[00:00:06] Speaker 02: Good morning. [00:00:07] Speaker 02: This panel will hear the first case, and then we will take a short break to bring on the next panel. [00:00:20] Speaker 02: The first case is United States v. Huerta, No. [00:00:24] Speaker 02: 251050. [00:00:28] Speaker 02: Mr. Sandiford, you may proceed. [00:00:31] Speaker 01: Good morning. [00:00:32] Speaker 01: I'm Dean Sandiford from the Federal Defender's Office, and I'm here for no aware time. [00:00:36] Speaker 01: The issue in this case is whether the officers had reasonable suspicion to believe Mr. Huerta was armed and dangerous. [00:00:43] Speaker 01: And in finding that they did have reasonable suspicion, the district court relied primarily on two factors. [00:00:48] Speaker 01: The radio broadcast to stop the vehicle just to be on the safe side because Mr. Marshall looked somewhat similar to the suspect. [00:00:56] Speaker 01: And the officers believed that Mr. Marshall and Ms. [00:00:58] Speaker 01: Hampton were trying to distance themselves from the vehicle when they walked towards the convenience store. [00:01:04] Speaker 01: These factors did not add up to reasonable suspicion, and the additional facts cited by the government don't change the equation. [00:01:11] Speaker 01: First, the radio broadcast wasn't even a hunch that Mr. Marshall was the suspect. [00:01:16] Speaker 03: I'm sorry. [00:01:17] Speaker 03: You're going so fast. [00:01:17] Speaker 01: Oh, I'm sorry. [00:01:18] Speaker 01: I'll slow down. [00:01:18] Speaker 01: I'm sorry, Judge Kelly. [00:01:20] Speaker 01: First, the radio broadcast wasn't even a hunch that Mr. Marshall was the suspect. [00:01:25] Speaker 01: The detective essentially told the officers, he looks kind of like him, so stop him just in case. [00:01:31] Speaker 01: In other words, the detective [00:01:33] Speaker 04: didn't think he was the suspect but couldn't rule him out as a possibility. [00:01:46] Speaker 04: something about getting him out of the area, and there's some ambiguity as to what he said about stopping him. [00:01:55] Speaker 04: Just in case, what that related to. [00:01:58] Speaker 01: I don't think there is any ambiguity about that. [00:02:01] Speaker 01: You're right that I didn't quote him verbatim. [00:02:02] Speaker 01: I was paraphrasing. [00:02:04] Speaker 01: But the government makes this argument that maybe just to be on the safe side was, just to be on the safe side, stop him out of the area. [00:02:12] Speaker 01: That's what you're getting at, right? [00:02:14] Speaker 01: The district court didn't read it that way. [00:02:15] Speaker 01: The district court understood it like we did. [00:02:17] Speaker 01: And just to be on the safe side, we need to stop the vehicle. [00:02:21] Speaker 01: That's how the district court understood it. [00:02:23] Speaker 04: And is that a fact finding then? [00:02:24] Speaker 01: I think it's a fact finding. [00:02:25] Speaker 01: It's at page 176 of volume 3, if you're interested in looking at it. [00:02:30] Speaker 01: And it's really the only plausible reason. [00:02:33] Speaker 01: And I guess before I get to that, none of the officers testified that way either. [00:02:37] Speaker 01: No one below suggested that this just to be on the safe side was a modified the out of the area. [00:02:44] Speaker 01: No one suggested that. [00:02:45] Speaker 01: That's the first time on appeal assertion by the government. [00:02:48] Speaker 01: And really, the only plausible way to understand it is that the just to be on the safe side is about the reasons for the stop. [00:02:54] Speaker 01: And that's because the justification for the stop was very weak. [00:02:58] Speaker 01: It was just they parked nearby, he looks somewhat similar, stop him just to be on the safe side. [00:03:05] Speaker 01: That makes a lot of sense to say just to be on the safe side when those are the reasons that you're giving for the stop. [00:03:11] Speaker 02: Council, could I just ask you to back up for a general question? [00:03:17] Speaker 02: Of course. [00:03:18] Speaker 02: And that is, does this appeal ultimately turn on whether the officers reasonably suspected that Mr. Marshall was the shooting suspect? [00:03:28] Speaker 01: I think that that is an important fact in the case for sure. [00:03:32] Speaker 01: I don't know if it turns entirely on that because the district court relied on other things, the government relies on other things, but I think that is a key factor in the case. [00:03:42] Speaker 02: Well, if they did reasonably suspect Mr. Marshall, doesn't it follow? [00:03:46] Speaker 02: that they could reasonably suspect that Mr. Huérca had access to a gun in the Durango. [00:03:52] Speaker 01: We have not argued otherwise. [00:03:55] Speaker 01: I think that that's probably right. [00:03:56] Speaker 01: to be as straightforward as I can. [00:03:59] Speaker 01: But we don't think that the radio broadcast gave him reasonable suspicion, because reasonable suspicion is a reasonable, articulable, individualized basis for thinking you have the right person. [00:04:10] Speaker 01: This detective