you your honor in this case it's our position that the district court erred in suppressing the evidence that the government was prepared to introduce against mr dupree specifically the firearm that he threw while he was running from the police  an interesting posture here because it's our position that the supreme court's decision in her diary day specifically speaks of this situation that was really you know what i was dicta the court never held what is favorable to you  what in addressing how to define whether a flight from the police was a seizure by itself the supreme court first analyze what a seizure is in the context of a graph of the supreme court did not to make that statement which they did and what that which is favorable to your position in adjudicating the case that was before it was necessary that may be true donna but i don't know that that's for us to say because the supreme court did elect to analyze that case in the manner that it did and i think that we at our p ignore such a clear exit juices of the law that's given to us of in a seventy two supreme court decision where you have any number of circuit courts which are the contrary that i specifically disagree with your honor the defense in their brief here says that there are all sorts of court decisions that have gone against the government and that is simply not so as we explain in our reply brief there are there is one case from the four circuit wilson that was decided immediately after hardy and really didn't even pay faithful service to you get it it's a separate argument as to whether wilson with the faithful even to the part of the decision regarding a show of authority but be that as it may there is no decision since wilson circuit decision that has addressed the scenario before the court that has gone against our position and to the contrary the ninth circuit and the seventh circuit in the fourth circuit as we explained in our principal brief have reached decisions on facts like these consistent with the position that we're taking and they do it appropriately because they're being faithful to the guidance of the supreme court and the last answer i was going to give your honor is that accepting your honour's suggestion that it may be dictum again as this court has said quote unquote dictum of the supreme court particularly statements that are so carefully considered are not readily ignored we're not talking about a lower court here this was a seven to do decision of the supreme court which this which said very clearly that evidence discarded in the course of flight after an unsuccessful seizure is not to be so precluded in fact said there's no deterrent effect from applying the exclusionary rule in that context why are we talking about the flight here wasn't the case rise and fall on the initial encounter well you know the the initial encounter here is a two second grab of mr dupree by the officer who knows that well yes it was wrong to grab him at that point in time let me let me quote from  what you're your colleague argued before the district court wote i think the case really rises and falls on that initial encounter and you're telling us the opposite well i agree with that to decide what was that encounter and what that encounter was was an unsuccessful seizure it was a seizure and they did not succeed at the because mr dupree immediately broke away all right but but i'm i'm very concerned here whether that issue was was waived i mean your colleague he had this up for the district court by saying again i quote if we can say that at this point in time the defendant was arrested the case ends at that point in time and even more tellingly on the motion for reconsideration government stated and i quote suppression issue in this case turns on a single question was due preceded within the meaning of the fourth amendment when mayberry grabbed you pre remember two seconds before dupree broke away and attempted to flee when we in my short ten but as we try to explain our reply brief that was not a waiver we agree that our language at times in the district court could have been more precise but there is no ambiguity as to the issue that was being presented to the district court which is what was the consequence of this action the seizure of this arrest whatever you want to call it we called it at times a final seizure we said that there needed to be a final seizure where using slightly different language now being faithful to what how dicey says that there is no ambiguity case for example which was a very recent decision at that point in time was not discussed but we did a say for example page seventy one of the appendix it's a contrary to the dictum in brown the supreme court has explained that a momentary physical touching of of a suspect which the suspect resists is not a final seizure now what i'm saying now is final seizure is perhaps not the best language to use but it preserves the issue and what tells us that i do read my friend's brief now that say they didn't know about this issue they called the fruits they ship and yet in their response to that brief i just quoted at page ninety one of the appendix the defense said to the district court in light of the continued existence of the initial seizure the government also appears to argue that the discovery of the firearm was sufficiently attenuated from the initial illegal illegal initial seizure due to mr dupree's flight so they saw the argument in the district court that we tried to present they address that the district  t made its decision your honor there's no purpose to be served here by saying that there's a waiver that you're absolutely correct that there are cases where we come before the court and say well they argued one issue and now they're arguing be that's not the case or the issue is very clear it's been fully briefed at this point and we don't see a waiver we don't even been fully briefed here without adult the briefs on both sides are outstanding but but i think there is a  t or principle which is you can't go into a district court and if you will tee up the issue or or join the issue by saying one thing and then have the district court pass on the issue under rubric and then only to come forward on appeal to this court and ask us to do something different i mean i think that's an important institutional concern that we we try to vindicate in all cases that is a very important concern and i would not suggest that the court should do anything else but what i do suggest is that