[00:00:04] Speaker 01:
All right, we are now looking at the remainder of our docket, which is actually, let's see, one, two, three, four, five cases, but two have been submitted on the briefs.

[00:00:17] Speaker 01:
So we will hear the next three cases.

[00:00:23] Speaker 01:
We may or may not take a break, I guess.

[00:00:25] Speaker 01:
We'll see how it goes.

[00:00:26] Speaker 01:
I'll call the first case, which is case number 24.

[00:00:33] Speaker 01:
1200, Gonzalez versus Brunner.

[00:00:48] Speaker 03:
Good morning.

[00:00:49] Speaker 03:
May it please the court.

[00:00:50] Speaker 03:
My name is Michael Axelrad.

[00:00:52] Speaker 03:
Together with co-counsel Sean Reinhart, I represent the appellant, Cody Brunner.

[00:00:58] Speaker 03:
We have an opportunity now to continue to explore the idea of reasonableness in the actions of police officers.

[00:01:08] Speaker 03:
This is a qualified immunity case, a civil matter rather than criminal, of course.

[00:01:12] Speaker 03:
And we're asking the court simply to apply the rules it has developed, especially the two-part Harlow test with the two prongs.

[00:01:22] Speaker 03:
No, the first problem, was there a violation of a constitutional right?

[00:01:26] Speaker 03:
In this case, we have a patrol officer who was alerted to a problematic situation with a property where there was a complaint by a neighbor.

[00:01:37] Speaker 02:
Well, that was a while before the stop occurred, right?

[00:01:40] Speaker 03:
I'm sorry.

[00:01:42] Speaker 02:
The officer was alerted to a problematic situation before, weeks before the stop occurred, at the time the stop occurred.

[00:01:49] Speaker 02:
He did not have any information about that particular individual in the case, right?

[00:01:56] Speaker 03:
That is correct.

[00:01:57] Speaker 03:
It was a situation where the neighbor said that there were a number of different people coming to and from the property.

[00:02:05] Speaker 03:
Some of them seemed to be entering the property, some of them loitering in the yard.

[00:02:09] Speaker 03:
She was concerned about drug transactions taking place there.

[00:02:14] Speaker 03:
A reasonable patrol officer, of course, is going to determine that he's going to keep an eye on the property.

[00:02:19] Speaker 03:
And if only six days later, he sees two individuals in the yard

[00:02:24] Speaker 03:
He makes a determination that he's going to stop and simply ask questions.

[00:02:28] Speaker 03:
This is a prototypical Terry stop.

[00:02:32] Speaker 03:
It's not an intrusive, it's not an unreasonable intrusion on the individual's liberties there.

[00:02:40] Speaker 03:
It's simply to, oh, by the way, I forgot to mention I would like to reserve three minutes for rebuttal.

[00:02:47] Speaker 03:
But in terms of his actions, he saw the individuals in the yard on private property.

[00:02:54] Speaker 03:
And this is distinguished from a number of cases where you see an individual in the public right of way.

[00:03:00] Speaker 03:
In this case, seeing them in the yard immediately, there's a concern that they are committing trespass.

[00:03:07] Speaker 01:
The officer merely decides- The Supreme Court has said that we have a license, essentially, we all do, to walk up to a residential property, to a private property.

[00:03:16] Speaker 01:
Walk up to the door and knock and remain there long enough to at least see if there's any response or if you're invited in.

[00:03:24] Speaker 01:
It doesn't really matter that it's a private property.

[00:03:27] Speaker 01:
You have an implied license to do that.

[00:03:30] Speaker 01:
And so did these individuals.

[00:03:33] Speaker 03:
Well, that's a question that is open at the time that he sees the individuals there, given the knowledge of the property.

[00:03:40] Speaker 01:
Right.

[00:03:40] Speaker 01:
He doesn't know, is my point.

[00:03:42] Speaker 01:
He doesn't know why they're there.

[00:03:45] Speaker 01:
So it's perfectly fine for him to go up and check to see and ask questions if he can.

[00:03:51] Speaker 01:
But then he seizes them.

[00:03:52] Speaker 01:
And there's no, doesn't seem to be any question on appeal that there was a seizure.

[00:03:56] Speaker 03:
Let's clarify that.

[00:03:57] Speaker 01:
He tells them to stay there and, you know,

[00:04:01] Speaker 01:
He proceeds from there.

[00:04:02] Speaker 01:
Once there's a seizure, he needs reasonable suspicion, and nothing's really changed at that point.

