[00:00:00] Speaker 02:
the first case, United States versus Raban.

[00:00:04] Speaker 02:
It is DACA 24-1359.

[00:00:08] Speaker 02:
Counsel, please proceed when you're ready.

[00:00:12] Speaker 04:
Good morning, Your Honors and Counsel.

[00:00:14] Speaker 04:
John R. Cece from the Federal Public Defender's Office in Denver, appearing for appellant.

[00:00:20] Speaker 04:
Antoine Raban.

[00:00:22] Speaker 04:
Whereas the issue in this case is whether officers had reasonable suspicion to conduct a protective sweep, that is, a search of a vehicle compartment for weapons.

[00:00:33] Speaker 04:
The doctrine requires the government to make two showings.

[00:00:37] Speaker 04:
First, that there's reasonable suspicion that a person is presently dangerous.

[00:00:42] Speaker 04:
And second, that there's reasonable suspicion to believe that a weapon may be found in a vehicle and also that the person may gain immediate access to it.

[00:00:50] Speaker 04:
Okay, so I want to start with the first prong today and finding reasonable suspicion that Mr. Rabin was dangerous and also armed.

[00:01:01] Speaker 04:
The district court relied on four principle factors that I think we all sort of agree on here, right?

[00:01:06] Speaker 04:
Mr. Rabin's purported gang affiliation, the neighborhood, his girlfriend's brother being parked across the street, and an ankle monitor.

[00:01:15] Speaker 04:
The district court described this as a close call in a close case, and we think the district court simply made the wrong call because neither individually nor in totality to these factors add up to a reasonable suspicion that Mr. Raban himself was armed and dangerous.

[00:01:33] Speaker 04:
Now, the crux of our argument is pretty straightforward here, right?

[00:01:38] Speaker 04:
What we think is missing

[00:01:41] Speaker 04:
as what we see in other cases, right?

[00:01:44] Speaker 04:
That is factors that are individualized and particularized and objective to Mr. Raban and this stop.

[00:01:53] Speaker 04:
that would lead to suspicion that he is armed and dangerous.

[00:01:57] Speaker 04:
And I think if we look at the Hammond case that's discussed in the briefing, that is particularly instructive here.

[00:02:04] Speaker 04:
Because what you have there is interactions between these sort of generally applicable status factors, location factors that are indisputably, individually insufficient to establish reasonable suspicion.

[00:02:20] Speaker 04:
with something about the defendant himself or something that the defendant himself did during the stop, right?

[00:02:29] Speaker 00:
So when Heyman... Had the defendant been, or the suspect at that point, been pat searched?

[00:02:41] Speaker 00:
Had they patted the defendant down to determine whether he had a weapon before they talked to him?

[00:02:50] Speaker 04:
In our case, they're inhaling.

[00:02:52] Speaker 00:
Yes, in your case.

[00:02:54] Speaker 04:
No, they talked to him extensively before taking him out of the vehicle, patting him down.

[00:02:59] Speaker 00:
And they did pat him down when they got him out of the vehicle.

[00:03:03] Speaker 00:
They did, they frisked him and then.

[00:03:05] Speaker 00:
At that point, they knew he didn't have a weapon on himself.

[00:03:12] Speaker 04:
That's correct.

[00:03:12] Speaker 00:
All right.

[00:03:13] Speaker 00:
And at that point, they hadn't yet searched the vehicle.

[00:03:18] Speaker 00:
So when they searched the vehicle, they knew that he didn't have a weapon on himself.

[00:03:23] Speaker 04:
They knew that he did not have a weapon on himself.

[00:03:25] Speaker 04:
All they learned from that frisk, which we haven't challenged the frisk, although we certainly could have, in the way that the same standard applies to a frisk or a sweep of the vehicle, is the question is, is a person armed and dangerous?

[00:03:39] Speaker 04:
The only thing they learned from the frisk itself is, as you point out, he doesn't have a weapon on him, and B, that he had an ankle monitor.

[00:03:46] Speaker 04:
But the ankle monitor tells us exceedingly little in this case, and really, I think, adds no provative

[00:03:52] Speaker 04:
value to the likelihood that Mr. Rabin would be armed and dangerous.

[00:03:55] Speaker 04:
The district court's decision on this below really doesn't explain why it's probative.

