good morning my name is molly corbett i'm a system for federal public defender in the northern district of new york and i represent the appellant shaquan walker detroit police officers who committed a stop on september  violated mr walker's th amendment constitutional rights the stop that they committed was without reasonable suspicion and the evidence that was obtained and derived from that stop should have been suppressed in doctrine that the government stresses here on appeal i was not clear about whether this was raised below and just not discussed by the district court or whether the government raised it for the st time on appeal and then i noticed that you didn't claim that it was waived in your papers by the government so what is the status of that argument the government did not raise you ten you ation doctrine at the district court level in it was not discussed by the district court as part of their that right well if wouldn't you have had an opportunity then to develop facts regarding a pap pattern practice of activity by the troy police department that you know the record you make assertions but the record doesn't really support those about  how the police department operates and that didn't come up until until the hearing itself and the government did not bring the actual attenuation doctor in the in the intervening circumstance of identification and i don't know how you could recognise anyone from that and that was part of the part of the argument at the lower level was that the photo itself did not necessarily reveal just distinguishing features the extent that could provide any sort of argument your argument is that there was no reason even for a terrorist absolutely not only was there no reason but the not sufficient according to what the government has raised this case is sufficiently distinct from the supreme court decision in utah which found that an intervening circumstance had attenuated the crim the illegal have reasonable suspicion right the government in st said yes we don't have we still see did end up conceding but that the court itself found that their actions were in good faith as opposed to purposeful or flagrant misconduct which is also factually relevant in this circumstance as judge carney has raised previously by the testimony of the police officers who consistently testified to practice known as a stop out where in an individual is i stopped requested for their identification and then a warrant check is conducted neither of the officers who testified to the standard practice testified that that standard necessarily occurs based on reasonable suspicion which is exactly what happened here officer monta mino ordered two other police officers to stop these two individuals mr walker and mr hopkins without distinguishing either one of them as being the person he resembles reasonably suspected not provide sufficiently distinct recognizable features relevant to either one but according to officer mountain you know it was a combination of both of these factors related to both  identification of a valid arrest warrant was an extraordinary intervening circumstance and that that changed the whole game once the warrant was identified then any previous illegality of the stop was irrelevant also the police conduct here was purposeful officer mountain you know ordered two police officers choose i got i have trouble i mean i'm very sympathetic to your argument that i have probable given what the supreme is the supreme court is really saying to the street and whether what they're saying to us there isn't really meant to apply to th exceptions to the exclusionary rule at the very heart of that exception is the fact that the societal interests has to be out or are going to turn to fact in the societal interest can outweigh that purposefully intercepts individuals subjects them to police questioning obtains their id and runs their names for warrants and so on that situation the justice sotomayor warned against actually warning but i was unclear what in the record supports those assertions that this was a longstanding broad police practice other than some brief testimony about stop stop outs that occasionally stop outs happen in troy was there anything more do you think we may have for example you might be able to was acting or acted upon and if we would appreciate a rematch to further develop if this is something that is a systemic issue within the troy police department a apparently a regular practice for the officer mountain you know and officer st and any were specifically clear about how a stop out was to occur and i would i would point back to their testimony  but start at the moment when these men were stopped out he stops at the time he begins his analysis when they find they weren't well but that's exactly the point of st your honor assuming for purposes of argument that there was not reasonable suspicion for the stock the very brief encounter in the in the neighborhood of a minute before the warrant was discovered  when i wrote in the brief that it was about a minute i cited to the points of the recording submitted by the defense that established those facts would it make a difference if it were ten minutes i don't believe so your honor i know i know unless something had occurred within the ten minutes that made the police conduct so far so on law fall that the rd factor of st are facts that one can develop to determine whether to apply that doctrine and think district court didn't have those before and the defense didn't have an opportunity to develop those facts but the district court did i have those facts before but i would say with respect to waiver your honor that an appellant cannot rely on something not reasonable low to seek a reversal of a district court decision whereas this court isn't titled of stopping people without reasonable suspicion and searching for warrants