[00:04:09] Speaker 03:
That is correct.

[00:04:09] Speaker 03:
The reasonable suspicion is that he sees individuals on a property where he has a report from a neighbor and his own inspection of the property.

[00:04:20] Speaker 01:
Six days before, he has a report from a neighbor, not a report of criminal activity.

[00:04:24] Speaker 01:
He himself doesn't know whether it's vacant or not vacant.

[00:04:31] Speaker 01:
So how does that establish that these individuals didn't have an implied license to be on that porch?

[00:04:40] Speaker 01:
And he saw nothing.

[00:04:41] Speaker 01:
He saw nothing other than them on the porch.

[00:04:44] Speaker 03:
under Terry and under Arvisu, the possibility that there is innocent conduct does not invalidate the decision to make that initial stop.

[00:04:55] Speaker 03:
And simply to question.

[00:04:57] Speaker 03:
Now, in this case, yes, there was a seizure after that.

[00:05:00] Speaker 03:
But that was only after a few questions were asked by the officer, followed by the appellee's attempt to flee.

[00:05:10] Speaker 03:
And after that time, when he sees these are issues that the district court said are beyond the matters on appeal, and that the only issue on the appeal was the decision to make that initial stop.

[00:05:23] Speaker 02:
What happens after they fled is not on appeal, correct?

[00:05:27] Speaker 03:
That is correct.

[00:05:28] Speaker 03:
It's only that initial decision.

[00:05:30] Speaker 03:
And whether the officer, at the time that he sees individuals on this property with the knowledge that he has, whether that's a reasonable suspicion to initiate a Terry stop,

[00:05:39] Speaker 02:
What are the facts in the record that support this officer having a reasonable suspicion of any criminal activity by this particular individual that was seized, or the two people that were seized?

[00:05:55] Speaker 03:
None by the particular individual, but the report was of trespassers, a number of people coming to and from the property.

[00:06:03] Speaker 03:
Reasonable suspicion does not have to point to that individual in order to justify that initial stop to ask questions.

[00:06:11] Speaker 03:
And that's all this was, a stop to ask questions of the individuals as to why they were on the property.

[00:06:17] Speaker 03:
Given that this is a limited intrusion, we think that this is squarely within the confines of a tariff stop.

[00:06:25] Speaker 03:
And in fact, it is supported by this court's decision in Jones v. Manriquez, where seeing someone on private property with reasonable suspicion justifies a stop.

[00:06:38] Speaker 02:
But wasn't there particularized information about the individual who was stopped in that case?

[00:06:46] Speaker 03:
There may have been, but that's not the determinant factor here.

[00:06:48] Speaker 02:
Why isn't it?

[00:06:49] Speaker 02:
It feels to me like it might be.

[00:06:51] Speaker 02:
Why isn't it the determinant factor that you have

[00:06:53] Speaker 02:
This officer has some reason to call about this property six days before, but on the day of the patrol, what was the reasonable suspicion as to these particular individuals that would make this seizure lawful?

[00:07:11] Speaker 03:
I don't see that there is any.

[00:07:13] Speaker 03:
case law or support for the proposition that reasonable suspicion has a shelf life of five days or less.

[00:07:22] Speaker 03:
If there are suspicions of actions on the property, why is it not reasonable just one week later to take that action as a patrol officer?

[00:07:30] Speaker 01:
Because it's not particularized.

[00:07:32] Speaker 01:
We have to have particularized suspicion.

[00:07:35] Speaker 01:
And in the Jones versus Manrique's case, which you just mentioned,

[00:07:38] Speaker 01:
There was there was more in fact that particular Individual had been was parked at 1 30 a.m.

[00:07:46] Speaker 01:
In a courier space in a private apartment Parking lot and they ran his tags, and he was not registered did not live at that apartment So there were several things beyond just being parked in an apartment, but at the time that those were those were found to be particularized and what we're trying to ask you here is

[00:08:06] Speaker 01:
What particularized suspicion did this officer have?

[00:08:11] Speaker 03:
Information from the neighbor that there was trespassing going on at this property.

[00:08:17] Speaker 01:
By who knows who seven days before.

[00:08:19] Speaker 01:
And the neighbor didn't say trespassing.

[00:08:22] Speaker 01:
The neighbor just called and said some suspicious activity.

[00:08:26] Speaker 01:
Didn't suggest any criminal activity.