didn't think he had the right person. [00:04:12] Speaker 01: He thought, maybe it's him, let's rule him out. [00:04:15] Speaker 01: I doubt it's him, let's rule him out. [00:04:17] Speaker 01: That's what just to be on the safe side means. [00:04:20] Speaker 01: It means, I doubt this is a problem, but just check it out just in case. [00:04:24] Speaker 01: The officers understood him this way, apparently, because they waited until they saw a traffic infraction to stop the car. [00:04:30] Speaker 01: They didn't think what the detective told them gave them reasonable suspicion to stop the car. [00:04:35] Speaker 03: Well, excuse me. [00:04:37] Speaker 03: Didn't they identify the first, quote, black car as having been involved? [00:04:46] Speaker 03: And then the second car pulls up behind it [00:04:51] Speaker 03: And the people get out and they go in to the apartment or whatever. [00:04:56] Speaker 03: They come back out and get back into a white car. [00:04:59] Speaker 01: That's right. [00:05:00] Speaker 03: Okay. [00:05:00] Speaker 03: And then they drive off. [00:05:02] Speaker 01: That's correct. [00:05:03] Speaker 01: That's correct. [00:05:04] Speaker 01: But the first car that they drove in on, they happened to park behind this black SUV that they were watching, but they didn't interact with that vehicle in any way. [00:05:12] Speaker 01: Well, there was nobody in that vehicle. [00:05:14] Speaker 01: There was nobody in the vehicle, but they were parking on a public street in front of, in a high density residential area. [00:05:19] Speaker 01: They didn't do anything to even suggest that they had anything to do with that black SUV. [00:05:24] Speaker 01: They milled around outside a little bit, according to the detective, walked into an apartment and came back out. [00:05:29] Speaker 01: They got into another vehicle and drove away, but that doesn't establish any connection with this black SUV. [00:05:35] Speaker 01: They simply hadn't did nothing to connect themselves with that SUV, which is probably why the detective just said, due to their proximity to the target vehicle, that was all there was on that. [00:05:46] Speaker 01: They happened to park behind it. [00:05:48] Speaker 01: That's it. [00:05:50] Speaker 01: So I don't think that adds anything to reasonable suspicion. [00:05:54] Speaker 01: The district court didn't focus on that factor. [00:05:56] Speaker 01: I think it really turns on [00:05:57] Speaker 01: this he looked somewhat similar, so stop the car to be on the safe side. [00:06:02] Speaker 02: How much are you relying on an argument that even if there could have been some suspicion, once you get to the gas station convenience store and Mr. Marshall gets out of the car, the officers have a chance to take a look, however brief, but take a look. [00:06:23] Speaker 02: Are you arguing that because Mr. Marshall doesn't really look [00:06:28] Speaker 02: like the person in the surveillance photo, that any suspicion dissipated at that point? [00:06:34] Speaker 02: Is that part of your argument? [00:06:36] Speaker 01: We haven't argued that in the briefs. [00:06:38] Speaker 01: And the reason why is because both Officer Stupor and Espinosa testified that they weren't focused on them. [00:06:45] Speaker 01: Now, I think that it would have been very easy for them to do this. [00:06:48] Speaker 01: I mean, they had a photograph of the suspect on the phone. [00:06:52] Speaker 01: Officer Stupor sat in his car and watched Mr. Marshall walk in front of the car. [00:06:56] Speaker 01: He knew that Mr. Marshall was the one who had been identified by the detective based on what he was wearing, his red pants and a white shirt. [00:07:05] Speaker 01: He had the photo right there with him. [00:07:07] Speaker 01: If you look at the photos during the briefs, these men don't look anything alike. [00:07:10] Speaker 04: So it would have been very- Was there testimony that he saw their face? [00:07:13] Speaker 04: And I recognize you're saying you're not making this argument. [00:07:15] Speaker 04: I'm just wondering, was there any testimony about whether he was able to see his facial features? [00:07:20] Speaker 01: Well, I don't think there was testimony about that. [00:07:22] Speaker 01: But we have the body cam. [00:07:24] Speaker 01: We have his body cam. [00:07:25] Speaker 01: And you can see Mr. Marshall just ambling along in front of the body cam while Officer Stupor is narrating what's happening. [00:07:31] Speaker 01: So he's clearly looking at him. [00:07:33] Speaker 01: whether he testified to it or not. [00:07:38] Speaker 01: I can stay on this radio broadcast if the court has more questions, but I'll talk about the distancing aspect of this too. [00:07:47] Speaker 01: So you defer to reasonable judgments from officers. [00:07:52] Speaker 01: This one was not reasonable. [00:07:54] Speaker 01: These people stopped for gas on their own accord. [00:07:57] Speaker 01: They got out of the car and started walking at a normal pace towards the gas station. [00:08:01] Speaker 01: While a police car pulled up behind them, [00:08:03] Speaker 