foreign thank your honor may please the court i'm jamie santos and i represent my kit eve men whose appealing to district courts denial of his motion to suppress this court has consistently said that the use of handcuffs generally signifies in  and that it is a rare case in which officers mate used hand cuffs doubt converting at terry stop into an arrests to constitute one of those rare here as officers must point to specific reasons that they reasonably believed the use of handcuffs w necessary for for safety or to prevent the suspect from fleeing that high bar is not met here mistreatment up was placed into handcuffs by officers who outnumbered him for de wine before they had asked him a single question even though he was not making any threats he was not behaving erratically he was not making any attempt to plea and even though the officers had already neutralized and he threat of a weapon by searching henman frisking him before if they put handcuffs on him if the use of handcuffs on this record is appropriate then it's difficult to imagine any meaningful limitation on the use of handcuffs during a terry stop and it's undisputed that at the time the officers place mr seaman into handcuffs they did not have probable cause to believe he had committed the act of unlawful weapons possession which means that his arrest was unlawful and he subsequently obtained evidence should be excluded now there are two issues before this court essentially in this case st the court must determine whether mr human was under arrest at the time he was placed into handcuffs and if the court agrees with mr even that he was under arrest at that time the court has to decide whether the fruits of that unlawful arrest that the use of handcuffs during terry should be rare that officers have to point to compelling reasons why the use of handcuffs were necessary in the united states versus glenn at this court referred to the standard as being that the use of handcuffs had to be  the least intrusive means of safely affection waiting a cherry stop and based on those principles this court has has condoned the use of hancock's on numerous occasions but in all of those cases the facts were a far cry from the facts before the court here and i think there were two cases we cite in our briefs that the court said were close calls to that united states versus glenna and maps versus clock and both of those cases involve pretty clearly extreme facts in united states versus glenna officers had been informed that there was a suspect a suspected drug trafficker who was thought to have several small weapons and an explosive device with him in his vehicle they encountered him at a at a gas station and an officer believed he saw a weapon in the suspects pocket immediately placed him in handcuffs so that he could safely search the man and his vehicle which again was thought to have an explosive device and this court said that the issue was a close call but in those kind of extenuating circumstances the use of handcuffs was acceptable similarly in matts versus clock the case involved two officers who were outnumbered and they were approaching on foot a vehicle with a suspected latin kings gang member who had who was thought to have committed two homicides and armed robbery and the court said again you know it's a close issue but given that justify a concern for safety given the nine hundred and eleven call that was made where they said there was a gone there was a domestic dispute there were children involved the security guard asked i think at least three times on that call to get if they could get there quickly because she was concerned about the situation when they got there he was there is testimony he was screaming and pounding on the door when they approached him he turned away the key was trying to hide something and from the record it seems that the use of the cops was fairly brief here why wouldn't that satisfy a concern for safety well your honor i think that you're right that the circumstances would i give rise to a concern for safety but that's why officers are allowed to frisk suspects during a terry stop but generally they're not allowed to use handcuffs and so i think that on these facts even though there may be a a generalized concern for safety to go that further step and use handcuffs which is you know the general indicator of an arrest when you have someone who is not behaving erratically if you outnumbered it i don't believe that the safety concern rises to that that we have said that the line between an investigatory stop and then arrest that the court considers the surrounding circumstances giving rise to a justifiable fear of personal safety on the part of the officer so that question is directly relevant to the line between investigatory stop and rest yes your honor i do think the court has said you know there is a line but as the general rule is that be used in your more typical terry stop where there's you know simply a general risk of a weapon and at will or of safety and i think if you look at the fact that this case it demonstrates fairly conclusively that officers didn't believe that handcuffs were necessary to safely effectuate the stop because the officers didn't use handcuffs until after they had already searched mistreatment so this is this case is unlike many of the cases where the officers used the handcuffed because someone is fleeing behaving erratically in order to do the search and determine whether there is a well founded safety record what about rap and which is a civil case in a qualified immunity case but it addressed the same question of use of handcuffs after an officer had secured the gun already and they cuffed the defendant and they were entitled to qualified immunity their right and i think that what the court did in in rabun the court didn't say you know using handcuffs to determine whether someone has a permit is acceptable they said that this doesn't meet the high bar for qualified immunity it's not clearly established and  know that your honour's are all very familiar with how difficult that qualified immunity bar is to defeat what i think is useful it is both what judge driven or said in her concurrence in rabun and also what this court has said in the united states versus leo  what a judge hamilton said in the united states versus williams which is that we are in a different time now where after mcdonald and after heller the possession of a firearm outside the home is not necessarily illegal those examples especially when you have a defendant who is not acting erratically and impressively and you have poor people surrounding him alone in an empty hallway i just don't think this could rise to a rare case i think that would make  exception into the rule how do you distinguish between acting radically and screaming and pounding on the door and turning away and when the officers arrive well i think your honor i don't think you have to look much further than even the district court decision in this case on each one it's a one in the required short appendix the district court said that mr easement based on the officers testimony was behaving somewhat suspiciously and i think if you look at the testimony of the officers you know certainly they testified you know that he was in the hallway of his pounding and saying let me in let me end but it's very different from united states versus vaccaro where you had someone who was pulled over at a red light was reaching and contorting his body in a way that looked like he was trying to grab a weapon as the officers were coming in toward the car or tom versus boyda where where a suspect was defying