[00:00:02] Speaker 02:
The next case this morning is 24-1387, United States versus Hutu, counsel for appellant.

[00:00:11] Speaker 02:
If you would make your appearance and proceed, please.

[00:00:24] Speaker 01:
Good morning and may it please the court.

[00:00:26] Speaker 01:
My name is Rachelle Anderson and I represent the defendant appellant September 2.

[00:00:32] Speaker 01:
Your Honors, the law requires that before a law enforcement officer places his hands on an individual, he must have a constitutionally adequate and a reasonable grounds for doing so.

[00:00:43] Speaker 01:
The Fourth Amendment does not allow for an individual's seizure based on what neighborhood he's in, based on guilt by association, and not based on reverse engineered reasonable suspicion.

[00:00:56] Speaker 01:
In this case, the district court's factual findings that the officers had a strong suspicion of Mr. Tu's identity before his seizure and before his detention is internally inconsistent and irreconcilable with the district court's acknowledgement that these officers, during the suppression hearing, exaggerated and overstated their confidence level.

[00:01:22] Speaker 01:
in Mr. Tu's identity.

[00:01:23] Speaker 03:
Well, that's a credibility question.

[00:01:25] Speaker 03:
That's the district court judge gets to decide how credible and how incredible their testimony is, right?

[00:01:33] Speaker 01:
The district court does, yes, Your Honor.

[00:01:35] Speaker 01:
Okay.

[00:01:35] Speaker 00:
And the court did, in fact, rely to some extent on their testimony, right?

[00:01:42] Speaker 00:
The court decided it would believe their testimony.

[00:01:46] Speaker 01:
Your Honor, the district court did, and that's where the error comes into play.

[00:01:52] Speaker 00:
In any event, that's the point.

[00:01:55] Speaker 02:
How does the error come into play?

[00:01:57] Speaker 02:
And what I would want to focus on is this.

[00:02:00] Speaker 02:
Why is it inconsistent to say that you're credible and yet had questioned whether you, in fact, could have seen X, Y, and Z?

[00:02:08] Speaker 02:
In other words, you're mistaken about certain things.

[00:02:10] Speaker 02:
What I see the district court saying here is that the officers are credible, but they had hindsight bias.

[00:02:18] Speaker 02:
In other words, looking backward

[00:02:21] Speaker 02:
they sort of had a certainty that they really didn't have at the time.

[00:02:24] Speaker 02:
That doesn't mean they're lying.

[00:02:26] Speaker 02:
It just means that they're mistaken.

[00:02:28] Speaker 02:
It just means that they... And so the court could say, you're credible.

[00:02:32] Speaker 02:
I accept what I deemed to be the facts out of that, but I don't credit everything you said.

[00:02:38] Speaker 02:
Why isn't that exactly what the district court did here?

[00:02:41] Speaker 02:
And what's wrong with that?

[00:02:42] Speaker 01:
Your Honor, that's not the evidence that we have in this record.

[00:02:46] Speaker 01:
I would submit that when you have reasonable suspicion, which under Terry versus Ohio talks about the district court being able to make rational inferences based on facts, that can establish reasonable suspicion.

[00:03:00] Speaker 01:
But when you have the officers who are testifying to those facts from which the district court is supposed to draw reasonable inferences, having credibility issues, and I know the court said,

[00:03:12] Speaker 01:
Perhaps the district court in this court had just indicated that these officers suffered from hindsight bias.

[00:03:18] Speaker 01:
Well, that's not what the district court necessarily found, Your Honor.

[00:03:21] Speaker 01:
The district court had indicated that the officers were overconfident in their decisions or in their recognition of Mr. Tu.

[00:03:29] Speaker 02:
That's exactly what the court said.

[00:03:30] Speaker 02:
And you can, if you want to, scrap my language of hindsight bias, but the point is still the same.

[00:03:36] Speaker 02:
The court said they were overconfident, but it didn't say they were lying, did it?

[00:03:40] Speaker 02:
Do you deny that the court found them credible?

[00:03:44] Speaker 01:
Your Honor, I do think that to a certain extent, the court found them credible.