01: He just pulled up to the pumps behind them. [00:08:05] Speaker 01: He didn't activate his lights. [00:08:06] Speaker 01: He didn't say anything to them. [00:08:08] Speaker 01: Was that at the gas pumps? [00:08:10] Speaker 01: That was at the gas pumps. [00:08:12] Speaker 01: So this idea that they were distancing themselves from the car is unreasonable because they were just doing what people do when they stop for gas. [00:08:21] Speaker 02: Well, one way of looking at it is that as far as Mr. Marshall and I think it's Ms. [00:08:28] Speaker 02: Hampton are concerned, [00:08:31] Speaker 02: Them getting out of the car and going in the convenience store suggests that they didn't think they were being stopped, right? [00:08:40] Speaker 02: But another way of looking at it is, well, from the perspective of the officers, was it reasonable for the officers to think that they were stopped and that Mr. Marshall and Ms. [00:08:54] Speaker 02: Hampton thought they were stopped? [00:08:55] Speaker 01: I think that's the way you look at it. [00:08:57] Speaker 01: I think you do look at it from the officer's perspective, but I think that even from the officer's perspective, there was no basis for them to think that this was suspicious because they hadn't done anything to let Ms. [00:09:09] Speaker 01: Hampton and Ms. [00:09:10] Speaker 01: Marshall know that they were there for them at all. [00:09:12] Speaker 01: They just pulled up to the pump behind them. [00:09:14] Speaker 01: Police officers stopped for gas too. [00:09:15] Speaker 01: They didn't have their lights on. [00:09:16] Speaker 01: They didn't say anything to them. [00:09:18] Speaker 01: And when the second car got there and the officers immediately get out and tell them to hold up, they stopped. [00:09:23] Speaker 01: They don't try to flee. [00:09:25] Speaker 01: They don't try to do anything. [00:09:26] Speaker 04: Did the district court make any findings? [00:09:30] Speaker 04: The way I read it, the district court did not rely on this as part of a reasonable solution. [00:09:37] Speaker 01: The district court did rely on this, but it wasn't a factual finding. [00:09:40] Speaker 01: The district court didn't say, as a matter of fact, they are distancing. [00:09:44] Speaker 01: What the district court did was say, I think it was reasonable for the officers. [00:09:47] Speaker 01: to think that they were distancing, which is part of the reasonable suspicion. [00:09:51] Speaker 03: That's a legal conclusion. [00:09:57] Speaker 01: Yes, that was argued below. [00:09:58] Speaker 01: I mean, they pointed that out. [00:10:00] Speaker 03: And was that significant, in your opinion? [00:10:02] Speaker 01: I think that's significant. [00:10:03] Speaker 01: I mean, I think there's a lot of things significant. [00:10:05] Speaker 01: If you're looking at the two photographs, it takes a second to realize these are different people. [00:10:10] Speaker 01: It's clear that Mr. Marshall was not the shooter. [00:10:14] Speaker 01: He didn't have anything to do with that. [00:10:15] Speaker 01: And the only reason they got pulled over, or they didn't even get pulled over, but the only reason the officers kind of went after them was because [00:10:24] Speaker 01: Because they happened to be parked nearby. [00:10:25] Speaker 01: Oh, the tag was the pretextual reason for the stop, sure. [00:10:29] Speaker 01: But the reason the detective wanted them to go after them is just these people were minding their own business. [00:10:35] Speaker 01: They parked behind a car that the police were watching. [00:10:38] Speaker 01: And all of a sudden, they just get caught up in all of this. [00:10:40] Speaker 01: They didn't have anything to do with it. [00:10:42] Speaker 01: I mean, I think that is absolutely clear on this record. [00:10:44] Speaker 02: Where was the detective when he got a look at Mr. Marshall? [00:10:51] Speaker 01: It's not clear from the record. [00:10:53] Speaker 01: So we know that he's watching. [00:10:55] Speaker 01: He's doing kind of undercover surveillance, but we don't know exactly where he is. [00:10:59] Speaker 01: The only thing we have is the broadcast, but we can infer certain things from that, which is that he could see the guy pretty well. [00:11:07] Speaker 01: He identified his race. [00:11:08] Speaker 01: He identified his clothing. [00:11:09] Speaker 01: He identified the race and clothing of the two women that were with him. [00:11:13] Speaker 01: So this wasn't a situation where he could barely see them. [00:11:17] Speaker 01: He described them with some level of specificity. [00:11:22] Speaker 04: You indicated that you could read the distancing two ways, one from the reasonable, what the district court said, which is the officers reasonably viewed it to be trying to basically avoid them. [00:11:35] Speaker 04: The other being, as you are saying, that they're just going into the convenience store. [00:11:46] Speaker 04: So how is it error? [00:11:49] Speaker 01: I'm not saying you can read that two ways. [00:11:51] Speaker 01: I'm sorry. [00:11:53] Speaker 01: I was responding to