[00:00:18] Speaker 00:
The next case this morning is 23-1399, United States v. McGregor.

[00:00:27] Speaker 00:
Counsel for the appellant, if you'd make your appearance and proceed, please.

[00:00:32] Speaker 04:
Good morning, Mr. Apparent Chacho.

[00:00:41] Speaker 04:
On behalf of the appellant, I'll read the record.

[00:00:42] Speaker 04:
During a routine traffic stop in broad daylight,

[00:00:45] Speaker 04:
Officers searched Mr. McGregor's vehicle for weapons without a warrant, claiming they had reasonable suspicion that he was armed and presently dangerous.

[00:00:53] Speaker 04:
In upholding the protective sweep, the district court relied on three facts.

[00:00:56] Speaker 04:
First, Mr. McGregor's reach into the passenger side of his vehicle as he was pulling over.

[00:01:00] Speaker 04:
Second, his prior robbery conviction.

[00:01:03] Speaker 04:
And third, that officers recognized him as a gang member.

[00:01:06] Speaker 04:
This reach was innocuous.

[00:01:11] Speaker 04:
It was supported by multiple innocent explanations, and it was completed before officers reached the vehicle.

[00:01:17] Speaker 04:
At most, it gave officers a hunch Mr. McGregor was hiding something.

[00:01:21] Speaker 04:
And the status factors here, which travel with Mr. McGregor every time he gets in a car, can't transform that hunch into reasonable suspicion that he was armed and presently dangerous in the moment.

[00:01:32] Speaker 02:
Do you have any arguments?

[00:01:34] Speaker 02:
Are you advancing any arguments challenging the district court's factual findings as clearly erroneous?

[00:01:39] Speaker 04:
No, Your Honor.

[00:01:41] Speaker 04:
We accept the district court's factual findings as to the nature of the reach, and we aren't making any challenges.

[00:01:49] Speaker 02:
Are you inviting this court to look beyond the findings that the district court made in support of your argument?

[00:01:56] Speaker 04:
No, Your Honor, I don't see us doing that.

[00:02:02] Speaker 04:
say that the government has asked this court to make fact findings on matters that were disputed below, specifically whether Mr. McGregor was slow to stop under the circumstances.

[00:02:13] Speaker 04:
We would say that this court, in the first instance, cannot resolve those types of factual disputes.

[00:02:19] Speaker 04:
And our support for that is, in the United States versus Denison, this court said it could not affirm

[00:02:27] Speaker 04:
a district court's finding that the search at issue was incident to arrest because the district court hadn't resolved a necessary factual dispute and the court said we can't act as fact finder.

[00:02:37] Speaker 04:
We're saying here the district court didn't resolve the dispute about whether Mr. McGregor was slow to stop under the circumstances and this court can't resolve it in the first instance.

[00:02:46] Speaker 00:
Counsel, let me ask about status factors that as I understand it from what you just said, you perceive as following him wherever he goes.

[00:02:56] Speaker 00:
On the gang affiliation one, at least as I recall the record, there was both what they found in the database, but there was also some evidence that he was at least two funerals involving gang members.

[00:03:12] Speaker 00:
Now, were those, do you know, were those funerals reasonably close in time to the stop?

[00:03:21] Speaker 04:
Your Honor, we don't know anything about those funerals.

[00:03:24] Speaker 04:
We don't know who was there, how many people were involved at the funerals.

[00:03:29] Speaker 04:
It's from Council Bullo's description.

[00:03:32] Speaker 04:
It sounds as if there were multiple people there who had passed away and multiple community members as well.

[00:03:38] Speaker 04:
But no, we don't know when those funerals were.

[00:03:41] Speaker 04:
And just to clarify, the fact that the officer said that

[00:03:46] Speaker 04:
There was a database involved.

[00:03:48] Speaker 04:
He was talking about a general knowledge base, not a specific database.

[00:03:53] Speaker 04:
This is different from cases where this court has relied on gang membership where someone's in a documented gang member in an actual police database.

[00:04:03] Speaker 04:
Here we're talking about just a general knowledge base.

[00:04:05] Speaker 00:
So it's talking about just intelligence, general intelligence among the officers who do this kind of work.

[00:04:10] Speaker 00:
Yes.

[00:04:11] Speaker 00:
Well, what I'm trying to get a better sense of is whether there is any way to identify whether this gang status was deemed to be contemporary or not.

[00:04:26] Speaker 00:
I mean, in the sense that

[00:04:28] Speaker 00:
I mean, your argument has a little bit of persuasive force if you're saying status factors that follow him wherever he goes.

[00:04:35] Speaker 00:
If he were a gang member 30 years ago, he founds whatever higher power there is, and he comes out, and 30 years later, he's stuck with this moniker, even though he is really no longer affiliated with gangs.