[00:03:47] Speaker 01:
The court said, I don't necessarily equate the officer's possible overstatements

[00:03:54] Speaker 01:
as outright lies, but that conflicts with the rest of the record when the officers testify to a certainty that they recognize Mr. Teel.

[00:04:02] Speaker 01:
And the district court can look at that through a lens and say, and this court can look at that through a lens during its de novo review, but there's only one way to read the officer's testimony and to read the district court's

[00:04:15] Speaker 01:
concerns with the officer's testimony and that's that these officers were not credible at the suppression here.

[00:04:21] Speaker 03:
But the problem is the other facts are not even in dispute, are they?

[00:04:25] Speaker 03:
That he was walking with Lee

[00:04:28] Speaker 03:
That's correct.

[00:04:29] Speaker 03:
And I'm a little bit concerned that you're trying to look at all these facts in isolation.

[00:04:35] Speaker 03:
You know, obviously you can walk with Mr. Lee if you want to, and it's not, the police shouldn't be searching you because of it, but he was walking with Lee.

[00:04:45] Speaker 03:
Nobody disagrees with that.

[00:04:46] Speaker 03:
He took off running.

[00:04:48] Speaker 03:
Nobody disagrees with that.

[00:04:49] Speaker 03:
I mean, you have a little spin on that.

[00:04:51] Speaker 03:
You're saying, well, he wasn't running at the time they caught up to him.

[00:04:55] Speaker 03:
But I mean, he did take off running.

[00:04:57] Speaker 03:
He split from Mr. Lee.

[00:04:58] Speaker 03:
He was in a high crime area.

[00:05:00] Speaker 03:
He was in rival gang area.

[00:05:03] Speaker 03:
Um, they, the officers testified there's a weapon imprint.

[00:05:07] Speaker 03:
I mean, you have no evidence that that's not true.

[00:05:10] Speaker 03:
I mean, how do you, those facts are undisputed.

[00:05:13] Speaker 03:
So you can say, okay, look, they didn't, they didn't know who two was.

[00:05:17] Speaker 03:
That was, that was, that was bogus.

[00:05:20] Speaker 03:
But this other stuff doesn't rely on credibility.

[00:05:22] Speaker 03:
It's all, it's all undisputed.

[00:05:25] Speaker 01:
Your Honor, I respectfully disagree.

[00:05:27] Speaker 01:
When it comes to the weapon printing, absolutely, that's a disputed fact.

[00:05:30] Speaker 03:
What's the evidence that they were wrong on that?

[00:05:34] Speaker 01:
Your Honor, it's not corroborated in the lapel videos.

[00:05:38] Speaker 01:
And I'm sure the court's familiar with watching lots of lapel videos.

[00:05:41] Speaker 01:
And typically, during a lapel recording, if an officer sees a suspect and suspects that that person is armed,

[00:05:49] Speaker 01:
It's not uncommon for that officer to radio that information into dispatch, to relay it to another officer.

[00:05:55] Speaker 03:
Is that in the record?

[00:05:56] Speaker 03:
If we look at the transcript, did counsel argue, Your Honor, I've got someone prepared to testify that in these cases, when they see a weapon imprint, they're going to call it into dispatch?

[00:06:10] Speaker 01:
No, Your Honor, but that's an inference that this court can make during its de novo review.

[00:06:14] Speaker 03:
Do we really make?

[00:06:14] Speaker 03:
I mean, I guess we

[00:06:17] Speaker 03:
Good, but don't we look and see if the district court's inference was reasonable?

[00:06:22] Speaker 03:
Isn't that what our inquiry is?

[00:06:24] Speaker 01:
Yes, and this court should find that the district court's inference with regards to these facts is not a rational one when it's based on testimony that it was called into question and that can only be read as not being credible.

[00:06:37] Speaker 02:
On this record... Quite often instructions are given to juries and juries are held to find or we recognize the juries can view one part of a witness's testimony as credible

[00:06:51] Speaker 02:
and disregard the rest.

[00:06:53] Speaker 02:
I mean, that happens all the time.

[00:06:55] Speaker 02:
Courts and structures, there's nothing wrong with that.

[00:06:59] Speaker 02:
And so if that's the case, why can't a district court do the same thing?

[00:07:02] Speaker 02:
Why can't the district court say, I think it's credible that there was an imprint on him.

