the honorable of the judges of the united states court of appeals for the fourth circuit only a lawyer a only a all persons having any manner or form of business before the honorable united states court of appeals for the first set forth circuit  and get their attention where the court is now sitting god save the united states in this honorable court  and so tell me what the exigent circumstances are in this case at at and you see at the time they sees them there is they're looking for the person who or persons and it usually could have been multiple people who were firing the five to six shots and because it was circumstances just within the last you know just eleven days earlier there had been a homicide  they could not be sure what sorts of who who might be injured on the scene and when they arrived just for court found there was a man with who was favoring as are now further in the get vest a geisha reveal that that man was not shot at the officers and you can even hear this on the video recording as they're driving up officer o'brien's body cam there's a statement you know about someone holding in their arm and what's he doing so as the arrived on the scene and were seeking to prevent people from dispersing and control the scene they couldn't be sure whether or not somebody might have been shot whether there could be further gunshot and whether  somebody who might kill or could be escaping but you you would agree that the exchange circumstances would have to exist prior they would but they they certainly had not dissipated when the facts there was quite a range of dangers that they could be facing one of the district courts points and concluding that the police could not see anyone was will not that there were no dangers here in fact the district court said despite officer dances a legitimate concern for his own safety and the safety of his partners the exigency in the situation cannot undermine that they need to particularize suspicion so the district court wasn't disputing that there was danger but the court concluded that because there could have been multiple paths that the person might have left that the police lacked any authority to seize anyone on the scene and one answer to that of course is again the man who appeared to be shot the police the light of that and the group nearby were entitled to infer that they were on the right another point is that because the police didn't have the ability to seal off every avenue of access  that they could not do anything and there is nothing in the fourth amendment to suggest that the police have to have a perfect solution or they can do nothing and i would imagine that sort of the point of illinois versus edmonds right whether the court recognizes you can't do this generally but as long as you think it's likely not not certainly not positively not more likely than not that just somewhat likely that a dangerous person is fleeing in this direction and you can stop everybody right and that sort of this statement atman says about if there's a dangerous person a terrorist attack or a dangerous person bleeding likely i think is the phrase used to be fleeing in a political direction you can stop everybody indiscriminately i think that's right i mean i think you know i would of course exit jency require a tailored response but under the circumstance of this it would have to be an everybody on that road i think that's right and that the cases about fleeing bank robbers for example are good illustration of the principle which applies here and certainly easily justifies the seizure of the people out in the field to determine whether they were involved in the shooting and thereby contain the danger to the public to the officers and the people out of that field and the dangers in this circumstance are i think even further heightened by the fact that it's at night and the difficulty of discerning who might be armed and what they're doing is aggravated in that situation and it also makes it easier for a culprit to escape so the police are facing heightened dangers and the circumstances here and the frequency with which there were shootings occurring in this area only reinforces that but when the police get to the scene of gunfire with and thirty five seconds that's dangerous no matter where it's occurring and the police have a need to respond to that  the district court's view was essentially that under these circumstances the only option available to the police was consensual encounter so the court said even in these circumstances with the attendant emergency and safety concerns the fourth amendment allows officers only to initiate a consensual encounter and that's a joint appendix to seventy six a consensual encounter in this circumstance would have been totally ineffective everyone was leaving the scene there were shouts the police could not determine who might have been the shooter who might have been injured and even somebody who was simply a bystander could easily be afraid of retaliation from the shooter and unwilling to volunteer assistance and so in these circumstances it's it's totally rational for somebody to not want to be cooperative with the police even though the dangers are there and yet it's also obvious that people want the police to respond to the gunfire and that's illustrated by the fact that the police are receiving reports calls about gunfire even as they're arriving on the scene so this is obviously a matter of concern and  as the government pointed out below shortly after the homicide eleven days earlier members of this community head you know voice their concern about they have killed you know one woman said i have children i don't want to be ducking bullets so the need for police response here is is very high and if you step back and look at it we say about talk to me just a minute about  officer safety but it seems to me that that's a big part of the justification that we have here from needing to confirm that the people that they're showing up to don't have weapons but the flip side of that is that you know they've created that situation by entering the arena if you will it is that calls in consternation i don't think that does and i would point the court to the supreme court's opinion in kentucky versus king and  kentucky versus king the supreme court was addressing whether when the police created a circumstance where somebody might destroy evidence whether that undermined the ability of the police officers to intervene and the supreme court's answer in that case was that as long as the police were a lot wholly doing what they were doing the fact that it touched off someone attempting to destroy evidence for example was not a reason to constrain the police's ability to respond to the exit chintzy so here where the police are responding to gunfire as everyone wants them to do they are entitled to take measures to protect themselves but also of course the public be tailored to the danger so for example and burchfield the supreme court said that the police in responding to an exit didn't see situation involving a drunk driver could forgive the warrant requirement and draw blood  obviously