[00:04:51] Speaker 00:
So that being the range of what I'm talking about, is there any way to get a sense of, as you know, and I'm going to ask government counsel this too, any way to get a sense of whether we could say he was a current gang member?

[00:05:05] Speaker 04:
Your Honor, I don't think so on this record.

[00:05:07] Speaker 04:
I don't see anything.

[00:05:09] Speaker 04:
I see the officers recognizing him and having gone to these gang funerals.

[00:05:16] Speaker 04:
We don't know when those social media searches were.

[00:05:19] Speaker 04:
They didn't testify.

[00:05:21] Speaker 04:
as to, with any particularity, about what those searches were.

[00:05:25] Speaker 04:
So there's sort of this nebulous thing that they recognize him as a gang member.

[00:05:29] Speaker 00:
And possibly it's contemporaneous in that they're, you know, I don't know how old everybody is, but, you know, it's- Well, that said, I mean, if there isn't a hard file, you know, some sort of database that actually cuts against the notion of it being, well, it cuts against the notion of it, well,

[00:05:51] Speaker 00:
is more likely to be contemporary if it is, in fact, in people's heads.

[00:05:56] Speaker 04:
I think I agree with that.

[00:05:57] Speaker 04:
But it also is sort of less reliable.

[00:06:01] Speaker 04:
So if someone's in a gang database as a documented gang member, they might have stronger gang ties.

[00:06:06] Speaker 04:
There might be actually more there than here, where we're going off this kind of nebulous information about attending a funeral and then

[00:06:19] Speaker 04:
this vague testimony as to what their searches were that they were doing.

[00:06:26] Speaker 04:
But I would say even if it's somewhat contemporaneous, we don't have any additional factors.

[00:06:34] Speaker 04:
In this court, it said in Hammond, for status factors to bear a meaningful weight in the analysis, you need something about the particular circumstances of the stop that interact with that

[00:06:47] Speaker 04:
that status factor to show that the person is, you know, in this context acting in their capacity as a gang member.

[00:06:53] Speaker 02:
Are you asking us to develop the law on that point or are you arguing under the existing framework?

[00:06:59] Speaker 04:
I don't see that as asking to develop the law.

[00:07:01] Speaker 04:
I think Hammett is clear that status factors, you can't just arrest someone, excuse me, search their vehicle.

[00:07:09] Speaker 04:
based on who they are in their past.

[00:07:12] Speaker 04:
And those factors really only play a meaningful role in the analysis when there's something about the stop that's tying them to the present moment and showing present potential for weapons possession and present potential for violence.

[00:07:27] Speaker 04:
And so in Hammond, it was that the person was effectively dressed in what sounds like a uniform, a gang uniform.

[00:07:33] Speaker 04:
during an ongoing feud, and then was driving around in the car that was seized in connection with a weapons suspicion offense, and he was arrested on that offense.

[00:07:45] Speaker 04:
And so those sort of factors aren't present here.

[00:07:47] Speaker 00:
We don't have anything that's tying Mr. McGregor's whether contemporaneous or not his gang membership to- I'm sorry, whether contemporary or not, if it is contemporary, and if there's some reasonably reason

[00:08:02] Speaker 00:
objective reason to believe it is contemporary.

[00:08:05] Speaker 00:
Why isn't just being in a gang, and we're not talking about gangs that, you know, do charity work.

[00:08:09] Speaker 00:
I mean, by virtue of being in a gang, in and of itself, a whole bunch of stuff comes with that, and it isn't good.

[00:08:17] Speaker 00:
I mean, including that, you know, violence, potential access to weapons, all those sorts of things.

[00:08:23] Speaker 00:
So just whether, if it is contemporary and if there is some reason to believe it's contemporary, why isn't that enough?

[00:08:30] Speaker 00:
I mean, even under what you described in Hammond, he wouldn't have to be wearing gang insignia for that to do it, right?

[00:08:37] Speaker 04:
I see this court's case law when you're giving substantial weight to factors like gang membership where presumably a person has another, like maybe they're a gang member, but they also have what we might consider a normal life where they're not.

[00:08:52] Speaker 04:
acting in their capacity as a gang member, where this court has given substantial weight to gang membership, is where someone has, there's present indicia that they are acting as a gang member with, for which they might be armed and predisposed to violence.

[00:09:07] Speaker 04:
So in, we've covered Hammond, but in Amaya, someone's trapped, the passenger was traveling with, they left a suspected drug den.

[00:09:16] Speaker 04:
The passenger is traveling with a known drug dealer.

[00:09:19] Speaker 04:
He's documented as a gang member.

