e your honest this case presents what i believe is a very interesting issue and that is whether mr innovate owes close physical proximity standing next to a person who was holding in his hand what the police believed to be a gun whether that fact alone provided the police with reasonable suspicion to detain him and whether his retreat back into his home elevated any reasonable suspicion to a level of probable pistols i guess and i believe just rifles and ammunition his rifle now the government would ask the court as it did below to try to factor in to this analysis some factors that i suggest have no really no bearing here for instance the government would repeatedly asked this court to take note of a recent shooting in the area but i think an examination of the record below reveals that whatever shooting took place took place about two months earlier about three doors down in a high rise apartment building inside and the officers had no reason at all no sir no suspicion no connection to link mr de vito or his home with the shooting that took place two months earlier with  light industrial businesses in the area there's a church nearby also clearly nothing in the record would support a finding of a high crime area no the question was an asterisk no evidence or do slow suggest that this was a high crime area your  brief if i recall correctly concedes that the government had probable cause with respect i'd be hard pressed to argue otherwise the police seem to have observed him with a gun in his hand in a public street well i thought they observed him with a gun in his hand on the comes to the front door there's some contradiction in the record about whether this happened on the steps leading up to the front porch or just at the bottom of the steps are actually on the steps itself but that looks like a gun transit maybe it's a legal g maybe one guy selling a legal gun to another guy but it looks like a gun transaction well it looks like a person holding a gun that the officers did not articulate despite repeated invitations they're not articulate any object a reason to think that there was a gun transaction going there why would you concede that there's probable cause with respect to pozo if it's illegal firearm pose a is it illegal for someone to hold a legal fire in new jersey what i'm suggesting is that the officer certainly had it an holding the gun certainly we have to factor in that mr innovator was nothing then standing a few feet away from him and when the police attempt to approach him your honor i suggest and i believe that he had the lawful right to retreat into his home now this is not a case like the litany of cases cited by the government where clearly there was probable cause to effect an arrest of somebody who then attempts to run away and in effect play games is some of the terminology that some of flight gave rise to a particular suspicion not probable cause and i case one of my recollection is that the officers have very solid information at hand whether you characterize it as a reasonable suspicion or a problem cause that the defend nt there was engaged in our comics trafficking and when they attempted to approach then came the flight in the retreat into the house never less than one of they called to investigate terry terry type stop in the right to do that yes in this case as i officer to believe criminal activity is afoot well i wouldn't hold the officer to the standard that requires him to announce a specific statute in a subsection but he ought to have been able and i think the question was a legitimate want to articulate  some sort of reason to believe that mr nevada individually had done something that aroused a suspicion that my bedo was violating the law i thought the testimony was i thought or we my partner and i thought it was a illegal gun transaction so you'll have an illegal firearm on the porch of the house it's nice that he thought that but he had no objectively reasonable basis upon which to make that conclusion the only facts that he could derive believe they did even then your honor you can see they have reasonable suspicion to approach pozo but not the other two guys yes your honor that's correct but the same reason they have reasonable suspicion of approach pozo i e illegal firearms transaction implicates the other two guys that are part and parcel of the the conversation but i don't believe they have reasonable suspicion to believe that there's an illegal firearms transaction taking place i believe they have a reasonable articulable suspicion that may not definitely but may be committing an offense by by holding a gun out in the open in a place where people can see it and they're entitled to inquire of him to stop him and detain him but to suggest that they have an objectively reasonable basis to conclude that a gun transaction is taking place i believe requires a leap that this record doesn't allow if you add what transpired in terms of his conduct the man with the bag of those with the book ba if you add that with the appellant seeing the officers approach and turning and running running up stairs arguably the officer could conduct at least a terry type for investigative purposes only but his testimony as i recall from the record was that when he went upstairs to fight to do that not saying what the trial judge found in terms of public cost but that the officer in at berkeley bumped into the and they fell through the door as opposed to entering intentionally and finding these things and once they were inside he saw in plain view is that a problem or you are most respectfully i don't think that the officer inadvertently bump into mr very though that's what he testified no i  he did say the question was ok so when you when you tackled him was a door opened or closed in the answer was it was opened my recollection of the testimony your honor says that the detective chased my client up the stairs and when i got to the top of the stairs he tackled mr hervey though in the process of the two of them falling down the door swung open and both of them landed miraculously inside of the apartment you're right i said