the court stephanie the united states as i preserved three minutes for about the united states respectfully asks this court to reverse the district court's decision i'd like to start with the district which is what we appeal and then address the point of seizure arguments raised by davis here the district court did not use the right approach or to tell it in the circumstances because it isolated and disregarded the facts that led to mr davis's stop five facts were dismissed because the court accepted davis is innocent explanations one possibly two because of clear factual error and the strongest fact gas station towards the door he had complete freedom of movement to continue walking forward which he did do or to stop turn around and go back but they were they work close by  the crime setting was dismissed because the court said that officer along could not identify an area of detroit that was not high crime but what the record shows is that officer along identified several areas of detroit that were high crime areas at least two officers testify that they were back at that scene in order to respond to a shooting and mr davis himself testified that he had been quote robbed at the same gas station so that would be just a clear factual error in the opinion mr davis nervous and scared look and his walk away were not considered as part of the telly the circumstances and here mr davis never disputed that either of those two two things happened what he did was he gave his reasons for why they happened and yet the order says that the court was not convinced that defendant looked nervous or walked away from the officers assuming you're right about the approach that the district court what criminal activity did the officers have reasonable suspicion of barrack they had reasonable suspicion that he was carrying a concealed weapon statute that makes it unlawful to carry a concealed weapon without a license or permit you do i did and i don't have any information about whether he had a license or permit did they know they did it your honor but in michigan and i didn't have any information about whether he was a felon or anything else that might have prohibited him from carrying a weapon that's correct your honor but in michigan the incriminating nature of a person carrying a concealed weapon is immediately apparent even if the carrier is later determined to be licensed to carry and seven seven six point two zero puts the burden on a defendant or a suspect to establish that he has a license or exception to the prohibition on carrying it with reasonable suspicion or even you think that under that s having done because they also had no information about any license that he might have my am i not of her or any other crime he may or may not have been committed for or whether what with him if pocket really so what them that he was carrying a concealed weapon the most sort of dramatic factor being the outline of the distinctive al shape and it's a crime to carry a concealed weapon in michigan and there is an  carry one without a permit or overact and michigan so didn't they have to have some basis to think that he didn't have a license or that he was a felon or something doesn't that have to be part of reasonable suspicion approach him arguably to seize him even if they don't have even he was of knowing in there's nothing in his conduct to suggest that he's in violation of the law other than the the ar i'm i'm not arguing that ok i will try again ok well ok so i think what's helpful is that a panel of the sport interpreted gal these in the reasonable suspicion context maybe that decision would be covers both carrying concealed on your person in a car i should say that that amounted to an allegation of illegal conduct so that is alleging illegal conduct if an informant says he's carrying a concealed weapon a session before that here  we had better evidence here we had better evidence here because the officer saw this with nothing else in that case in jale of these other and the informants tip them in there was no other indication that what the defendant who person ultimately was doing was illegal sorry your honor galaxy's just stands for the proposition  here correct judge given says that's not what happened here and i'm not i want to make clear to judge donald as well that i'm not arguing that on the basis of these m c r laws that an officer can go and start patting down a man because they think he has a weapon but here we have a lot of evidence that he was not only carrying a weapon but carrying one illegally that's because of his nervous and scared look it's because of his immediate walk away it's because of that repeated check on the foliage which the officers testified based on their training and experience was a circle kind of almost like an unconscious check on contraband or weapons and th had seen it before they had both been trained on it and they had seen it before in their experience they also saw the weight and swing of the bulge as he walked away and it had the weight and swing of the weapon and again based on their experience and then finally they pulled their car alongside and they asked him could you take your hand out of your pocket and he did briefly before putting it back in that's when they saw the unmistakable i think was the language they used l shape of a weapon so we had a lot of a lot of reasonable suspicion a lot of things that made their suspicion of him carrying a weapon reasonable and because he may have had an innocent explanation really the idea that he may have potentially been carrying a permit is yet another example of having an innocent explanation for carrying a concealed weapon but that doesn't defeat reasonable suspicion particularly if we recall the burden of proof is considerably less of just increased technological device of people with cell phones and other things are going to create huge budgets or merah or you know i'm not in the record but guns that don't look like you know shapes and i guess i'm troubled by the articulation of the facts that are proper to constitute a reasonable the very end of the process before the stop occurred was that one officer did get