[00:00:00] Speaker 04:
The next matter before us is 24-5079, United States versus Chaffin.

[00:00:11] Speaker 01:
May it please the Court, Thomas Duncan for the United States.

[00:00:14] Speaker 01:
Reversal is appropriate here because the question with regard to whether or not Mr. Chaffin was seized on the side of the road is not whether Officer Morris's two questions on the side of the road were uncordial.

[00:00:30] Speaker 01:
question is not whether those questions may have been impolite or blunt or direct, or whether it would have felt awkward for Mr. Chafin to choose to walk away or terminate the encounter.

[00:00:43] Speaker 01:
The question instead is whether those two questions on the side of the road in a neighborhood where Mr. Chafin lived and would have felt comfortable were the functional equivalent of physical restraint.

[00:00:55] Speaker 01:
And in this case,

[00:00:56] Speaker 01:
the court erred because those questions and the conduct of the police were not the functional equivalent of physical restraint.

[00:01:04] Speaker 04:
I'm a little confused on the government's concession about when this morphed from a voluntary encounter into a detention, investigatory detention.

[00:01:24] Speaker 04:
At one point it seemed to be when he started pulling the black metal object out.

[00:01:30] Speaker 04:
But then when the court asked for clarification on what exactly the government was saying, the argument seems to be this was all one encounter and that the end of that single event was when he saw he had lied about the gun.

[00:01:49] Speaker 04:
And so I'm confused on where the point is

[00:01:54] Speaker 04:
What is the government's position on when this morphed into an investigatory detention?

[00:02:04] Speaker 01:
So the government's position is that the concession we made that is the worst possible timeline for the government is what we're stuck with.

[00:02:12] Speaker 01:
Because we did propose in briefing before the district court other points.

[00:02:17] Speaker 01:
But when the district court pointedly asked my colleague at the district court, so are you saying that it was a detention when he saw the black metal object

[00:02:27] Speaker 01:
My colleague said yes.

[00:02:29] Speaker 01:
And so we understand that we are... Are we bound by that?

[00:02:32] Speaker 04:
I mean, we're looking at this as what would a reasonable person understand.

[00:02:38] Speaker 04:
And so what did your concession do to us in terms of our review?

[00:02:44] Speaker 01:
So this court is not constrained by our concession.

[00:02:48] Speaker 01:
But I don't want to get into a situation where we're conceding, but we're trying to argue.

[00:02:54] Speaker 01:
But really, the court could find that it happened later.

[00:02:57] Speaker 01:
The court could find that it happened later.

[00:02:59] Speaker 01:
But our position is that we're stuck with our concession.

[00:03:02] Speaker 01:
And so we're not trying to wiggle out of that.

[00:03:04] Speaker 01:
But the court did note, and I think astutely, that not a lot changed in the officer's behavior from the moment the officer saw the black metal object and suspected it was a gun to the factors that happened next.

[00:03:21] Speaker 01:
And the only thing I can point to is that the officer did continue asking more questions after that point.

[00:03:28] Speaker 01:
And it's not necessary for there to be a clear point where courts can draw a line and say, well,

[00:03:34] Speaker 01:
If there were seven questions during this interrogation and they were persistent and intrusive and accusatory, it was after the fourth one that it became a seizure, or it was after the fifth one that it became a seizure.

[00:03:44] Speaker 01:
But the point that we're trying to make is at least until he, at least while he had only asked two questions, this was a consensual encounter and that he had reasonable suspicion from that point.

[00:04:00] Speaker 01:
The court mis-weighed the factors in Rogers.

[00:04:06] Speaker 02:
Do we owe any deference to the district court's application or finding of the Rogers factors?

[00:04:12] Speaker 01:
No, this court does not.

[00:04:14] Speaker 01:
So this court owes deference to the court's factual findings.

[00:04:17] Speaker 01:
But as to the weighing of the factors.

[00:04:19] Speaker 02:
Some of those are highly factual.

[00:04:22] Speaker 02:
And for example, what the briefs discuss quite a bit is the district court had the benefit of observing Officer Morris in the courtroom testifying and made findings about his commanding and authoritative presence.