[00:08:29] Speaker 01:
And the officer, when he went by, found no one there.

[00:08:33] Speaker 01:
So that's what you got.

[00:08:35] Speaker 03:
OK, there was a suspicion of drug activity that was mentioned, people entering and leaving the property.

[00:08:42] Speaker 03:
I'm going to just return to, I understand your skepticism about this point, but I'm going to return to.

[00:08:48] Speaker 01:
Well, I'm still asking about the particular suspicion as to this individual who was there seven days later on the front porch, and he saw nothing other than him on the front porch briefly.

[00:09:03] Speaker 03:
But that does not invalidate.

[00:09:05] Speaker 01:
And I'm sorry.

[00:09:06] Speaker 01:
I don't think it was the front porch.

[00:09:07] Speaker 01:
I think it was a side.

[00:09:08] Speaker 03:
It was a side door, yes.

[00:09:11] Speaker 03:
This does not invalidate the action of a police officer investigating whether there is a crime going on to stop and ask a couple.

[00:09:19] Speaker 02:
But the particularized requirement attends to the person, not the offense.

[00:09:24] Speaker 02:
I mean, you have to have particularized suspicion that the person stopped

[00:09:32] Speaker 02:
engaged in criminal activity.

[00:09:34] Speaker 02:
It can't just be criminal activity as a foot, right?

[00:09:36] Speaker 02:
I mean, that's well settled.

[00:09:38] Speaker 03:
No, it can be criminal activity in general of a particular type in these particular circumstances.

[00:09:44] Speaker 03:
Particularized suspicion does not require that you have information about one particular individual.

[00:09:50] Speaker 03:
If

[00:09:51] Speaker 03:
If there is a suspicion that people are breaking into the property, engaging in illegal activity at the property, we are simply talking about an officer seeing an individual on the property and stopping and asking questions.

[00:10:06] Speaker 03:
That's all this is on the reasonable suspicion.

[00:10:10] Speaker 03:
Now, on the flip side of this, if you look at the qualified immunity on the second prong, do we have any information from the

[00:10:21] Speaker 03:
from the appellee that there is any case that says that in these circumstances, it's clearly established that this is an intrusion on the appellee's constitutional rights.

[00:10:34] Speaker 02:
What are the circumstances?

[00:10:35] Speaker 02:
Because when we look for clearly established law, we have to have a really precise understanding of what the constitutional right is that is at issue for the first prong.

[00:10:44] Speaker 02:
So what is your understanding of what the constitutional violation here is such that there is no clearly established law

[00:10:51] Speaker 03:
The constitutional principle that we're talking about is whether this was an unreasonable seizure based upon seeing him on the property at the time, a property where the officer had suspicion, where he had been tracking that property for suspicious activity.

[00:11:13] Speaker 03:
Clearly established is

[00:11:17] Speaker 03:
Is there any pronouncement from this circuit or from the Supreme Court that in these circumstances, the officer cannot?

[00:11:26] Speaker 01:
How about state versus Davis?

[00:11:29] Speaker 01:
District court relied on state versus Davis.

[00:11:31] Speaker 01:
Let's talk about that one.

[00:11:33] Speaker 03:
I'm not sure which one that is.

[00:11:34] Speaker 01:
State versus Davis, where the individual is walking outside in proximity, very close to what was known to be a criminal establishment.

[00:11:44] Speaker 01:
Liquor I think or okay.

[00:11:46] Speaker 01:
Oh, this is walking down the street right and he was in proximity he was in proximity and he had he was He made and broke eye contact with the officers as he was walking away had his hands in his pockets And he had a known criminal history and we said being in proximity to a criminal establishment along with these other even with a criminal history is is simply not enough

[00:12:12] Speaker 01:
What we have here is someone in proximity or on the steps of a private home with an apparent implied license to be there.

[00:12:23] Speaker 01:
And we don't know anything about this person.

[00:12:26] Speaker 01:
We know nothing.

[00:12:27] Speaker 01:
We don't know if he had a criminal history.

[00:12:29] Speaker 01:
We know nothing.

[00:12:29] Speaker 03:
Trespass is a criminal act under Colorado statute and under the Greeley Municipal Code.

[00:12:35] Speaker 03:
In these circumstances where he sees individuals not walking on the sidewalk, not close to an establishment, but on the property, there is no case that says that in these circumstances, the officer cannot stop and ask those questions.

[00:12:53] Speaker 01:
And I see my time.