out and actually before touching him or laying hands on him asked what do you have in your pocket and mr davis response was shit and the testimony was that that response was said in a tone like i'm caught now the district court didn't make a credibility finding on that and mr davis didn't just deny saying that he just gave an alternative explanation for it which was that didn't mean i was caught it meant i didn't have anything and here and yet this is the same legal error is that it was dismissed again in isolation not consider as part of the totality of circumstances because an innocent explanation was the government in this case largely focuses on the legal analysis of the district court claiming that the core in gauged in an imprint is impermissible divide and conquer analysis and and i offer to this court that that's just simply not true that the district court considered the totality and was in a unique position to consider the totality of the evidence before it the district court observed all three officers as well as the defendant testify in this case and engaged in some questioning of the officers and the defendant herself she made credibility determinations some which i think were explicit in her opinion and some which i think were implicit and ultimately she concluded that taken as a whole that the officers testimony was unconvincing and the court reached this conclusion with good reason and some of those reasons this court has has already drawn attention to only one officer claims they have seen the nervous look to which the government references and two officers remember either mr davis looking down or don't recall his expression at all the officer who did say that he saw mr davis have a it everybody might not have seen the fame thing at the same time and that's not nothing unusual about that if their own thing is particularly unusual but i do think to the extent that the court heard one officer testify that he saw mr davis look nervous for a period of five to ten seconds which quite frankly is is a long time before he saw mr davis walk away while two other officers said that mr davis was either looking down or he had an expression that did not register as nervous on his face and immediately walked away i do think that the at there is a discrepancy between that testimony and that the court you know made a determination about how heavy to and none of the officers recall that mr davis was wearing outside of being able to sort of basically acknowledge that he had a cold on and that's particularly because mr davis testified that the firearm that was found was not actually in his right coat pocket as the officers claim but inside of his jacket pocket also evidence also testimony that the ultimately the district court gave some credit to bow but you're telling me that on top of that he had a coat is that yes your honor the discrepancy between the defendant's testimony and the officers testimony was this the officers allege that they found a firearm in mr davis's right coat pocket mr davis testified in fact that he had a pop bottle in his right coke pocket that the firearm was actually inside of  honor described it inside the pocket of a hoodie which was then tucked into the waistband of his jeans ok which would i should a should offer to that extent you know would create the balls that some of the officers saw in terms of the pop at all but would negate the officers testimony that they necessarily saw a gun shaped object swinging the court reasonably evaluated all of this test morning and if found that the was unlikely the defendant looked nervous or that he was walking away from the officers the government also argues that the court didn't give enough weight to the officers training  analyzing the totality of the circumstances but i do think it's important to to acknowledge that the fact that an officer says i have training in are not magical words that absolve officers of engaging in any assessment of the situation and here mr davis was doing nothing momentous he was standing outside of an open establishment it was late at night it was around midnight but the business that he was a out was open the officers testified that it was while it in fact one officers one officer testified that it was daylight light and the government argues the the judge just discredits the fact that it's a high crime area because the officers testified that it was well it i offered the the judge didn't say that it wasn't high crime at all in fact she acknowledged that the officers testified it was a high crime area but just like we assume we put we put lights polices to make them safer right we put lights in parking lot it's reasonable for the court to say that the fact that it was a high crime area and that it was night time is mitigated somewhat by the fact that the area is very well lit and mr davis is standing out in the open he's not he's not hiding it's not dark he's not in the shadows well that was it the judge to roll so said that all of detroit is a high crime area i believe that at some point during the to in the record the judge did acknowledge that the majority of detroit would be considered a high crime area i think relative to perhaps other cities there are certainly there were areas in which the officers said that they would consider less high crime and others and that this was a you know i was some of the officers as far as high crime a couple of the officers testified that it was an area that was relatively high crime not that not the worst they've worked and i think it's important in terms of looking at the court's legal analysis here to consider that the judge was in a unique position to listen to all of the officers testimony that she heard them talk about their training in that she heard them talk about everything they saw and she also heard mr davis version of what occurred that night and she huge she considered all those factors and she them against each other and determined that some carry more weight than others you know the government is suggesting that somehow the court is supposed to evaluate the telly the circumstances without winning the individual factors and point