[00:07:07] Speaker 02:
I think this witness overall was credible.

[00:07:09] Speaker 02:
They were mistaken about this other stuff.

[00:07:11] Speaker 02:
What is wrong with that?

[00:07:13] Speaker 02:
And it's not whether the court was reasonable.

[00:07:17] Speaker 02:
It's whether you can show it was clearly erroneous to say that there was an imprint of a gun, right?

[00:07:24] Speaker 02:
Correct.

[00:07:25] Speaker 02:
Okay.

[00:07:26] Speaker 02:
Help me with that clearly erroneousness.

[00:07:28] Speaker 01:
Your Honor, and that clearly erroneous part comes back to the fact that these officers' testimony was not credible, which leads me to the first part of your... Credible as to what?

[00:07:37] Speaker 02:
There's no blanket credibility or non-credibility.

[00:07:39] Speaker 02:
That's what I'm saying right now.

[00:07:41] Speaker 02:
It's credible as to the imprint.

[00:07:43] Speaker 01:
Your Honor, and I would respectfully disagree about the imprint, because it's not corroborated.

[00:07:48] Speaker 01:
Again, in the lapel video, it's not included in the reports.

[00:07:51] Speaker 01:
The first time that the firearm is mentioned in one of the officer's reports is post-detention.

[00:07:57] Speaker 01:
And at that point in time, I would submit that the detention is unlawful and that observation of the firearm in that instance is not a lawful one.

[00:08:05] Speaker 01:
But I want to go back to the court's question about

[00:08:07] Speaker 01:
Why should the district court treat these officers' testimony different than a jury should treat any other layman's person's testimony and can pick and choose?

[00:08:15] Speaker 01:
Well, Your Honor, the important question is, with regards to these witnesses, these are professional law enforcement witnesses who we have given the authority and the power to conduct detentions.

[00:08:26] Speaker 01:
And the Fourth Amendment requires that those detentions be based on reasonable suspicion.

[00:08:32] Speaker 01:
And the exclusionary rule

[00:08:34] Speaker 01:
exists to protect individuals and folks in our society from unlawful detentions.

[00:08:40] Speaker 01:
And in this case, when there are testimony, we cannot treat these officers as just lay witnesses where we can pick and choose.

[00:08:48] Speaker 02:
Pause button.

[00:08:49] Speaker 02:
What authority do you have for the proposition we can't?

[00:08:52] Speaker 02:
What authority do you have for the proposition there is some heightened standard that applies to a law enforcement witness?

[00:08:58] Speaker 02:
There isn't any.

[00:09:00] Speaker 02:
If you have some, tell me now, because there isn't any.

[00:09:02] Speaker 01:
Your Honor, I don't have any authority directly on point, but that's the purpose of the exclusionary rule, I would submit, is that when you have an officer who takes the stand and is testifying before a district court, and that district court finds components of their testimony to be

[00:09:16] Speaker 01:
incredible and questions the veracity of their testimony.

[00:09:21] Speaker 02:
Mistaken.

[00:09:22] Speaker 02:
Overly certain.

[00:09:24] Speaker 02:
That is not incredible.

[00:09:26] Speaker 02:
If you have an officer who is in a blowing storm and that officer believes, I believe I saw that car go through, and all these facts come in and the court says,

[00:09:39] Speaker 02:
You know, I accept they believe it.

[00:09:41] Speaker 02:
I think they're credible.

[00:09:43] Speaker 02:
They're not lying to me, but I just can't make the judgment that they actually saw the car.

[00:09:48] Speaker 02:
Well, that doesn't mean that they are liars.

[00:09:50] Speaker 02:
It doesn't mean they're incredible.

[00:09:52] Speaker 02:
And so in this exact situation, the court said, well, you know, based upon what the record shows, I can't really say that they were as certain as they were, but there was a strong suspicion that they had.

[00:10:05] Speaker 02:
What is wrong with that?

[00:10:07] Speaker 02:
That happens all the time.

[00:10:08] Speaker 02:
It is a sorting mechanism that a court does in determining what are the facts and what aren't the facts.

[00:10:14] Speaker 02:
Unless you can show that there's anywhere in that opinion or otherwise where the court said, these people are incredible, i.e.