[00:04:39] Speaker 02:
I can't see Officer Morris, excuse me.

[00:04:42] Speaker 02:
And so when we look to the district court's findings of the Rogers factors, I mean that was one of them.

[00:04:47] Speaker 02:
So don't we owe some deference to that factual finding as it applies to the legal factors?

[00:04:53] Speaker 01:
So there's a lot to unpack there, but let me start with what the court owes deference to and doesn't.

[00:05:00] Speaker 01:
Because the court owes deference to the finding that in court I observed him and he was authoritative and commanding.

[00:05:08] Speaker 01:
There is no factual finding on the record that, on the side of the road, he was authoritative or commanding.

[00:05:14] Speaker 01:
And there certainly was no finding as to the Rogers factor, which is actually whether there was aggressive language used that conveyed that compliance was required.

[00:05:23] Speaker 01:
When the court gets into and quotes Little, part two, for

[00:05:29] Speaker 01:
quote, this conveyed that compliance was required, that's really the legal portion of that factor.

[00:05:36] Speaker 01:
Because if this court agrees that it conveyed that compliance was required, then that's essentially the legal finding, that he was seized.

[00:05:45] Speaker 01:
There's a couple of reasons why the court's finding as to that particular factor was insufficient.

[00:05:50] Speaker 01:
The first is, as we noted, it's not the Rogers Factor.

[00:05:54] Speaker 01:
And the Rogers Factors aren't the end-all be-all, but there's various cases like Bernard, for example, that says he spoke in an authoritative tone, but it wasn't an aggressive tone, and that matters.

[00:06:06] Speaker 01:
Even the Drayton case, which was the Supreme Court, the Court said there was no blocking of the exits, there was no threats, there were no aggressive languages, there was not even an authoritative tone of voice.

[00:06:21] Speaker 01:
And so that's kind of the last gasp of what might be slightly intimidating or coercive, but it's definitely not as severe under Roger's arm of the Supreme Court

[00:06:31] Speaker 01:
as aggressive.

[00:06:32] Speaker 01:
And the big part that we take issue with of the courts equating the officer's tone in the courtroom with his tone while speaking to the individual on the side of the road is it would be essentially like hearing the tone with which I speak to my two-year-old daughter when I go home tonight and interpreting that and saying, well, that's probably the tone that you take when you talk to everyone.

[00:06:58] Speaker 01:
which is a ridiculous assertion, and it's because tone is changeable.

[00:07:04] Speaker 01:
Tone of voice is changeable, and not just changeable, but it's something that we ask and expect officers to modulate.

[00:07:11] Speaker 01:
You can't have a test, and this test easily tells us it's supposed to provide useful guidance to police officers.

[00:07:18] Speaker 01:
Where the test is, if you've got an authoritative sounding voice, just generally, don't bother trying to talk to someone on the street.

[00:07:28] Speaker 01:
The test recognizes that you can speak in an authoritative tone in some respects, and you can speak in a non-authoritative, calm, without a raised voice in other respects.

[00:07:40] Speaker 01:
So some of the factors sound like factual determinations, and so we've identified where we think there are clear errors, or where a finding was clearly erroneous, and there's not many.

[00:07:53] Speaker 04:
Because our point... Did you challenge persistent as being clearly erroneous?

[00:07:58] Speaker 04:
No.

[00:07:59] Speaker 04:
We've got three questions.

[00:08:02] Speaker 01:
Two, Your Honor.

[00:08:02] Speaker 04:
Well, three, then he says, what's in your pocket?

[00:08:06] Speaker 01:
So the district court found there was two.

[00:08:10] Speaker 01:
And we think that fact is not clearly erroneous, because the first one was, where's the 22?

[00:08:16] Speaker 01:
And the second one was, can I search you, or would you consent to a search?

[00:08:20] Speaker 01:
And then... What's that?

[00:08:22] Speaker 01:
Well, right.

[00:08:23] Speaker 01:
And that happens after he sees the black metal object in the pocket, which again, this court is not bound by our concession, but we're stuck with it.

[00:08:33] Speaker 01:
So the district court made a number of findings here with regard to the Rogers factors that were fact intensive.