[00:12:54] Speaker 01:
Oh, he's welcome to stop and ask questions.

[00:12:55] Speaker 01:
That's not the issue we have here.

[00:12:59] Speaker 01:
Stopping to ask questions isn't the problem.

[00:13:01] Speaker 01:
It's when he sees this individual, did he have reasonable suspicions.

[00:13:04] Speaker 01:
So your time is up.

[00:13:05] Speaker 01:
OK.

[00:13:05] Speaker 03:
Yeah, I see him, yeah, in my rebuttal time.

[00:13:09] Speaker 01:
Yeah, you don't have any.

[00:13:11] Speaker 03:
OK, I will answer that question then.

[00:13:12] Speaker 01:
Thank you.

[00:13:16] Speaker 01:
Do you want to keep your time?

[00:13:17] Speaker 01:
I'm sorry.

[00:13:19] Speaker 01:
You did want to save?

[00:13:19] Speaker 01:
I shouldn't have interrupted there.

[00:13:22] Speaker 03:
No.

[00:13:23] Speaker 03:
I beg your pardon?

[00:13:23] Speaker 01:
Did you want to save your rebuttal time?

[00:13:25] Speaker 01:
I shouldn't have.

[00:13:26] Speaker 01:
Oh, yes, I did.

[00:13:26] Speaker 01:
I shouldn't have forced you to do that.

[00:13:28] Speaker 01:
I apologize.

[00:13:28] Speaker 01:
I did want to say that.

[00:13:29] Speaker 01:
I should have asked my colleagues if there's any other questions.

[00:13:31] Speaker 01:
And I'm just.

[00:13:32] Speaker 03:
Well, honestly, if there are other questions at this time, I will take them.

[00:13:36] Speaker 03:
But otherwise, it will save the time for rebuttal.

[00:13:39] Speaker 01:
All right.

[00:13:39] Speaker 01:
And I apologize for that.

[00:13:40] Speaker 03:
Thank you.

[00:13:52] Speaker 00:
Good morning.

[00:13:53] Speaker 00:
May it please the court.

[00:13:54] Speaker 00:
My name is John Graham and I represent the plaintiff appellee Victor Emanuel Treviso Gonzalez.

[00:14:01] Speaker 00:
An officer's prior knowledge of suspected criminal activity in an area does not allow him to later detain anyone seen in that area.

[00:14:11] Speaker 00:
And that's exactly what happened in this case.

[00:14:13] Speaker 00:
For two decades, it has been clearly established that an individual's mere presence in an area associated with criminal activity standing alone does not rise to the level of reasonable suspicion.

[00:14:26] Speaker 00:
It has been applied in this circuit in a myriad of factual circumstances that are

[00:14:31] Speaker 00:
materially similar to this case and often involving far more facts than were available to Detective Brunumer at the time he made the decision to stop and detain Mr. Trevizo-Gonzalez.

[00:14:43] Speaker 02:
Can you help me with something?

[00:14:47] Speaker 02:
How are we supposed to be thinking about the private-public distinction that the appellant teases out of the cases here?

[00:14:55] Speaker 00:
Absolutely, Your Honor.

[00:14:56] Speaker 00:
I don't think it makes any difference under the particular facts of this case, and really for two reasons.

[00:15:01] Speaker 00:
One, the Fourth Amendment requirement for reasonable suspicion doesn't turn on where someone is located.

[00:15:08] Speaker 00:
It applies equally on private property as it does on public property.

[00:15:11] Speaker 00:
Law enforcement still need to have a particularized basis of suspected criminal activity.

[00:15:18] Speaker 00:
But more pointedly to the facts here,

[00:15:21] Speaker 00:
Mr. Treviso Gonzalez, at the time he was observed, was observed on this readily accessible doorstep to the property, one that is visible from the street, visible from the sidewalk, where the driveway is between the sidewalk and the doorway.

[00:15:36] Speaker 00:
It is not an unusual, it wouldn't be unusual for any member of the public to approach that door, knock on the door, see if someone's home, an absent invitation to linger longer, leave.

[00:15:48] Speaker 02:
Is it uncontested that it's private property?

[00:15:51] Speaker 00:
Yes, it was a residence.

[00:15:53] Speaker 00:
It was a residence.

[00:15:55] Speaker 02:
Was it vacant?

[00:15:56] Speaker 02:
I guess what I'm trying to think through is the reasonableness of objectively, would you be knocking on the door

[00:16:04] Speaker 00:
I mean, here's what I can tell the court.

