good morning more may please the court counsel my name is heather quick and i represent the defendant arrington sikes initial court erred in denying mr sikes motion to suppress the court determined that law enforcement had a reasonable suspicion that mr sikes possessed a firearm and that this provided justification for both the terry stop and frisk three separate grounds require a reversal of the denial of the motion to suppress first law enforcement cannot presume that any terry is a two pronged analysis which requires that an individual be both armed and presently dangerous law enforcement here did not have any basis to believe that mr sikes was dangerous turning to the first reason for reversal in iowa law enforcement cannot presume that any potential possession of a firearm is unlawful course the first question terry is what is the actual crime that law enforcement believes is being committed here the district court and the government relies on i was carrying weapons statute what's notable and relevant in this case is that carrying weapons statute contains an exception stating that it does not apply to individuals who have a valid concealed carry permit while there is no case directly on point  presented here but why duffy is instructed that was in one thousand nine hundred three case and there that was in nebraska and there was at least a basis to believe that an individual had a firearm there the court found it troubling that law enforcement while they might have had  case really hits on the main points for why other courts have also rejected that law enforcement officers can presume that the concealed carry of a firearm isn't legal as judge logan noted in nebraska as a similar to iowa our legislature has made clear that a significant portion of the population has the right to and can possess to a firearm in a concealed manner legally and northrup the sixth circuit also noted that where potential possession can be lawful unlawful possession should not be the default status and that's consistent therefore sensually having a concealed weapon which presumption of other courts have rejected the argument under similar statutes in their jurisdictions under the act are under the analysis that it's one thing to say that at a trial the defendant has the initial burn to put forth facts to show that he or she has a concealed carry permit that they're not going to require the government to put that on disprove the possession of a valid permit it's another thing to say that an individual who has by all accounts exercising the right that the legislature has given them but law enforcement can take intrusive action can seize them and in other cases in the case ordered them out of their car it's one thing to say we don't have to disprove it at a trial and all you have to do is come in with a piece of paper it's not our say thing to say that your fourth amendment rights don't exist if you're possessing a firearm whether it is illegal or not there's a distinction between saying law enforcement has reason to believe that conduct could be clearly criminal to say we're not sure if he's just giving his friend a package or maybe he's it's a drug transaction but one of those options i clearly criminal here there's two jobs that it would require law enforcement to make potentially an individual has a concealed carry it could be something innocent it's a whole different ballgame to say we don't even know if what that person is potentially doing is criminal but we can just assume that it is other courts have rejected these kind of jumps in different circumstances most notably and marijuana cases where other jurisdictions might have  laws on marijuana and some jurisdictions an individual can possess a small amount of marijuana for personal use courts have been critical of allowing law enforcement officers to presume that for example there's a case out of massachusetts where it and law enforcement officer small marijuana and they said that gives you reasonable suspicion that an individual might be smoking marijuana or have marijuana but in massachusetts having a small amount of marijuana is legal so you can't judge slocum noted in his concurrence in the jones case i don't think it's necessarily common for individuals to have machine guns and be walking around with machine guns but there is an indication that it is incredibly common in iowa for individuals to concealed carry and have concealed carry permits but in those situations and the concern of what does law enforcement officer to do when they believe that someone has a firearm and other courts have noted including judge well armed well here it was clearly a seizure and that the law enforcement officer grabbed mr sikes directed him out of the bathroom and told him to stop you know consensual encounter cases  record anywhere in the theory of how the magazine ends up in the woman on affiliated woman's laundry basket right i never saw an explanation for that i don't even have even a theory or speculation facts of this case yet this morning this is a situation where police officers responded at nearly midnight to a laundromat were loaded magazine had been found and judge benton you're exactly correct there's no good explanation for how this magazine got into this laundry basket and it gives you a suspicion of a loaded gun right now to so you think i think it could go either way and that you're getting a lot of challenge there but go ahead yes your honor i don't think it's uncommon for people who carry handguns to carry more than one magazine going in this particular case there is no good explanation but the facts show that there are only three people in the laundromat at the time this loaded magazine was found the witness civilian who called the and two individuals that were still at the laundromat when the police arrived that basis gives police reason to suspect one of those two people may have a gun there was no magazine in the laundry basket at first then there was and the woman said it's not hers but these two people