[00:08:49] Speaker 01:
And one of them that we challenged was the court said, kind of in an offhand way, this was an isolated area.

[00:08:55] Speaker 01:
But if that's supposed to be a stand-in for did this happen in a small enclosed or non-public place, it's belied by the record, first of all, because if you look at the defenses exhibit, exhibit one, which is on page 37 of the appendix,

[00:09:13] Speaker 01:
you can tell that that's not a small enclosed or non-public area.

[00:09:18] Speaker 01:
And number two, it's an isolated area, right?

[00:09:23] Speaker 04:
I mean, it doesn't look like there's any other people around.

[00:09:26] Speaker 01:
Well, so interestingly, the Rogers Factor number eight, which is the one that we concede weighs against the government here, that one describes whether there were other members of the public present.

[00:09:39] Speaker 01:
So it would be

[00:09:42] Speaker 01:
double counting, to use a line from a previous argument today, to count the isolated nature of the area and the fact that there were no people there, when it was only isolated in the sense that there were no people present.

[00:09:54] Speaker 01:
This was a neighborhood.

[00:09:55] Speaker 01:
This was a wide open space.

[00:09:57] Speaker 01:
It was where Mr. Chaffin lived and would have felt comfortable.

[00:10:00] Speaker 02:
And so... Well, he may have felt comfortable in the absence of a police officer standing in front of his house.

[00:10:06] Speaker 02:
So what crime was Officer Morris investigating?

[00:10:09] Speaker 01:
So at the time that Officer Morris was asking those questions, Officer Morris didn't know what he was investigating.

[00:10:17] Speaker 01:
He knew that shots had been fired right next to a neighborhood.

[00:10:21] Speaker 01:
And if that officer had heard that and said, you know what, I'm going to ignore that.

[00:10:26] Speaker 01:
I'm just going to keep dealing with this barking dog complaint.

[00:10:30] Speaker 01:
I suspect this court and most people here would be upset with that choice.

[00:10:34] Speaker 01:
And even Mr. Chase.

[00:10:35] Speaker 02:
Officer malpractice not to at least look into gunshots that occur right next to.

[00:10:39] Speaker 01:
You don't know that a crime has taken place yet.

[00:10:42] Speaker 01:
You're trying to figure it out.

[00:10:43] Speaker 01:
But him walking up to the only person coming out of the area where the gunshots happened and saying,

[00:10:49] Speaker 01:
Where's the 22?

[00:10:50] Speaker 02:
Well, so let me stop you there, because a lot of the cases when evaluating whether or not a reasonable person would have felt free to leave when approached by the officers, the officers approach with different types of questions.

[00:11:04] Speaker 02:
Hey, can I ask you your name?

[00:11:05] Speaker 02:
I'm officer so-and-so.

[00:11:07] Speaker 02:
We just heard some gunshots.

[00:11:08] Speaker 02:
Are you OK?

[00:11:09] Speaker 02:
That's not what happened here.

[00:11:10] Speaker 02:
Officer comes up with what looks to be accusatory in nature of question.

[00:11:15] Speaker 02:
Doesn't that make a difference?

[00:11:17] Speaker 01:
It makes this case different in kind from the cases that are at the airports that start with, hey, excuse me, may I come talk to you?

[00:11:25] Speaker 01:
But there are factors in those airport cases that differentiate them from our facts as well.

[00:11:31] Speaker 01:
And what's important here is that it was accusatory, but it was significantly less accusatory than the opening

[00:11:40] Speaker 01:
lines of the opening salvos of some other cases where this court has found that there wasn't a seizure.

[00:11:45] Speaker 01:
Jones immediately comes to mind with the opening salvo being, hi, I'm Officer Blunt, and I'm here to take your marijuana plants.

[00:11:54] Speaker 01:
And the officer may have said at the hearing that it was all very calm and casual, but the defendant clearly didn't think so because his response was, oh, shit.

[00:12:07] Speaker 01:
The Tufuna case also provides a situation where there's no pleasantries, there's no politeness.

[00:12:17] Speaker 01:
It starts by the officer shining a bright search light or a takedown light on the defendant's car at 2 a.m.

[00:12:24] Speaker 01:
in a parking lot and walking up to the car and saying names and birthdays.

