thirty thirty five mr miller on the sidewalk through a show of authority and as a result mr miller's conviction must be vacated and the evidence against him must be suppressed specifically the officer sees mr miller on the sidewalk through the show  when they did four things together in the totality of the circumstances first the officers pursued mr miller on foot after he attempted to walk away after the first two questions he was asked do you have a firearm he responded no he was asked again he responded no and yet after those two questions he attempted to walk away and the officers pursued him on foot second the officers asked him a total of four times four times whether he had a firearm third the officers directed the fourth of those questions to a specific crime possessing a firearm unlawfully and to a specific part of his body to his front waistband and immediately after doing that the officers and directed him told him is the word that they used to quote turn around fourth and finally they did all of these things at a point in time when mr miller's path to walk away was effectively blocked to the east there was a stone wall and a tall iron fence much higher than mr miller's head to the west there was a row of parked cars and trees a two way street and an approaching police car which was turning around to the south was to duck to valpo just maybe twenty feet away and to the north immediately behind mr miller or to his side was officer heller so he had no where to go so he could have just walk to do so he would have had to push past detective delco if you wanted to continue south with mr morton if you wanted to go north and turn around he would have had to push past officer hill or certainly he i don't think he could have gone left or right no he could have gone just the sidewalk there was room for a couple the police he was walking south and this is a fifty two in the appendix after the second question the officer testified that mr miller continued walking south from this from orton who had walked ahead maybe twenty or thirty feet the officers were in the car at this point this is after the second question  what's happening is that the officers and mr miller are going in opposite directions at the time when the officers are in the vehicle and so miller's going this way and the officers are coming this way and they're both stopped well it's not a running pursuit but i guess what i mean to say well they were going in opposite directions before the third question and then mr miller the testimony is stopped and turned around and face the officer in other words mr miller was leaving the scene until the officers came out of the car and asked him the third question you know you know i'm sorry that's the officers testimony that's officer hiller's testimony at page fifty two miller is leaving until the officers get out of the car the officers getting out of the car and asking him that third question do you have a firearm is what caused him to stop and turn around and that's the officers testimony it could be courtesy but an element of our defense here is submission to a show of authority that stopping and turning around and then later grabbing that wrought iron fence and assuming the position that shows that mr miller  submitted to the officer show of authority i don't want to lie too much testifies quote i quote told mr miller to quote turn around and so you can characterize told however you want but i think that that's right in the neighborhood of an instruction or a command now it may have been commanded in a conversational calm way we're not challenging that but i think nevertheless a reasonable person in the situation is not going to feel free to leave that's really the focus of the analysis under the fourth amendment you've got to ask yourself would a reasonable person after being asked  times about a specific crime in the fourth time directed to a specific part of your body your front waistband and the officers of come out of their car walking after you after you've tried to walk away with a reasonable person feel free to leave at that instant i think the answer recent castle ruling from twenty sixteen and judge edwards wrote that decision the court this court referred to the d c court of appeals decision in j f as instructive helpful albeit not binding and i would say the same thing it's it's persuasive authority it's not binding but let me tell you what happened to jackson you know facts are almost identical to the facts we have here what happened there is that there was a call from a woman who said she was afraid about a person who was standing on the stoop of her apartment building and the officers responded they didn't have any reach there was no suspicion of crime they just showed up in the interview this guy and what they did the d c court of appeals that is they repeatedly questioned him without any reasonable suspicion and in addition to that they told him just as the officers told mr miller here to quote turn around those facts together that repeat question and showing to a reasonable person that you're not going to be free to leave until the officers are satisfied and that they get the answer they want together with that instruction equals a seizure and the same thing is true here but if you want to go beyond jackson there are two other cases i call your attention to your honor the first is again another from the d c court of appeals called gordon which relied on repeat questioning quote accusatory in nature to find a seizure and then this court's castle decision which i referred to just a moment ago in which the officers affectively blocked the path of the defendant by intercepting him in a dark narrow alleyway so those are our best cases on the fourth and then i guess the other thing i do i want to highlight here i know my time is limited is that the officers testified repeatedly that they had no suspicion of criminal activity whatsoever if any point in this encounter up until the moment when mr miller said yes i have a gun and that sets this case apart from the mine a lot of other cases where officers almost always have some kind of suspicion some basis for doing what they're doing here they testified at least twice that there was no reasonable suspicion whatsoever so a ruling for mr miller here is not going to create some great waves this is this is a pretty special case in that regard because it was a two and gross as well in gross i don't believe so  you know that there there is some differences between this case and gross i guess i'm not sure about what the officer said about suspicion and i don't want to misrepresent the case but what i can tell you about gross is that there was no  all the interaction in that case was between the officers when they were in their vehicle and the defendant when he was on foot the officers did eventually get out of their vehicle and interact the defendant but the defendant did not argue a seizure at that point and so the court had no occasion to reach the type of issue that's presented in this case if i could i turn then to the sentencing issue with my limited remaining time here this issue obviously matters only if mr miller's conviction is upheld we hope that it won't be we believe that it shouldn't be but if you do reach this issue we think that there is a clear error by the district court in denying mr miller a tool of all reduction for acceptance of responsibility under section three one point one of the sentencing guidelines the government to its credit much to its credit has conceded that the district court made an error in denying mr miller that acceptance of responsibility reduction based on his failure to exercise an option that does not exist and supreme court held just this most recent term that option does not exist judge jackson said that mr miller should have just pled guilty straight up and his failure