were in the laundromat had been near this basket we also can't ignore the facts of what happened after the officers entered the laundromat as the magistrate judge found in the district court adopted and you can be seen on the officer's body cam after the two officers in full uniform entered the laundromat and turned down the aisle where the two individuals were located the defendant and his friend michael the defendant immediately turned and walked briskly towards the bathroom in order to secrete him so i knew i was going to that secret himself creating himself would be much different than the secret himself in the bathroom away from the officers that is incredibly suspicious behavior that this court and other courts have found is relevant to a determination of reasonable suspicion as not only do that he did your honor there were two doors located in the corner one  exit to leave the building and one was the bathroom wrist walks to bathroom are not uncommon i would agree your honor it is however suspicious that he did that as soon as he saw the police officers turn and began walking towards him up until that point the defendant may not have thought the officers were coming to talk to him but as soon as they approached him or began to approach him that's when he walked where there are legions of cases that say you walk away from the police officer and that's nothing why is this case different than those in this case it's because this is a fission of the gun is already there it's not walking away doesn't give the entire suspicion but because the officers could reasonably reasonably believe one of these two individuals had a firearm the defendant's actions and increased that reasonable suspicion and increase the danger it's also important to focus on the danger that somebody armed at midnight in an area where there have been shootings in the past or at least one shots fired incident that this particular officer had responded to as well as other assault and other crime in the area that you're officer says it's a medium crime area you're officer would not agree it was a high crime area right director and he did not say it was a high crime but this individual trying to go into the bathroom where he could lock the door if he had a weapon present a danger hide the weapon that increased not only reasonable suspicion because he tried to avoid the officers but also increase the dangerousness it goes towards the second part of the terry twenty in this particular case the government rely mostly on the concealed weapon carrying weapons that you know also criminalizes being in the city with a handgun or any loaded firearm so could be other situations where it's illegal to possess a  gun in this case the officer didn't see a gun on his person so they had reasonable suspicion that it was concealed but there could be facts in which other gun possession within the city limits could give reasonable suspicion for a terry stop you think it applies to unloaded concealed portion does apply to unloaded weapons and the handgun portion does if you're carrying a rifle in a city limits that has to be loaded for it to violate the i will code it is an affirmative defense in iowa to have a concealed carry permit but this court should not impose a standard upon officers that they have to disprove affirmative defenses before they are authorized to conduct an investigation torrie stop under terry and ensure the suspicion in that case judge loken went further to argue that in nebraska where it's an element of the crime that you not have a permit that that would not give reasonable suspicion or  there is a difference between the argument the difference between an element and an affirmative defense but even if it's an element of the crime this courtroom impose upon officers the the burden to disprove every element of a crime in order to have reasonable suspicion there are scenarios where i think even in nebraska where it's an element officers would have reasonable suspicion if somebody was carrying a gun that they're committing a crime including walking away from officers in a late at night in a area where there have been shots fired before so again it's a very fact intensive discussion i would also know a number of the cases cited by the defendant to argue presumptively illegal don't actually involve concealed carry cases lincoln or city of lincoln versus duffy is an open carry statute is what they're looking at in that particular case as well as northrup i believe and case called black that i think is cited in the defense brief where if somebody is carrying it openly and officers can see it they can't presume it's illegal in a concealed carry situation however  of of the officers moving to stop and reliance on yes your honor i believe it's more along the lines of the former that it's a reliability issue that the information your honor it touches on the reasonableness and the court goes a little farther to talk about whether or not it can be illegal to carry a gun openly in nebraska but i think ultimately the main basis of that decision was that the information  your i don't think it's easy to dismiss and certainly for the court but i think particularly when you look at it on the facts it's distinguishable enough from this case that it's not in any way controlling on the court not only does it deal with an open carry statute but it also deals with unreliable information or as in this case the information is very reliable you know actually it's not a tipster it's not an anonymous person it's a civilian witness who found a loaded magazine so it can be distinguished on a number of grounds you agree with the other side there's never an explanation or even speculation as to how that magazine got in somebody else's laundry basket your honor i think there's some implied speculation in that if you look at the testimony of the officer and you can actually hear the body cam exhibit a that was admitted at the suppression hearing captures a conversation the officer had with the reporting