the good morning your honors counsel may please the court here this morning representing demetrius ward and i would like to reserve three minutes for a bottle if i may thank you your honors the supreme court promulgated the exclusionary rule for cases just like this in this case we have police misconduct which violates the fourth amendment and as a result of that misconduct  criminal activity is found the only remedy in this case is for this court to issue an opinion tell the police officers that this conduct is not allowed under the fourth amendment enter suppress the evidence that was found as a result of this misconduct in this case demetrius ward was seized by the police officers at approximately one thirty in the afternoon while he was standing in front of a convenience store with his friends didn't seem to see really interesting in this case i think actually watch this dashboard camera because he's here to look b c he looks like he's wandering around got a bag got his back to the police most of the time he's dealing with his dog he still lies dog this  he doesn't seem to be motivated or affected by the police at all until arguably they say come over here point which and that that can't constitute a see here unless you submit to come over here have given your license and the police are holding the license you still haven't been seized if you run and when you're when you're leaving your license they're late they didn't they hadn't taken anything from them they really hadn't even dealt with them well your honor there were several facts which i think led to the district court's decision and keep in mind the district court decided that he records rod then there is a possibility that the district court is wrong and usually i'm here arguing that but in this case the district was correct he was seized and at least no later the time when they started the pat downs and and there are several facts which i think absolutely this court can rely on to find that he was seized at least no later than that time frame number one we have four police officers that come up on this are on this these three individuals one of the two cruisers has its lights on you can see that from the video then usually surround mr ward and his  friends there's officers behind mr ward and there's officers in front of mr ward for the most part and the watching the tape because i was going to ask you about that there's no officer on this side of mr ward who would he ran well there was there on the front there  on the other side actually to his back dealing with the guy in the white here at the time that he runs i will agree with you that there was no officer to that side but if you look at the from the first part of the video it's clear that there actually is an officer that is on the other side of him at the time that they first come up to him and so that because that other car came up this street the one that you're talking with the lights on and he simply written he walked around the side of the vehicle in which they thought the drug dealing was occurred and at that point he would have been on what will call the the other side of your client but that was to just get around to where the other guys were well and that was actually the officer that first the other individual that we can see in the video  so the reason that they moved cannot focus to what i think is the best argument on the side as you're obviously the police the police cars those things are there all the time isn't the key point that they ask whether we can frist them so it's consensual  you can consensually agreed to be frist and the question and they ask and hunter says no the question is whether there this asks to everybody including war or not but it seems to me that's the compelling moment on this point and it's not clear to me whether the conversation is directed just to hunter because surely when hunter says no you can't do that and they do it anyway what reasonable person would think they can leave well and the question  whether they're directing that question toward as well and he would then feel giving there having said no all of them i think i'm not sure that seems to me the moment it's either that or it's not your your honor to that point the officer that was asking the questions was asked was making the statements not just to the one individual hunter he was making statements to all three of them at all times seem that way and on top of that when he when he makes that when they when he asked the question can we frisk you and and i think it is hunter that says no but you hear the other one say nah knock and end you hear somebody else saying i know my rights in addition to that at right after that officer sharp also says don't walk away and so and that's directed that's directed at i believe it's directed at all of them but at the very least it's directed at one of them and so let's say it's only directed at one of the three but if you're in the situation in europe again a reasonable person and that's what that's our standard here would it would if you're in with three individuals and one of them and the officers are talking to all of you and then one and then let's say mr hunter is moving and one of the officer says don't walk away you a reasonable person would not feel free to leave at that point and that's and that's the that is the crux of so between that and the fact that actually there is this frisk going on and and there was no question that the this these pression hearing transcript shows that there was no question that were garbus of how they answered that question as to whether or not they can senator to be frisked they were going to be frisked that day but the issue is not what the police were planning to do i don't think that's part of this am i wrong no i'm just does it's an objective standard on the part of on the part of the defendants it's also objective on the part of the officers i will agree with that so the subjective intent of the officers isn't critical to this analysis i do agree with you there how do we reconcile these two k two lines of cases that say as you correctly point out that you what would a reasonable person have believed  actual the mission here that constituted here or the rain the actual submission came in the entire three minutes that the defendant didn't walk away and wasn't permitted to walk away prior to the time that he ran so the was he they were talking with all three of them i know you say that but well ending in front of her talking they're having a dialogue with hunter there's no doubt about that is there correct there is you are not having a dialogue with ward although you  argue that the dialogue with