[00:16:06] Speaker 00:
I mean, based on the facts that are relevant to this case, I don't think it's known whether the property is vacant.

[00:16:13] Speaker 00:
Obviously, the exhibit that was submitted to the court I think contains the officer's entire body worn camera footage, but nothing after the detention matters here.

[00:16:21] Speaker 00:
But I think it ultimately was determined at that point that the house was vacant and officers at some point made a decision to call the property owner.

[00:16:30] Speaker 02:
So if the record supports the house was vacant, how should we be thinking about the implied license line of cases?

[00:16:38] Speaker 00:
Well, I just want to clarify that I still don't think that it's known that the house is vacant for purposes of determining whether there was reasonable suspicion.

[00:16:45] Speaker 00:
Detective Brunner did not know that the house was vacant at the time he made the stop.

[00:16:50] Speaker 01:
He suspected it was vacant and he had a reason to suspect it was vacant, right?

[00:16:55] Speaker 00:
Yes.

[00:16:56] Speaker 00:
I think he had a reason to suspect it was vacant.

[00:16:58] Speaker 00:
But the fact that it's just a mere suspicion, I think quite easily distinguishes this case

[00:17:03] Speaker 00:
from even those lines of cases where the United States Supreme Court and the 10th Circuit have said presence in an area that's actually known to have criminal activity by itself is not sufficient.

[00:17:15] Speaker 00:
This case is even less.

[00:17:17] Speaker 00:
But to turn back to your point about the difference there,

[00:17:24] Speaker 00:
there isn't a difference.

[00:17:26] Speaker 00:
Even if the house is vacant, you have an implied license to approach a residence to knock on the door and see if anyone is home.

[00:17:33] Speaker 00:
And there's nothing in the record to suggest Mr. Trevizo Gonzalez knew the house was vacant.

[00:17:39] Speaker 00:
He was just approaching the door and knocking on the door.

[00:17:42] Speaker 00:
And that's what he told Detective, that's what he and the other individual told Detective Brunner when they contacted him.

[00:17:46] Speaker 00:
We're just knocking on the door.

[00:17:48] Speaker 00:
And Detective Brunumer testified in his deposition that it is not trespass to approach a residence and knock on the door or ring the doorbell even at night.

[00:17:57] Speaker 00:
Detective Brunumer was aware of this implied license that both the United States Supreme Court and this circuit have recognized.

[00:18:07] Speaker 01:
But don't you have a problem with the clearly established prong because the cases that the district court relied on, you cited, they do all involve public property.

[00:18:17] Speaker 01:
Where someone's in proximity not even you know in that in?

[00:18:22] Speaker 01:
A facility itself or a building itself there.

[00:18:25] Speaker 01:
They're walking along the sidewalk or they're nearby it and they have some other Right and judge.

[00:18:32] Speaker 01:
I do think we satisfied the second prong of the clearly isn't like any of those cases Can you point to any case like this case?

[00:18:39] Speaker 00:
I think Jones v. Manriquez is awfully close and in the fourth published isn't it I?

[00:18:44] Speaker 00:
It is correct.

[00:18:45] Speaker 00:
That is correct.

[00:18:45] Speaker 00:
It is unpublished, Your Honor, but it is applying clearly established principles of law to a factual circumstance, plainly obviously unconstitutional stop.

[00:18:59] Speaker 01:
Jones v. Manriquez, we found it constitutional.

[00:19:02] Speaker 00:
Yes, that's right.

[00:19:02] Speaker 00:
Based on the particularized facts.

[00:19:04] Speaker 01:
So how does that support you here?

[00:19:06] Speaker 00:
Well, I think it highlights the difference in this case.

[00:19:08] Speaker 01:
Those are facts that we have found are enough on private property.

[00:19:13] Speaker 00:
Correct.

[00:19:14] Speaker 00:
And the critical distinction in that case though is that there were particularized facts.

[00:19:18] Speaker 00:
This court said that the parking garage's history of trespass

[00:19:22] Speaker 00:
and Mr. Jones is present there, standing alone would not be enough.

[00:19:26] Speaker 00:
This court said that.

[00:19:27] Speaker 00:
But the officers went on to determine he was parked in a reserved spot for a business that was closed.

[00:19:34] Speaker 00:
And the officers ran his license plate, Mr. Jones's license plate, and determined that his car was not registered to a property in the area.