[00:10:21] Speaker 02:
the officers lie, and in fact, the court said the exact opposite, then why can't the court pick and choose?

[00:10:28] Speaker 01:
Your Honor, I think that having internal inconsistencies

[00:10:31] Speaker 01:
within the district court's record is what creates the problem and what makes this case unique.

[00:10:37] Speaker 01:
For example, in the district court's oral findings at the evidentiary hearing, the district court stated, I kind of agree

[00:10:46] Speaker 01:
with Mr. Stewart, who was defense counsel, that I really don't think Officer Nycom knew who it was all along, referring to Mr. Tu.

[00:10:53] Speaker 01:
That contradicts squarely Officer Nycom's testimony that he knew.

[00:10:58] Speaker 03:
That sounds equivocal to me.

[00:11:00] Speaker 03:
I mean, you do have to agree.

[00:11:02] Speaker 03:
There's not a finding, I don't believe the officer.

[00:11:09] Speaker 03:
You agree with that?

[00:11:10] Speaker 01:
Your honor, that's not an explicit finding, and that's the district court's mistake.

[00:11:14] Speaker 03:
I mean, what concerns me is I view, I think we've got a district court here who's somewhat, and also there was no explicit finding that they didn't recognize too, right?

[00:11:26] Speaker 01:
I'm sorry, can the court repeat its question?

[00:11:27] Speaker 03:
There was no explicit finding by the district court that the officers didn't recognize too.

[00:11:32] Speaker 03:
That's correct.

[00:11:32] Speaker 03:
Right.

[00:11:33] Speaker 03:
I mean, the court was not convinced by the testimony, but he was also not convinced they were lying.

[00:11:40] Speaker 03:
He was not convinced that they were not credible witnesses.

[00:11:44] Speaker 03:
He just chose to put the problematic things aside and go to the things that weren't disputed.

[00:11:52] Speaker 02:
I think I agree with that assessment.

[00:11:58] Speaker 02:
Do you agree there are two alternative ways to go at this?

[00:12:01] Speaker 02:
I mean, a lot of the argument you're talking about relates to the question of whether you will rest reasonable suspicion on the fact that they knew it was two and they knew we had warrants.

[00:12:11] Speaker 02:
The other alternative is whether, based on the totality of the circumstances, apart from whether they knew it was two, that they had reasonable suspicion.

[00:12:19] Speaker 02:
That's right.

[00:12:20] Speaker 01:
That's correct.

[00:12:21] Speaker 02:
OK.

[00:12:21] Speaker 02:
Well, with that said, you reference, and I'm not sure I get the exact word, but they're disputed facts or they're contested facts.

[00:12:28] Speaker 02:
Well, is it in dispute that they were in a high-conc crime area?

[00:12:32] Speaker 01:
No, Your Honor.

[00:12:33] Speaker 02:
Okay.

[00:12:33] Speaker 02:
Is it in dispute that at least one of the people was a gang member?

[00:12:37] Speaker 01:
I think specifically Mr. Hsu was a gang member.

[00:12:39] Speaker 02:
Okay.

[00:12:40] Speaker 02:
That's not in dispute.

[00:12:41] Speaker 02:
Is it in dispute that he fled from the police?

[00:12:44] Speaker 02:
Mr. Tooth?

[00:12:45] Speaker 01:
Yes, Your Honor.

[00:12:46] Speaker 02:
Okay.

[00:12:46] Speaker 02:
It is in dispute?

[00:12:47] Speaker 01:
Your Honor, I do dispute the characterization of the running away from officers.

[00:12:52] Speaker 02:
And how so?

[00:12:53] Speaker 02:
Did he run?

[00:12:54] Speaker 01:
Your Honor, I think there was a potential amount of time, maybe 10 to 20 seconds, that officers indicated that he was running.

[00:13:01] Speaker 02:
But it's important to note that this is not the type of headlong flight that- I'm not talking about their acceleration or how fast they ran.

[00:13:09] Speaker 02:
I'm saying, did they move away when they saw the officers?

[00:13:13] Speaker 01:
Your Honor, they turned down an alley.

[00:13:15] Speaker 01:
They walked down an alley.