[00:04:01] Speaker 04:
It simply just observes that he had an ankle monitor.

[00:04:04] Speaker 04:
And I think that's with good reason, right?

[00:04:06] Speaker 04:
People have ankle monitors for all sorts of reasons.

[00:04:09] Speaker 04:
They may be charged with a crime.

[00:04:11] Speaker 04:
Including nonviolent ones, they may be on pretrial release, meaning there's been a judicial adjudication that they don't present a risk to the community.

[00:04:20] Speaker 04:
They may be right on immigration related thing, immigration related release.

[00:04:24] Speaker 04:
They may be being monitored for drinking or location.

[00:04:27] Speaker 04:
There are all sorts of reasons.

[00:04:29] Speaker 04:
And we just don't have any information here as to what Mr. Rabin's ankle monitor was for.

[00:04:36] Speaker 04:
Now, as we pointed out in our briefing, certainly officers could have explored that further.

[00:04:43] Speaker 04:
And if they had, maybe they would have developed additional bases to support their reasonable suspicion inference.

[00:04:49] Speaker 04:
But they didn't.

[00:04:50] Speaker 04:
They jumped immediately from frisking Mr. Rabin to searching the car.

[00:04:57] Speaker 04:
And, you know, again, to sort of go back to the Hammond decision that I was talking about before, and it goes to Judge E. Bell's point, which is Judge E. Bell's question, which is in Hammond, you have not only the fact that

[00:05:12] Speaker 04:
The defendant there was a known gang member who was sort of visibly displaying his gang affiliation.

[00:05:19] Speaker 04:
But the officers knew that he specifically had been a suspect in a prior weapons case, that he'd been arrested in a different weapons case, that that vehicle had been associated with one of those weapons cases.

[00:05:35] Speaker 04:
And so again, under those circumstances, a gang affiliation, which is indisputably, again, not enough, as the court said in Hammond and repeated a few weeks ago in a case called McGregor, it's additive to the likelihood that this individual

[00:05:50] Speaker 04:
may have been armed and dangerous because, just as he had likely possessed weapons in the past, perhaps there was a reasonable basis to believe he might have.

[00:05:57] Speaker 04:
We have none of that here.

[00:05:59] Speaker 00:
Council, you're responsible for your own organization.

[00:06:02] Speaker 00:
I don't want to intrude on that, but I know we're now down to nine minutes.

[00:06:06] Speaker 00:
May I tell you my biggest concern so that you know we're out of time, but maybe you could address it?

[00:06:11] Speaker 00:
And that is what the justification was for searching the car because

[00:06:19] Speaker 00:
they had determined that he did not have a weapon and they were not going to let him go back to the car until the search was over, until he was released and free to go.

[00:06:34] Speaker 00:
So once he was released and free to go, did they still have any authority at that point to search the car?

[00:06:43] Speaker 00:
And they

[00:06:46] Speaker 00:
if they felt he was going to go back to the car before he was released and free to go, then, of course, he was still under the search and you could still use the search mantra to say, was it necessary and reasonable?

[00:07:01] Speaker 00:
But once they say, okay, you're free to go, now you can get back in the car for the first time, what hook do they still have over him to then say, oh, but wait a minute, even though you're free to go and you're no longer a to-be-search suspect,

[00:07:15] Speaker 00:
We just better make sure there's no weapons in the car.

[00:07:19] Speaker 04:
Yeah, so I think it's an important point because it goes to sort of the foundational principles here as well as the impact, I think, of extending Long beyond what the Supreme Court in Long itself cautioned against this not being sort of every traffic stop entails a protective sweep search of a vehicle, right?

[00:07:43] Speaker 04:
Because as you point out, you know, officers can always

[00:07:47] Speaker 00:
As long as you are still in the traffic stop mechanism, you can search the car.

[00:07:56] Speaker 00:
But when you say to somebody, okay, you're free to go, doesn't that conclude the search?

[00:08:02] Speaker 00:
And do you still have any hook then to say, but wait a minute, now we still want to search that car?

[00:08:08] Speaker 04:
Yeah, so to more directly answer your question, it goes directly to the question, right, in Michigan versus Long, which is that we are talking here about a balancing between interests, right, that of officer safety and investigation, and individuals' forthcoming protections against unreasonable searches.

