the court helpful under the th amendment law enforcement officer should not have the right to harass ordinary citizens for no just cause the officer in this case had a hunch and he got lucky in the end he ended up finding evidence of a crime but how he got there is a reason that we're here today there are several issues before the court today  however foremost is the defense's contention that the district judge applied the wrong standard of the wrong burden of proof to the evidence in this case and that makes a considerable difference in this case your honor because the district court in its findings what constituted recent suspicion in this case the court found that the officer had observed evasive driving and that that judge did note in its finding its recommended finding the facts did make a notice of the burden being looking at the evidence in the light most favorable to the government and we did not object to that  however we had no idea that the the district judge was going to apply that standard to the evidence and so we did not have an opportunity to object to the district judges findings we did make our objection in our beef in chief and so but our position is that under exact standard then the fact that the magistrate judge said that was the standard likely mislead the district court to just copy that and if you had objected that would have brought it to the judge's attention it may have your honor yes that that is true i can i can tell i did not catch that in my mind of the fact to the district judge however once we did receive the order from the district court we did notice it was the wrong standard and did bring that to the court's attention in our brief could you have filed a motion for reconsideration based on that you know and i believe that i guess there probably would have been i guess i could have attempted that but that was not what the rules require i mean for the for in our opinion so my position is that under any standard whether it is playing with you that the any way to find the facts are based on the application of an incorrect burden then then the the findings cannot stand and in particular because that's how it starts out in this case the facts are that the initial encounter with mr goble occurred when patrol officer was at a four way stop sign mr goble pulled up behind the patrol units the patrol unit proceeded forward through the four way intersection and mr goble immediately turned on his signal and turned right and because of that for that reason only the officer honor there's nothing wrong with that but there's nothing suspicious about turning your signal on and turning right that at any any vehicle that would have come to that intersection and made to put on his blinker i mean w that that does not give you up to reasonable suspicion to follow them and then to and then the court found that by truck making several turns that that was also evasive that that led to the finding that the driving with the b but the evidence presented at the motions he's suppressed hearing showed that that was actually the direct the direct route that a person would take from that section to the address where he pulled into the driveway so there was nothing if they sit by but by applying that burden of why wasn't my wasn't there why didn't they develop a reasonable suspicion of the officer of trust pass or attempted burglary the car pulls into a driveway there's passed to pout two people in the car two passengers cracked correct yeah and the driver to the passion of the pastor to tell them we're here to pick up our friend so that i mean when he and the passenger doesn't know the address that they're at i think was the the reason the officer said he thought that added to the suspicion correct you know what that's wor they're relatively well and they know how it's a totality of the circumstances you know here but i guess my question is even assuming he lacked reason suspicion even assuming this was an improper seizure how do you get to cause a nation the problem you have is the seizure at least if we find that the seizure didn't occur until after the defendant returns to the vehicle and he asks him to the officer ask him to stand at the sidewalk if we find that that's when the seizure occurred you have a problem because he's already gotten rid of the weapons back in the alley so how do you tie the actual evidence to the improper seizure your honor well it's the defense position that the seizure actually occurred at the time when he was actually just opening the door understand that and assuming that's not the case because that's that's a tough one to show considering the obvious or moved his car behind their vehicle but then moved before this defend ever comes back he's moved his car to the street so we don't have really you just don't have a seizure you're right or well so assuming you're not correct on that assuming that and assuming there was a officer to suddenly make a u turn and then follow you through several turns a residential area an area it's intimidating i don't i don't disagree with that that's not my question to you still got to tie it to the seizure were you there's no way around that that i know of well you our position would be that the officer would not have found but for at that point he did see mr goble at some point at least when he did not allow him to get it back into the car but for  seizing and detaining mr goble i don't believe he would have found that firearm he would not have he testified he would of that even the based on what he saw he was going to go back and check that alley no matter what whether he'd stopped in the point in is your honor that that's what officers maybe should do if they don't have they don't have the reason to detain the individual any longer they had given him a reason why they were there he had no reason to hold him longer and basically the author doesn't get to cop a situation that allows him