hunter actually included ward i understand that i would submit it would be impossible to parse out that they were so in other words a reasonable person would not believe well after he asks these questions after he asks us who we are and what our social security is and what we're doing here and whether or not he asked all three of them whether or not they were dealing in drugs all three given so security numbers at least two of them did yes yes he was the one that they complained about that actually said is so scary number five or six times in rapid succession that was that was mr ward and so we have so we assume that i would submit that it's an impossible task to put on any citizen to say hey i can parse out here that the police officers even though they just accused me of drug dealing that somehow i can i am free to walk away when they're asking my friend and telling them he's going to be first whether he wants to or not and watch my friend being frisked and there was that at that point they after he was frisked they actually turned to mr ward and in actually said come here and did here that's when he really but the point is he wouldn't have felt a reasonable person not him a reasonable person would not have felt free to leave at any point during that process it doesn't matter that he had started to walk away and they said they told him hey i'm here i mean your argument would clearly be stronger so is that is there any sort of dividing line there or do they not so after two years stop and they didn't stop  to a d c case in a third circuit case in my reply brief which talks about how there can be an initial submission which does trigger the fourth amendment even if a defendant later runs and i you know i can think of you know let's say that and instead of three minutes in this case let's say it was twenty minutes let's say it took them you know twenty minutes for all of this to occur and they were having this additional discussion with the other two or let's say they would have picked  the second defendant and started mr ward as the second one to frisk and he waited all that time you know what point does it come where where there's the submission and i would submit to you that we just need to look and it great that we have the video in this case because if anyone objectively looks at this video and says would a reasonable person have felt free to walk away from these officers in that instance the answer got to be now i can certainly say that me dressed here today in my suit had i been in front of that convenience store had they done that and they done the same thing to my friends i would have not felt free to walk away and that's the standard that interestingly judge sudden these persons made that same argument today i was there as they said they think can't be what they said we can't run we didn't run right but they said you can't press because and they were being frisked anyway and they and they and they were and there was no reason for the frisk the officers testified that they were searching for narcotics and guns they actually testified to that at the suppression hearing but they also testified that they had no evidence that these defendants were armed and dangerous at the time they made the for us there was absolutely the only way that we can correct these officers actions in this case is to suppress the evidence and get it published decision that says we cannot do this as officers i see my time is up reasonable person free would feel free to leave test which my colleague focused on almost exclusively this morning is a necessary but not sufficient test for determining whether someone has been seized in response to an officer show of authority as opposed to physical restraint so in this case there was no physical restraint of mr ward in till after he had fl discarded the gun so the only question on whether he had been seized is whether the he said actually submitted to the officer show of authority and for the reasons that the court has been discussing with my colleague this morning the united states position is that he did not the what he would you do about i mean it is so much easier if it's clear the officers statements at a minimum to hunter are directed toward right i think the case gets pretty easy but it seems to me relevant for the reasonable person if you're with some people and they're addressing all three of you or for the whole group of you when you see them when the question is can we frisk you and it seems to be directed everybody it seems to be they're all saying no and they start frisking one of the people i don't know i just i'm having a hard time understanding why the reasonable person doesn't think democrat can we can leave in fact it's so clear we can't leave they're not telling us they're going to frisk us against our will that just seems to me no matter how little or how much you know about the fourth amendment a very strange thing to say well no i can i can walk now but whether a reasonable person would feel free to leave under those circumstances judge sutton mr ward did not i did not go for that that's not the question it is the question your honor respectfully because the officer let's say the officers were totally in the wrong had no reasonable suspicion which is not our position we think that even if there was a seizure there was reasonable suspicion as the district court found but if the officers give an instruction to mr ward show authority and then he runs in response to it he directly contradicts that authority that he has not submitted to it and there's no seizure i can't possibly what you're saying her dari d stands for that hoe dorothy says that reasonable free to leave test there's been a seizure only if a reasonable person wouldn't feel free to leave but not every time not any time a reasonable person wouldn't feel free to leave if a reasonable person wouldn't feel free to leave but this defendant does leave then there's not a seizure yes i think that's i think that's correct but what about the reality that he is submitting by staying there and then you know they say don't walk away and he stays there the whole time so as to that particular point it can't be that you're seized and then they ratchet up the stakes they're like ok you know we're actually not looking for drugs we think it's a murder and we think one of you has the weapon and at that point the person bolts because now the stakes have risen all right that's kind of what happened here the stakes keep rising it can't be the case that you've been seized because you stay because you realize i really don't think i can get out of this here but then once the stakes raise and i rise enough you you