Judge Matheson's questions about which perspective do you look at it from, from their perspective of the officers. [00:11:59] Speaker 01: You look at it from the officers. [00:12:00] Speaker 01: But their judgment has to be reasonable. [00:12:03] Speaker 01: And our argument is that their judgment was not reasonable. [00:12:05] Speaker 01: That there was nothing suspicious about them walking to the store when they stopped for gas. [00:12:10] Speaker 01: Not absent. [00:12:11] Speaker 01: I'm sorry. [00:12:11] Speaker 04: I'm sorry. [00:12:12] Speaker 04: I just was reminded of something that the government argued, but I don't remember how you responded, which is that there was some statement by one of the individuals in the vehicle that seemed to maybe indicate that they knew, the individuals in the vehicle knew, [00:12:30] Speaker 04: that they were either being followed or that the officers were looking for them, something about them following, recognizing that they were following, or they turned around. [00:12:41] Speaker 04: They turned around, she said. [00:12:43] Speaker 04: They turned around. [00:12:44] Speaker 04: And essentially, after she was advised what the reason for the stop was, [00:12:50] Speaker 01: Right. [00:12:51] Speaker 04: Yeah, she's kind of like... She said, what's the real reason? [00:12:54] Speaker 04: You turned around something along that name. [00:12:56] Speaker 01: That's right. [00:12:57] Speaker 04: She does. [00:12:58] Speaker 04: How do you read that? [00:13:00] Speaker 01: Well, we respond to this in our reply brief, but, you know, I think all you can read into that is she saw them. [00:13:05] Speaker 01: I mean, she saw them turn around. [00:13:06] Speaker 01: Turn around where? [00:13:08] Speaker 01: It's not really clear. [00:13:10] Speaker 04: That's kind of important, isn't it? [00:13:11] Speaker 01: I don't think it is. [00:13:12] Speaker 04: Did you see them back out on the street and they turned around and flipped around and started following them? [00:13:17] Speaker 04: Because that would indicate they did not. [00:13:19] Speaker 01: I don't think you can read that much into what she's saying. [00:13:21] Speaker 01: You know, I don't think you can. [00:13:23] Speaker 01: And plus, this is one person who's a backseat passenger in the car. [00:13:27] Speaker 01: It's totally speculative to think that anyone else noticed this. [00:13:29] Speaker 01: Like maybe she happened to be looking out her window and saw the cops turning around. [00:13:33] Speaker 01: She didn't say that she thought that they were focused on them. [00:13:36] Speaker 01: She said, [00:13:36] Speaker 01: I saw you turn around and come into the gas station. [00:13:40] Speaker 01: She knows at the time she's talking to the officers that they're there for them, but nothing about that statement suggests that she knew that at the time. [00:13:47] Speaker 01: And if you look at Mr. Marshall and Ms. [00:13:51] Speaker 01: Hampton's behavior, they don't look like they're trying to get away from the police. [00:13:55] Speaker 01: They look like any other person stopping for gas, walking to the convenience store. [00:14:00] Speaker 01: Even the district court said they're just walking at a normal speed. [00:14:03] Speaker 01: And when the officers approached Mr. Huerta, he's starting to stand up, he's holding his phone, he's in the car. [00:14:10] Speaker 01: You have the body cam of that. [00:14:11] Speaker 01: He looks totally bewildered and confused. [00:14:14] Speaker 01: He was clearly very surprised that the police were there for them. [00:14:17] Speaker 01: He was the other passenger in the back seat. [00:14:19] Speaker 01: So I think if you look at this in the totality, you can't put much weight on this. [00:14:24] Speaker 01: one passenger in the back seat who happened to notice that the police turned around to follow them. [00:14:29] Speaker 01: It just says nothing about what the rest of them knew. [00:14:33] Speaker 02: What do you think was the turning point for the district court in making its decision? [00:14:41] Speaker 02: What do you think the district court relied on the most? [00:14:45] Speaker 01: The district court relied on two factors. [00:14:47] Speaker 01: I don't think the district court put weight on one more than the other. [00:14:50] Speaker 01: They were really the radio broadcast and the [00:14:53] Speaker 01: and the officer's judgment that they were distancing. [00:14:55] Speaker 01: He starts with the radio broadcast. [00:14:58] Speaker 01: I think that makes sense just as a temporal matter. [00:15:00] Speaker 01: I don't read the district court's ruling as putting more weight on one than the other. [00:15:07] Speaker 01: I see I'm about out of time. [00:15:10] Speaker 01: Thank you. [00:15:10] Speaker 02: Thank you. [00:15:14] Speaker 00: May it please the court, Craig Fanzler for the United States. [00:15:18] Speaker 00: Seven facts made the pat down of Mr. Huerta necessary to protect officer safety. [00:15:23] Speaker 00: First, the officers believed that there was a shooting suspect in the car. [00:15:28] Speaker 