[00:12:30] Speaker 01:
Yes, in a perfect world, we'd like every interaction with the police to start with pleasantries, to start with politeness, to start with hello.

[00:12:37] Speaker 01:
May I ask you some questions?

[00:12:38] Speaker 01:
But a reasonable person would understand at least that there's a little bit more directness that's called for when it's gunshots than when it's a proactive drug investigation.

[00:12:51] Speaker 04:
But, you know, I always have trouble with this test, whether a reasonable person would feel free to leave.

[00:12:58] Speaker 04:
I mean, you've got two uniformed police officers there, and they're standing between the defendant and his home.

[00:13:07] Speaker 04:
You know, I know what the case law says, but really, would a reasonable person think that they could turn around and run as fast as they could back into the woods?

[00:13:19] Speaker 01:
So I want to answer that, and I want to answer it directly, but I do want to make sure that I reserve time for rebuttal, so I'll do that at the end of this answer.

[00:13:28] Speaker 01:
So yes, it's true that this test at first blush might seem not to give adequate air to the fact that a variety of people would feel uncomfortable talking to the police in any context.

[00:13:42] Speaker 01:
But in Ringgold, this court specifically said, this test may seem unduly formalistic and it might seem to not give air to that concern that I just said and that you just enunciated, Judge McHugh.

[00:13:55] Speaker 01:
But any other test would fail to give sufficient latitude to police to do necessary police work.

[00:14:03] Speaker 01:
You can't have a test where the police are afraid to ask direct, blunt, or pointed questions because any direct, blunt, or pointed questioning would

[00:14:12] Speaker 01:
create a situation where it's coercion under the law.

[00:14:15] Speaker 01:
And I'd ask to reserve the rest of my time for rebuttal.

[00:14:18] Speaker 04:
Thank you.

[00:14:32] Speaker 03:
Good morning, Your Honors, and may it please support.

[00:14:34] Speaker 03:
My name's Malia Castillo, and I'm with the Federal Defender's Office for the Northern District of Oklahoma.

[00:14:38] Speaker 03:
I'm here today representing Jeremy Chafin.

[00:14:41] Speaker 03:
The district court did not err on the issue of detention.

[00:14:48] Speaker 03:
Mr. Chapin was detained at the outset of the encounter with Officer Morris and Detective Reynolds.

[00:14:53] Speaker 03:
The court, in this case, must consider all of the circumstances surrounding the encounter.

[00:14:58] Speaker 03:
And the ultimate question is whether the police conduct would have communicated to a reasonable person that he was not free to decline the officer's conduct or to terminate the encounter.

[00:15:09] Speaker 03:
Another phrasing for that is he was not free to ignore police presence and go about his business.

[00:15:15] Speaker 03:
So a reasonable person in Mr. Chapin's position wouldn't have felt free to leave during this encounter for the following reasons.

[00:15:22] Speaker 03:
As Judge McHugh pointed out, he was confronted by two uniformed armed officers with their guns holstered who impeded his path home.

[00:15:33] Speaker 03:
Essentially, Officer Morris intercepted Mr. Chapin as he was trying to return to his home.

[00:15:39] Speaker 03:
Additionally, there are two patrol units parked right outside of his yard.

[00:15:43] Speaker 04:
But they were unmarked, right?

[00:15:44] Speaker 03:
They were unmarked, yes.

[00:15:45] Speaker 03:
They had interior lights.

[00:15:48] Speaker 03:
And then without explanation, Officer Morris approaches Mr. Chafin and he says, where is the 22?

[00:15:55] Speaker 03:
And as you all discussed, he did not come up and identify himself.

[00:16:01] Speaker 03:
He did not ask Mr. Chafin for identification.

[00:16:04] Speaker 03:
He did not ask, hey, have you heard gunshots in the area?

[00:16:07] Speaker 03:
He did not ask what he had been doing.

[00:16:08] Speaker 03:
He approached him with an accusatory question.

[00:16:12] Speaker 03:
And it was accusatory because he didn't ask, do you have a gun?

[00:16:16] Speaker 03:
Have you seen a gun?