[00:19:43] Speaker 00:
Armed with those particularized facts to Mr. Jones, this court did find reasonable suspicion.

[00:19:48] Speaker 00:
But in this case,

[00:19:49] Speaker 00:
There are simply no particularized facts to Mr. Trevizo-Gonzalez.

[00:19:53] Speaker 02:
So is it your position that we're construing the constitutional violation at a fairly high level of generality here such that for the second prong, the ordinary, well-settled principles would apply in terms of officers need reasonable suspicion to stop people?

[00:20:11] Speaker 00:
Well, I think in this circuit, this court has taken these principles, these high level principles of officers need reasonable suspicion to make a Terry stop.

[00:20:20] Speaker 00:
The suspicion needs to be particularized to the individual detained.

[00:20:24] Speaker 00:
And that mere presence in an area simply associated with criminal activity is never enough.

[00:20:29] Speaker 00:
This circuit has applied those principles in a number of factual circumstances.

[00:20:33] Speaker 00:
This court talked about United States v. Davis when my colleague was arguing to the court.

[00:20:40] Speaker 00:
In that case, this court is saying that a known gangster can't be stopped for suspicion of possession of a gun just because he happens to be in a location where shootings occur.

[00:20:50] Speaker 00:
In Romero v. Story, this court is saying that an individual can't be stopped on suspicion of vandalism simply because he is in a parking garage at the time vandalism occurred.

[00:20:59] Speaker 00:
And United States v. Dell, admittedly unpublished, but another case with some very important facts saying that an individual can't be stopped on suspicion of

[00:21:10] Speaker 00:
breaking into a car just because he's looking in a car window in a part of town where car break-ins are known to occur.

[00:21:16] Speaker 00:
And so these cases, I think, quite clearly apply these principles of law in factual circumstances that, one, present with more contextual information about the area that the stop occurred in than in this case.

[00:21:32] Speaker 00:
Because in all of those cases, the location was known to have criminal activity at the time.

[00:21:38] Speaker 00:
In this case,

[00:21:39] Speaker 00:
Nothing about this property was known other than there was a call six days before the stop where a concerned citizen suspected some goings on there and suspecting some people coming and going.

[00:21:51] Speaker 00:
And when Detective Brunumer went to investigate it that night, there was nothing corroborating it.

[00:21:55] Speaker 02:
Is the time really a problem?

[00:21:58] Speaker 02:
I mean, six days isn't six weeks.

[00:22:00] Speaker 02:
And how should we be thinking about that for purposes of the totality analysis here?

[00:22:05] Speaker 00:
It's certainly important in the totality analysis.

[00:22:07] Speaker 00:
I don't think it's determinative.

[00:22:10] Speaker 00:
There is a time difference between there, coupled with no identification of the individuals who were observed, no corroboration by Detective Brunumer of what was observed at the suspected vacant residence, and then six days later, observing someone who is doing something that any member of the public would have an implied license to do and not doing anything else.

[00:22:33] Speaker 00:
I mean, Detective Brunumer wasn't called there.

[00:22:37] Speaker 00:
He was on routine patrol.

[00:22:38] Speaker 00:
There wasn't a report of suspicious activity.

[00:22:40] Speaker 00:
There wasn't a report of an unwanted person.

[00:22:42] Speaker 00:
There wasn't a report of any bothersome activity.

[00:22:45] Speaker 00:
In a moment, he saw Mr. Treviso Gonzalez there.

[00:22:49] Speaker 00:
He didn't even know whether Mr. Treviso Gonzalez was loitering or lingering.

[00:22:55] Speaker 00:
He didn't see him

[00:22:56] Speaker 00:
tampering with the door handle, peering in the windows.

[00:22:59] Speaker 00:
I mean, nothing.

[00:23:00] Speaker 00:
He was not doing, there was no information available to Detective Brunumer that in any way, shape or form would indicate that Mr. Trevizo Gonzalez was exceeding the scope of the implied license that Detective Brunumer knew about and said that it is not trespassed to do to go up to a door, knock on the door and see if anyone is home.

[00:23:20] Speaker 00:
But the information Detective Brunumer knew about the property is absolutely important, and it's not something that was overlooked by the trial court in any way, shape, or form.

[00:23:31] Speaker 00:
And Detective Brunumer argues that the trial court substituted its judgment for the officer and disregarded certain facts, but nowhere in his briefing does Detective Brunumer identify a fact that the court disregarded.