03: How did they believe that? [00:15:30] Speaker 00: They believed that based on the radio transmission. [00:15:32] Speaker 00: And so if I can just break down and respond a little bit to what Mr. Huerta said. [00:15:36] Speaker 00: They heard on the radio, and there was factual findings below, that there was someone somewhat similar in the vehicle. [00:15:44] Speaker 03: Someone similar. [00:15:44] Speaker 03: He had a big bushy black beard. [00:15:47] Speaker 03: And it was not similar at all. [00:15:50] Speaker 00: I don't think that's quite what the record is below. [00:15:53] Speaker 00: They're even in the initial motion to suppress that Mr. Huerta filed. [00:15:58] Speaker 00: That's volume one, page 13. [00:16:00] Speaker 00: They note that there were similarities between the two. [00:16:03] Speaker 00: It was a black man with facial hair. [00:16:05] Speaker 00: One of the distinctive features that he was bald was obscured by a hat. [00:16:10] Speaker 04: The facial hair was completely different. [00:16:13] Speaker 04: One, the suspect had bushy facial hair, and this man had a light goatee and a mustache. [00:16:19] Speaker 04: It certainly was. [00:16:21] Speaker 04: And he was very dark-skinned, and the suspect was very light-skinned, and that was obvious. [00:16:26] Speaker 00: It certainly was. [00:16:27] Speaker 04: There was just no similarity at all. [00:16:29] Speaker 00: I will note that there was none. [00:16:34] Speaker 00: I guess I had two responses to that. [00:16:36] Speaker 00: First is that what the full radio transmission notes, and if you kind of listen to the very beginning of it, the detective says I have kind of a long eye on him. [00:16:46] Speaker 00: Long I mean, I'm not right up close. [00:16:48] Speaker 00: He's from a distance. [00:16:50] Speaker 00: And so he's not right up close. [00:16:53] Speaker 00: There were certainly similarities in build too. [00:16:56] Speaker 00: But I think putting all that aside, I think... They don't know that though. [00:16:59] Speaker 04: They don't know there's similarities in build. [00:17:01] Speaker 04: These officers don't, right? [00:17:03] Speaker 00: Right. [00:17:03] Speaker 00: And so I think the important thing is how would a reasonable officer have heard the word somewhat similar from a detective who's been investigating this case. [00:17:12] Speaker 00: They don't have any previous experience. [00:17:13] Speaker 00: They're relying on a detective. [00:17:16] Speaker 00: It's reasonable for them to rely on that detective. [00:17:19] Speaker 00: And so they hear somewhat similar, and they both testify. [00:17:22] Speaker 00: And there's clarifying the facts below that when they heard that, they thought this guy could be the suspect. [00:17:27] Speaker 00: There's a suspect of the shooting in the car. [00:17:30] Speaker 00: And so that's what the officer is making the stop at in their mind. [00:17:33] Speaker 04: And they have no obligation to say what are the similarities or to determine independently whether they can rely on that judgment. [00:17:44] Speaker 04: They can just rely on it, regardless of how off it was. [00:17:48] Speaker 04: Is that what your argument is? [00:17:51] Speaker 00: They can rely on a detective who's investigating the case, who doesn't air a lot of additional details, and when they're acting in the moment. [00:17:57] Speaker 00: I think to the extent that Mr. Heritage's point is that- Well, no details. [00:18:03] Speaker 04: No details. [00:18:04] Speaker 00: That's correct. [00:18:05] Speaker 04: Just somewhat similar. [00:18:07] Speaker 04: No details at all. [00:18:07] Speaker 04: What's your best authority for that? [00:18:10] Speaker 04: A situation where they're given no details, [00:18:14] Speaker 00: Yeah, so I think it lines up with this court's kind of, I think if I can step back, it lines up [00:18:24] Speaker 00: pretty well with the court's kind of mistake of fact type of cases. [00:18:28] Speaker 00: Because what they're really arguing is whether the detective could have or should have known that this wasn't the suspect. [00:18:37] Speaker 00: And what those cases, I think, say. [00:18:41] Speaker 03: They didn't even say they were the suspects. [00:18:45] Speaker 03: They were just to be safe. [00:18:48] Speaker 00: Yeah, so there's a separate question. [00:18:50] Speaker 03: They had no idea what [00:18:52] Speaker 03: what they were looking for, other than the fact that they followed a white car. [00:18:56] Speaker 03: They had been parked behind a black car. [00:18:58] Speaker 03: They had been parked behind another black car. [00:19:02] Speaker 00: Yeah. [00:19:02] Speaker 00: So let me turn to that, and then I'll come back to Judge Moritz's question. [00:19:06] Speaker 00: And that's just to be on the safe side, and whether that conveyed something to a reasonable officer hearing it. [00:19:12] Speaker 03: Well, they could do that to anybody. [00:19:13] Speaker 03: They could say, let's be on the safe side. [00:19:15] Speaker 03: We'll just take everybody out of the car and pat them down, because we want to be