[00:13:17] Speaker 01:
It was when the officers turned around that at that point in time, I believe the testimony is they no longer saw.

[00:13:23] Speaker 01:
Defendant Shi Li, but they continued to see Mr. Tu and Mr. Tu was running, correct?

[00:13:28] Speaker 02:
Mr. Tu was running and they testified Mr. Tu was running?

[00:13:33] Speaker 01:
Correct.

[00:13:34] Speaker 02:
And the court found that he was running?

[00:13:37] Speaker 01:
Yes, Your Honor, for a very short amount of time.

[00:13:39] Speaker 02:
OK.

[00:13:40] Speaker 02:
Short or long, he was running, right?

[00:13:43] Speaker 02:
OK.

[00:13:43] Speaker 02:
So undisputed, he was running for a short period of time.

[00:13:47] Speaker 02:
Uh, and on the outline on the weapon, we already talked about that, but, and I understand that you view that as being disputed, but, but what is your best net?

[00:13:56] Speaker 02:
I guess I already know, but I guess what it's clear.

[00:13:59] Speaker 02:
You have to show that it's clearly around us, right?

[00:14:02] Speaker 01:
Yes, Your Honor.

[00:14:03] Speaker 01:
And I think that we get to the clearly erroneous, and I want to try to reserve a certain amount of time for rebuttal.

[00:14:08] Speaker 01:
It gets to clearly erroneous because under MAP versus Ohio, and I keep coming back to this because this is the crux of the argument, is that if the district court is going to pick and choose testimony that it finds overall, and I'd submit that these officers' testimony was not credible, and the court made implicit and explicit findings with regards to the veracity of their testimony, that it is an error

[00:14:32] Speaker 01:
to rely on that testimony for the imprinting of the firearm under the totality of the circumstances.

[00:14:37] Speaker 00:
What do they need for the stop?

[00:14:40] Speaker 00:
Wasn't it just reasonable suspicion?

[00:14:42] Speaker 00:
Yes, Your Honor.

[00:14:43] Speaker 00:
So, I mean, even though the court said they got more confident as they proceeded in this case, even if they hadn't gotten more confident

[00:14:54] Speaker 00:
But they had said what they did originally.

[00:14:56] Speaker 00:
We think we knew who too was.

[00:15:00] Speaker 00:
Wouldn't that have been enough to stop him for a reasonable suspicion?

[00:15:03] Speaker 00:
Terry, stop.

[00:15:05] Speaker 01:
Your Honor, I don't believe so.

[00:15:06] Speaker 01:
And I'm 15 seconds if I can continue responding to the court's question.

[00:15:10] Speaker 00:
All right, you can hold your reserve.

[00:15:12] Speaker 00:
You can take that up in rebuttal if you wish.

[00:15:14] Speaker 01:
Thank you, Your Honor.

[00:15:17] Speaker 01:
I'll reserve the remainder of my time.

[00:15:18] Speaker 01:
Thank you.

[00:15:35] Speaker 04:
May it please the court.

[00:15:36] Speaker 04:
Good morning.

[00:15:37] Speaker 04:
I'm Kyle Brenton on behalf of the United States.

[00:15:41] Speaker 04:
Two gang unit officers saw two men in gang territory walking on high alert with their heads on a swivel.

[00:15:49] Speaker 04:
They positively recognized one as a member of a rival gang with outstanding warrants.

[00:15:55] Speaker 03:
Let me just ask you a question about the head swivel and the high alert.

[00:15:59] Speaker 03:
Absolutely.

[00:16:00] Speaker 03:
This may be the first time I've seen a case where someone looking around and acting like they're paying attention to their surroundings has been put into the reasonable suspicion analysis.

[00:16:14] Speaker 03:
Do you have some authority you can direct me to on that particular factor?

[00:16:20] Speaker 04:
Well, Your Honor, I think certainly the conduct that Officer Nickham testified to

[00:16:26] Speaker 04:
does not rise to the level of nervousness that some of this court's cases look to.

[00:16:31] Speaker 04:
But I think that what made him suspicious with regard to their behavior, which is what he testified to, is, first of all, he knows these two guys.

[00:16:41] Speaker 04:
Well, he knows for certain at least one of these two guys is a member of the Asian Boys Gang.