frankly there's an impossibility encounter with the officers a consensual encounter or a tear stuck in european my in my opinion this was never a consensual encounter these officers did not attempt to engage mr davis in any sort of casual conversation the first words they said to him are take your please you know whether it was a question your in your analytical framework it can't be it's a teary stuff from the get go yes your honor and i would say that the officers testified in fact that the reason that they pulled into the get or the reason that they were approaching him was to investigate him i don't don't think this could be construed as a consensual encounter the officers testified that they pulled up so close to mr davis that had they been had they open the door they were close enough that they could have actually hit them hit him with the door and w i understand you know logistically the government's argument that mr davis was walking away in fact he was walking with the officers traveling alongside him he never picked up his pace the officers all testify consistently that mr davis was walking at a normal pace and he was walking toward the door of the open gas station and you make an argument that the moment of seizure occurred prior to the time that the officer grabbed mr davis by the arm yes your honor it's our position the at the point that the officers pulled up so close to mr davis that he really you know i suppose he could have gone backward or forward by the he's the officers are so close to him that they're saying they could hit him with the door they could reach out and grab him they're not engaging in him in casual conversation the first thing they say to him is please take your hands out in your pocket that's not that's not a consensual encounter mr davis well i was not free to leave at that point sorry  no i was just going to i mean assuming it's not a consensual encounter it might be a theory stop with the new no if that point certainly they had pulled up to investigate him it is our position that they had no basis at that point to be engaging in a terry stop there was nothing to establish establish reasonable suspicion he would there was no indication of criminal activity he he had there was no you know unlike the cases cited by the government in their brief there was no nine one one call there was no dispatch mr davis did not flee when he saw them he was literally standing outside  that they lacked reasonable suspicion to approach or push to him under prevailing jurisprudence well your honor right to the extent that the police officers could have approached mr davis and said hey wait for someone to pick you up you know that's that's one thing but that is not what happened here the officers saying they couldn't have it under that hypothetical they couldn't have approached him in which that strange bullet in your pocket well the point they pulled up your honor they didn't get what we went to his fourth amendment rights violated and to mr davis's fourth amendment rights are violated at the point that the police officers pull up close enough to him to grab him according to their own testimony and tell them to take his hand if you're wrong against that and if they're not in the if what if the well never been forget that question you know i am getting ness of the detention and here the officers never engaged in a terry stop i mean this transition from the officers you know assuming that assuming john i'll just suggested that the point of seizure is not when the car pulls up this transition from the officers pulling up to him to iraq's according to the officers on tax money as soon as they see this this ball to be a gun shape or just a bond they jump out of the car they pin his arms up and they stick their hand into his pocket they don't engage in a frisk or a pat down or in an investigatory pat down check for offensive weapons as is permitted by terry they arrest him and i would argue your honor that they did not have probable cause to arrest him at that point and so no i think perhaps it affects the legal analysis if the court finds that the point of so far for legal and now  it's not dependent your fourth minute validation claim is hardly depend on a finding that seizure occurred at the moment at which you think it occurred no your honor i would i would argue that yes the court could find that the point of seizure did not occur until his hands were held and still what do you make briefly what do you make of the case that your opposing counsel referred to in the michigan statute she referred to neither of which are mentioned in the government's brief yet your honor i'm very sorry a don't i am not am not familiar with the case and we just are you from from a common sense perspective it does not seem just to assume that the police can assume that someone does not lead who is not legally carrying a firearm just because you know they're not walking around with their permit to their shirt but can also once once the police find somebody late at night in a high crime area and determine that they do have a gun let's just make given your hypothetical now yes your honor their time on that they do have a gun and  it certainly doesn't strike me as reasonable that they have to figure out this and whether there's a permit or not i mean somebody could get shot while they're in the patrol car trying to bring up records to see whether that person whose name they don't even know has a comment to carry a gun i the presumption it seems to me has to be on the person carrying the gun to show that it's being carried valid honor i think in a scene my time is up if i may just respond to you judge dartrey you know i think the difference here is that they don't know that he has a gun i'm not giving you that i'm giving you a hypothetical where they know he has a gun but certainly in that case they wouldn't have to wait to to do something about it until they can establish whether he's got a permit or not i would agree that at the point the ok has a gun that they can seize the firearm and determine well that for  purposes yes ok thank you ok thank you thank you honors if there are no further question