[00:23:46] Speaker 00:
What Detective Brunumer's complaint is about the trial court's analysis is that the trial court reached a different conclusion than he did.

[00:23:55] Speaker 00:
The court determined on those facts there was not reasonable suspicion where Detective Brunumer determined that he suspected Mr. Trevizo Gonzalez was trespassing.

[00:24:05] Speaker 00:
That's a legal conclusion.

[00:24:06] Speaker 00:
Neither this court nor the trial court

[00:24:09] Speaker 00:
needed to defer to Detective Brunumer's conclusion on that point is the court's job to look behind the hood, look at what are the facts that the officer is relying on to make this decision, and would an objective officer, would a reasonable officer, reach that conclusion?

[00:24:26] Speaker 02:
So what's the way that you would urge us to dispose of that argument in that the district court used this blatantly contradicted

[00:24:36] Speaker 02:
language which doesn't seem to be apt according to...

[00:24:40] Speaker 02:
Your view, if I understand your view, it's that, well, you're not going to defer to a legal conclusion.

[00:24:45] Speaker 00:
Yes, Judge.

[00:24:46] Speaker 00:
And I think that's really what the trial court used the blatantly contradicted standard in that footnote.

[00:24:53] Speaker 00:
But that's really not what the court was doing.

[00:24:56] Speaker 02:
It was rhetorical.

[00:24:57] Speaker 02:
It wasn't legal.

[00:24:59] Speaker 00:
I just think the fact that the court used that phrase was just the term that the court used to do.

[00:25:05] Speaker 00:
I don't think there was any error in any way, shape, or form associated with that.

[00:25:09] Speaker 00:
I think what the court is trying to articulate when it said that was, I've looked at the body cam.

[00:25:14] Speaker 00:
I've read the deposition testimony.

[00:25:16] Speaker 00:
I don't see how Detective Brunner can't articulate facts that would lead to a reasonable conclusion that Mr. Trevizo-Gonzalez was trespassing.

[00:25:27] Speaker 02:
Is the district court or officers entitled to any deference when it comes to their views of what crime might be?

[00:25:35] Speaker 00:
Officers are entitled to some, the court shouldn't judge the officer's conduct with 20-20 hindsight.

[00:25:42] Speaker 00:
So yes, officers do get some deference in their factual determinations.

[00:25:47] Speaker 00:
But what Detective Brunumer's complaint is about the trial court's analysis is not with a factual conclusion.

[00:25:53] Speaker 00:
The only fact Detective Brunumer points to is, I received this call on the 29th.

[00:25:58] Speaker 00:
I thought that people were trespassing there.

[00:26:01] Speaker 00:
I suspected people were trespassing there.

[00:26:03] Speaker 00:
And six days later,

[00:26:04] Speaker 00:
I saw Mr. Trevizo-Gonzalez and I stopped him.

[00:26:06] Speaker 00:
I mean, those are the only facts he points to.

[00:26:08] Speaker 00:
He doesn't point to any other facts in any of this briefing.

[00:26:12] Speaker 00:
And so that's not something that's entitled to deference.

[00:26:16] Speaker 00:
And he hasn't put forth anything else that would be entitled to some deference from either this court or from the trial court.

[00:26:23] Speaker 00:
And the final point that I want to make is that

[00:26:27] Speaker 00:
The qualified immunity analysis does not require an identical case.

[00:26:32] Speaker 00:
Even the Supreme Court in Westby, the cases that say that in the Fourth Amendment context, we need to get a little bit closer.

[00:26:39] Speaker 00:
Even in that case, an identical case is not required.

[00:26:43] Speaker 00:
All that is required is that an officer acting under similar circumstances be found to have violated the constitutional right.

[00:26:49] Speaker 00:
And we have that in this case under the cases that I have cited to the court today and in our briefing.

[00:26:57] Speaker 00:
The contours of the right to be free from an unreasonable seizure lacking particularized suspicion is clearly established.

[00:27:06] Speaker 00:
And it has been applied in these cases that are quite close in material respects.

[00:27:13] Speaker 00:
And I think this case does illustrate why the qualified immunity analysis shouldn't be a scavenger hunt for a case with identical facts.

[00:27:22] Speaker 00:
Because in cases where there were more contextual

[00:27:27] Speaker 00:
information known to the officers.

[00:27:29] Speaker 00:
And by that, I mean, the area was more full of criminal activity than it was known to be in this case.