[00:16:46] Speaker 00:
A different gang than the neighborhood in which they were found.

[00:16:49] Speaker 04:
Absolutely, Your Honor.

[00:16:50] Speaker 04:
He knows that this location,

[00:16:53] Speaker 04:
had been territory of the Asian Boys Gang until very recently when it changed hands to become territory of the Chinatown Runners Gang.

[00:17:01] Speaker 02:
And what is the significance and the reasonable suspicion calculus of the court's reference to them being in rival gang territory?

[00:17:10] Speaker 02:
The court doesn't elaborate on that, and I don't see much elaboration in the briefing.

[00:17:14] Speaker 02:
So tell me, what should I make of that?

[00:17:17] Speaker 02:
What does that tell me as it relates to the increased likelihood that they were engaged in criminal activity?

[00:17:23] Speaker 04:
Well, Your Honor, I think what is significant about that, and if you go back to Officer Nickham's testimony at the hearing, his concern was that it was not just these two guys, that there would have been a car.

[00:17:37] Speaker 04:
There are references to, I was worried that there was a car, that there would have been other members of the gang, that them going into this territory that was no longer their territory

[00:17:48] Speaker 04:
raised the possibility that there was some sort of concerted, potentially violent gang action going on.

[00:17:53] Speaker 04:
I think that's what's supported by the hearing testimony.

[00:17:56] Speaker 04:
I agree the district court does not elaborate beyond rival gang territory, though that's a factor that's been noted in a few cases as we cite in our brief.

[00:18:04] Speaker 04:
Just that rival gang territory fact.

[00:18:07] Speaker 02:
OK, well, the district court does not elaborate in this statement about I believed or I worried there were cars.

[00:18:13] Speaker 02:
I mean, that's not objective indicia of anything, is it?

[00:18:15] Speaker 02:
That's speculation.

[00:18:16] Speaker 02:
I mean, we defer to officers' experience, but we don't allow them to just hallucinate what they think is going on, right?

[00:18:23] Speaker 04:
No, Your Honor.

[00:18:24] Speaker 04:
And to be clear, this was their testimony about what they were worried about.

[00:18:29] Speaker 04:
It was their testimony about what aroused their suspicion.

[00:18:32] Speaker 00:
But what they might have been worried about the way you've argued it,

[00:18:36] Speaker 00:
isn't criminal behavior.

[00:18:39] Speaker 00:
Being in a rival neighborhood isn't criminal behavior at all.

[00:18:43] Speaker 00:
So if that was why the officers attributed their nervousness to that fact, doesn't that make the nervousness innocuous here?

[00:18:53] Speaker 00:
Because it wasn't, I'm nervous because I'm going to commit a crime, I'm just simply nervous because I'm in a place I shouldn't be.

[00:18:59] Speaker 04:
Well, Your Honor, I think that you're correct that obviously just being physically present in rival gang territory is not itself criminal activity.

[00:19:08] Speaker 00:
It would make a gang member not in that, that didn't belong to that group nervous, wouldn't you think?

[00:19:14] Speaker 00:
I think it certainly would.

[00:19:15] Speaker 00:
There's no illegality to that at all.

[00:19:17] Speaker 00:
So can you draw any inference of illegality from the nervousness?

[00:19:21] Speaker 04:
I think that

[00:19:23] Speaker 04:
many of the factors that the court considers in the reasonable suspicion analysis are not themselves criminal.

[00:19:31] Speaker 04:
Absolutely.

[00:19:32] Speaker 00:
Presence in a high crime areas.

[00:19:34] Speaker 00:
But it would be abnormal not to be nervous if you were a gang member in a territory that you'd no longer control.

[00:19:41] Speaker 00:
But there's nothing illegal about that at all.

[00:19:43] Speaker 04:
But I think it's also abnormal for a member of a rival gang to be knowingly present in the rival territory.

[00:19:51] Speaker 04:
And that is something that

[00:19:53] Speaker 04:
officers may take into consideration as one component of whether they have reasonable suspicion.

[00:19:59] Speaker 04:
Now obviously there was considerably more here as the court has discussed.