to do so in his decision to go to trial quote made it therefore unclear to the court that he actually was accepting responsibility that's page eighty three eighty three eighty eight that was the sole basis for the district court's denial of the acceptance of responsibility reduction and as a result a revenge is required under eighteen u s c thirty seven forty two a court in issued a careful well reasoned opinion based on the president of this court and the supreme court i'd like to first before i go through the contours of my argument address a few of the discreet points that defense counsel made today that they seem to rely on heavily and i don't think are supported by the record with all due respect the first is with respect to what occurred when the defendant walked up excuse me when that when the officer walked up to mr him mr miller and sought to further engage him in conversation counsel used the word pursued it wasn't pursued the testimony was he walked up and that's what the district court found and that testimony is a fifty three a ninety one and the district court found it a one ninety six now as as i think the court recognized below and i think this court is recognize police officers are allowed to do this type of investigative work and to have these types of conversations with people on the street that's what was happening here now the second point that defense comes up the question we have to  stated that the officer told the defendant in this case to turn around we disagree with that that is not so in the record and i would ask the court with his testimony no it is not and i would i would respectfully request the court to look at age sixty two in the record question tell us what happened next answer then i asked mr miller to turn around you know i can't hear you i actually said something to the effect we're both men we can talk face to face defense counsel refers to the next page of the testimony today sixty three in his argument and he says this is the full quote from this witness from officer hill or no i said i'm like you know you don't have to face away from me we're both adults i'm just talking to you there's no reason for you to be against the fence facing away from me at this point i'm just having a conversation with him so i don't know why he put himself in that position that's why i told him i can't understand you turn around we can to continue talking like this so the totality of the record which is what the district court found and this is clear in the district court's decision but maybe what about the other circumstances of this new look at that picture that photograph in brief you know which one i'm talking about yes you're on no clear how sure he could have walked away maybe but  and then the office from drove the car says he says wants to you know we're going to come back the other way i turned my vehicle around casey decided to run the south so you've got not in fact the district judge found he never blocked his rests in any way now the fact that the officer might have thought in case things go bad i want to take this position i don't think that makes a seizure and in fact the district court very clearly found that defendant was never surrounded by the police she discredited the defendant's testimony on that point and there's multiple points in the testimony where the that the officers testified that there was no one else in the immediate vicinity of mr hill or and excuse me mr miller and officer hill or in this case i'd also point out such total that if you look at the picture with all due respect i think counsel i probably respectfully disagree i don't think that side what the very narrow it all we've had cases in alleys very different like in castle we've had cases in buses in trains i mean look at drayton in the supreme court that's a bus in the small aisle of the bus where there was an officer walking up and down the aisle an officer standing in the back of the bus and an officer who was sitting in one of the seats in the print and the supreme court found that that was not a seizure so it's not a seizure  that case were being very careful not to walk and also it was a bus full of people they weren't focused on one person as they were here well your honor different cases this is this is a public street and it's only night where you know i don't know i  found no seizure of the past counsel relied heavily in the argument today on jackson which is a d c court of appeals case of course not binding nonetheless the facts in jackson are very different we submit that in this case on one very important point because in jackson if you look at the citation eighty eight zero five a second at ninety eight the court found that the officer in that case told the defendant please turn around for me without any basis to do that and that's different than this case because they were engaged in a conversation and i read to the court earlier the pages from a sixty two and a sixty three that's a very different scenario than this case i submit to that the final thing i guess i would i would mention is that defense counsel has argued that there were two questions put to the defendant at the very outset of this encounter and i don't think that's really true the second question as the trial court found was directed towards mr morton but somehow mr miller decided to answer that again in a frantic way and that's i think a little bit different than the character's ation that i think the defense is taking in this case and the final point i guess i would make is i think i do think that this was not a seizure for all the reasons that record articulated but even in the worst case scenario we think that this entire encounter would qualify under terry and that there was a reasonable  district court found one defendant was frantic and nervous throughout the entire encounter to defendant intentionally shielded the front of his waistband from the officers three officer hiller testified that  that type of behavior was indicative of of possession of a weapon those three factors we submit plus the high crime nature of the area which the judge doesn't rely on but this court could under wardlow have how come the last is going to go back on the ineffective assistance and there is there is some ambiguity but the only point i think the government wanted to make in this appeal is that judge jackson made a very clear statement at a three ninety one in the transcript where she said even if it's true that you wanted to go to trial just to preserve your right to appeal you didn't make that clear in real time to the court and we read that is tantamount to saying this is last minute remorse and under three three the one point one that's a valid basis to make that statement a context where mistaken for sure and that's what i said this is this is this is a situation where every man is probably you know certainly the government wouldn't object and we that's an accurate statement the district court did make that finding but it made the finding at that point in time when all three officers were in the vehicle and you'll find that we discussed that at page nine of our reply brief it does not apply to the time when everybody the two officers were on foot  second as to the second question and to whom it was directed miller had no way of knowing when it's just him and morton and they were the only guys on the street that this question somehow was directed to his buddy morton as opposed to him he hears the police ask a second question he's going to answer that's an understandable thing third and finally the united states just made a brief argument that the officer somehow had reasonable suspicion to do what they did and ask the follow up questions they did that's contrary to the officers own testimony a sixty one  the court to represent mr miller and we are grateful to you for your assistance thank yours