in a gun fire situation it's pretty hard to imagine a scenario where drawing blood would be justified on and i'd switch and see basis and converse lee and the drunk driving situation it's hard to imagine that the police would be needing absent more facts which the facts could change but i have some more facts that that looking for a gun would be an essential part of responding to the existence if a drunk driver but here the lisa responding to gunfire and a shooting and so the effort to a done a fire gun goes right to the core of the danger that they are trying to stop and so that's why what the police did here to control the scene and turman who had a gun is really very targeted on the problem they were facing and would be distinct from other that might not have as as strong a nexus to gunfire and guns that with make the need to determine who was armed as significant i think another point that is critical about this case was just how quickly the police were able to arrive on the scene and the consistency as a district court found you know the vast weight of the evidence indicated the shots originated from walcot place and all four officers heard the gunshots all thought they came from the north in the direction of walk up place they had received these calls about gunfire there had been the shooting eleven days earlier so the speed with which they arrived the certainty with which they had that there had been  crime and the relatively contained area that they were looking all supported that this was a well targeted response to the danger that the public and the police officers the the criminal conduct here that if you come back and investigate later people are going to be very afraid of retaliation and so they're going to be reluctant to come cation evidence can be readily challenge and so even if you're able to find somebody who's going to report what they saw that evidence will be susceptible to attack  so the ability to have the police respond on the scene is really essential and you but the members will make sure distinguishing between two things because the rationale you're giving there is sort a prosecution rationale right like they need to do this because it will help us prosecute them and we're not necessarily thinking about that as the exigencies right the eggs and just see we are really focused on here as i understood your argument before was the danger to the officers the community the individuals that stopping people from getting killed not necessarily focused on putting people in jail in are really focused on the the danger in the exigency piece not city pointed out that they can be overlapping and the fact that you have those twenty servants doesn't in any way undermine what the police are doing but in order to address not just the immediate danger but to ensure that you know another three minutes there isn't another person who is shot because there is some are running feud in this neighborhood and as soon as the police have lost control of the situation somebody else is going to  resume gunfire you need to be able to accurately determine who who was the culprit and and take that person into custody and so if you allowed to do not respond at the time life that if you can't accurately determine who is the culprit you're not going to control the danger that you're facing on the scene both in the short run and in the long run and i think you know the even the short run concern is really pressing and sufficient to justify the the police intervention here and if you go back to the broader principles the supreme court the infrared and interference all firmly support with the police to the gravity of the public concerns could not be greater responding to police gunfire in a public place the seizure could be instrumental and stopping district court properly found that the government had failed to show that the presence of exigent circumstances justifying in warrantless seizure the district court finding must be sustained unless it is clearly erroneous so the standard interview  review that fact finding that was done by a district court subject clear so and the facts that the district court found your honor include that mr craig was not a suspect because there was no suspicion that he was involved in any crime including shooting he was not fleeing he made no further just yours and because there is video you can see all of this and the field while it right you know he wasn't feeling well so it's a finding of fact that the district court made your honor that he was not playing and in fact there's video he was watching but he's walking away from the  c source of the gunfire the district court found that he was not fleeing that's a quote from the district court opinion and so i looked at the tape several times i saw him walking away from the same and they got out of the car quickly and said  flight so walking calmly in a public place which is effectively the back yard of the apartment building is not flight and that is the finding of fact of the district court all right about and the government has not challenge that it clearly about yes how about it officer in a neighborhood walks up to a up such by a lot of tude in this situation so the finding to be sustained in this case is just that this exigency if there was one doesn't sustain with the officers stayed here in a case like for example the boston marathon or some other more broad god forbid terrorist bomb major accident the situation officers would obviously have bar of attitude not to discount crime and violence but an isolated shooting is not the same as a bomb in a marathon and so really all you're you're you're conceding that it could in some cases cracked but in this particular case your argument is that the facts that he went through earlier that we all sort of those don't create a and are you saying it's not an accident is it all right so that it would have justified any kind of anything by officers or the fish at the tailoring if you will of asking them to lift up their sure that was too intrusive given the degree of existence so you could argue both your honor so i would like to see it like so i think they could have and this is the other hand i'd say we're not seeing the police can't do anything we're saying that in response to gunfire which again is dangerous and that we're saying that they can't see these people without suspicion that those people are involved in crime that is effectively the terry doctrine and below the government argued terry first they didn't raise exigency until the supplemental briefing when perhaps they could see the writing on the wall so this should be a terry case and then they brought their arguments and so the facts here where you're see think that's true and so with edmund the government lead in regulating motorists was involved in that and in fact here there's no single escape route it's a field in a neighborhood where criminals could have gone anywhere but that's the point of it in the night edmonson it's not even like they're saying there's a dangerous criminal right so that's not even that's seems like the last exit in c then we have here right you