[00:16:16] Speaker 04:
Well, how is that different from, I'm here for your marijuana plants?

[00:16:20] Speaker 03:
Well, in that case, from what I recall, the officer was in plain clothes, didn't have an obvious weapon, leaned against the defendant's truck in that case.

[00:16:32] Speaker 03:
As was said earlier, he testified that the encounter was very, very casual.

[00:16:37] Speaker 03:
It was, I think, accusatory, but under the totality of the circumstances,

[00:16:46] Speaker 03:
That wouldn't necessarily have led him to believe that that guy was even a police officer, that he was assaulted.

[00:16:50] Speaker 04:
Well, there were two of them, right?

[00:16:51] Speaker 04:
And they were in an alley behind his house.

[00:16:53] Speaker 03:
Yes.

[00:16:54] Speaker 03:
From what I recall, there were two uniformed officers further back, but the officer who had approached him was in plain clothes and didn't have any visible weapons on him.

[00:17:04] Speaker 04:
Well, in this case, one of the officers was standing back, right?

[00:17:09] Speaker 03:
Yes.

[00:17:09] Speaker 03:
Yeah.

[00:17:09] Speaker 04:
And nobody brandished a weapon.

[00:17:11] Speaker 04:
Nobody brandished a weapon.

[00:17:12] Speaker 04:
No one touched him?

[00:17:13] Speaker 04:
No one touched him.

[00:17:15] Speaker 03:
Yes, I do recall from that case that I think the officers were behind.

[00:17:19] Speaker 03:
They weren't impeding his path home.

[00:17:22] Speaker 03:
And I think this goes to what was discussed earlier regarding his tone of voice.

[00:17:28] Speaker 03:
And I know that that is a contentious issue on appeal.

[00:17:36] Speaker 03:
We maintain that this did not err in the factual finding.

[00:17:40] Speaker 03:
that in that specific circumstance, Officer Morris was talking with an authoritative tone because when he was at the district court hearing, that's how he was talking to federal attorneys in front of a United States district judge who directly asked him a couple of questions.

[00:17:56] Speaker 03:
He was in a situation where he was defending his actions.

[00:17:59] Speaker 03:
And here, and I know this does not bear necessarily on the analysis, but subjectively, he said that

[00:18:07] Speaker 03:
At that point, Chafin was not free to leave.

[00:18:11] Speaker 03:
And I think that speaks to how he was treating Mr. Chafin in the moment.

[00:18:15] Speaker 02:
Can I ask you about the sort of different breaks in time and analytically how we look at this circumstance?

[00:18:23] Speaker 02:
The government has said that, you know, they can't argue reasonable suspicion from the onset.

[00:18:28] Speaker 02:
They're bound by that concession until the point in time it changes when they observe the black metal object in Mr. Chaffin's pocket.

[00:18:34] Speaker 02:
Conversely, if we were to find that it was not a Fourth Amendment seizure until that point occurred, until they observed the black metal object, do you agree reversal is warranted?

[00:18:44] Speaker 03:
Yes, I still do not think that there's reasonable suspicion at that point.

[00:18:49] Speaker 02:
I know the government... So you don't agree reversal is warranted.

[00:18:52] Speaker 02:
You would still argue there was no reasonable suspicion.

[00:18:54] Speaker 03:
So I do not think reversal is warranted.

[00:18:57] Speaker 03:
So yeah, I do not think that there was reasonable suspicion at that moment.

[00:19:00] Speaker 03:
I know the government in their briefing points to the fact that Mr. Caden lied about having a gun, but at that point,

[00:19:07] Speaker 03:
Officer Morris did not think that he was lying.

[00:19:10] Speaker 04:
Well, he didn't know.

[00:19:11] Speaker 04:
He didn't say I didn't think.

[00:19:13] Speaker 04:
He said I didn't know.

[00:19:14] Speaker 04:
Yes, you're correct.

[00:19:15] Speaker 04:
And that's different.

[00:19:16] Speaker 04:
Yes.

[00:19:17] Speaker 04:
And we don't expect police officers to wait until the glint of steel, right?

[00:19:22] Speaker 04:
I mean, they see a black metal object.

[00:19:24] Speaker 04:
At that point, don't they have a right to investigate further?