[00:09:21] Speaker 04:
He's wearing gang colors.

[00:09:22] Speaker 04:
There, the proximity to drug activity and then wearing the gang colors, again, it brings it into the present.

[00:09:34] Speaker 00:
That makes it a really cool, great case.

[00:09:36] Speaker 00:
But that doesn't mean that you have to have that, right?

[00:09:39] Speaker 00:
I mean, it could be something less than that, particularly when it's not the sole factor that the district court relied on here.

[00:09:45] Speaker 00:
I mean, the district court relied on the gang affiliation.

[00:09:47] Speaker 00:
But he also had him saying that he's a convicted felon of robbery, if I recall correctly, which is ordinarily viewed as being a violent crime.

[00:09:55] Speaker 00:
And so you have that.

[00:09:57] Speaker 00:
And then, you know, we have our Canada decision.

[00:10:01] Speaker 00:
And frankly, I find this, at least on its face, and tell me why I'm wrong, I find it more indicative of danger that he is reaching around in an area

[00:10:12] Speaker 00:
that he subsequently can actually easily access, i.e.

[00:10:17] Speaker 00:
up front next to him, you know, and is pretty occupied doing that since he's leaning over, I find that much more troubling, you know, being an uneducated person about these sorts of things than I would be if he was reaching behind him.

[00:10:32] Speaker 04:
Your honor, I think Canada is much more indicative of weapons possession and present violence for a couple of reasons.

[00:10:40] Speaker 04:
So as your honor described, the nature and timing of these two movements is quite different, right?

[00:10:46] Speaker 04:
So Canada involves someone reaching behind the driver's seat as the officers are standing next to the car, but he already had his wallet on his lap.

[00:10:55] Speaker 04:
It's hard to imagine an innocent explanation for doing that.

[00:10:59] Speaker 04:
Whereas in this context, Mr. McGregor is reaching into the passenger area, but the officers can't see what he's doing.

[00:11:09] Speaker 00:
Isn't that the problem?

[00:11:10] Speaker 00:
Go ahead.

[00:11:10] Speaker 00:
No, you go ahead.

[00:11:11] Speaker 00:
But he can see them, right?

[00:11:14] Speaker 00:
And to borrow from my learned colleague here, isn't it a problem that they can't see what he's doing?

[00:11:20] Speaker 00:
I mean, it would seem that if you're in a situation where you're trying to conceal

[00:11:26] Speaker 00:
arguably for further use, a weapon, why wouldn't you do exactly what he did?

[00:11:31] Speaker 00:
He saw the officers.

[00:11:33] Speaker 00:
He is very busy doing it.

[00:11:36] Speaker 00:
He's intent to do something in there.

[00:11:39] Speaker 00:
Why wouldn't that be exactly what you would do if you were trying to hide a weapon?

[00:11:44] Speaker 04:
I think it is remarkably reaching into the passenger area of a vehicle.

[00:11:50] Speaker 00:
You're going to use the word innocent?

[00:11:52] Speaker 04:
I think so.

[00:11:54] Speaker 04:
Your honor, I think there are good reasons why one might do that.

[00:11:57] Speaker 04:
So the undisputed testimony is they're slowing from 50 miles per hour and they've gone over speed bumps.

[00:12:03] Speaker 04:
From reviewing officer Jowarowski's video, there are items in the passenger seat.

[00:12:08] Speaker 04:
So there's a bottle of cranberry juice and there are items in the

[00:12:11] Speaker 04:
floorboard.

[00:12:12] Speaker 04:
Presumably, those things would have gone flying.

[00:12:14] Speaker 04:
I just did this as I was driving here, but when you slow to a stop, things go flying forward, and there's an urge to grab them and put them back where they were.

[00:12:23] Speaker 02:
But innocent explanations don't negate reasonable suspicion, right?

[00:12:28] Speaker 02:
So how do you square all of these possibilities, whether or not they're true, with our case law?

[00:12:38] Speaker 04:
Absolutely, Your Honor.

[00:12:38] Speaker 04:
The officers don't have to rule out all innocent explanations, but they need more than a hunch.

[00:12:43] Speaker 04:
They need more than a hunch, and they need more than, we don't know where he was reaching.

[00:12:48] Speaker 04:
To base this, or to put substantial weight on a reach, you need to be able to, clarity goes to whether the officers, both whether they saw it well enough, but also whether the reach is sufficiently unambiguous to

[00:13:07] Speaker 04:
to justify inferences that the person is reaching in an area where a weapon might be and doing something that's not consistent with preparing for a traffic stop.

[00:13:19] Speaker 02:
Can I ask you just a question?

[00:13:21] Speaker 02:
I want to make sure I understood your argument.