witness but she doesn't connect it to anything she does not yeah but she does say that when she went to get that there was not a loaded magazine in the laundry basket she put her clothes in it took them out and there was here and there were these two other people she did not want to because she had not seen them with a gun and not seeing them she didn't want to point the finger at them but i think you can apply that that's probably where it came from and that's what these officers did and they certainly at least had reasonable suspicion that that's where the magazine came from the officer does admit it's possible that another laundromat customer had since left the laundromat and left the magazine there right i believe so your honor he does that defeat reasonable suspicion no your honor i do not believe it does this is not a situation where it's a high traffic time for this particular laundromat it's midnight so while it's possible anything is possible as i think some trial lawyers sometimes make it's possible a space alien came down and put the oh yeah but before you go they are what does the body is does a body came have audio to the i'm sorry i don't know that it does or ok will did he ask ms lindsay because he's responding to that and he says i don't believe i asked her but it's possible miss lindsay that very question of whether you know whether other people had passed during that period i believe he does and there are other people already present at the laundromat by the time the officers arrive there's a third man in tan standing with the two individuals in black so there's no doubt there'd been some traffic at the laundromat or the officers arrived before he went to bathroom he agrees with that several times what about that is your honor i think if there had been furtive movements i certainly would add to reasonable suspicion but the lack of furtive movements doesn't necessarily mean there is no reasonable suspicion most of the walking away cases as you know it's a supreme court that says you can walk away yes or no and that's not reasonable suspicion or anything says the supreme court so you think most of those cases that distinguish there was a furtive movement with it but you think you're you've got enough even without for even the director on or i think again there's two facts that in particular that create the reasonable suspicion from the walking away or that th magazine but also the fact that he walked right briskly walking away from an officer at a normal pace is different than walking away briskly and also a third fact i forgot again to go back to that the fact this defendant did not walk away until he saw that the officers were about to approach him now the supreme court always acts like you've got to have the terry reasonable suspicion before they walk away their words in florida versus roy  absent reasonable suspicion justifying a terry investigating stop that's the precondition in time the citizen is free to refuse answer questions and walk away and then they say later that's not reasonable suspicion at all how much of a barrier is florida versus royer for you your honor i don't believe it's a substantial barrier again in this case the loaded magazine the time of the night the fact that these are the only two would you have to have reasonable better question do you have to reasonable suspicion before he walks away this i mean you know writing decision we have to make about your honor i don't know if i go that far i mean i think it's ultimately a factual determination of reasonable suspicion the statute does criminal i do not believe that will be your honor this is not a situation where officers are going to start stopping every single person on the street to see if they have a gun they have to have that reasonable suspicion that there is somebody is possessing a firearm before they could do that or there's a magazine in the area affirm the lower court turning to the reasonable suspicion of just the thought possession of a firearm itself here while unfortunate did not have the required suspicion that mr sikes possessed a firearm and the information in general is incredibly weak i would note that this question maybe an overstatement rather but we marginally stronger might not strong enough here all the law enforcement officers had was a statement from a witness that there was a handgun magazine found in a lodge basket it was found under her friend's clothes what this witness doesn't stay is when she found it when she found it in reference to the time that she called law enforcement and if it's possible that that handgun magazine had been in basket for quite some time if in the time prior to when she found it in the basket there were other people in the laundromat this vague information is just simply not enough to justify a hell we all know because i don't have the answer does the body cam tapes say the officer did ask about how to do it other people here it does not specifically earlier in the night is my recollection where there are other people here my understanding is she states that when she found it that they were mr sikes and his friend but the only other two people in the lodge i would defer to the whatever it states but that's my recollection of the body cam so it doesn't get into what's really relevant as earlier in the night when it would have been however it got into that basket who else was there and said all we have is that she indicates that she found it when she found it mr sikes and his friend were the only persons there and that earlier they were near it not even that they were using this basket but that they just happened to be standing near it this information alone combined with mr sikes walking away is not enough to establish reasonable suspicion that he had carried a firearm a bigger problem with  much of the information is not tied to mr sikes in particular it could go to both mr sikes and his friend and terry requires particular suspicion that that individual is committing a crime not maybe someone in that