[00:19:30] Speaker 03:
They do have a right to investigate further, but they don't have a right to detain him.

[00:19:34] Speaker 03:
And that is what we're arguing, is that they could have asked all of these questions to get to a point where it would have been reasonable to detain him, but we were saying that the detention was not reasonable.

[00:19:44] Speaker 02:
Yeah, I want to ask you about that.

[00:19:45] Speaker 02:
At the suppression hearing, who may be one of your colleagues, Mr. Williams, who was representing Mr. Chaffin at that time, he, I think, told the district court that Officer Morris, he had reason to investigate but not detain Mr. Chaffin.

[00:20:01] Speaker 02:
What is that distinction when we're talking about

[00:20:05] Speaker 02:
you know whether it was a seizure here like if you're saying they have a right to investigate what you know what else could they do to investigate other than to stop and talk to the one person in the area where the gunshots came from

[00:20:16] Speaker 03:
As I was saying earlier, I think there's a few questions that he could have led with that would have made it not in detention, just an investigation.

[00:20:24] Speaker 03:
So, for example, did you hear gunshots?

[00:20:26] Speaker 03:
Have you seen anybody with a gun?

[00:20:27] Speaker 03:
Have you seen anybody else walking out in the woods?

[00:20:30] Speaker 03:
Where did you come from?

[00:20:31] Speaker 03:
Where are you going?

[00:20:32] Speaker 02:
Haven't we said, you know, I know I use that example.

[00:20:37] Speaker 02:
with Mr. Duncan, but it's the manner of the questions how they're asked more important than the actual questions itself, right?

[00:20:43] Speaker 03:
Yes.

[00:20:44] Speaker 03:
Yeah.

[00:20:45] Speaker 03:
And as I was saying, I think both the question and then how it was asked, how the district court found that he was talked to by Officer Morris, that is what made it a detention in combination with him being physically blocked from his home.

[00:20:59] Speaker 04:
But the district court dropped a footnote and said he was authoritative, but that I'm not changing my finding, that it was not aggressive or argumentative, right?

[00:21:09] Speaker 03:
Yes, he said that explicitly, that he was not threatening in any way.

[00:21:13] Speaker 03:
He didn't physically threaten or otherwise.

[00:21:17] Speaker 03:
But the standard is, would somebody, did the police conduct signal to that person that compliance was required?

[00:21:26] Speaker 03:
And so that's why we're making the argument that that authoritative tone in combination with the question, in combination with him being physically blocked from his home, all of that.

[00:21:38] Speaker 04:
Well, he, I mean, physically blocked is probably an exaggeration.

[00:21:41] Speaker 04:
It was a rather, it was a big open space, right?

[00:21:45] Speaker 04:
Yes, but I will point.

[00:21:46] Speaker 04:
I mean, he could have turned around and walked back in across the railroad tracks, right?

[00:21:50] Speaker 03:
He could, but from all indication, he was walking home and Officer Morris,

[00:21:56] Speaker 03:
I have the footnote here on

[00:21:59] Speaker 03:
Page 114 of the Appellate's Appendix says that he would have had to go through both him and Detective Reynolds to get to his home.

[00:22:08] Speaker 00:
Counsel, could I ask you what is your best case for essentially using non-authoritarian tones and asking warm-up questions?

[00:22:23] Speaker 00:
Do you have a case where that happened or was required?

[00:22:27] Speaker 03:
I think both Florida v. Bostic and INS v. Delgado, which those were cases in which Caesar was not found for different reasons, but I don't recall authoritative tones necessarily being used.

[00:22:43] Speaker 03:
You know, with INS v. Delgado, all the exits were blocked.

[00:22:46] Speaker 03:
the workers in that factory could not physically leave.

[00:22:50] Speaker 03:
Detention was not found in that case for a different reason than is really an issue here.

[00:22:56] Speaker 03:
The reason they couldn't leave could also be attributed to that's the nature of being at your job is that you're not free to come and go as you please.

[00:23:04] Speaker 03:
And same with Florida v. Bostic is that the nature of, you know, getting on a bus that's about to leave is that you probably couldn't leave anyway.