[00:13:23] Speaker 02:
Are you contending that it was sort of like a stand-alone reversible error that the district court here didn't consider mitigating factors, or are you arguing that more in terms

[00:13:35] Speaker 02:
how it informs your totality analysis.

[00:13:37] Speaker 04:
The latter, Your Honor.

[00:13:38] Speaker 04:
Yes, we don't contend that it's a standalone error.

[00:13:42] Speaker 04:
We do contend that the absence of the discussion of those factors, and here they are different from other circumstances where you have neutral compliance in a tense situation.

[00:13:53] Speaker 04:
This is an active attempt to show that Mr. McGregor was non-threatening.

[00:13:58] Speaker 04:
It's in broad daylight in an area that's not described as high crime.

[00:14:02] Speaker 04:
And we think the district court didn't give sufficient weight.

[00:14:06] Speaker 04:
We're just pointing to the fact that it didn't discuss them whatsoever, but not as a standalone error.

[00:14:11] Speaker 04:
If the court doesn't have further questions, I'll reserve the rest of my time.

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

[00:14:15] Speaker 00:
Thank you.

[00:14:21] Speaker 01:
May it please the court and Chief Judge Holmes, Judge Carson, Judge Rossman, Jess McKeel on behalf of the United States.

[00:14:28] Speaker 01:
Your honors, I think this brief, the briefing kind of teed this up as Canada part two, but Canada involved two factors, furtive movements and a slow roll.

[00:14:40] Speaker 01:
And I would submit that here we've got probably eight, maybe even nine factors.

[00:14:45] Speaker 03:
I'm just going to quickly... But Canada involved a dark rainy night in what officers described as a high crime area.

[00:14:54] Speaker 01:
Your Honor, that is true.

[00:14:55] Speaker 01:
But in terms of the court's analysis, those were factors that were listed.

[00:15:00] Speaker 01:
And actually, in the briefing in Canada, the government submitted that high crime should be considered as an additional factor, even though it wasn't weighted by the district court.

[00:15:10] Speaker 01:
But ultimately, the Canada opinion came down to, as Judge Rossman pointed out, a totality of two, furtive movements and slow roll.

[00:15:18] Speaker 01:
And I know there's disagreement about how suspicious each of those two independent factors were.

[00:15:24] Speaker 01:
But we've got a lot more factors than that here.

[00:15:27] Speaker 00:
Didn't the court focus on three, though?

[00:15:30] Speaker 01:
In Canada?

[00:15:31] Speaker 00:
No, in this case.

[00:15:32] Speaker 01:
Oh, in this case, I would say we've got at least four.

[00:15:36] Speaker 00:
That doesn't answer the question.

[00:15:37] Speaker 00:
I thought the court spoke to, it didn't deal with the alleged slow roll.

[00:15:44] Speaker 00:
It made no finding one way or the other on that.

[00:15:46] Speaker 00:
Did it?

[00:15:47] Speaker 00:
Do you disagree with that?

[00:15:48] Speaker 01:
I do disagree.

[00:15:48] Speaker 01:
I would submit it did make a finding.

[00:15:51] Speaker 00:
What finding did it make?

[00:15:52] Speaker 01:
So it's undisputed, if you look at page 93 of the transcript, volume 3, undisputed that this took 17 seconds to stop.

[00:16:02] Speaker 01:
The district court asked counsel, how long did it take?

[00:16:07] Speaker 01:
17 seconds.

[00:16:08] Speaker 01:
Well, that's a fairly long time.

[00:16:10] Speaker 01:
And then we've got page 92, the page before it, where the court is clearing up this distinction between one officer calling it a slow roll, the other calling it an abrupt pulling over.

[00:16:22] Speaker 01:
And the district court said, well, looking at the defense's exhibit A, the map, that belies any notion of an abrupt pulling over.

[00:16:31] Speaker 01:
Now, if you look at Officer Jaworski's testimony, he said this car abruptly pulled over.

[00:16:38] Speaker 01:
But taking even that label off, because at the bottom, these are all labels.

[00:16:44] Speaker 02:
But there's a conflict in the testimony about not that it was 17 seconds necessarily.

[00:16:49] Speaker 02:
The fact is perhaps undisputed.

[00:16:51] Speaker 02:
But how to characterize that fact, there was disputed testimony about that.

[00:16:55] Speaker 01:
And the district court said, based on the map, the Defense Exhibit A, that it does not suggest an abrupt pulling over.

[00:17:03] Speaker 01:
because that's at least two blocks, according to Jarworski.

[00:17:07] Speaker 00:
And if you look at this map... And when the district court articulated the factors from which it derived its conclusion of reasonable suspicion, was that one of them?