[00:08:29] Speaker 00:
Let me just ask a factual question, because I'm not sure we're...

[00:08:35] Speaker 00:
Terribly helpful to me and I want you to go back to your own strategy had they told him he was free to go Before they said he could go back into the car So what the search is over you're free to go before he was allowed back in the car or not The only way in which they could search the car at that point was if they had reasonable suspicion What did they say?

[00:09:00] Speaker 00:
Did they tell him?

[00:09:01] Speaker 00:
Did they tell him before they let him get back in the car, you are now free to go?

[00:09:06] Speaker 00:
Or did they say, we're still searching you, but for some reason, if you want to get back in the car, we'll let you do it?

[00:09:12] Speaker 04:
Oh, I see.

[00:09:13] Speaker 04:
No, they never indicated to him that he was free to go.

[00:09:16] Speaker 04:
What happened here was they took him out of the car, frisked him, told them they were going to fingerprint him.

[00:09:21] Speaker 04:
One officer immediately began searching the vehicle based on what they believed to be reasonable suspicion to conduct that sweep, which we obviously dispute.

[00:09:30] Speaker 04:
And that is the only way that they could get into the car.

[00:09:34] Speaker 04:
The district court found that there was at least a reasonable basis.

[00:09:39] Speaker 04:
This is on the second prong.

[00:09:41] Speaker 04:
that there was at least a reasonable basis for the officer who conducted the sweep at the time he conducted the sweep to believe that Mr. Rabin may have been released back into the vehicle.

[00:09:52] Speaker 00:
We've disputed that.

[00:09:56] Speaker 00:
The evidence will show that there was an incredible argument that he was still being searched at the time they said, well, now we want to look inside that car.

[00:10:09] Speaker 00:
because weapon may be there.

[00:10:11] Speaker 04:
He was being prepped.

[00:10:13] Speaker 04:
He was sitting on the sidewalk about 10 feet away, five, 10 feet away from the vehicle, surrounded by other officers with his legs crossed while another officer got a fingerprint machine out of the car.

[00:10:23] Speaker 04:
While that was occurring, the other officer searched the car, found the firearm, and then Mr. Rieman was arrested.

[00:10:29] Speaker 00:
So he was still under search.

[00:10:30] Speaker 00:
OK.

[00:10:30] Speaker 00:
See, that's the key I need to under.

[00:10:33] Speaker 00:
That was, you now proceed with your other argument because I wasn't clear about it.

[00:10:39] Speaker 04:
I think it's responsive, Your Honor, to the foundational question in Long, which is that the only way they get into that car during this traffic stop is if they have reasonable suspicion.

[00:10:50] Speaker 04:
And again, as we've pointed out, I think those factors that are at play here are simply too generalized to, in particular, to suggest that Mr. Rabin himself was a danger

[00:11:04] Speaker 04:
and B, likely to be armed that day.

[00:11:07] Speaker 04:
Now, the second prong, to your point, also goes beyond sort of armadness, but to accessibility, right?

[00:11:16] Speaker 04:
And could he have access to the vehicle?

[00:11:18] Speaker 04:
And we have challenged that, but you only need to find for us one of the two prongs, right, for Mr. Rabin to prevail.

[00:11:25] Speaker 04:
If there's not reasonable suspicion that he's dangerous in this stop, then that's the end of the inquiry.

[00:11:29] Speaker 04:
You can go on

[00:11:30] Speaker 04:
to the second prong.

[00:11:32] Speaker 04:
And our argument on that is essentially a reasonableness argument that it was unreasonable for the district court to conclude that Officer Danielson believed that Mr. Rabin would have been allowed back in the vehicle or at least would have been allowed back in an uncontrolled manner.

[00:11:46] Speaker 04:
And that's given the sense that he had.

[00:11:48] Speaker 02:
But that was Officer Danielson's testimony, wasn't it?

[00:11:50] Speaker 02:
That he was going to be released with a citation.

[00:11:54] Speaker 04:
Yeah, that he could have been released with a citation.

[00:11:56] Speaker 04:
He believed he may have been released with a citation that he could have been released to the vehicle to they could have locked the parts of the vehicle and locked it that they could have impounded the vehicle.