safe. [00:19:21] Speaker 00: Right, and I think officers do all kinds of things for safety. [00:19:24] Speaker 00: To me, that phrase doesn't add a lot to the meaning here. [00:19:27] Speaker 03: But that doesn't make it legal. [00:19:29] Speaker 00: Sure. [00:19:29] Speaker 00: Sure. [00:19:30] Speaker 00: And they're focusing on what a kind of a person saying that would mean, I think, is what Mr. Cuerta focused on and not what the officers, a reasonable officer, would hear when another officer says just to be on the safe side. [00:19:41] Speaker 00: So let's just take an example from this case that I think is more in line with what an officer would be thinking. [00:19:47] Speaker 00: Let's say Officer Espinosa, after discovering that first gun in the back seat, would say, you know, I think we should search the rest of the car just to be on the safe side. [00:19:55] Speaker 00: No reasonable officer hearing that is going to think that he doesn't think there's any other gun in the car. [00:20:00] Speaker 00: They're just trying to exclude it. [00:20:02] Speaker 00: Officers hearing that are going to know that guns are frequently. [00:20:06] Speaker 03: They apparently thought that it was very odd that these people would go into the convenience store. [00:20:13] Speaker 03: And that's a totally unreasonable conclusion. [00:20:17] Speaker 03: Everybody pulls up to the gas station, either goes in to pay or goes to go buy some cookies or something. [00:20:25] Speaker 03: Now that doesn't mean that they're trying to avoid capture. [00:20:31] Speaker 00: I don't think that's at all unreasonable. [00:20:33] Speaker 00: I don't think that's at all unreasonable. [00:20:34] Speaker 00: I think there are clear findings of fact in that issue below. [00:20:36] Speaker 00: What we have below is that this car pulls into the gas station. [00:20:41] Speaker 00: The police car actually turns around and follows it into the gas station. [00:20:46] Speaker 00: poles behind it, parks behind it, officers' seats. [00:20:49] Speaker 03: Maybe it needed gas also. [00:20:53] Speaker 03: So far I haven't seen anything that says to me this is reasonable suspicion at this point. [00:21:02] Speaker 00: Yeah, and so I think that's where someone sees a police car actually turn around and follow it into the gas station, park right behind it. [00:21:11] Speaker 00: The officers then watch the people distance or separate from their car based on their training experience. [00:21:17] Speaker 03: Was it two sets of pumps or one set of pumps at the gas station? [00:21:21] Speaker 00: So the way it's situated is the white Durango pulls up to the first pump. [00:21:26] Speaker 00: The police car pulls up behind it a little past the second pump, but close to the second pump. [00:21:33] Speaker 00: There was a whole other row of pumps right next to it that no one's in. [00:21:36] Speaker 00: So the police car would just want to guess, presumably would not follow another car, park right behind it. [00:21:43] Speaker 03: Was there any indication these people knew the police car was following them? [00:21:50] Speaker 00: I guess I'd have true response to that. [00:21:51] Speaker 00: I think the inquiry is whether a reasonable officer would think [00:21:56] Speaker 00: The other car had seen it turn around, follow it into the gas station at the same time, park right behind it. [00:22:03] Speaker 00: But then there is, I guess, to the question of, is there any kind of further evidence that they actually did know? [00:22:09] Speaker 00: I guess that's where I would point you back to the body cam with Crystal Gordon on Officer Parker's body cam, where she specifically says, yes, we saw you turn around, follow us in the gas station. [00:22:21] Speaker 04: She did not say yes, we saw you turn around. [00:22:23] Speaker 04: She said something about, [00:22:24] Speaker 04: You turned around and she was and then she said so what's your real reason essentially for stopping us as opposed to? [00:22:33] Speaker 04: Defective tags which they just informed her, but I didn't see where any of your officers Testified whether they turned around whether they were following them even for a few feet whether they [00:22:47] Speaker 04: you know, what they did ahead of time and it's your burden to show that. [00:22:51] Speaker 04: If you're going to show that they were being followed and they basically should have known and that her statement meant something, don't we need to have your officers saying, yes, we whipped around and they saw us do that or they must have seen us do that? [00:23:07] Speaker 04: Something. [00:23:09] Speaker 04: Is there anything from your officers about turning around or following them for any period? [00:23:15] Speaker 00: Yeah, I'll just respond first to what you said about what Gordon said. [00:23:19] Speaker 00: I do have the exact quote here. [00:23:22] Speaker 00: She said, but sir, you turned around before we hopped out of the car. [00:23:25] Speaker 00: So what's the real excuse? [00:23:26] Speaker 04: Before we hopped out of the car, which I didn't understand whether that meant two