[00:17:17] Speaker 00:
It was not in it.

[00:17:18] Speaker 01:
And so what I would start with the factors that, again, take this above and beyond Canada,

[00:17:23] Speaker 01:
You look at page 145 and it's not three factors.

[00:17:26] Speaker 01:
It's four.

[00:17:28] Speaker 01:
We've got leaning over to the right in a way that he thought was unusual and dangerous.

[00:17:32] Speaker 02:
The district court didn't consider that either.

[00:17:33] Speaker 02:
I mean, before you enumerate the facts that you think are more comprehensive than the ones in Canada, why should we look beyond what the district court found here as the basis for its legal conclusion?

[00:17:48] Speaker 01:
So I guess you're saying before we even get to the facts that the district court relied on.

[00:17:52] Speaker 02:
No, my question is that you seem to be arguing the government's position is there's a whole lot more going on here to support reasonable suspicion than there was in Canada.

[00:18:01] Speaker 02:
Is that what you're saying?

[00:18:02] Speaker 01:
That is fair.

[00:18:02] Speaker 02:
Okay.

[00:18:03] Speaker 02:
And it seems to me that you're beginning to enumerate facts that go outside of the ones that the district court relied on to conclude that there was reasonable suspicion.

[00:18:13] Speaker 01:
Your Honor, where I was going to start actually is the facts that the district court relied on.

[00:18:17] Speaker 02:
The three facts?

[00:18:18] Speaker 01:
There's four.

[00:18:19] Speaker 02:
Okay, so you're contending that the district court made a factual finding about a slow roll?

[00:18:24] Speaker 01:
No.

[00:18:25] Speaker 01:
What the four facts are on page 145, the first is this extreme exaggerated lean over to the right, which is, I mean,

[00:18:34] Speaker 01:
They described it as excessive, you know, his whole body disappeared from view.

[00:18:40] Speaker 01:
And they weren't far away.

[00:18:41] Speaker 01:
They were about the distance from counsel's table to you all, about 20 to 25 feet.

[00:18:46] Speaker 01:
And he disappeared from view while he's still driving.

[00:18:49] Speaker 01:
Secondly, they knew that he was a gang member.

[00:18:53] Speaker 01:
Third, they believed that local gang members were armed.

[00:18:58] Speaker 01:
Fourth, he overheard the statement that the defendant was on parole and

[00:19:03] Speaker 01:
looking in the rest of the judge's order, it's clear that what we're talking about is on parole for robbery.

[00:19:07] Speaker 01:
You could even splice those out into two additional factors.

[00:19:11] Speaker 01:
On parole, that suggests, and the defendant says on the video, oh, I don't carry weapons because I'm on parole.

[00:19:18] Speaker 01:
Okay, well, there's some suggestion here.

[00:19:21] Speaker 01:
What are you reaching to do?

[00:19:23] Speaker 01:
What are you hiding?

[00:19:24] Speaker 01:
So the parole factor

[00:19:26] Speaker 01:
And the fact that he is a prohibited person does tend to suggest that he is armed.

[00:19:32] Speaker 01:
Secondly, this violent robbery, that suggests that he's dangerous.

[00:19:36] Speaker 02:
Why violent robbery?

[00:19:37] Speaker 02:
I mean, he says he's on parole for robbery.

[00:19:39] Speaker 01:
But a robbery is categorically violent under Colorado law.

[00:19:43] Speaker 01:
And if, you know, this kind of goes to actually the 922G argument, which is preservation, but we've kind of fleshed out what that robbery was.

[00:19:51] Speaker 01:
And if you look at the nature of that robbery, it's pretty bad.

[00:19:55] Speaker 01:
It's a carjacking, it's pistol whipping, it's shooting.

[00:19:58] Speaker 02:
None of that was known to the officers at the time, right?

[00:20:00] Speaker 01:
No, no, no, but I'm pointing out that if we want to talk about whether or not this was violent, factually it was violent, categorically it was violent.

[00:20:10] Speaker 00:
Talk to me for a second, perhaps you have some information on the gang member status affiliation.

[00:20:17] Speaker 00:
What basis was there to know from the record whether that was a contemporary designation or status designation?

[00:20:29] Speaker 00:
I mean, was this he was a gang member 30 years ago or was he a gang member as far as the officers knew now?

[00:20:37] Speaker 01:
And that's a fair point.

[00:20:38] Speaker 01:
He's 23 years old, so he's definitely not a gang member 30 years ago.

[00:20:42] Speaker 01:
This is all fairly recent stuff that we're talking about.

[00:20:46] Speaker 01:
These gang funerals, according to their own motion to suppress, they attach the officer's report.