just have a dangerous criminal and they're fleeing and it is likely whatever that means that they may be going down this road in this scenario and maybe you want to say it's dicta but i wouldn't take that tact if i was you but one tells us you can stop everybody on that road right even just because you think it's likely not that like there's you know a crime occurring or may occur again or there may be retaliation which we have here but just that there's a a person is walking in a public place so again there is no case that the government has cited or that i found where a suspicion was yesterday and has been allowed to be stopped under the rubric of the exigent circumstances doctrine and so again this case involve but if you look at all the supreme court cases tossed almost always reasonable the police work and police and the government has the burden to justify warrantless seizure or search and they have to fall within a well delineated exception as well as the reasonable a touchstone but it also has to fall within a recognized exception which every single supreme court case all the way back you know going decades and as recently as a carpenter and and he says from within the last ten years that little has just always been an excellent these officers come and complaints from the neighbors five or six shots they don't know when someone is killed someone who's injured they see somebody might be entered so as we entered and then they see the only people they see in that field which is near where i watched the tape too i didn't see anybody else i want to cross fields of these five again that the court found that there were other people standing around you know up around the building at that they're you know existing in their neighborhood and in the evening and in the late summer you know  all that good police work so i have a couple answers so they're awfully welcome to ask any citizen to consensually interact with them that they would like to top the choice that they made as you can see on the video and with regard to the emergency exception like the person who may have been injured which is in these circumstances justified by any recognized exception to the fourth amendment and any existing case law and the government has not cited a single case where a pedestrian trying to pointless type situation has been allowed by a court let me ask a different question so imagine the scenario bus are fifty people and it's a greyhound bus and so they're not like choosing to travel together like greyhound has put them there by themselves and they pull the bus over and officers say this and get off the bus up and do it with their hands perpetrator of a crime is in a particular location right shouldn't then the next question exactly right there is question they're following the bus the bus pulls over when the bus pulls over and four people get out and but they secure the bus at that point will pat down everybody for the same reason that we say and adman's and it's somewhat likely that you know there might be a gun here so i think you know i think your honor your new hypothetical is just change the math of the likelihood that the perpetrators on the fifty people on the bus and two of them  or they've got to say i just hope that my best work so when somebody shoots me that i go home i think that this i think your second hypothetical is still permissible because it's still a can you find worlds of people who committed the crime unlike an entire neighborhood where there is no likely escape route there's the argument is it doesn't have to be particularized to somebody you suspect it can become foreign you have to it has to be reasonable in trying to reach the conclusion of finding the source of danger and protecting everybody against that but either bus because in your words it's confined in this is the bar example that you have from the second circuit why does the confinement require like metal or mortar right so why don't we talk about areas being confined based on time and geography right so the idea here is listen if you show up thirty minutes late you don't get a broad based murder scene exception we get that right but here you show up thirty five seconds later and you say it's the whole is not really accurate right if you show up thirty five seconds after a shooting there's only a confined area that someone could have traveled in between the time of the shots and the time that you arrived and yes maybe this eighty is where you know the route the person is traveling which in this case is a three sixty pani understand me as you can see it is you very conceded in the bus example where people have already gotten away that is so we know it's not the only route because we know people are gong so you can see that in that case where we've got people that are going to different directions some of us some off the bus you say oh it's ok because there's confined by you know tires and metal but i'm just saying here seems like to me that we got him confined in time and i'd like to briefly touch on the what the district court ruled in the standard to review the district court rule made a legal air the court concluded that exit jency could not overcome the  the danger here was insufficient regardless because there was a lack of particularity and isolating this defendant among all others as the possible culprit so help me understand this line that we talked about should i read to conclude that that was sort of more categorical than than your colleague suggests i would look joint appendix page two eighty one where the court said despite their gains as legitimate concern for his own safety and the safety of his partners the exigency in the situation cannot undermine the four circuits clear holding that the constitution requires a particular eyes and objective basis for suspecting the particular person stopped of criminal activity so that throughout the courts district courts statements during the hearing and and the overarching point in the district court's ruling was that because the evidence hadn't isolated the defendant to the exclusion of others as the possible shooter there was no way for exit jency to authorize the police to do anything and so that is the  error that the district court made the the fact finding that the court made of historical fact easily supports and then such and see here and so just rely on the broad principles that go back to the supreme court's opinion or knew less about how the fourth amendment analysis is done on appeal the ultimate legal conclusions here are legal ones and the historical fact finding that the district court made easily show us that there was a very dangerous circumstance here that the police needed to respond to and that was a danger to the police and the public as well as the people on the scene that the the the police were trying to sort out who might have been the shooter and the district court repeated this this kind of legal air earlier in its opinion it said even in these circumstances with the attendant emergency and safety concerns the fourth amendment allows the officers only to initiate a consensual encounter page two seventy six