the court counsel and lisa hay of the federal defender's office this criminal case raises two issues under the fourth amendment and one sentence an issue i represent the defendant very washington who was sitting in his lawfully parked car about eleven thirty at night honor i think the first just indicated whether this was a voluntary encounter or whether this was a seizure and my position is this was a seizure when the officer said to him what are you doing and that's because in in a setting in november of two thousand and four the  drive away no reasonable person in that situation would believe they could ignore the police presence in fact that's what sandra james did a year before she started up her car try to drive away and she was killed your honor because  officers to do there is there any case that you have that will require the officer to do that yes we are sure yes most of the supreme court cases rents order of you bostic which that's the standard says of course you can walk up to citizens and ask questions but they're limiting languages so long as the police do not convey a message that compliance with their requests is required that's the question here what is it that's what is being conveyed to the person and the question about a seizure of course is the person from the perspective of the right that the factual findings that go into the first consideration are very important here the encounter according to judge haggerty was courteous and non aggressive he specifically found that the defendant had declined to cooperate the encounter would have ended i can just drive away that is absolutely no evidence whatsoever that they used anything of that nature to get the defendant to cooperate in fact and again this is where the factual findings are important they did exactly the opposite they asked questions  car that that from my experience in many years as a prosecutor i don't know how many police officers would consider that a safe practical procedure that simply is that you cannot be an affective at down with somebody sitting down in a car because of i'm a fourth amendment nation and and all we can do is look at the case law on that subject and if the police are going through and you can virtually it's not a check off situation but you can just check off the things that were non coercive non intrusive that were done in over here now when judge haggerty made his findings he used the term had he had him move over i can be taken to a different place when you have somebody do something it can be persuasively or it can be done by force  a couple of prior robbery convictions and the defense made the argument that it was over rated over stated goal of representatives from history but the court rejected that and said specifically that it did not now under thirty five let me ask you one more question  that in the total circumstances there was a seizure at the point where the appellant was asked to move over to the other car or when the other officer arrived with the government then say that that the consent to search the vehicle was involuntary or was tainted or refusal that kind of phrasing that courteous phrasing was not present here the sense that somebody could refuse similarly and summers the defendant was out of his car and that defendant actually went up to the police officer who had pulled into a parking lot it was late at night an separate issue then whether or not there was a seizure that's correct i would argue that any anything that resulted from that and constant seizure was tainted because there was no intervening event there was nothing to separate the consent from  done constitutional seizure i think there's a long hours of that in the other washington case from the support from two thousand and four not this defendant in which this asked whether the taint from an unlawful seizure has dissipated and when they're so close in time this court has said there's no