to search he used the word even though both of them had said i'm here to pick up men he helped them they're asking them to fight the numerical address they could not do that  object used the fact that they could not cite the numerical address to hold them even longer and then to conduct the search and what we want for the office we don't want them to be able to just because they got lucky get away with with this type of behavior actually put it in the alley in a very visible place where it could be retreat and our position which he did not intend to abandon it he likely would have just gone around and picked it up when he was able to very quickly and at that time of the that in a backyard but it's a much harder to retrieve a firearm from a gated backyard than from an alley where you place it in a visible place but your honor if if the court cases i would like to re with the statements initially were the statements that mr goble gave while he was standing on on the sidewalk about not having not knowing the numerical address and not him supposedly his name when this court looks at the record and that record includes video fairly extensive amount of video that records all of the interactions between officer barling and mr goble as well as the transcript in the proceedings during the suppression hearing under any light by any standard no th amendment violation occurred in this case  period the court is correct and asking counsel about the temporarily blocked a driveway and whether or not that constituted a seizure it clearly did not and all of the blocked driveway cases will call them that mr goble cites those were situations in which the police car was actually part more importantly in every single one of those cases whether the defendant was a passenger or a driver they were actually inside the vehicle when it was obstructed by it by a police car that clearly was not the case here during the ten nd interval that officer bar lena was he wasn't even part he was still and dry was behind mr goebbels car checking the license plate and also watching mr goble proceed past the side door further into the backyard out of sight mr goble obviously was not in the car there was no one in the driver seat and it was no evidence at the suppression hearing that mr goble was even aware that his car was blocked at that point i think we've already indicated that i'm a good deal ok and i'll move on your honor but it may be a big deal that the courts using the improper standard standard in this case can you elaborate on that and i raise it too because i think i've seen it in another case out of the district of new mexico and i want to make sure that the defenders and the u s attorneys are on the same page on exact language repeated from the a p s four d and into the district court order on page two hundred and forty of the record on appeal in the light most favorable languages is clearly incorrect not raise that issue defendant to also did not argue for plain error review in his opening brief and what do you say to his argument that he didn't realize the district court was going to apply the wrong standard until the opinion came out he's raising it on well i agree with the court's point to counsel that there's a very high likelihood that had a mr goble objected at the p f or at the stage that language would not have been repeated in district court order and so it's the same exact language if the court looks at pages two of six dollars ten cents of the record on appeal so what he still wouldn't know the district court was going to do that and that's correct trotter and the court is also correct that definit could have filed a motion to reconsider at that point as well but did he have to i don't i don't believe he had to must be done under a plain air standard and so there's there was an error it was clear but did it affect substantial rights and in order for it to affect substantial rights mr goble had to show that but for standard the outcome would have been different and that's not objecting to the magistrate's decision he's objecting to this district court applying the wrong standard and if he didn't have to file a motion for reconsideration why is it a plane or standard why don't we just review it under regular standard well because it it wasn't raised below period your honor and the government disagrees with with the proposition that there was no opportunity in it there was no warning clearly the findings that the district court made were based on the recommendation by the magistrate judge in this case and so is the government's position that mr goble was in fact on notice of everything that was in the forty that was his opportunity to object below and he did not avail himself of that opportunity and so you know did he have to object no did he have to follow  motion to reconsider no but the simple fact remains that it was not raised blow to the district or give any indication i had of time that he was going to apply the wrong standard no your honor there was there was no indication from the district court as to the outcome and what the order would be until the order itself was issued and so it but it's the and the court is correct that recommendations from a magistrate judge are just that and the district court employs it to no review and when there are objections to the b f r d that's what happened in this case and what it is it remains the government's position that plane air review is what's required in this case and i'll talk a little bit about plane air at this point court judge use the correct standard the correct evidentiary standard as far as a placing the burden on the government and that the government has to prove that there was no th or th amendment violation by proponents of the evidence and so that's that's clearly referred to correctly by both the magistrate judge in the district court and this case but as far as whether or not the standard made any difference