[00:12:06] Speaker 04:
There were a lot of permutations and the district court credited that.

[00:12:10] Speaker 04:
And, you know, our ultimate conclusion on this is again, it's, it's simply an unreasonable determination given the facts that are swirling here, which is that Mr. Rabin had no, no evident authority to operate the vehicle.

[00:12:20] Speaker 04:
No license.

[00:12:22] Speaker 04:
He had no insurance.

[00:12:23] Speaker 04:
He had no registration.

[00:12:25] Speaker 04:
There was a spilled can of beer in the back seat.

[00:12:28] Speaker 00:
And under all those circumstances, and with six officers present, we just think it's a... If it was unreasonable to assume they would have let him back into the car, then why would it be reasonable to search the car?

[00:12:47] Speaker 04:
It would not underlong if it was unreasonable, it would essentially fail the second prong of long if it was unreasonable that he would have gained access to the vehicle again.

[00:12:59] Speaker 04:
With that, I'd love to reserve the remainder of my time for rebuttal if the court has no further questions.

[00:13:05] Speaker 02:
Very well.

[00:13:06] Speaker 02:
Mr. Brenton.

[00:13:08] Speaker 03:
Thank you, Your Honor.

[00:13:10] Speaker 03:
May it please the court, Kyle Brenton for the United States.

[00:13:14] Speaker 03:
Let me just start with some factual stage setting here so that we can be certain we're all on the same page.

[00:13:22] Speaker 03:
When the officer stopped Mr. Raban, he did not have any form of identification.

[00:13:28] Speaker 03:
He told them his name, he told them his birth date.

[00:13:31] Speaker 03:
but he didn't have any state-issued ID.

[00:13:33] Speaker 03:
So the officers, assuming the most benign version of this encounter, he's driving a car with no front license plate, they determine he doesn't have a driver's license, they're going to cite him and release him.

[00:13:48] Speaker 03:
And that's precisely what Officer Danielson testified to Judge Phillips, including under questioning from the district court.

[00:13:58] Speaker 02:
Release him to do what?

[00:13:59] Speaker 02:
To stand by the car?

[00:14:01] Speaker 02:
They're not going to let him drive off without a license, are they?

[00:14:04] Speaker 03:
No.

[00:14:04] Speaker 03:
And the testimony was that they were going to first allow him to retrieve his property from the car.

[00:14:11] Speaker 00:
At a minimum, we know his phone was in the car, because we can see... So they were going to allow him, not on their behalf, but him to get back into that car.

[00:14:23] Speaker 03:
That was the assumption at the outset of the encounter.

[00:14:26] Speaker 03:
In order to issue him a citation, though, they needed to positively identify him.

[00:14:31] Speaker 03:
And the only mechanism they had to do that, given his lack of identification, was to fingerprint him.

[00:14:37] Speaker 03:
And their fingerprint machine is corded.

[00:14:40] Speaker 03:
It has to be plugged in in the squad car.

[00:14:42] Speaker 03:
So that's why they removed him from the car.

[00:14:46] Speaker 03:
But as my colleague noted, at no point did the justification for the pullover and the original detention end

[00:14:57] Speaker 03:
prior to the valid protective sweep.

[00:15:00] Speaker 03:
There was never a situation where he was told, okay, you're free to go.

[00:15:03] Speaker 03:
At one point, Officer Moldenhauer did say to Officer Danielson immediately before the sweep, he's good.

[00:15:12] Speaker 03:
And the district court relied on that statement as further evidence that these officers were going to, in fact, cite him and release him.

[00:15:21] Speaker 03:
Now, again,

[00:15:22] Speaker 03:
The testimony was if he had tried to drive the car off, they would have pulled him over again.

[00:15:26] Speaker 03:
They would have told him not to drive the car.

[00:15:28] Speaker 03:
What to do with the car was still in the air, but this was all a developing situation.

[00:15:33] Speaker 02:
Don't they have to make the decision, though, whether they're going to release him before they do the protective search?

[00:15:39] Speaker 02:
In other words, they can't say, well, we're waiting around here anyway for criminal history or something, and nobody's really getting anything done.

[00:15:47] Speaker 02:
Let's just go do the protective search in case we decide that we're going to let him back into the car.