blocks away, a block away in the parking lot. [00:23:33] Speaker 04: I mean, before we hopped out of the car, to me means you turned around in the parking lot. [00:23:38] Speaker 04: But it's not clear. [00:23:39] Speaker 04: So I looked to see what other officers testified, and I didn't see anything about that. [00:23:44] Speaker 00: Yeah, what we do have is the final fact below on page 166 of volume 3 that Officer Stupor pulled into the Circle K and parked directly behind the Durango. [00:23:56] Speaker 04: Nothing about the turnaround. [00:23:59] Speaker 00: That's correct. [00:24:01] Speaker 00: I guess it wasn't testimony below, but in volume 1, page 117, we have Officer Parker's written report. [00:24:08] Speaker 00: He was driving the vehicle that talks about turning his car around after the Durango passed him and then following him into the gas station. [00:24:16] Speaker 00: That is volume 1, page 117. [00:24:21] Speaker 00: It's Officer Parker's written report. [00:24:23] Speaker 00: And so again, I think if the inquiry is what is a reasonable officer, what's in their mind as they turn their car around, follow them into the gas station, park directly behind them when there's two free pumps in the next row, and then see after a couple of seconds the two individuals in the front seat, including the person they believe to be a shooting suspect. [00:24:45] Speaker 04: Slow down, slow down. [00:24:46] Speaker 04: Okay. [00:24:46] Speaker 04: So we do have something in the record saying that the officers [00:24:51] Speaker 04: did a flip around and followed him into the parking lot. [00:24:53] Speaker 04: We do have something in the record. [00:24:54] Speaker 04: We don't have any finding. [00:24:55] Speaker 04: We do have a finding of fact about that? [00:24:57] Speaker 00: The finding of fact is specifically to Officer Stupor's testimony that he pulled into the Circle K and parked directly behind the Durango. [00:25:06] Speaker 00: It's not about turning around. [00:25:07] Speaker 04: But we do have in the record, in the testimony, that they whipped around and followed him. [00:25:12] Speaker 04: And we have one witness saying, recognizing that they turned around. [00:25:19] Speaker 04: That's correct. [00:25:20] Speaker 04: Was that witness one of the two that walked into the, into the store, or was she the one, one of the three, I guess? [00:25:28] Speaker 00: She was one of the two in the back seat. [00:25:30] Speaker 00: So Mr. Huerta and her. [00:25:32] Speaker 04: So she did not, she did not walk in the car, walk, get out and walk out. [00:25:35] Speaker 00: She was not one of the ones that walked into the store. [00:25:37] Speaker 04: And we don't know whether she passed, anybody else in the car saw the turnaround. [00:25:43] Speaker 00: We don't know specifically that. [00:25:44] Speaker 00: And so I can move on, I guess, to the other reasons. [00:25:46] Speaker 00: So beyond kind of what the officers believe based on the radio transmission, the distancing, and we can come back to that. [00:25:55] Speaker 00: We then have, I think, the third fact [00:25:59] Speaker 00: is that Mr. Huerta reacted to the police presence with evasive behavior and movements. [00:26:05] Speaker 00: The record talks about looking left and right. [00:26:08] Speaker 00: We see him reaching and the officer saying, twice, don't reach. [00:26:12] Speaker 00: We see him not listening. [00:26:14] Speaker 00: And there's plenty in the record and factual findings related to that. [00:26:17] Speaker 00: So we have his particular movement behaviors. [00:26:22] Speaker 02: The video ran in just a couple of seconds, much shorter than [00:26:29] Speaker 02: you've been able to describe it. [00:26:31] Speaker 02: I mean, there was hardly anything to see, wasn't there? [00:26:35] Speaker 00: It certainly happened very quick, where he got out of the car, his hands are down. [00:26:39] Speaker 02: So somebody can make an assessment about evasiveness and nervousness in a matter of one or two seconds? [00:26:45] Speaker 00: I do think there's factual findings and testimony below, both about kind of how he was looking, looking left and right, right as he's getting out of the car. [00:26:54] Speaker 00: There's the fact that his hands are down at his waistband. [00:26:57] Speaker 02: Is that unusual? [00:26:58] Speaker 02: to look left and right, to have your hands down by your waist. [00:27:03] Speaker 02: Why isn't that just the way people get out of a car? [00:27:09] Speaker 00: I think, again, what's unusual here is that the officers, by this point, there's two cars behind them, one with lights on. [00:27:15] Speaker 00: They're approaching him. [00:27:16] Speaker 00: The guy's getting out. [00:27:17] Speaker 02: Yeah, then maybe he does get a little nervous if there's a police car with lights on. [00:27:22] Speaker 02: What's unusual about that? [00:27:24] Speaker 02: Wouldn't anybody get nervous? [00:27:26] Speaker 00: And I think that's, again, where the factual findings below are important. [00:27:30] Speaker 02: What was the factual finding on this? [00:27:32] Speaker 