[00:20:53] Speaker 01:
The gang funerals were within the past year.

[00:20:56] Speaker 00:
We're also talking about- Okay, so help me on that.

[00:20:59] Speaker 00:
The gang funerals were in the past year.

[00:21:01] Speaker 00:
That's based upon what evidence are you talking about?

[00:21:04] Speaker 01:
That's at page 13, record volume one.

[00:21:08] Speaker 01:
It's attached to the motion to suppress.

[00:21:09] Speaker 01:
Okay.

[00:21:10] Speaker 01:
Secondly, we're dealing with social media.

[00:21:12] Speaker 01:
So we're not talking about age-old reports here.

[00:21:15] Speaker 01:
Third, these officers are gang unit officers that develop a knowledge database from surveillance, social media, open source, going to these funerals.

[00:21:26] Speaker 01:
They knew exactly who Clover was.

[00:21:29] Speaker 01:
They knew who he was.

[00:21:30] Speaker 01:
And I would point to this court's decision in Minners, where there was a discussion of whether the evidence of somebody's gang membership was reliable.

[00:21:38] Speaker 01:
The court called that irrelevant for purposes of a long protective sweep.

[00:21:44] Speaker 01:
The question is, do these officers have reasonable suspicion that this individual is armed and dangerous?

[00:21:50] Speaker 01:
And this isn't looking, troweling for evidence.

[00:21:53] Speaker 01:
This is to try to maintain the status quo to separate the person from the weapon.

[00:21:58] Speaker 01:
That's all this was.

[00:21:59] Speaker 01:
They quickly peer under the passenger seat.

[00:22:02] Speaker 01:
There it is, exactly where they thought he put it.

[00:22:05] Speaker 02:
What do you say to the appellant's argument that with respect to gang membership and

[00:22:09] Speaker 02:
and status like that, that our law actually requires something more related to the incident itself before it can really inform the reasonable suspicion analysis?

[00:22:21] Speaker 01:
Well, I think both as to gang membership and then prior record, what I think the defense calls these static status factors, that I would say that the law already says that they are relevant.

[00:22:33] Speaker 01:
The question is, how relevant, how much weight do we put on these?

[00:22:36] Speaker 01:
And the law says they become especially relevant, critically relevant, when they are tied to circumstances of the stop.

[00:22:42] Speaker 01:
And so here, what are some of the circumstances?

[00:22:44] Speaker 01:
Well, we know that he's reaching all around.

[00:22:46] Speaker 01:
We know that he's on parole for robbery.

[00:22:49] Speaker 01:
We know that he's racing to get to his urinalysis.

[00:22:51] Speaker 01:
We know that, you know,

[00:22:54] Speaker 01:
Again, this is getting to a fact that I think is undisputed, that it took him 17 seconds on a very open roadway where there are plenty of places to pull over.

[00:23:03] Speaker 01:
If you look at the video, plenty of places to pull over.

[00:23:06] Speaker 01:
These are all starting to form together some suspicion that this person is armed.

[00:23:11] Speaker 01:
Now we throw in the factor of these local gang members tend to be armed.

[00:23:16] Speaker 01:
So we know that he's a gang member.

[00:23:18] Speaker 01:
These gang members tend to be armed.

[00:23:20] Speaker 01:
Those things are working in conjunction with each other.

[00:23:22] Speaker 01:
And if we want to have some flavor for just how dangerous this gang is, I would invite the court to look at again that same document attached to the motion to suppress.

[00:23:35] Speaker 01:
Volume 1, page 14.

[00:23:36] Speaker 01:
The Seanville has been an extremely violent criminal street gang involved in armed robberies, carjackings, high-speed pursuits, aggravated assaults, as active beasts with various gangs and... But our analysis has to be on what was reasonably, objectively understood by the officers on the scene, right?

[00:23:55] Speaker 01:
Yes.

[00:23:55] Speaker 01:
And reasonably objectively believed that he was a gang member.

[00:23:59] Speaker 01:
They recognized him as they're walking up to the vehicle.

[00:24:01] Speaker 01:
This wasn't some post hoc rationalization.

[00:24:03] Speaker 01:
They recognized Clover McGregor as a gang member.

[00:24:06] Speaker 00:
And they recognize him as being a member of this gang that you, that the report shows to be violent, right?

[00:24:12] Speaker 01:
Correct, your honor.

[00:24:13] Speaker 01:
And this is also not just a violent gang.

[00:24:16] Speaker 01:
This is again, gang members that tend to be armed.

[00:24:19] Speaker 01:
They had every reason to believe that he had a gun in that vehicle.

[00:24:24] Speaker 01:
This was not an unparticularized hunch.