officers orders to stop continuing to flee and the officer had to literally tackle him in order to stop him i think that you know turning a body away and not it behaving in any kind of erratic way in that in that would be similar to kind of any type of terry stop and the records show how much time took place between the hand and the time they asked him for the for a car that he couldn't respond to so the the record says that it happened in the same hallway there's nothing in the record showing when he answered it how he answered it how often when officers would have determined that he didn't have  guard and i think that's one of the challenges of this case there just isn't a record that would demonstrate what would have happened if they had handcuffed him and again the standard that's not the stand you don't look at what would have happened if they had done right is there anything in the record the chills how long they were in that hallway no i think that what we know is that the nine hundred and eleven was called at about five or nine i think there's a stipulation that the weapon was taken at five hundred and sixteen but after that there's no indication from concedes that the police conducted a valid theory stop unlawfully seize a firearm the police discovered that the fund and status as a felon after conducting a lawful arrest in which they had probable cause to do so at the of the fundaments arrest when officers placed them in the elevator and led him down to the squad car so you're not saying he was arrested when he was cuffed no he was not he was arrested as as they were taken as they put him in the elevator and put him in the butt the car and from your standpoint is there anything in the record that would tell us how long past between the time they cuffed him and the time they arrested him in the elevator there's nothing in the record that says precisely how many minutes passed after he was placed in handcuffs when they asked him about the foid card what's in the record is that they did ask him that question for they reached the elevator and that's also in the record there was so at the time of the defendant's rus the officers had probable cause to arrest of the pendant and violations of state law versus the district court found and i'm sorry to interrupt but at the time of his arrest or at the time of although the funded argues that this was not the district court's primary basis for denying the motion this court can affirm on any ground as long as it's supported on the record and this is the defendant armed with a loaded firearm was pounding on the door of his girlfriend's apartment trying to get end up in apartment hallway at five am in the morning by definition this is the serving the piece there's also a potential violation of illinois domestic violence statute which prohibits conduct causes emotional distress to another in addition and at the time that the planet was placed under the arrest the officers knew that the defendant did not have a forward and then that have a conceal history as part of his identity it's something that it feeds us the arrest and it's something that the police have access to as a part of their law enforcement duties and they can access the corporal history without violating the th amendment in that way it's no different from information about immigration status which was dealt with in lopez mendosa and should only have more us immigration status is not suppressed pool because the police could just rearrest of the rest of the individual the same is true here absent of the arrest the officers could have verified the defendant's criminal history by searching a law enforcement database and then gone back and arrested him it would be no different infer that based on the fact that the question was asked in the hallway and that they went to is there anything in the record about how long they were in the hallway the only way that that tells you that that's relevant or could give you some insight into it is frame when we look at the alleged violation compared to the mat the amount of time he was in handcuffs before they were able to confirm that he did not have a ford or concealed carry suppression is just simply not stuff without placing the suspect under arrest where it is where handcuffs are recently necessary for the protection of the officers and others at this and here the use of pancoast was recently necessary the officers are responding to one domestic violence call generally these situations are highly emotional they're tense they're unpredictable especially when if a weapon is involved let's talk about the domestic violence component as i understand the record the security guard is the one who calls in in the security guards call he makes mention of a weapon correct it's and yes it's in the nine hundred and eleven call and it's also when the officers arrive on the scene and they talk to the security  guard the security guard tells the officers that the offender may have a weapon in the domestic aspect of this the fact that the mistreatment attempted to get into the apartment the domestic aspect is that come and then they asked for the officers to come to the scene and that was corroborated by what the heard from the security guard before they went up so that's the intent they say on the nine hundred and eleven call that the offender was beating up his girlfriend i thought the security guard on the nine hundred and eleven call just said there was a domestic in the apartment and it was either an eye when one call or in the dispatch but that is information that the officers had prior to going up in the hallway but those are two different things doubt that if he's beating up the suspect that's one aspect if it's just that it's a domestic that could be a lot of different things this and that the use of handcuffs here was reasonably necessary to secure the safety of the officers and the people in the apartment conducting a terry stop even though there may be a weapon it and and that's when that's why you're allowed to r well your honor i think that if he had if the records show that he had exhibited you know oppressive actions towards the officers if the officers all said that he wasn't making threats he wasn't trying to flee he wasn't you know reaching for it he wasn't doing any several times about how come which time was in between the handcuffing and the question and i think the key facts here is that the probable cause is measured at the moment the officers arrest them one and sometimes that benefits the government sometimes it benefits the defendant but that's the rule whether it's five seconds five minutes or five hours afterwards the nd point is that my friend mr choice has mentioned that these records were in the government's possession already on there is no government records exception to the exclusionary rule even this court didn't go that far in choice of morality what the court said into boy immorality is that immigration status is not should not be suppressed because if someone is illegal present and legally present in the united states after deportation then if they're released they can just be arrested tomorrow for the same crime and there's actually some support from that in lopez mendoza where the court said the constable's error may allow a criminal to go free but we have never said that the criminal continue the discussion of ongoing illegal conduct so criminal history and that immigration status is very different and no court has ever extended that principle beyond the section  for the morning has been taken under submission on the briefs that will complete our hearing this morning thank you