the issue was teed up there are what the issues teed up is that under her diary day and subsequent case law should this evidence be suppressed in fact many pages of our brief in this court are identical to what was submitted to the district court page from page verbatim but then i hope we presented a better brief to this court with the time and the understanding to work on it and to consider haring and all this new guidance that we're receiving from the supreme court so yes analysis well the government conceded the point is what it all comes down to the government could have made the argument that i'm making now perhaps you not have all the tools yet because you don't have the hudson decision herring decision but in coggins the court said the only issue we're addressing is was there a seizure before the time that the person stood up and took off and then said the government concedes that if there was a seizure at that point that the evidence is fruit of that tray we don't concede that here we have i think we have the ability to to consider our position consider the recent case law and make the argument that we're making now the same are going to are making now i fully agree your honor could have been made in cochran's and would have reached  that but for is not the only test of whether the fruit of the poisonous tree doctrine applies simply because the act wouldn't have happened except for the wrongful police action but the theory of the supreme court is that the exclusion of evidence is not automatic it's not a deterrent proper police conduct if we follow your suggestion and say that they should not be depressed that means police officers will find they're at leisure to grab someone and if the person runs well though that's that's fine if they don't run they got you know if he runs like this man the it's going to encourage police branding people without probable cause it's more it's more than that your honor the court does say we're focused on the turn effect but what is also made clear in its recent decisions is that it's balancing the cost of the exclusionary rule against whatever deterrent effect is to be had and so we have to look at this situation the situation your honor has described someone has grabbed they break free of the police and they run and the question is in that context it does the cost of the exclusionary rule how way whatever deterrent effect is to be had if i can take the question is the balance and that's what hudson and herring are all about and what we have here on the one side is what the supreme court has described as the extraordinary cost of application of the exclusionary rule which is essentially often allowing a guilty person to go free first is the very important purpose of deterring wrongful conduct by the police but we also have another interest here at stake and that is encouraging people to comply with orders of the police even if unlawful and then properly litigate those issues and vindicate their fourth amendment rights it doesn't serve the public policy to encourage people to wrestle with officers in the hope that they can then successfully discard evidence so our view and this is what has already says our view is that when you balance it in this situation where if somebody throws a bicycle at the police officer and takes off that in this situation the cost of the exclusion of evidence as well as the costs of encouraging that type of conduct you certainly outweigh whatever minimal deterrent effect is to be had the deterrent effect is really think that's minimal effect that would have to discourage police officers from grabbing a rush to people well i don't think it's a common phenomenon and there's been no showing that it is the police officers are now going to grab people willing l a without any suspicion at all in the hopes that the person will struggle break free run away and throw evidence and if i'm not saying that it can't be said that when somebody is seized and then breaks frey and discards evidence that that evidence was the product of that seizure it's no longer true that's one quote the other quote it's important to get to the second part of what i was discussing which is the supreme court page six twenty seven that i do have in front of me says unlawful orders will not be deterred by sanctioning through the exclusionary rule those of them that are not obeyed since policeman did not command stop expecting to be ignored or give chase hoping to be out run it fully suffices to apply the deterrent to their genuine successful seizures that is the point they were making and and that's why i would respectfully suggest the defense didn't really try to say that hardy do when they decided or well i have two things to say about they are and i think that it is interesting there is not a great deal of case law regarding this scenario even though it is a scenario that we do say with some frequency the supreme court has an address that they haven't accepted  case that addresses that there are circuit cases on point hernandez and bradley that we discussed everybody uses the word seizure a little differently but they come to the result that the government is advocating here but that also goes to the question that the judge cowan presented and i do appreciate the court's indulgence here because the question of are we going to be encouraging police officers to just go out and grab people the same issue was before the supreme court in her diary and the passage of twenty years is helpful there also because i read justice stevens dissent in her diary it was a seven to two decision but everybody is recognizing justice stevens contributions this week and it's interesting what he said one of his reasons he said is it's unknown if our decision today and what are you be saying that it's not a seizure if the officer makes a show of authority but never touches the person is that it's unknown if that's going to encourage police officers to go out and just make a show of authority hoping that people will take off and can then be arrested and what we know from twenty years of experience is that's not happening police officers have better things to do than chase people grab people frighten people as opposed to doing their regular job of investigating the ample crime tournaments first of all when you look at this record there there can't be any serious dispute that there is a complete reversal below the seizure was untested and fruits were conceded now here on appeal you know consider the concession