[00:15:53] Speaker 02:
That would be wrong, right?

[00:15:55] Speaker 03:
I don't think that the long and its progeny reflect that requirement, Your Honor.

[00:16:00] Speaker 03:
I think in long itself,

[00:16:04] Speaker 03:
the officers had not decided what they were going to do with this guy at the point that they did the search.

[00:16:09] Speaker 03:
I think that's true as well of Canada, of Denison, of Palmer.

[00:16:15] Speaker 03:
There's really no discussion of a requirement that the officers know for certain what is going to happen to this person.

[00:16:21] Speaker 03:
I think what's required is a reasonable possibility that one of those three scenarios recognized in Long, which are

[00:16:30] Speaker 03:
release to the car at the end of the search, release while the search is still going on, or possibility of breaking free.

[00:16:38] Speaker 03:
As long as one of those is met, I don't think the officers have to make a final determination of what this person's status is going to be in order to do the protective sweep.

[00:16:50] Speaker 03:
So I think with that stage set, we're looking at the two familiar requirements of law, which are reasonable suspicion that he is dangerous,

[00:17:00] Speaker 03:
and that he can obtain immediate access to weapons.

[00:17:04] Speaker 03:
So on dangerousness, I agree with my colleague.

[00:17:08] Speaker 03:
There are four general categories here.

[00:17:10] Speaker 03:
We have location-based facts, gang affiliation, the presence of Armstrong arriving at this stop,

[00:17:19] Speaker 03:
and the ankle monitor.

[00:17:20] Speaker 03:
Now, I think Armstrong's presence is the most unique factor and probably the factor that carries the most weight here.

[00:17:28] Speaker 03:
I think it makes most sense in the context of location and gang affiliation, so let me start with those.

[00:17:34] Speaker 03:
As to location, we know this is a high crime area from the officer's testimony.

[00:17:39] Speaker 03:
That's independently significant, but there were specifics beyond just a generic high crime area.

[00:17:45] Speaker 03:
The officers testified that this specific area had a recent uptick in crime, including a recent uptick in shootings.

[00:17:53] Speaker 03:
And that's not an after-the-fact justification.

[00:17:55] Speaker 03:
I mean, if you look at the video about five and a half minutes in, Officer Danielson is talking to Mr. Raban about the recent spike in shootings, and Mr. Raban agrees, frankly.

[00:18:07] Speaker 03:
So we have the recent uptick in crime.

[00:18:10] Speaker 03:
We have the location where the officers encountered Mr. Ray-Ban, which is the 7-11 at 36th and Quebec.

[00:18:18] Speaker 03:
The officers knew this specific location was a center for criminal activity, gang activity, gang members with weapons.

[00:18:26] Speaker 03:
Both officers had personal experience of gang members being armed at this location.

[00:18:31] Speaker 03:
Officer Moldenhauer had had an experience across the street at the Super 8 Motel where he had been shot at by a gang member.

[00:18:39] Speaker 03:
So those specifics as to location.

[00:18:41] Speaker 03:
And the third is finally that this is territory of a specific gang, which is the Bloods Gang.

[00:18:46] Speaker 03:
Now that is significant because it plays into Ray-Ban's gang affiliation.

[00:18:51] Speaker 03:
So turning to that factor.

[00:18:53] Speaker 03:
We know that Mr. Raban was a member of the Trade Trade Crips.

[00:18:57] Speaker 03:
It's literally written on his face.

[00:18:59] Speaker 03:
He's got tattoos of a three under each eye, which the officers testified was reflective of membership in the Trade Trade Crips.

[00:19:07] Speaker 03:
Now, obviously in Hammond, this court held that gang membership

[00:19:12] Speaker 03:
is significant where the circumstances of the stop interact with that gang membership to create suspicion.

[00:19:18] Speaker 03:
That was absolutely the case here.

[00:19:21] Speaker 03:
First, because this is rival turf for members of the Crips.

[00:19:25] Speaker 03:
This is blood turf.

[00:19:28] Speaker 03:
Crip members in blood turf, the officers, it makes them alert to the possibility that violence may ensue.

[00:19:34] Speaker 03:
Second, the officers testified that Denver gang members are often armed.

[00:19:39] Speaker 03:
Again, that interacts with their experience at that 7-Eleven.