[00:23:16] Speaker 04:
have argued that once he saw the metal object that it was okay to ask further questions but not to detain.

[00:23:26] Speaker 04:
Is that your argument?

[00:23:28] Speaker 03:
So my argument is that in order for it not to be a detention from the outset, he could have asked further questions.

[00:23:33] Speaker 03:
We still maintain that he was detained from the outset.

[00:23:35] Speaker 04:
Okay, if I disagree with you and I think it was a voluntary encounter until he saw, well,

[00:23:41] Speaker 04:
and accept the government's concession of when you saw the black metal object.

[00:23:47] Speaker 04:
I mean, at that point, does the officer have to turn their back to a person who might have a gun and walk away?

[00:23:54] Speaker 03:
So I think follow-up questions would have been appropriate, but I don't think that reasonable suspicion, even if the government's concession, if you do follow that, that reasonable suspicion did not exist at that point.

[00:24:07] Speaker 03:
I'm not going to argue that police officers can't continue to investigate using non-detention approaches.

[00:24:16] Speaker 03:
Well, his question was, what is that?

[00:24:19] Speaker 03:
Or what's that?

[00:24:21] Speaker 03:
His question from what I recall is, can I search you?

[00:24:24] Speaker 04:
Now, that's earlier.

[00:24:27] Speaker 04:
And then when he says, can I search you, he starts emptying his pockets, and there's a pill bottle.

[00:24:32] Speaker 04:
And when he's taking out the pill bottle, Officer Morris sees the black metal object, and he says, what's that?

[00:24:39] Speaker 04:
And according to you, when he says, what's that, that was a violation of the Fourth Amendment because it was a seizure.

[00:24:49] Speaker 04:
But what follow-up question could he have asked

[00:24:53] Speaker 04:
that wouldn't have been a violation of the Fourth Amendment as a seizure.

[00:24:58] Speaker 04:
You said he could ask some follow-up questions.

[00:25:01] Speaker 03:
Yes.

[00:25:01] Speaker 03:
So I still think the problem at that point is that the tension doesn't make sense at that point because there was nothing that the officer did to signal to Chafin because that is the standard here is that what officers, what were the officer's actions that would have signaled to a reasonable person in Mr. Chafin's situation that he was detained.

[00:25:22] Speaker 03:
So

[00:25:23] Speaker 03:
I think you could have asked follow-up questions.

[00:25:25] Speaker 04:
Yeah, I'm trying to figure out what follow-up question at that moment would have been okay and not a detention.

[00:25:34] Speaker 03:
If he was not detained, I think he could have investigated further, but again, the government is conceding that he is detained at that moment.

[00:25:44] Speaker 04:
Okay, but I think what you argued was that it would have been okay to further investigate.

[00:25:50] Speaker 04:
Yes.

[00:25:51] Speaker 04:
Okay.

[00:25:53] Speaker 04:
They did further investigate by asking, what's that?

[00:25:56] Speaker 04:
Yes.

[00:25:57] Speaker 04:
And I'm trying to understand if it was okay for them to further investigate with questions, what's wrong with the question they asked and what question would you say was okay?

[00:26:07] Speaker 03:
Yeah, assuming there was not, detention was not found, I think that further questioning would be okay.

[00:26:13] Speaker 04:
So if I don't agree with the government's concession, for example?

[00:26:16] Speaker 04:
Yes.

[00:26:17] Speaker 04:
Okay.

[00:26:18] Speaker 04:
Then you would concede that saying what's that was an appropriate

[00:26:23] Speaker 04:
further investigation.

[00:26:24] Speaker 04:
Yes.

[00:26:26] Speaker 02:
But you also a moment ago said that reversal is still not warranted because even at the point they see the black object in Mr. Chafin's pants that they still did not have reasonable suspicion.

[00:26:37] Speaker 02:
I think that a lot of these questions are getting at that.

[00:26:39] Speaker 02:
Well, at that point

[00:26:41] Speaker 02:
You know, reasonable suspicion's a pretty low bar, and they've heard gunshots, they see what they think may be a gun, so don't they have reasonable suspicion that at least potentially some criminal activity?