within a minute and then arresting people based on whether one was identified that might raise some of the concerns that  discussed albeit in the defense in st but that you know were not taken into account in the majority opinion so why why why should we not treat that as waived because it was the defendant's burden to establish any ground in support of suppression of this trick or that the felt was appropriate why would it need to respond to a ground that the government had not raised why isn't  have to do more at that point because they knew as well as anybody else involved in the proceeding below that following the stop the arrest warrant was discovered and could have  not you can't expect people to make an argument against something that hasn't been made i mean it's not that difficult for the government to have said yes this was that but even assuming that it was improper there was attenuation and that the answer it i mean you're going to ask parties to make how their arguments to arguments that haven't been made what what are they going to say but my comments i don't mean to suggest that the government should not have raised the issue please don't construe my comments that way but the facts were known to everybody and i think the argument could have been made not withstanding what you say is that where it's an issue of waiver or not we have a substantial amount of discretion whether we take the argument or law and that you are saying that case where the was not permitted to make an argument because the appellee did not make the argument below and never seen that because i'm entitled to bring to the court's attention any ground now even if it wasn't relied on by the district court that would permit the court to affirm the judgment but here the court actually did determine that there was attenuation i would like to see in a citation to utah strief but the court got it right and for that matter at that point the defendant could use are you cued me let me try to be very clear are you saying that since the that the district court showing a custom and practice and unlawful custom and practice of the tri police department because we didn't argue attenuation but the whole hearing below was addressed to the issue of reasonable suspicion whether it exists or not which  i think you actually government concede there was no reasonable suspicion at the beginning of the stop out i don't concede it but i think you would be certainly well within your rights to say that i have because i didn't try to defend the reasonable suspicion finding by judge not that i don't think that the photograph is sufficient to stop two black men working on this jury no i think the photograph was was sufficient because there was testimony below that the photograph or a light on my detective monte nino was a digital photograph on his phone but let me ask about the phone about the photograph it seemed to me that it wasn't even so clear that the photograph was of someone who was known to have committed a crime well it was taken in the area and the timing wasn't clear what sergeant martin meant to mean or knew he didn't know where he had been taken i think and he did not know about its relationship to suspect number two so his own knowledge about what the photograph even signified was to use were it attenuated i agree with you wholeheartedly and that's one of the reasons i did not argue as i thought you might ask me why is there this whole discussion of collective knowledge in my briefing and i don't do it but i threw it out there because that's the difficult part about whether there was reasonable suspicion or not in other words presumably the detective who forwarded that photograph throughout the to a police department had had reasonable suspicion to believe that this individual was involved in the shooting or wouldn't have sent the photograph the government did not present that evidence so the question becomes can detective monta mino draw a reasonable inferences about why the photograph was provided to him weren't written and i'm not so i'm not i'm not certain what the answer that question is your honor i think  reason that it's not a very strong argument right because obviously tulisa are entitled to draw reasonable inferences from the conduct they observe i don't know if that applies so there's or they were simply walking right i'm not trying to say that anything that my problem with that is with that that any time some policeman tells some other policeman go and stop somebody the person draw reasonable inference that the st one had that right and that just doesn't seem to me a lot of and i agree and i was not comfortable enough with the intricacies of the collective knowledge doctrine to prohibited if there was no reasonable suspicion no that's the whole point of utah obvious treif your honor with all due respect that in the event and in in utah is the same situation the detective thought he had or a police officer thought he had reasonable suspicion to stop an individual who had left the house that the detective believed was used for drugs and once he got in once he made his terry stop he learned of an outstanding warrant for the individual you'd stop but that's the reason that's not really very well developed in the street decision i mean what we know is the government conceded to paint the house and been under surveillance for a week people been coming and going and been conforming to the standard profile of a drug distribution center and here in contrast it's hard to see that there is any basis at all between a stop it's a distinction without a difference here that's because it doesn't matter why there wasn't reasonable suspicion leaving aside a question of whether there was flagrant abuse of conduct by the police but i don't think there's any question but that the police here acted reasonably even if there wasn't