and in this very and i hope the court does not give much weight to the to be persistent allegations from the government that this was something that happened late at night and that somehow it's into the mix here this happened at seven thirty eight o'clock at night in a major metropolitan city like newark new jersey where it's not unusual for people to be outside as i stated this shooting took place about two months earlier at another location and there was no nexus between that shooting event and anything that the officers observed take place in front of my client's home i just found his page seventy dollars after i detained him and this is after he's tackled him after i detained him during that small encounter that's when i observed like a shotgun on the bed t myself could i if i were in assisting united states attorney credibly bring this witness before a judge and ask for a warrant based on what the officers observed and i can only imagine the response if i produced this detective in front of a federal judge  said elicited testimony that he was standing next to somebody who had a gun in his hand and when police got out of their car he ran back into his house and we're on we'd like an arrest warrant for this person in a search warrant to be able to go in through the house to get him my  inclination is that a federal judge would say arrest him for what and to the house for what your honor crimes take place in public areas police are certainly entitled to act on what they see in  this case i think they're entitled to do something with respect to mr pozo stop and detain him after all he was the moment the gun in his hand but mr innovate oh as a bystander standing next to him looking not touching not doing anything i because i think my adversary kind of downplays what they saw that the testimony was that they were waiting outside sitting outside and they were there for you know there was a gun transactor the gun transaction the in the area recently the shooting when we were you putting a lot into here and you lot of key were there was a gun transaction there is nobody asked money about a gun transaction in the area before this night i'm sorry there was a shooting in the area and there was a report of people with guns in the area a couple of months before that's why they were sitting there they were looking outward you don't even need a reason it's a free country the police can be wherever they want to be right you know the action starts when they see what happens on the porch right it will they see mr vail come outside and at that point they say that he's it looks like they were he's waiting for something or somebody that's their testimony and their eyes are drawn that it's cold out it's nighttime they think there might be a drug transaction that's the testimony for us this is how drug transactions a person was waiting outside so that they keep an eye open at that point two individuals walk up the object that looks like a gun there's far away as i am from you i mean they're a little further away than i at the close they're sitting right outside the house now the testimony is that he's showing it in the beta not the third person and i think that's when i think it's clear it's pages we've got officer dela cruz testifies in his testimony i think it's pretty clear he says i believe that there was a gun transaction about to transpire and that's not just out of nowhere the basis is this is a preemptive arrest well he'll arrest them so we can't commit the crime that we think he's going to well you don't have to wait until there's money friends that you know money changes hands into the gun changes and i think suarez said we want to get out there before he pulls the gun completely out we were on the streets in newark here and the testimony of still crews is based on the observations that i conducted where they both the way they were both speaking to each other the way the weapon was taken out of the backpack being shown the way the the interest the defendant showed towards the weapon he thinks there's a gun transaction about to go out get out and i think at that point they probably have probable cause they don't have to wait you write the book which now but in new jersey we have a statute that says if you have a gun on the streets it's presumed to be illegal so it's a crime so that's it's a completely different situation than the bill it's this is a crime under federal law and we have probable cause to believe a crime is being committed you could how does that me practically speaking if i'm walking down the street in new jersey with a holster with a gun in it that they just arrest me take me to the station booked me and then i i have an opportunity to produce my my carry permit or have a gun it's presumed illegal you have some explaining to do why you have a gun is not the way it were in that case they threw them to the ground and they found a gun that was a reasonable suspicion case like i said but in that case the officer had only received a tip that the man had a gun and this court said it's presumably on the delaware law and so the officers are free to do that and it has come up many times and in new jersey cases valentine it's mentioned in this book in one of your opinions i think it's horner see that the two confused it's mentioned so it's a presumption so at that point going on why are these people looking at a gun on the streets at night in newark there might be something going on and they don't each of the twenty five fled well i thought i would say that under laville he would have probably cause at that point to do what you have probable cause to arrest them for what crime it would be well it's i mean first of all the office of crime for the officers do not need to know the specific crime but you could have attempted gun sales you could have you know selling a gun gun sales would be the person who was attempting presumably to sell it my question is if you have twenty five people leaning forward looking at a gun that's been taken from a book bag what crime did they commit well at the run if you have again that they could be purchasing the gun