[00:19:42] Speaker 03:
And third, the face tattoos themselves reflect a degree of commitment to the gang above and beyond your average gang member.

[00:19:52] Speaker 03:
That's what the district court found.

[00:19:54] Speaker 03:
This was not the case of somebody maybe coincidentally wearing a blue shirt in the wrong neighborhood.

[00:19:59] Speaker 03:
I mean, he had chosen to permanently inscribe his membership on his face.

[00:20:05] Speaker 03:
So location and gang membership take us to

[00:20:08] Speaker 03:
the arrival of Deshae Armstrong at this stop.

[00:20:12] Speaker 03:
And I want to emphasize, Mr. Armstrong arrived immediately.

[00:20:17] Speaker 03:
If you watch the video, Officer Danielson is not even at the car door when you can see the white SUV turn right, go past him, drive halfway down the block,

[00:20:29] Speaker 03:
do a three-point turn, come back, and park across from the officers.

[00:20:33] Speaker 03:
So Armstrong was there.

[00:20:36] Speaker 03:
It's difficult to support any inference other than they were together because his arrival is immediate.

[00:20:42] Speaker 03:
Officers identify Armstrong immediately as a member of the Crips, a very violent member who has a history of violent offenses and is known for being armed.

[00:20:55] Speaker 03:
Now, the next thing that happens, and again, it all happens within less than a minute, Armstrong calls Ray-Ban in the middle of this stop.

[00:21:04] Speaker 03:
In fact, you can hear Officer Moldenhauer.

[00:21:06] Speaker 03:
He's looking through the window.

[00:21:07] Speaker 03:
He's looking at that phone.

[00:21:08] Speaker 03:
The phone is ringing.

[00:21:10] Speaker 03:
He says he's sitting right over there, but he's calling you.

[00:21:13] Speaker 03:
Now, why is this significant?

[00:21:15] Speaker 03:
The call is particularly significant for two main reasons.

[00:21:19] Speaker 03:
At that point, it's a nexus between Armstrong and Ray-Ban.

[00:21:23] Speaker 03:
So now the officers, anything that they suspected about Armstrong can to some degree be imputed to Ray-Ban because we've got physical presence, we've got a phone call happening.

[00:21:34] Speaker 03:
So that ties the two of them together.

[00:21:36] Speaker 03:
The other, the phone call is itself significant.

[00:21:39] Speaker 03:
If you look at Officer Danielson's testimony, he has had experience, he testified to experience where when you stop a gang, where he had stopped gang members

[00:21:48] Speaker 03:
And in his words, phones start ringing.

[00:21:51] Speaker 03:
The next thing you know, officers are outnumbered and overwhelmed as other gang members show up to try to disrupt the stop.

[00:21:57] Speaker 03:
That was his personal experience.

[00:22:00] Speaker 03:
So that phone call itself is generating suspicion.

[00:22:04] Speaker 03:
And then, of course, you have Mr. Armstrong's behavior during the stop, staring at the officers, what they call grilling, mean mugging.

[00:22:12] Speaker 03:
Again, all of this, none of this is post hoc.

[00:22:15] Speaker 03:
I mean, you can watch these videos.

[00:22:17] Speaker 03:
You can see the tension.

[00:22:19] Speaker 03:
in the officers.

[00:22:20] Speaker 03:
When Armstrong arrives, you can see Officer Moldenhauer's head pop up when he recognizes him.

[00:22:25] Speaker 03:
He nods at him.

[00:22:26] Speaker 03:
He tells another officer the whole reason they called for additional backup was because he, Armstrong, was here.

[00:22:33] Speaker 03:
So really Armstrong's arrival elevates this far beyond a typical traffic stop and provides significant reasonable suspicion.

[00:22:42] Speaker 03:
The fourth factor is the ankle monitor.

[00:22:44] Speaker 03:
I certainly agree that's the least weighty of the factors here, but it reflects recent criminal history.

[00:22:51] Speaker 03:
It reflects that for some reason, Mr. Raban is under judicial supervision right now, be that pretrial, be that supervised release, but it reflects recent criminal history, which in combination with all of these factors in their totality reflects reasonable suspicion.

[00:23:07] Speaker 03:
So I think the dangerousness finding was very well supported by the record.