reasonable suspicion they might have made a mistake in stopping this defendant but they were reasonable in the way they did it and why they did it so it really doesn't matter why there was not i'm not so sure of it i would if they were reasonable but you say it was not outrageous in the sense was my permit right but did the government contest that there was such a stop out kind of program that was testified to by two the officers i don't think the way i read the short answers and no i don't believe so your honor but i'm sorry no you don't contest it or no you believe there was no such program well i don't if there was such a program i do believe there was such a program but it's like saying you know when we want to go into a house and search we search a house or when we have a restaurant we go arrest people no one said that the police as a matter of practice without reasonable suspicion stop people on the street and make them give identification that's what happened here you admit they didn't have reasonable suspicion yet yes why would they stop him yes your honor but  i'm conceding that but my point is that there is no evidence that there was a practice of stopping people without the requisite level of suspicion yes we have a practice of stopping people and asking them for identification have to talk about practice necessarily we have this case in front of us well you can see there was no reasonable suspicion the photograph is not revealing enough to identify any of these two either of these two black men there was no reasonable suspicion this would have been able to ask for the id and they said have been able to do words there's i'm with you up to the last point you're on a course well but but but but take it up with the supreme court and i'm not being flip you know utah the streets says that this is permissible just to say you can stop without reasonable suspicion it says that if you make that mistake and then learn of the warrant you may search you can search pursuant to the war that's where you and i disagree with all the structure on or that's the whole point of utah obvious treif subject to judge c record street is on all fours with this case it is indistinguishable but real industry this man was coming out of a known during house is now correct it but it  the officer believed it was and that's what gave rise to the reason there's no comparable belief here with two guys walking on the street well yes there is your honor but this doesn't matter you taking me down a road that does not matter because the reasonableness of the officer's actions here are they have a photograph officer detective mark sergeant monti mino saw these individuals on the street stopped his car reviewed the photograph made a determination it was as soon sufficient similarity to find out if one of these two people was the person depicted in the photograph now is a reasonable action but if he's wrong it doesn't matter for the same reason it doesn't matter in utah obvious treif and in st the court pointed to an exception if there is flagrant misconduct and it gave us the reason exactly what judge pooler is pointing to that this was inside house's occupants religion at least suspected of dealing drugs it was not a suspicion this fishing expedition and the concerns we've raised about the photos suggest and the the stop that practice that was testified to suggest this is more in the line of flagrant misconduct and it was but the supreme court distinguished as a suspicion as a fishing expedition concern that was r here about the quality of the photo i'm referencing scorebook is misleading because we're looking at a photo copy the photo one of the problems that was discussed in the hearing was that that digital photograph no longer existed and there was discussion about whether the testimony would be allowed to occur the photograph that you are looking at just to return to the distinctions between strafe and our case in st the supreme court specifically found that the officer was negligent that his act and that his acts were negligent in stopping mr serif in this case we had a purposeful stop whether or not there was reasonable suspicion or not our facts supporting the stop officer monta mino was going to stop those two individuals and he ordered officers  not negligence or if officer munson you know believed he had reasonable suspicion this is still factually distinct because of the the actual amount of time   walker preceded the decision to or or whatever was going to happen after that there was no causal chain to stop and the dissipation of the reasonable suspicion by the time the officers converged on him and looked at the phone also make this factually just sink because there was nothing there for them to continue into the next segment of their activity with blackmail and they had to blackmail standing in front of them and they damn well going to exactly i well you know they compared the photo to mr hawkins his companion and let him go now whether or not that happened and you know that didn't happen until after the warrant search had been done so whether there was even a basis to just you know to compare that and say that they were not the individuals  is a question but from the testimony it's apparent that they did do that with mr hawkins and let him go so why that didn't dispel the reasonable what a reasonable suspicion they thought they had  is you know a question for this court as well i just want to say as far as the quality of photograph is concerned that was on the government to present that at the hearing and the question was raised and you know lower council did object to the quality and the fact that you know this stop was based on something that was coming off a four and a half inch i phone screen so to hold that against us this case i would respectfully request that this court reversed thank you thank you both very