[00:24:28] Speaker 01:
Again, reasonable suspicion is a pretty low bar.

[00:24:30] Speaker 01:
And this far, far goes above that bar, even if we're just looking at that limited universe on page 145 of the facts found by the district court.

[00:24:40] Speaker 01:
We got parole, robbery.

[00:24:44] Speaker 01:
dramatic breach.

[00:24:45] Speaker 01:
I mean, we can call it a furtive movement if we want, but I don't know how helpful that label is.

[00:24:49] Speaker 01:
I think the briefing delves into furtive movements, and Canada goes there as well.

[00:24:54] Speaker 01:
A furtive movement could be just sort of like winking at you, doing a little elbow nudge.

[00:24:59] Speaker 01:
Or a furtive movement could be diving across the seat while you're still driving, body completely disappearing from view.

[00:25:06] Speaker 01:
some movements become a little bit more suspicious than others.

[00:25:09] Speaker 02:
Could you speak to, let me ask you this, you agree that appellate courts don't find facts, right?

[00:25:16] Speaker 01:
I agree with that, Your Honor.

[00:25:17] Speaker 02:
And so what are the limits that the government would contend are operable here in terms of if we were to look beyond the four, the three main things that the district court

[00:25:30] Speaker 02:
relied on to form its legal conclusion.

[00:25:32] Speaker 02:
Is it just the record's fair game?

[00:25:35] Speaker 02:
We can just make factual findings?

[00:25:36] Speaker 02:
What kind of constraints would the government say are on upon us?

[00:25:41] Speaker 01:
I would think the constraints are if the facts are undisputed.

[00:25:45] Speaker 01:
I think that if there's a factual dispute, I agree.

[00:25:48] Speaker 01:
It's not for this court to kind of wade into those waters.

[00:25:50] Speaker 01:
So in terms of a factual dispute, if the district court didn't make

[00:25:55] Speaker 01:
that determination that it believed Officer Krzyzewska more than Officer Jaworski in terms of whether it's a slow roll or an abrupt pulling over.

[00:26:03] Speaker 01:
That label may not be fair game for the court to go into, but it is still fair game for this court to say, yeah, 17 seconds, that's an awfully long time.

[00:26:12] Speaker 01:
Let's think about Canada, which was 14 seconds.

[00:26:15] Speaker 01:
Canada was 14 seconds in two blocks.

[00:26:18] Speaker 00:
Well, to that point, 17 seconds, that's an awfully long time.

[00:26:25] Speaker 00:
That suggests to me is that you're asking us to make a factual inference from 17 seconds.

[00:26:32] Speaker 00:
I mean, 17 seconds is an historical fact.

[00:26:36] Speaker 00:
But to say that that's an awfully long time layers on a level of context.

[00:26:44] Speaker 00:
I mean, and that's what you have officers for to say that's an awfully long time or not.

[00:26:49] Speaker 00:
That's not, you know, sorry, that's not in my job description.

[00:26:53] Speaker 00:
I mean, I don't know whether that's an awfully long time or not, depending on the context of the situation, what could have been going on.

[00:27:00] Speaker 00:
I have no frame of reference to make that determination.

[00:27:02] Speaker 00:
If it had been an hour, if he kept driving for an hour, I think I could say that.

[00:27:07] Speaker 00:
But so the point I'm making is that even if it's undisputed,

[00:27:11] Speaker 00:
this historical fact existed, in order to get from that to the fact that it supports reasonable suspicion, there has to be an inference and characterization associated with that.

[00:27:22] Speaker 00:
And I don't think, as an appellate court, well, I know I'm not situated to do it, and I don't think that's our role.

[00:27:29] Speaker 01:
Well, again, I agree.

[00:27:31] Speaker 01:
Officer Grzeska explained why it was a slow roll and the district court said, well, the facts, the Exhibit A, how long this car traveled tends to support his testimony as opposed to Joe Worske.

[00:27:43] Speaker 01:
That's a page 92.

[00:27:45] Speaker 01:
And again, even if we take Joe Worske's

[00:27:48] Speaker 01:
Interpretation, this vehicle, which he said, you know, they put on the lights and siren at about Nile Street on Exhibit A. That means, just look at the distance on here, it traveled about 900 more feet.

[00:28:02] Speaker 01:
That's three football fields that this car continued to travel under Jaworski's, quote, unquote, abrupt pulling over.

[00:28:10] Speaker 01:
Now, if we want to then look at Grzeska's testimony, it went three blocks, not just two, and

[00:28:17] Speaker 01:
You know, we're talking now closer to 1,200 feet.

[00:28:22] Speaker 01:
That's a long distance.

[00:28:24] Speaker 01:
Here's why I don't want to get too caught up on slow roll, because each of these factors layer upon one another.