as a crime of that of being a witness to an illegal gun transaction well that i don't think we need to pick the person who might be buying the gun in street so when they approach the defendant they had information from an informant of the ice curing a concealed weapon this is a different case but it's a different case in the sense that the man had a gun here the officers are sitting no further than me from you and they see an  rise to the level of probable cause well i think flight in various situations has different consequences i think your own invention wardlow order was a reasonable suspicion case so there you had individuals walking down the street late at night things looked a little so there was mark on the street they were standing around the defendant had who paid magazine and the officers went there expecting to find drug dealers the party to find people who had drugs people were buying drugs and they expected that the people who would have more directly involved in suspicion laville and other cases point out where you early have reasonable suspicion we believe that there might be something afoot here the guy's looking at a gun he's standing right next to a guy with a gun he came out at night waiting for them we have reasonable suspicion already at that point the flight and that he was probably cuban that he was on the island it illegally your honor that i disagree with you that the case is weak in this case and that is the officer knew that a ship had run aground he did not see those particular individuals get off the ship he heard from a third party informant said you had two of those guys they came up the ship so the officer all he has now is a tip from someone but these are some of the guys he was up there with mesa like the one it's similar so he walks up to them and they run off and that this court and you were on that panel said off the boat i don't think that's how it happened i think that's two of them were sitting on a bench they turned a corner and they put the officer and the other at the informant so yeah those are two of the guys that came up about that's all they had the officers knew almost nothing in that case and they said this court said that that ing perhaps state of mind that doesn't help them in this case what if they just casually walked away innovator just to see guys casually walk back into the house well i think they would have stopped them under terry and what they would have been fully that would've been fine to start a monetary union so in his own house well he would have been in his house if you had just walked away he makes it to the top of the stairs and you know i think if you walk so you don't have what they don't have a right to itself said it's generally elevates the problem and i think you do have to give some weight to the fact that the officers here and on alas the supreme court says you should be giving due weight to the inference is that the officers and the district court is wrong in this case they're more familiar with the area factors are more important where you're not seeing an illegal gun right in front of you you know horn and steve two cases that i know the two of you wrote recently they don't see anything they just see some suspicious behavior the fact it's a high crime areas important cases like that here they see a gun and they see a man interested in the gun right in front of them this is a completely different case as the supreme court never indicated that flight is evidence of a guilty mind i believe so and that and sharp which is that he says i just series of cases including sobran and i don't you know the names of them exactly but you know that the scent has a series of cases that says look when you already have reasonable suspicion and now they take off you know there's a reason they're doing that and officers have a right in this isn't about certainties it's probabilities they think there's a gun transaction and that flight had touched the gun we would have had evidence now beyond a reasonable doubt that he possessed a gun an illegal gun on the streets we don't have to show you the problem i'm having is based on your argument that anyone who came out on that porch and leaned forward and look to his hypothetical i mean you're positing twenty five people involved in an illegal gun transaction that's absurd you know we don't know that you the only the only rational conclusion to draw from his i pathetically i would submit is is that you've got a whole bunch of curious people looking at something and that's you know i don't i thought your answer was well that's you know here we've got three people there you get twenty five if you're literally telling us that they could arrest all twenty five of those people on the porch right it's a different case i don't think we have to deal with out and all are interested in the gun then we have a probability that there's something going on here there's a gun transaction there's a possessed the gun that there's a conspiracy that just because there's more than one person there i don't think changes that if you come out with if you will of looking out because for most don't if you could do it gun we don't have to show beyond a reasonable doubt that he was buying the guy we want to show beyond a reasonable doubt he possessed the gun that's not the standard here what about what i asked opposing counsel his or quarter supreme court ever said that for probable cause you don't this or this it's that a crime is being the standard is that a crime is being committed or or has been can a crime which hopefully will from their perspective will later be identified as such that well it's not well they pointed out here i mean that the testimony is on page eighty eight transaction that's that's a crime under any law new jersey law federal law that's not go been arrested i think he could have been arrested anyway but the door in the testimony was at the door was open when he got there he was opening the door the door was open and the stuff was all plain sight and i would want to point out that regardless i don't know if this is something you're concerned about