clear and they indeed did win the most money in france that someone thought we better put a little bit more of this in the record correct i think the state's attorney was i mean obviously it's speculative the way i think the state's attorney was just being cautious cautious in and said basically saying you know we are going to look at the alternatives we think and obviously they did when in the trial judge made a finding in the state's favor relating to the totality of circumstances when the officer really just floyd he was asked a question would it be fair to say that they were just walking  and said that in his findings a fair they would do nothing illegal drug courts or appear to be committing a crime again i understand and i'm not disputing the specific comments of the judge what i'm saying is the judge in absence himself and remained sad i did not reach that analysis so the concept of not committing a crime was based on what we had discussed  they did not will attempt to correct your honor with all due respect they're not going to challenge the findings of fact because they were successful they're not going to have a sore winner or say wait a nd your honor we won the motion you walking in the street if i inadvertently put middle i i apologize but again the the fact was the people that argued that the indeed defendant was guilty of a should the defendant have made that prior to the original decision and defense counsel possibly it wasn't ruled out if i mean what was the prejudice prior to remap and when the judge didn't make that finding despite the people's requests should it have been discussed probably which is why all are alternative arjuna's let's remand it for a rd stage hearing for the face all those arguments were made by the state's attorney in a memorandum or argument of course you keep saying that but that was the finding effect by the trial i keep saying that your honor because will will have to agree to disagree and remember the judge sad the judge did not go so far as to say wait a nd based on the fact that i didn't analyze or consider the alternative basis i now also think that i should've reanalyzed to read to term and whether or not the finding of facts of whether or not that was a violation he didn't say that it strongly implied when he said i had i didn't reach that conclusion i thought i was right intil this court sad i'm not i didn't even think i needed to make a determination so would the judge have made a different determination if he was reaching that legal conclusion and my answer is he may well have in the video does it appear that it would have been practical  weather if if the video is clear enough that this there was nowhere that the defendant could have been walking at any point in time and again we're not just talking like at the point that he was stop be frivolous are well trial court's recent findings again i mean you know our my position obviously i know that the question you're asking i don't think it's no point in time could the defendant have been walking and again the defendant was walking on the street theoretically for a while if by the time the car pulled up and right there you can only see a certain portion i under the cars not i'm not suggesting that it's not the problem is those you haven't supported they were the trial courts original findings against them in a case where the over to the extent that the trial judge didn't even address that i didn't think it was necessary to have time for  yours joshua bernstein for philip ship may please the court counsel here i based on the exchange i just heard i think i'm going to focus more on the procedur aspects of this because your honour's are clearly understand what's going on factually the issue i have with this entire argument they're bringing up it is frankly that from the moment they did not ask the trial court for a finding regarding the legality of mr ships walking in the street they dropped that the ball they did not resist issue in their appeal in this court and they therefore dropped the ball a nd time i believe those acts forfeited their right to raise this issue because this court's ruling in ships to which is the two thousand and fifteen case became law of the case and the law of the case here is that mr ship was illegally stopped mr ship there was and we were looking at whether or not  of us were not correct events that he did just of ineffective assistance however your your opinion your honor is unequivocal that he was stopped he was illegally for asked his flight from the illegal terry stop did not attenuate the subsequent frisk in the finding of the gun and therefore he made the jest of an ineffective assistance claim but in your essentially what just judge hauser said is i don't even need to go to the initial stop and that they're the basis if the basis of the state case at the suppression motion actually it was not an alternative argument it was their argument it was their threshold argument that's the questioning they did of officers elastic with about you know where you know what you walking in the street and so on and so forth so i don't see it as an alternative argument in the sense that it was a separate argument this was an element of the state's burden of proof right that this was a legal stop and they didn't meet that element and they stood by silently i confessed my trial court experience is in civil court and the fact is when the judge was putting together an order on a dispositive motion and i saw that there was something missing from it i would say it no less important in a case like this where the threshold fact which justice pointed out the judge said they were doing nothing wrong they were walking you know they were in the street but they were doing nothing wrong they were doing nothing illegal this the trial court ruling and he said it's if we're coming with a strong argument obviously that this was an illegal stop for them to sit silent and then it essentially ask for another suppression hearing to be held at the rd stage after you've already made a ruling  beyond the law of the case it's monday morning quarterbacking from the state to try to reopen that suppression hearing at a rd stage evidentiary hearing where in fact the o said attorney testified and if your honour's read his testimony he actually it appears conflicts this analysis for rest with the analysis for a terry stop which i mean he didn't understand the so they were not given to me to make it there for this record i think that's correct i think the judge would actually was doing what this court's mandate required this court to mandate was for more post conviction proceedings based on  or even a counsel claim at the nd stage and this the state could have done that that's that's really you know following the procedures of of the post conviction hearing act is what we asked this court to offer  just to make sure that's really it so essentially as you might imagine i'm asking you to affirm i think the trial court did the right thing by following the only logical course of action based on this court's opinion in ship two and unless your auditors have any other questions thank you your hon judge to make any determination then this court would have vacated outright the conviction it reminded for findings the judge clearly said that multiple times i don't know what i'm supposed to do the ultimate decision the opinions set i must do this he accepted defense counsel's argument that he didn't have any that he wasn't subjecting the case to an  analysis in addition going back to the to the question that asked initially we're not here to determine whether or not defendant is guilty of an offense even the i'm shaking my head because you are completely again ignoring arguments the pleadings that were before the trial for what he originally denied the motion to suppress and again that ignoring it story with all due respect i don't think that's completely accurate i think he did go beyond and say i did not address the alternative issue because i thought i was completely accurate and i believe that the remand in addition what we haven't discussed it's in my brief what we haven't discussed is there was there is no forfeiture because again we don't have to we don't have to get into that either the it would have been smart obviously given the circumstances of what happened here obviously i'm not disputing it would have been better but the state didn't even have the trial court to revisit the correct favor the correct and we didn't raise the issue on appeal  major factor that if not new was was different and the difference is that the trial judge also specifically said wait a nd i'm confused i'm puzzled by why this court well we know for a fact that not only was that not accurate we know for a fact that the trial judge you know again the whole case is a little bit strange the trial is one step further and the finder of fact sad we know the circumstance that was a big factor in our argument that not only was the late at night was there a call an alter cation with a possible gun not only the concern that defendant had potentially they the officers classified all of them that they were concerned that defendant might be armed but the officer specifically said the fact that the atoms showed up at the se actually made us more suspicious because we believe that they were trying to get our attention off of the fact that and based on that and his activity that that is why we felt we needed to pat him down to the extent that this court said no it's the opposite once the atoms were on the scene that should've stopped well that was inaccurate it actually added to the totality of circumstances and in this strange case the court went a step further and sad we know that the fact that the adams appeared and seeing made it even more suspicious justified even more so the concern that the officer sat there for justifying the stop and frisk so that is again the fact didn't change what did change was this court's analysis of that fact and if anything fact is like again the finding of the trial judge sa i know that i would have taken even a step further in essence is the judge allowed to interject their own knowledge no but the judge is allowed to weigh the credibility of the police officer that's over there's  equivalent to if you show up at a house you have a domestic dispute but if you have a call that there's an altercation with a possible gun the police have to investigate if there's somebody back of the house where the altercation occurred lying dad they were interviewing the evidence also shows i believe that denise dickinson was had gone and approached the atoms and sad you