to just a few facts and then talk about point of seizure mr davis is not able to point to any credibility determinations on the record and well just a minute just a minute mother me the they really the whole thing apparently started because one of the policeman thought he looked nervous and was in a high crime area late at night and then so so the the other two officers didn't see any kind of behavior that would have made them think that they should call up to him and investigation so we don't hear dependent on one officer testimony that he looked nervous and we were scared and then we have the judge saying that she found the officers testimony unconvincing it i don't know to what extent we're going to decide we are bound by that credibility determination both seems to me it's a big obstacle to your trying to get this case reversed i have to two responses your honor the first is that the testimony w not that they pulled into the gas station to check on mr davis the testimony was that they were responding they were returning to the scene of the shooting and they wanted to stop for some water at that gas station as they were turning in they had already made the decision to turn into the gas station they see mr davis standing against the gas station that's when he makes eye contact with the driver he looks nervous and scared then he moves he turns and walks away that's when they continue to come into the gas station which the already going to do and in fact officer alarms testimony was that no of course a nervous look alone is not enough for me to go and stop the guy he said it's all the stuff that came after that led to the stop and i think we would want police officers to if they noticed something it's ok for them to can i keep an eye and see if things develop or if the guys isn't doing anything else suspicious i think that is permissible and certainly doesn't implicate his fourth amendment rights and my second response is that i do not see i fred that order over and over and over again and i understand that the language sounds like a credibility finding but it's really not because what she says is she's not convinced that these factors should be considered in a reasonable suspicion analysis she never makes a determination that they're not credible or that they shouldn't be believed in fact even where she says that she's not convinced that the defendant looked nervous or walked away it's possible that's a clear factual error because you see mr davis admitted that he was nervous he said he was nervous because he had been robbed there this is at page eighty three forty five and three fifty five and also defense counsel conceded yes my client was nervous here's why though and that was at page eighty one fifty seven and one fifty eight i don't think that the district court's actually making a factual error there i think what the district court means is that it's not convinced that those two factors the nervous scared look and the walk away should be considered because of mr davis is i mean their lives on the purely and then she both so the court is not convinced that there is sufficient evidence to make the fact that it may have been a high crime area particularly relevant either but i mean if she doesn't believe that he looked nervous or tried to walk away undercut the whole basis for them having any sort of encounter with him and i know i disagree because of all of the other factors that they observed including  it you're just i mean if we're arguing here about the weight of the evidence that's going to be problematic for you because the district court gets to make the fact findings in a list they're clearly erroneous we don't have any basis for for disturbing them i agree and that's the problem with the if the district court is making a factual finding that he didn't look nervous it's correct that they were able to affirmatively say that he looked i mean it and one officer says he looks nervous into officers notice nothing unusual about his demeanor then it seems to me that you've got a basis to said the officer who claims he was nervous is not particularly credible on that point and i want to get back to the facts your honor because i don't think the facts bear that out because what the officer testified officer along the initial officer testified was that when he made eye contact he looked nervous and scared and then he made the movements the other two officers didn't have that i climbed tacked with the senate and they testified that they saw him look up towards the car and turn but when you have a whole array find a based on the evidence that that it might not have been a picture of climate but you know she he no matter how you read that she's making a practical crying because she wasn't there is a witness so she's making up finding based on the evidence presented i'm reading of that sentence because it is not supported even by davis own testimony he said he was nervous because he had been robbed his defense counsel conceded that he was nervous so how can that not what you know what a person being nervous in appearing nervous or not necessarily the thing you know you should somebody might be nervous they may not you know they they may not appear nervous to somebody else and i have never seen you before i don't know whether you're nervous now or not you know you might be nervous if i can interrupt just one more minute i do so you now look at this what you were trying to tell me the jack shows the officers testimony taken as a whole was unconvincing and then the next sentence if they had no reasonable suspicion to stop davis so i see what you're telling me is that she was just looking at the totality of what they said rather than making a credibility determination yes that's what i was going artfully trying to explain but is that what was unconvincing to her i believe i believe based on her order was the totality of the circumstances weren't there for her and our our claim is that that's because of a legal error because they were taken in isolation and i see that my time is well expired so thank you well consider the case carefully thank you both for your argument and i believe that