[00:26:52] Speaker 02:
And they don't have the benefit of hindsight.

[00:26:53] Speaker 02:
The district, you know, Judge Frizzell says, well, plinking's very common in Oklahoma.

[00:26:57] Speaker 02:
People like to go out and, you know, shoot cans in the woods, and that's not against the law.

[00:27:01] Speaker 02:
But they don't know if someone's been shot.

[00:27:02] Speaker 02:
They don't know the facts and circumstances.

[00:27:05] Speaker 02:
So why isn't there reasonable suspicion at the time they see what they believe to be a gun having just heard gunshots?

[00:27:10] Speaker 03:
So I think the characterization of the town that they are in is very important here.

[00:27:15] Speaker 03:
This is a very small town.

[00:27:17] Speaker 03:
This is not in the record, but it's only about 300 or so people.

[00:27:22] Speaker 03:
And the government's attorney at the district court level said during argument, I believe at the May 8th evidentiary hearing,

[00:27:29] Speaker 03:
that this was by no means a densely populated area.

[00:27:34] Speaker 02:
But I can look at the exhibit, the photograph, and there's multiple houses right there where the shooting occurred.

[00:27:40] Speaker 02:
So whether it's 300 people or 30 people, there are still other people right there where the shooting occurred.

[00:27:47] Speaker 02:
So why does that make a difference?

[00:27:48] Speaker 03:
So I think there is testimony from the May 8th adventure hearing that within a mile of that area, there is a shooting range and shooting is very common in rural Oklahoma.

[00:28:01] Speaker 03:
They're very, you know, pro Second Amendment.

[00:28:03] Speaker 03:
And so that's not uncommon.

[00:28:06] Speaker 03:
Like I said, there's no bar to investigating, but the bar here is for

[00:28:11] Speaker 03:
detention.

[00:28:11] Speaker 03:
You can't walk up to somebody and detain them just because there are shots going on.

[00:28:16] Speaker 03:
Investigation is fine, though.

[00:28:24] Speaker 03:
If there is no further questions, I will make actually one last point.

[00:28:33] Speaker 03:
So the government here has the burden of proving specific and articulable facts that criminal activity was afoot.

[00:28:41] Speaker 03:
And I think to your point, somebody could have been shot very theoretically, but there are no specific and articulable facts that point to

[00:28:51] Speaker 03:
that shooting being, one, illegal at all.

[00:28:55] Speaker 03:
Somebody was shooting where it was legally allowed in rural Oklahoma.

[00:29:00] Speaker 03:
And there's no evidence that anybody was in danger.

[00:29:02] Speaker 03:
There, you know, nobody screamed.

[00:29:04] Speaker 03:
There weren't any other folks around complaining.

[00:29:08] Speaker 03:
And so that's why I will leave my argument if there are no further questions.

[00:29:24] Speaker 01:
I want to address two things in rebuttal.

[00:29:26] Speaker 01:
The first is the house and whether they were blocking it, and the second is the reasonable suspicion that they had.

[00:29:32] Speaker 01:
First, the blocking the house is a very minor factor here if it carries any weight at all.

[00:29:37] Speaker 01:
The cases are clear that the question isn't whether a reasonable person would have felt free to leave, it's whether the conduct of the officers would have led to a reasonable person feeling that they weren't free to leave.

[00:29:49] Speaker 01:
And easily this court said coercive means a coercive environment created by the officers.

[00:29:55] Speaker 01:
At the time, Mr. Chaffin came out of the woods and over the railroad tracks and started walking toward the officers.

[00:30:01] Speaker 01:
They were already set where they were in the middle of the road.

[00:30:04] Speaker 01:
They did nothing to create an impediment to Mr. Chaffin's house.

[00:30:08] Speaker 01:
And as to the reasonable suspicion, I would point this court to Young, but I would also point this court to the facts in Connor, where there was a near anonymous 911 call, there was a no-no,

[00:30:19] Speaker 01:
and there was a gun scene.

[00:30:21] Speaker 01:
And so the reasonable suspicion was not any specific crime, but it was that he may have done something he was not allowed to do with the gun and then was trying to lie about it to a police officer.

[00:30:32] Speaker 04:
Thank you.