[00:20:04] Speaker 03:
Would you say that the prime fact for these officers is that they recognized Li Shi

[00:20:13] Speaker 04:
I think that is certainly what aroused their suspicion initially and that they, as they testified, they had a strong suspicion or had some recognition of two as well.

[00:20:21] Speaker 04:
Yes, because these specific officers were very well versed in these gangs and this area as they testified.

[00:20:28] Speaker 03:
Well, should we just throw out the idea that they recognized two because the district court gave it no credence?

[00:20:36] Speaker 04:
Well, I don't think that...

[00:20:39] Speaker 04:
I think your question to my opposing counsel, Your Honor, should we just set aside the identity issue because everything else is sufficient?

[00:20:47] Speaker 04:
As the district court found, that is absolutely a way that this case can be resolved.

[00:20:51] Speaker 04:
I think that association with Lee, presence in rival gang territory, imprint of a gun, and headlong flight in opposite directions, those things are sufficient.

[00:21:01] Speaker 04:
I think that ultimately, if the court wanted to disregard the identity issue,

[00:21:07] Speaker 04:
I mean, I think what did the district court find?

[00:21:09] Speaker 04:
They had a strong suspicion.

[00:21:10] Speaker 04:
A reasonable officer would have had a strong suspicion based on knowing what these officers knew.

[00:21:15] Speaker 03:
And that was not clear here.

[00:21:17] Speaker 03:
In your opinion, I mean, do you read the district court?

[00:21:20] Speaker 03:
I mean, this would be strong disagreement with your opposing counsel, who I don't think reads it this way.

[00:21:26] Speaker 03:
But would you read the district courts?

[00:21:31] Speaker 03:
Colloquy as saying, look, I don't think you could definitively identify two.

[00:21:38] Speaker 03:
I don't think you recognized him for sure.

[00:21:41] Speaker 03:
But I think you may have thought it was him.

[00:21:44] Speaker 03:
Is that how you read it?

[00:21:47] Speaker 04:
I think fundamentally that that essentially is how I read it.

[00:21:50] Speaker 04:
Yes, Your Honor.

[00:21:51] Speaker 04:
The finding is they had a strong suspicion that the man they were detaining was two and that he had outstanding warrants.

[00:21:57] Speaker 04:
And that comes from the very end.

[00:22:00] Speaker 00:
they could detain a person on that basis alone.

[00:22:03] Speaker 04:
Absolutely, Your Honor.

[00:22:04] Speaker 04:
I think if you look at the Supreme Court's decision in Hensley and in Hill v. California, Hill is a mistaken identity in an arrest.

[00:22:14] Speaker 04:
Hensley is whether you can have reasonable suspicion to stop someone that they may be subject to a warrant.

[00:22:21] Speaker 00:
You don't need probable cause.

[00:22:23] Speaker 00:
You don't need that high a sentence.

[00:22:24] Speaker 04:
Absolutely not, Your Honor.

[00:22:25] Speaker 04:
I think reasonable suspicion that this person is subject to an outstanding warrant that is supported by specific articulable facts and that is a good faith belief on the part of the officers, all of that is present here.

[00:22:37] Speaker 04:
So I think that, and as we argue in our brief,

[00:22:40] Speaker 04:
The strong suspicion finding, even setting aside the level of certainty, which the district court obviously had some questions about in terms of hindsight, as Judge Holmes raised.

[00:22:50] Speaker 04:
But the strong suspicion finding standing alone is sufficient to justify the stop to determine whether he, in fact, was.

[00:22:58] Speaker 00:
And after you get the stop, then you see V. Boldt.

[00:22:59] Speaker 00:
And currently, nobody's really making a big dispute about that.

[00:23:04] Speaker 00:
And everything kind of tumbles after that.

[00:23:06] Speaker 04:
Absolutely.

[00:23:06] Speaker 04:
And I mean, obviously,

[00:23:08] Speaker 04:
The testimony was they saw the imprinting before even the video started, and the district court accepted that.

[00:23:13] Speaker 04:
But the moment two is stopped, he immediately volunteers, I have a gun.

[00:23:18] Speaker 02:
But based upon your earlier colloquy with Judge Carson, I mean, we don't even have to go down the road of the strong suspicion finding or anything of that sort, right?