[00:27:36] Speaker 00:
And where the individuals were doing things that might be looked at as suspicious, diverting their eyes.

[00:27:42] Speaker 02:
Let me ask you one question on that, circling back to the private public distinction.

[00:27:46] Speaker 02:
So your logic would then compel us, I think, to conclude that the private public distinction is not one of those material

[00:27:56] Speaker 02:
facts that should deter us from relying on or endorsing the district court's reliance on cases about public stops and seizures on public right of ways.

[00:28:07] Speaker 02:
Is that a fair understanding of your position?

[00:28:09] Speaker 00:
That is on the facts of this case.

[00:28:12] Speaker 00:
It may be, you know, if Mr. Treviso Gonzalez was standing by the back fence to the house, maybe the analysis would be different.

[00:28:18] Speaker 00:
If he was lingering by the garage, maybe the analysis would be different.

[00:28:22] Speaker 00:
If he was sitting down in the front yard, maybe the analysis would be different.

[00:28:26] Speaker 00:
But here he's observed in a moment doing what anyone

[00:28:30] Speaker 00:
has the ability to do.

[00:28:32] Speaker 00:
Girl scouts, solicitors, any person has the ability to approach a house, and here there are simply no facts to suggest he was doing anything other than that.

[00:28:42] Speaker 00:
And so I see that I'm out of time.

[00:28:44] Speaker 00:
I ask the court affirm the order of the trial court in this case.

[00:28:48] Speaker 00:
Thank you.

[00:28:49] Speaker 01:
Thank you.

[00:28:50] Speaker 03:
Rebuttal?

[00:28:57] Speaker 03:
Thank you.

[00:29:00] Speaker 03:
It's 10 at night.

[00:29:01] Speaker 03:
The house is dark.

[00:29:03] Speaker 03:
What we're talking here about here is whether an officer patrolling that neighborhood

[00:29:09] Speaker 03:
can view that as potentially suspicious enough to make the determination that he's going to stop and ask questions.

[00:29:17] Speaker 03:
Now, asking questions was not the seizure.

[00:29:19] Speaker 03:
That was just an informal contact with these suspects.

[00:29:24] Speaker 03:
But when he asks for identification and goes to run those and steps back out of his car before he can do anything else,

[00:29:33] Speaker 03:
The appellee is fleeing on his bicycle.

[00:29:36] Speaker 03:
And at that point, the officer determines that there is enough to stop him and seize him at that point.

[00:29:44] Speaker 03:
The court made it clear though, that the case turns on whether there was a reasonable suspicion to make that initial contact.

[00:29:53] Speaker 02:
Wasn't the seizure when he was the officer told Mr. Gonzalez, don't move?

[00:30:00] Speaker 03:
Yes.

[00:30:01] Speaker 03:
Yes.

[00:30:02] Speaker 02:
So what happened with the flight does not inform our understanding of the reasonable suspicion analysis at issue here.

[00:30:08] Speaker 02:
Is that right?

[00:30:09] Speaker 03:
That's correct.

[00:30:10] Speaker 03:
That is not part of the... The flight was not part of what was addressed on appeal or in the court's final judgment.

[00:30:21] Speaker 03:
But what we're talking about here is simply, again, the reasonableness of

[00:30:27] Speaker 03:
law enforcement officer when he sees these circumstances, whether it's reasonable for him to stop and ask some questions of the individual.

[00:30:36] Speaker 03:
If he'd been wearing delivery garb, maybe it's different.

[00:30:40] Speaker 03:
If the house had been lit up or if the yard was not covered in trash, but these are all the circumstances that the officer saw at the time and made his reasonable determination.

[00:30:50] Speaker 03:
Now, in order to

[00:30:54] Speaker 03:
prevail, appellee would need to meet both prongs of qualified immunity, a violation and a clearly established.

[00:31:03] Speaker 03:
Now, in this case, we have not seen, no one has presented to us a case that says, from this circuit or the Supreme Court, that witnessing an individual on private property in circumstances that raise the officer's suspicion that the officer cannot initiate a contact under Terry.

[00:31:24] Speaker 03:
Perfect timing.

[00:31:26] Speaker 03:
My time is up.

[00:31:26] Speaker 03:
Thank you for your time.

[00:31:27] Speaker 01:
Thank you, counsel.

[00:31:30] Speaker 01:
We appreciate your arguments.

[00:31:32] Speaker 01:
The case will be submitted and counsel are excused.

[00:31:35] Speaker 01:
Thank you.