bolt and you say or he didn't submit because the first time we said we're going to frisk you that's when he ran that we have to be in agreement that's not the law i think that's a fair point judge sutton so let me take you to the facts of this particular encounter and then try to match it with the law of this circuit and and others in applying this test as to the facts i think what judgment he was commenting on with respect to what the video shows is accurate that ward was simply hanging out in this location when the officers were there much as he had been doing all day that the presence of the officers did not so far is the video evidence reveals appear to have any effect on ward who didn't by the way stay stationary as you can see and as judge mckeague mentioned is kind of milling around turns back the officers kind of floated over a little bit  towards the back away but there is no indication that ward changed his behavior in any way in response to the presence of the officers or anything that the officers were doing intil the officers directed a question directly to ward at which point he fled as to the question of were they asking these questions to everyone i would respectfully submit that the questions were directed principally at least if not they weren't maybe saying you mr hunter here is our instruction but it was principally directed to mr hunter and in support of that not just the video you're giving so see everybody's giving their so security number including word yes so let me in appl and that's fine because asking for and receiving a social security number or an identification is clearly within the realm of a consensual i know you i know you i mean i'm not being accusatory but you're changing the point you're flipping to a different point the question is whether they're directing the officers or directing this to everybody it seems pretty obvious if everybody is being asked for their security number that the conversation is as to everybody i suppose the my point not trying to flip it was that when you say this what is this is this the instruction come here we're going to frisk you or is this the question do you all have i d s on your the initial preliminary question do you all have d s on you that's clearly directed to everybody about the question of can we first q isn't that clearly directed everybody you know the i don't think so the officer or testified on cross examination with respect to ward as distinct from hunter there wasn't an officer around him or anything like that we haven't even talked to him yet i haven't stopped him or anything but i mean the pictures are worth a thousand words i which i thought the kids video shows it's it's addressed to everybody and everybody responds with no we know our rights it's there not just engaging hunter yeah hunter is not the only one that feels engaged is the way to put it let me make love to them that it was directed at everybody if they had also said sure go ahead there's no seizure you've asked somebody that's correct if you can have them that's and once the path that the attempted pat down turns toward that's the point at which you believe i think that's exactly right we have to figure out then whether simply asking whether you can have somebody down and then proceeding to pat one down without their permission then constitutes an effective seizure of somebody else who case i think that's you i think that's a i think that's a fair point i mean i think if you look at this court's opinion to put two points in response that if first if you look at this court's opinion which is albeit on published in johnson the court says hey there's got to be one time out submission to authority there's got to be something in between submission and just not feeling there's got to be some manifestation of submission that's not just not feeling of the grades because the cases the supreme court says it's got to be actual submission to a show of authority that's actually three points that's point one point of people who are travelling as to whether or not they're engaged in drug trafficking he approaches a group of people at the airport he asks the group of people for id in plane tickets they give him those documents he inspects them they're engaged in discussion coggins then says i need to go to the bathroom i'm going to go to the bathroom then the agent says to coggan no sit down you're going to have to wait and he does and then a minute or two later says actually i really am going to go to the bathroom and he leaves the court in coggins of thirds or he says hey there was an initial seizure when the agent coggins in response to saying i'm going to get up and go to the bathroom and leave no you sit down in fact the court is explicit that feature but there's a relevant point where what's going on is to the others well but this is where i'm going just and the court is then explicit that  the conversation be asking for the id they're asking for the plane tickets and looking at them that was not the seizure that's consensual m m m m m except all that but i thought this was judgement he spoke question the whole it's like is so ca tional view of seizure if if you say to somebody can we frisk you and you're in a group where you say to the whole group one of the people they all say no and they start frisking in this case hunter clearly hunter sees we're on the same page there e right so that's what i mean by the association of view of fourth amendment seizure and that's the case we need we need the fact pattern you just told us but then what the courts say about the other people standing there i would say the reasonable person in a close group i mean say it's a family you know i think we we think this was very different if it was the parents and a kid that the rest of the family felt ceased probably ok so it's not a family here it's friends hanging out so that's the case that's disp instinct is if you're seizing one you're seizing them all if you're directing to everybody but maybe i'm wrong well i don't i wish that i did have the case right off the on the tip of my tongue to give you other than the general proposition that fourth amendment rights are personal and individual and if one person seems to tears not necessarily mean that another person is seized but does it as a matter of law on this analysis what happened between the time they started to frisk hunter against his express refusal and when they ultimately turned toward if if ward head led the moment they put hands on hunter it seems to me nobody could say that he had a reasonable expectation he had to stay because i was being patted down because it because he didn't stay now here i think there is a