[00:23:29] Speaker 02:
I mean, it's just based on the totality, the circumstances, whether they recognize two or not, it would be your contention there's a not.

[00:23:36] Speaker 02:
Absolutely, Your Honor.

[00:23:38] Speaker 02:
Yes.

[00:23:38] Speaker 02:
If I may, let me just ask, I was curious by the district court citation to United States versus Maddox.

[00:23:46] Speaker 02:
looks inapposite to me.

[00:23:47] Speaker 02:
What does it have to do with this case?

[00:23:49] Speaker 02:
I mean, United States versus Maddox turned on detaining while you had some third party that you were trying to conduct, let's see, what was it, do a protective detention on.

[00:24:02] Speaker 02:
What does that have to do with this case?

[00:24:04] Speaker 04:
I mean, I do think that Maddox is a factually complex case, and it's pretty far afield of the facts here.

[00:24:11] Speaker 04:
I think that

[00:24:14] Speaker 04:
What is significant for Maddox is that where there is a legitimate concern for officer safety, there is some leeway to detain.

[00:24:22] Speaker 04:
And I think that's where the district court is talking about this.

[00:24:25] Speaker 04:
And there's ample evidence from the record that there was a legitimate officer safety concern here.

[00:24:32] Speaker 04:
They know that Lee is, at this point, in the wind.

[00:24:37] Speaker 04:
You can hear Officer Nickham radioing over and over on the video information about Lee.

[00:24:43] Speaker 04:
Officer Wickhiser testified that he was concerned that, I mean, they were concerned they could be ambushed because their attention is on two and Lee is, they don't know where.

[00:24:53] Speaker 04:
So I think to the, Maddox and Maddox, much of Maddox does turn on that officer safety concern.

[00:24:59] Speaker 04:
though, as I say, a very different case factually.

[00:25:02] Speaker 04:
So I don't know how significant it is ultimately for this court's opinion.

[00:25:06] Speaker 04:
But I do think that even if we completely set aside the identity issue, which did give the district court some difficulty, though it made the strong suspicion finding, which was not clear error, we can still resolve this case entirely based on the other reasonable suspicion factors.

[00:25:21] Speaker 04:
Or as Judge Ebell suggests, just based on the suspicion, which is enough to detain to determine if he had warrants.

[00:25:28] Speaker 04:
So if there are no further questions, we'll ask the court to affirm.

[00:25:33] Speaker 04:
Thank you.

[00:25:38] Speaker 02:
One minute.

[00:25:41] Speaker 01:
Your Honor, I want to assist the court if it's going to conduct de novo review and consider the totality of the circumstances with specific regards to whether or not or how much weight the court should consider this rival gang issue.

[00:25:55] Speaker 01:
In the transcript volume, which I believe is volume three at 52 through 53, those page numbers, the first officer, Officer Weisger, testifies that Asian boys and the Chinatown runners, quote, often associate with each other, even though they're rival gangs, and that they have crossed membership, our affiliation.

[00:26:17] Speaker 01:
So this isn't the situation in these officers' mind or in the minds of a reasonable officer considering these facts.

[00:26:23] Speaker 01:
to really be a true rival gang territory in light of that testimony and this officer's training and experience with these gangs.

[00:26:32] Speaker 01:
I also want to talk about Hill versus California and the fact that an officer does not have to be certain in an individual's identity to execute it.

[00:26:45] Speaker 01:
And I see I'm over time.

[00:26:46] Speaker 01:
If I could just finish my thought.

[00:26:48] Speaker 01:
Finish your thought.

[00:26:49] Speaker 01:
Thank you, Judge.

[00:26:49] Speaker 01:
An officer doesn't have to be certain of an identity in order to effectuate an arrest on a warrant he believes is outstanding, but he does have to be operating in good faith.

[00:26:59] Speaker 01:
And I think that this record demonstrates that these officers were not operating in good faith.

[00:27:03] Speaker 01:
Thank you.

[00:27:05] Speaker 02:
Case is submitted.

[00:27:06] Speaker 02:
Thank you, counsel, for your arguments.

[00:27:09] Speaker 02:
And as I noted, we'll take a short 10-minute break.

[00:27:12] Speaker 02:
Thank you.