[00:28:31] Speaker 01:
It is the totality.

[00:28:33] Speaker 01:
Again, it's not just that he's a gang member.

[00:28:36] Speaker 01:
We're not relying on just that he's a gang member.

[00:28:38] Speaker 01:
It's a gang member who's reaching all over, taking 17 seconds to stop while he's disappearing from view in a gang that tends to be armed.

[00:28:47] Speaker 01:
He does turn around with a nervous expression.

[00:28:50] Speaker 01:
He is fidgeting with his wallet.

[00:28:52] Speaker 01:
On the camera itself, the officer says, you know, stop, you're making me nervous.

[00:28:57] Speaker 01:
There is this excessive speeding.

[00:28:59] Speaker 01:
We're not talking about going 32 in a 25.

[00:29:02] Speaker 01:
He's going twice the speed limit through a residential neighborhood.

[00:29:07] Speaker 01:
I'm not sure where we get the.

[00:29:09] Speaker 01:
the term peaceful in the brief, but it is next to a school, it is next to a park.

[00:29:14] Speaker 01:
There's so many different factors that start laying on top of each other.

[00:29:20] Speaker 01:
And I understand counsel's position that we also need to take into account mitigating factors.

[00:29:26] Speaker 01:
But those don't move the needle in terms of the reasonable danger to these officers.

[00:29:31] Speaker 01:
They took reasonable steps.

[00:29:34] Speaker 01:
I see that I'm out of time.

[00:29:35] Speaker 01:
If Corey has any further questions.

[00:29:38] Speaker 00:
No, thank you, Counsel.

[00:29:39] Speaker 01:
Thank you.

[00:29:45] Speaker 04:
Your Honor, I just want to make a couple of points.

[00:29:48] Speaker 04:
First, there was no finding that Mr. McGregor was slow to stop under the circumstances.

[00:29:56] Speaker 04:
Counsel is pointing to trial counsel below's estimate from the video.

[00:30:00] Speaker 04:
in the district court's discussion with counsel, but the district court did not make anywhere in his description of his findings resolve the dispute that Mr. McGregor was slow to stop under the circumstances.

[00:30:16] Speaker 04:
And I would like to point out that the literal time to stop doesn't mean slow to stop under the circumstances.

[00:30:24] Speaker 04:
This is a fact-specific contextual inquiry, and it depends on

[00:30:29] Speaker 04:
For instance, how fast you're going and whether someone's following you, is it safe to stop?

[00:30:34] Speaker 04:
Here the officer, everyone knows the officers were going 50, sorry, both were going 50 and the officers were following relatively closely.

[00:30:41] Speaker 02:
So is your position that just because we may have said in Canada it was 14 seconds was a slow roll, that doesn't mean 17 seconds is?

[00:30:49] Speaker 04:
Yes, it was a slow roll under the circumstances in Canada.

[00:30:54] Speaker 04:
And just to clear the record to the testimony.

[00:30:58] Speaker 03:
Let me ask you one question about findings of fact.

[00:31:01] Speaker 03:
So the court says right here, page 127, it says, so let me make the following findings of fact.

[00:31:07] Speaker 03:
And then he starts talking about what all the officers said.

[00:31:10] Speaker 03:
Yes.

[00:31:12] Speaker 03:
And he gets to the point where he says that one of the officers testified that because of the fact the driver in the vehicle was not stopping right away.

[00:31:20] Speaker 03:
And because my word's not his, he was using a furtive gesture.

[00:31:24] Speaker 03:
He was worried that he was concealing or retrieving something from the passenger seat.

[00:31:31] Speaker 03:
Does the fact that that follows the word, so let me make the following findings a fact, I mean, does that mean anything to you?

[00:31:36] Speaker 03:
Does that mean that we can't rely on him reciting that?

[00:31:41] Speaker 03:
Yes, I agree that he's- Does he have to say, I find that he was right?

[00:31:45] Speaker 04:
No, but he also then later on summarizes the other officer's testimony.

[00:31:49] Speaker 04:
And he says that that officer testified that the stock was abrupt.

[00:31:53] Speaker 04:
And he never goes on to say, I'm resolving this in favor of this was a slow roll under the circumstances.

[00:32:01] Speaker 04:
And I don't need that to be magic words, right?

[00:32:02] Speaker 04:
But he summarizes both officers' testimony.

[00:32:05] Speaker 04:
I don't want to mistake the record, but I don't see him resolving that dispute anywhere.

[00:32:12] Speaker 04:
Thank you, Your Honors.

[00:32:13] Speaker 00:
Thank you, Counsel.

[00:32:14] Speaker 00:
Case is submitted.