matter of i don't know there is a second seconds or minutes or whatever it is but it's a very short period of time it seems to be between putting hands on her and when ward turns and runs just like he got so what happens during that period and how long can it be and what what is an indication of having to submit it to authority that brings me to  what should have been my last point in response to judge sutton's question i totally agree with you and i i think the whole i hope the whole court would agree that if the facts were as slightly different as you describe that wouldn't there would be no question here but i think the last point is that court published opinion and other courts but this court has made clear that a momentary pause in response to a show with authority does not amount to submission to authority within the meaning of the fourth amendment that's jeter that's the person who was on his bicycle who when he saw the officers who blocked his path stopped and then when the officers tried to engage him took off and this according jeter said that momentary stop even though it was a momentary pause did not amount to a submission of authority so at most what we're talking about here is a second or two after the initial question when war does nothing in particular doesn't you know put his hands up or anything like that just continues to be present before questioning turns toward specifically and he flees isn't just a second or two i think so i mean the video will speak for itself was doing or did it he did his conduct indicated in some way that he was going for that is exactly what the united states thinks is the right inquiry because he's got to submit to authority so like i was saying in response if he'd put his hands  up if he'd said well i'm going to stay here if he had done something other than what he was doing before because as the cream corn explained in brendan whether someone has been seized whether someone submits depends on what they were doing immediately before hand so that you can tell so yes i think that that is the exact correct inquiry and that is why the united states submitted that video which we think is excellent evidence and i guess as for the timing and so on it will have to speak for itself i've urged the united states is urged that the court decide the case on that basis principally because it just struck me as odd analytically to talk about whether a seizure is justified by reasonable suspicion if there was in fact no seizure but of course the district court also said that the seizure in first had there been one was warranted by reasonable suspicion which your it's not to the high crime neighborhood was just that square mile but this particular location like out front the parking lot of that convenience store neighbor who had residents had complained to the police about drug trafficking at that specific location there was also testimony that at that specific location there had been a murder about a year and a half earlier and that these officers did not act immediately on seeing these guys the first time they actually started their shift at six thirty in the morning this stop was at one thirty in the afternoon and so the testimony was that essentially they were hanging out in that area that specific location the entire day not going into the store not going to the housing complex but just going in and out of the v which in the officers experience was consistent with drug trafficking those are the made major facts that we rely on and i've had this report relied on i do think that that is i think think that's a relatively close question on reasonable suspicion but i think that  these questions is immediately obvious but i think that the i think that given the facts as you put in the video the this defendant did not submit to the but if he did i also defend the district court's rationale if there are no further questions the united states asked this court to affirm just one point on the last argument on reasonable suspicion if it wasn't those gentlemen and it had been me and my friends that had been there all day in my suit and gone in and out of my house you via couple times what we're saying is that was reasonable suspicion to suspect that i was drug traffickers because of the area that the convenience store was in and because there had been anonymous complaints of drug trafficking that they couldn't even identify we also having them was like the key there is not so much that it was a high crime area and that they were hanging out should be reasonable suspicion occurred just because somebody was hanging out seems like the key would be going in and out of this car or the officers testifying that in their experience that is an dish a drug dealer or they didn't say this handy and transaction arising out of going in and out of the car but it's just sort of logically speaking why would somebody be going in and out of the car if what would be the other explanations that would negate that creating reasonable suspicion to things on that number one we have now we do not know from the record how many times any of the individuals went in and out of that car they could talk about one specific instance so we don't know that number we don't know that the amount of times or or when during the day they did that there's all kinds of innocent explanations why somebody would go in and out of their car several times during a day if people who are casually drift because it would look like you had someplace to be it was more important that i knew that it up front of a convenience store if you'd been hanging out there for hours going in and out of your car i would think that would be pretty peculiar behavior on and me personally me wearing a tie is always suspicious behavior anyway so bad to worse but so turning to the yes men that there are innocent explanations doesn't negate the fact his experience correctly or incorrectly that in drug dealing i would i would i would agree with you that the officers could use their experience to say that going in and out of a vehicle several times in a day is indicative of drug trafficking it's not enough to get to reasonable suspicion turning to the the second issue again we cannot look at mr ward in a vacuum here we cannot ask any citizen to take themselves out of the situation and say well the officers were talking to my friend they weren't talking to me if you look at the video the officer sharp actually says you guys you guys have been here all day have you guys been you guys aren't dealing in drugs are you he's not referring to just to mr hunter he's saying you guys over and over and over again see my time is up are there any further questions