is with from the record then in light of that the district court issued an opinion stating black and white the government concedes fruits if there is a seizure at the grab there's a concession as to for it's now on the reconsider motion the government doesn't come in as you might expect if that was some mistake mistaken reading of the record by the district court and say no no we didn't concede that instead what the government says is that it is not a seizure on page seventy of the record pursuant to supreme court authority there plainly was no seizure this is off from the reconsideration motion and repeated over and over again instead the reality gate the government really gets the seizure issue there was there and that's not enough your honor it's not enough to generalize the argument say under a case law or under a certain case i ought to win or evidence ought not to come in many cases have several  has a seizure case and there can be no dispute about that we'll talk about that a few minutes i'm sure so that in fact misled the court if you make an argument the government as the government did under hood already it stands for the proposition that the the  submitted to unheeded to me and without submission is not a seizure and then the government reinforced that by at every turn before the district court filling out there had already argument by saying this is not a seizure this is not a seizure we don't have a seizure can't be said that they argued alternatively that it is a seizure and it's but even if it is a seizure their position is once he broke loose he's no longer sees he's a free so called free man and he's like any other person who's not under arrest because he's he's no longer in their custody and therefore when he discarded the gun that's not the fruit of a legal search because at that point felon in possession i don't think that's a reasonable reading of their argument but even if it were a judge callan the only thing they can point to that even vaguely resembles that is the reconsideration motion of the reconsideration motion comes after an express concession to the district court and a ruling by the district court that there was a concession so even if we indulged what i would suggest is a rather revisionist view of their argument throw away a gun and we could seize him for being a felon in possession i mean if that is before us assume for the purpose of art that's before us what's wrong with that theory of the government that he's he's no longer see he's on his own he throws away a gun they arrest him of the private gun there's nothing wrong with the argument in fact when we look at todai d what it really says it does indicate again in dictum however it does that language the government wants to suggest that the seizure ends that has nothing to do with roots analysis and let me explain in had already we need to take a step back i would respectfully submit but already two questions presented to the supreme court the first was there a seizure by the command the unheeded command to stop without submission supreme court obviously rule no the second question presented in that case with even if there was a seizure was it fruits the supreme court express on hernandez and bradley which was expressly disavowed in their in their brief your an appeal so i don't know if the argument seems to be shifting however i would i would suggest to the court that what has happened here is a shift  position and i think that any sort of any pragmatic reading of the record in light of the fact that the interest of giving to the district court an opportunity to address the real issue is  the continuing arrest and the supreme court says it would hardly be realistic to say that the disclosure had been mean during the course of the rest i agree that's not a problem for us the supreme court did not say that it would be hardly realistic to say that the disclosure was not fruit of the arrest now why is that important why i think that distinction important because that language out of the dori d is plucked right out smack in the middle of the discussion of what constitutes a seizure that's what the court is discussing in that passage and what they're saying is that seizures can end is that your position after he broke loose and was running away is your position that he was still under arrest your honor i would not concede that i think we can start from the position that this language is dictum that would be my positions dictum so but let's assume for the sake of argument that we're  about that and what what the result of that is is that yes the seizure may have ended but that doesn't mean that the fruit is suppressed it's a different question now why would the court why would the supreme court say such a thing because they're defining seizure and there might be certain circumstances in which it's important to recognize that the seizure ends during a break away in other words one of the things that we do when we look at the fourth amendment is we say what did the police officer know up until the time of the seizure in determining and behold over officer mabry is radio comms and exact description by a victim that mr dupree had assaulted or something else previous to the to grab and now during that chase that information comes to the officer then the tackled then the gun is found now in that situation the hood already language assuming they can is instructive because what that says is we can consider that radio dispatch in the reasonable suspicion calculation as to the second seizure because the first seizure and it doesn't mean it has nothing to do with fruits it doesn't mean that evidence precipitated by the initial unlawful seizure can count towards reasonable suspicion so we don't look at the fact that he that mr du pree ran in my counterfactual hypothetical or anything else that's classic roots law taking adopting the government's position here requires taking a wrecking ball dispute that under a traditional attenuation analysis that the gun would be suppressed in this case i didn't hear a lot of argument about that in fact when we look at the factors as the court had had reiterated them in mostly what we're talking about and this is been the law for decades what we're talking about is the proximity we're talking about unrelated intervening acts and we're talking most importantly i would say here the flagrant see in the intentionality of the police misconduct that's really what distinguishes my able colleague talks about the recent