00: Yeah, just that he was very squirmish, that that was unusual, that the way he was squirmish indicated intent to conceal. [00:27:41] Speaker 00: And so there's a whole set of findings about both Officer Stupor and Espinoza's testimony about kind of his squirmishness, the way he's looking left and right, the way he's not listening to their questions, and how that kind of indicated. [00:27:54] Speaker 00: Well, OK. [00:27:55] Speaker 02: You have a factual finding of squirmishness. [00:27:58] Speaker 02: But you also have to get to a legal finding of reasonable suspicion. [00:28:06] Speaker 02: So how does squirmishness get you there at all? [00:28:10] Speaker 00: Yeah, so I think the officers explain this, that the squirmishness is kind of turning your body. [00:28:16] Speaker 00: So the officers have more difficulty accessing parts of the body where you would conceal them. [00:28:21] Speaker 02: I don't want to belabor the point, but can I get back to the detective just for one question? [00:28:26] Speaker 02: Yeah. [00:28:28] Speaker 02: So the detective tells the officers that this person, who ends up being Mr. Marshall, looked like the suspect. [00:28:40] Speaker 02: And I know that this is a bit hypothetical, but let's assume that the detective said that to the officers, but the detective had no basis at all to think that Mr. Marshall looked like the suspect, but said that to the officers anyway. [00:29:01] Speaker 02: Would that be enough to defeat reasonable suspicion in this case? [00:29:05] Speaker 00: I do think in that case, it kind of [00:29:08] Speaker 00: turns on the kind of mistake of fact precedents that this court has, whether a reasonable officer confronting him at the scene could reasonably rely on this detective. [00:29:18] Speaker 00: You look at things like whether they had reason to know this identification wasn't accurate. [00:29:24] Speaker 02: So it's the mistake of fact line of cases we need to look at. [00:29:28] Speaker 00: I think that would be appropriate, like the Walraven case or the Jackes case from 2008, the cases where you really look at, [00:29:36] Speaker 00: where the officer on the scene doesn't have fully accurate information from another officer down the road, whether they were reasonable to rely on. [00:29:46] Speaker 00: I do think, to Judge Kelly's question, to Mr. Huerta, another factor that's important is the geographic association of these persons to the black SUV involved in the shooting. [00:30:00] Speaker 00: I don't think that's a mere propinquity type of argument. [00:30:04] Speaker 00: I think that's a separate thing, and geographic association. [00:30:09] Speaker 00: I see my time's up. [00:30:09] Speaker 00: I don't know if I can just finish this thought. [00:30:11] Speaker 00: Why don't you finish your thought, and we'll look at it. [00:30:13] Speaker 00: Yeah. [00:30:13] Speaker 00: Geographic association is something the court has found important in cases like US versus Conner in 2012 and other cases. [00:30:22] Speaker 00: I think it's something that has value in this case. [00:30:25] Speaker 02: OK. [00:30:26] Speaker 02: Thank you, counsel. [00:30:27] Speaker 02: I think Mr. Sanderford had about 11 or 12 seconds, and he went over a bit. [00:30:32] Speaker 02: So let's give him a minute. [00:30:34] Speaker 02: Would you take 30 seconds if we gave it to you? [00:30:37] Speaker 02: Oh, sure. [00:30:43] Speaker 01: All right. [00:30:44] Speaker 01: Thanks. [00:30:44] Speaker 01: I'd like to address the turning around thing first. [00:30:48] Speaker 01: This is apparently an Officer Parker's police report. [00:30:51] Speaker 01: This is not something anyone talked about below at all. [00:30:55] Speaker 01: So I'm not familiar with the exact words that are used in that. [00:30:57] Speaker 01: But I think that regardless, let's just posit that someone in the car saw them turn around and followed them in. [00:31:04] Speaker 01: They pulled up with a gas pump by themselves, not being stopped by the police is what I mean. [00:31:09] Speaker 01: Two people get out of the car and amble towards the convenience store. [00:31:12] Speaker 01: I think that even if someone knew that the police had followed them in, why is that suspicious? [00:31:17] Speaker 01: They weren't running. [00:31:18] Speaker 01: They weren't fleeing. [00:31:20] Speaker 01: You can see them thinking like, well, until the police put their lights on or tell us to stop, we're just going to assume that we can go about our business. [00:31:28] Speaker 01: I do think it would be different if they had gotten out of the car and run, but that's not what happened. [00:31:34] Speaker 01: Thanks for the extra time. [00:31:35] Speaker 01: I appreciate it. [00:31:36] Speaker 02: Thank you, counsel. [00:31:39] Speaker 02: Thanks to both of you for your arguments this morning. [00:31:42] Speaker 02: The case will be submitted, and counsel are excused. [00:31:46] Speaker 02: I assume, Mr. Sanford, this is your only argument this morning? [00:31:51] Speaker 02: OK, then counsel are excused. [00:31:54] Speaker 02: And we'll take a short break.