enemy require a person on this case first the district court rejected a portion of an officer testimony about what happened during weapons patdown based on an audio recording that was entirely consistent with the officer's testimony district court committed in this case i want to begin by talking about the facts that led up to that it was an error an officer nash's encounter with us police department now the district court correctly concluded that prepare in nashville put his hands behind his back by securing his hands and then by beginning this way the pockets was fifteen seconds there was about a four second span in between when officer cough indicated on the audio recording that there was a because i think the district court seemed to think that the fourth amendment by which in this case was officer off attempting to reach into national pocket without probable cause to believe the pop contained contraband but of course there's no actual search when an officer just attempts to between the wickets and the say but really the the important context in determining what officer off testified to cause in the questions that led up to his last answer and the question that was a have to conflict because in that four seconds period he couldn't move from the right pocket to the left pocket any testified he did but perhaps she didn't believe his testimony or do you see what i'm saying i do honestly say that's clearly  erroneous i think we would be in a much worse position on appeal on this issue if it weren't for this court's decision and you can solve a case involving the exact same district judge that was the judge all over this case and that case involved a factual find that this court determined be clearly erroneous under exactly the same circumstances meeting circumstances where an officer clearly testified to the fact that her the district court had independent evidence that it didn't really speak one way or another on the issue the agree it was rape and in that case the witness testified i don't remember what i worried about when the officer testified no she only learned about it after she agreed cooperate and so in that case just as the reporting leaves open the possibility of how was the author reported there's no way that he could find a violation based on just that audio recording because it doesn't clearly indicate one way or another with this is akin to a difference in this case he was he was there for sure brian check wasn't  the government's argument here really rests on this idea that there's a new crime exception to intimidation not did your client have the right to run off because you felt that there was an unconstitutional effort to  reasonably forseeable response why because he was doing a legal search on the guy's pocket in the guy who wasn't there's no evidence that he when it went into the pocket he was he didn't have to go into the pocket judge kelly if he was feeling around after he did it could have been a h before second a guesstimated for second to long in her opinion to move from one side to the other yeah it was based on the ambiguity of the tape i mean if he says there's a lot going on in this right pocket i read it the audio recording complex with officer testimony when in fact as the government points out you could certainly read it not to conflict at all and officer hoff testified consistently with that reading so my problem is her finding the original order she's softer in her voice i think it says that it's just all clear because the tape isn't clear by the time it gets to reconsideration she does say as you said that it conflicted well she she even quotes from the transcript where of course if you're looking at the transcript bright like that point it does appear to conflict because you can't tell there's a four second right there is not there's not a clear four second delay and there comes right immediately after she might not have to go back to listen to the tape that she was going to reconsider the decision that she'd made before so i you know i don't know what about if we supposedly agree with you on that we say yes looking at her first holding you know she well you have to get to a very carefully what she actually said he didn't testify to what she said was i am looking carefully now ok well this is i think explicitly he didn't use those words but he responded to questions about what half of her order is correct then i fish she ought to be given the chance to to to fix that if i could just go back to the attenuation doctrine for just a moment the new product section piece  inside to that i don't think that i think they've done sorry no doc but i think they might have deliberately violated his rights when they would see to discover the terrorist begin with if he was done searching for weapons it was continuing to feel around in his pockets every  itself a crime yes and so the only thing that will lack in on the three brown factors in your opinion is the temporal proximity between the police the illegality and the sure that's not my position as kelly and i'm sure i must have search by itself if you take that out that's not an illegal search the question is whether it's sufficiently attenuated from the illegal search that happened before we don't we did not we did not contest that date he was validly arrested for resisting arrest and that under normal circumstances or even just under these circumstances they could search an incident that to that arrest the question is whether or not they could use the fruits of that search given its connection to the originally gal but what is the purpose of the  course our position is that when he said something about his that abaddon on the recording that actually did refer to the left pocket now that's not entirely clear from the recording itself but it is clear from officer off testimony and the issue is whether the district court could reject that strongly on the basis of an audio recording that didn't shed light on the issue one way or another second to address judge more as a point about the sort of two subsidiary determinations of the district court made on a factual issue do you think there's one court did was reject clear testimony on the basis of an audit sorting that didn't conflict with that and so there's really just one error there in making a finding that officer hoff continued the first popular on the basis of an audio recording that didn't say thank you both very much for your very helpful arguments and that we will submit the case and