supreme court cases hudson and herring how things are changing and so forth that all relates to all what all what those cases boil down to is there's no deterrent effect to trying to exclude evidence either based on a remote unrelated negligent error or it doesn't happen at the at the at the scientists of the encounter that's hearing that's the that's the court clerk error with respect to withdrawing the warrant ok and in hudson what we have is how can we possibly be turning deterring misconduct the exclusionary rule when the violation is a knock and announce when  and that it's going to cause more problems and then the police officers potentially violating the fourth abandoned by grabbing people without and i mean you can see that if we uphold this that would be application of the exclusionary rule is not a free for all policy decision you know the courts make it is within certain strictures now i agree with with my colleague there's a cost benefit aspect there's a deterrence aspect but what i believe the government feels to realize here is there's no analytical there is deterrence here there is intentional deliberate police conduct non remote haws only directly related models away from anything like an hudson or herring and there's no analytical difference between you know from a deterrence standpoint between whether host seizure the defendant flees or not now there is a there is the language as my colleague had pointed out in who'd already saying we want to we want to encourage compliance with even unlawful commands to stop and that's true now what the difference though is and again i believe it's important we're we're we're taking these little snippets out of her diary d and i think it's incredibly important that we be careful about doing that well not i mean that's that's that's going to have big problem for us when we conference on this obviously  of the circuit opinions are very favorite people but maybe not tonight for want to do it but you've got some very strong circuit law in your favor on the other hand you're looking down the muzzle of a supreme court if you call it picked up  is a no no you resign how would you suggest we resolve whatever circuit law is in your favor with maybe and i think a few other steps in what we're looking down the barrel of supreme court  dicta that is almost maybe not totally on point i would i would encourage your honour's to not be mistaken about what that language says and when you step back and this is why it is i'm concerned about taking snippets out of it already when you step back and and we realize that there was an entire question presented in who'd already that the supreme court expressly declined to decide in other words fruit is it really likely that this language which is the perfectly all perfectly reasonable and accurate alternative explanation for that's my discussion about what goes into the reasonable suspicion analysis is it really likely in a case like that that the supreme court is taking a position that is absolutely at odds with fifty years of attenuation law so you're on i think i guess my question my answer to that would be in a nutshell when you're looking down the barrel of a supreme court dictum make sure we understand what it says make sure we're accurately characterizing it and don't jump to conclusions that would be at odds with an incredibly wide body of law and that's careful i believe in our briefing we don't trade coggins as controlling because that there was a holding with respect to the initial legality of the seizure but there's really can be no doubt that the court we try to do we try to be as thorough in the district court as we are in any at any level it wasn't as good here but that's not the way for a test in my in my understand but if it is the waiver test is the waiver test that the mere citation of  precedent even if you argue that precedent for a completely different proposition is sufficient to preserve the issue of somebody mentions marbury vs madison but the case is not about the federal courts power of judicial review is it enough to argue that different issue even when the different issue was something that was conceded in the court below no your honor it's not enough to just cite a case for a different proposition but here at the as i've said the only proposition for we cited had our day was the proposition that evidence and the specific situation should not be excluded our language could have been more precise the bradley and hernandez cases which mr striker says were going against their language could have been more precise than we and we've been consistent in saying that those cases support the ultimate conclusion in this case conclusion was that it shouldn't be suppressed i agree with you but but i i don't think that was the argument the argument was that there was no page two zero nine of the appendix the prosecutor said even in custody let's use custody he is not in custody here because custody is a finite action custody is not a continuing process that's virtually a quote from the supreme court's would argue decision where it says that there's no such thing as a continuing arrest and here the prosecutor says custody is not a continuing process at page two fifteen of the appendix the prosecutor says so the initial grab which was unsuccessful is not  with the district court's written statement in its opinion that fruits were not at issue i don't know i don't know that the disregard said that explicitly we certainly took issue with the district court's conclusion and argued that the mere not a preserve this issue the with respect to my my for about a lot all i'll say is that first of all judge karen i do and you continue to disagree that there is ample case law supporting the defense position here i know the court will scrutinize the briefs here are reply brief and and their brief and i think looking at those cases they do not support the defense position in this context of an unsuccessful seizure i don't know of any of how it authority other than that one wilson case in a one paragraph statement on the disagrees with the position that i've presented the in terms of the turn to fashion again i can rest on the what we have here seven justices of the supreme court subscribe to the statement  unlawful orders will not be deterred by sanctioning through the exclusionary rule those of them that are not obeyed i again say that we have our peril just to say that we cannot follow that guidance and should not follow that guidance that's