[00:23:11] Speaker 03:
And then on the access to weapons prong.

[00:23:14] Speaker 03:
I mean, we've already talked about.

[00:23:16] Speaker 02:
Let me just interrupt you on that with the introduction to that.

[00:23:19] Speaker 02:
The district court course reversed itself on credibility.

[00:23:24] Speaker 02:
And originally, it said it found the officer to be not credible that the officer.

[00:23:31] Speaker 02:
would not have let this person back to the car and then switch that after, I think, Sue Esponti reconsidering by saying, oh, I thought he knew the criminal history of the person, which I'm not sure how that would tie to his not getting back the car.

[00:23:47] Speaker 02:
I don't think they could arrest him for his criminal history.

[00:23:50] Speaker 02:
But if that's determinative,

[00:23:55] Speaker 02:
that if he has high criminal history, then he's not going to get back to the car, which is what the district court reasoning was.

[00:24:02] Speaker 02:
Then here's my concern.

[00:24:05] Speaker 02:
My concern is that it becomes a race.

[00:24:08] Speaker 02:
Let's hurry and go protective search before we find out that the criminal history is one way or the other.

[00:24:14] Speaker 02:
In other words, they didn't have to do that protective search that instant.

[00:24:19] Speaker 02:
They could have waited for the criminal history.

[00:24:20] Speaker 02:
In fact, it came in as Danielson was going to do the protective search.

[00:24:26] Speaker 02:
And so what about that concern?

[00:24:28] Speaker 02:
That's just bad policy to have a race to the car to see who can protective search before all the information is learned.

[00:24:35] Speaker 03:
Well, Your Honor, I certainly agree that the course of proceedings here, the district court's reconsideration, it ultimately is confusing.

[00:24:45] Speaker 03:
And I can't really say that.

[00:24:49] Speaker 03:
I think, first and foremost, the court ended up in exactly the correct position, which is these officers' testimony was he was going to be released.

[00:24:59] Speaker 03:
There's nothing raising a question about that.

[00:25:01] Speaker 03:
And the court believed that testimony.

[00:25:04] Speaker 00:
Now, I mean, the way that the court explains... When he was released, then after that moment, did the officers have any ability to search the car after that?

[00:25:21] Speaker 03:
Well, I don't think that's a question that Long answers, Your Honor.

[00:25:26] Speaker 03:
I think that Long is concerned with sweeps that occur during the course of a Terry-investigated detention.

[00:25:34] Speaker 03:
I think if they have said, okay, you're free to go and started getting back in their cars, I think that may have been a different case.

[00:25:43] Speaker 03:
But that's simply not what happened here.

[00:25:45] Speaker 03:
And I think that long concerns, protective sweeps during the Terry detention.

[00:25:51] Speaker 03:
And I think to Judge Phillips question on the reconsideration,

[00:25:56] Speaker 03:
I too am not entirely clear on why criminal history in the district courts view would have made a difference.

[00:26:03] Speaker 03:
I don't think this court needs to be concerned with that because ultimately the district court disavowed that position the district court.

[00:26:11] Speaker 03:
Well, as I said, ultimately reached the correct location.

[00:26:15] Speaker 03:
Frankly, I think that had they known the results of the criminal history check, I don't think that would have had a dispositive outcome on his ability to return to the vehicle.

[00:26:27] Speaker 02:
Well, according to the district court would have, the district court said if he had known the criminal history, he wouldn't have gotten back to the car.

[00:26:34] Speaker 02:
The district court didn't recount on that.

[00:26:36] Speaker 02:
The district court changed its mind based on its realizing that Danielson didn't know the criminal history.

[00:26:44] Speaker 03:
I mean, that is what the court said, Your Honor.

[00:26:46] Speaker 03:
I don't think the court explained why that was the case.

[00:26:49] Speaker 03:
And I don't think that that's, again, something that this court ultimately needs to dive down.

[00:26:55] Speaker 03:
Because I mean, I agree, Your Honor, your concern about a race for criminal history, that's a significant concern.

[00:27:02] Speaker 03:
But personally, I don't believe that knowledge of his criminal history would have definitively settled the release after the detention.