the government notes that there were fifty eight factual findings by the magistrate judge in this case fifty six of those factual findings were not objected to and so those fifty six factual findings obviously all the factual findings by the magistrate judge were adopted by the district court but fifty six of the fifty eight were undisputed there was a very minor defense witness at th suppression hearing who was just there to introduce photos that he took of the scene more than a year after the incident and the main witness was obviously officer bar lane and officer bar lean in most regards his testimony was was not contradicted and again there's extensive video all of the interactions between officer marlene and mr goble were recorded that evening and are standard to resolve a factual dispute or explicitly even use that standard to resolve any disputes as far as the two objections there were actually two factual findings that mr goble made him those had to do with as counsel discussed whether or not a activating a turn signal after reaching a stop sign and then returning to the right whether or not officer parleying consider that to be  that he thought mr goble was trying to avoid him and found that suspicious and so the record does support both of those factual findings and so the government would it would urge the court when it comes to the fifty six dollars factual findings that were not objected to that the district court adopted that clear air review is still appropriate a those factual findings if the court the court in its discretion can give no deference on the two factual findings that were not objected to and can even take a fresh look at the  record given the amount of material that's available for the court in this case as the government cited snyder the court can affirm the district court based on any grounds that are adequately supported by the record even if those grounds are different from the district court's grounds and so again to reiterate so there was no plane error in this case and the course there was asking the court to affirm the outcome and i'll add this at this point if for some reason this court found it appropriate to remand to the district court to re evaluate the the transcript in the videos from the suppression hearing in a light that's not favorable to either party the outcome was going to be exactly the same and so that standard clearly made no difference in the outcome of the suppression roy at what point in time was reasonable suspicion developed that would allow an invest atory stop your honor the government's position is that occurred when mr goble came back to his car tried to re enter the driver's seat and was not allowed to in so i believe  there's a lemon facts that were allowed on by both the magistrate judge in the district court that were of that were known to officer barling at that time and they go into that decision as whether or not there was reasonable suspicion to detain him at that time the st is of course has to do with a mr goebbels apparent attempt to evade the officer with the series of sudden turns the belated signal of the fact that it was around three thirty in the morning  he's partially blocking the sidewalk the fact that goble did not approach the front door again at three thirty am the fact that mr goble walks into the back yard through a side gate and the fact that mr riley cannot tell officer bar lien the address of the residence the fact that there's no lights on inside the driveway i mean inside the residence of fifty four adams and the fact that the van in the driveway had an under the carport there's a gate in it it leads to the back yard that's on the side yard and then as you're walking through that gate on your left hand side is a side door and there's a porch lights up the storm door was opened on that side door in as officer bar lean pulled forward he could clearly see that mr goble walked straight past that side door so you can tell that from the video or testimony or that's primarily you cannot of suburban lean you cannot see that from it's too far to see with with the camera and i believe it also occurs right before the cam cameron gauges there is about a nd i lay has defied that he could see that he didn't go into the side that's correct and i think it was unclear at that point whether or not he knocked on the side door but also by i mean could clearly see that he did not stop at the side door that he walked right past it the court is correct that there is no factual nexus there's no causal connection is that the detention has nothing to do with the gun being retrieved sublimely was already aware of the facts he needed to search and i see it i'm going to shorten the time if there's no i would like to reiterate that when because the findings of fact in this case were are based on the application of the wrong standard or incorrect burden of proof that none of the findings of facts can stand in this case  and i if the court a pi's a pain error standard i would ask the court to consider that the fact that all of the evidence was taken in the light most favorable to the government at that at the motion to suppress hearing when the burden actually should have been on the government all of the facts were skewed were skewed and it's there is such a fundamental most important because that was what was the initial reason that the officer began to follow mr goble in the st place that was the invasive driving that was cited by the district judge as to give him reasonable suspicion not only to detain that was only one of the factors yes your honor but i think it was the most important factor in this case ok they can say time's expired thank you very much we appreciate the arguments thank you and in the case will be submitted and  the counsel excused although i hope that the u s attorney you know you the you can get the standard review issue resolved in your motions practice boyle thank you