[00:27:11] Speaker 03:
Now, I will also say, we've also argued the break free prong, and I understand that the district courts

[00:27:18] Speaker 03:
held that the probability of his breaking free was low.

[00:27:22] Speaker 03:
I think that is an answer to the wrong question.

[00:27:25] Speaker 03:
It's ultimately that prong is not about the actual chance that a defendant or a suspect will break free.

[00:27:32] Speaker 03:
It's about the possibility that they might.

[00:27:35] Speaker 03:
And if you look at long, if you look at this court's decisions in Denison, Alexander, Palmer,

[00:27:43] Speaker 03:
The defense, the suspects there were significantly more restrained than Mr. Ray Ban was here.

[00:27:48] Speaker 00:
I mean, Ray Ban was surrounded by was it six other officers, whatever the number was, it was a very large number of officers on the scene.

[00:27:58] Speaker 03:
There, there were six officers total that responded to this call in any given moment.

[00:28:03] Speaker 03:
It's unclear how many were close to Ray Ban.

[00:28:06] Speaker 03:
But I mean, I think that the measuring stick here really needs to be Denison.

[00:28:09] Speaker 03:
In Denison, the suspect was handcuffed in the back of the squad car, and this court still held that there was a possibility that he could break free.

[00:28:18] Speaker 03:
Or no, he was handcuffed at the rear of the car.

[00:28:21] Speaker 03:
In Palmer, he was in the rear of the squad car.

[00:28:23] Speaker 03:
So if those cases meet this requirement, so does Rayvance.

[00:28:27] Speaker 03:
I see I'm over your time, Your Honor.

[00:28:28] Speaker 03:
So if the court has no further questions, we ask that the suppression order be affirmed.

[00:28:35] Speaker 02:
Thank you, Counsel.

[00:28:39] Speaker 04:
So just a couple of brief points in reply.

[00:28:44] Speaker 04:
There's really no factual disputes here.

[00:28:46] Speaker 04:
We all agree on what the facts are.

[00:28:47] Speaker 04:
We all agree on what the factors are.

[00:28:49] Speaker 04:
The problem for the district court's ruling is that nowhere in the, there are no cases cited by the district court or by the government that this quantum of generalized facts support a reasonable suspicion to believe that someone is armed and dangerous.

[00:29:02] Speaker 04:
So beyond the Hammond case that I mentioned,

[00:29:04] Speaker 04:
I think it's important to look at look at Canada right where you have the individuals furtive movements and a slow roll of failure to stop when confronted with law enforcement that there was testimony was indicative right of obtaining or hiding a weapon right in Garcia.

[00:29:20] Speaker 04:
You have a defendant with a prior armed robbery conviction who two weeks prior had been involved in an assault with that officer.

[00:29:28] Speaker 04:
In Denison, you have a passenger with a felony arrest warrant for weapons violation and a domestic dispute that very evening.

[00:29:35] Speaker 04:
In all of these cases, you have something that is individualized and particularized as to the individual being stopped, likely being dangerous and likely being armed.

[00:29:47] Speaker 01:
Can I just, I really appreciate the list here.

[00:29:50] Speaker 01:
But I'm wondering if you can directly speak to the phone call.

[00:29:56] Speaker 01:
What do we do with the phone call and the brother?

[00:30:00] Speaker 04:
I don't think the phone call really adds anything to the analysis.

[00:30:03] Speaker 04:
At most, it shows that there's a connection between the two men, and Mr. Rabin acknowledged as much.

[00:30:09] Speaker 04:
He said, yeah, that's my girlfriend's brother across the street.

[00:30:12] Speaker 04:
So the phone call doesn't really add anything.

[00:30:15] Speaker 01:
What about the possibility that your opponent is suggesting that the phones start ringing and then people start appearing?

[00:30:25] Speaker 01:
I mean, that's maybe not

[00:30:27] Speaker 01:
particularized to meet your standard, but I'm wondering if you could at least speak to it.

[00:30:33] Speaker 04:
Sure, I mean, I think that phones start ringing and other people may appear at the scene.

[00:30:39] Speaker 04:
It wouldn't be true if Mr. Armstrong is calling Mr. Ray Ban while he's particularly let alone that they're going to plan some sort of something in front of the officers who are literally watching him have that call and saying hello to Mr. Armstrong across the street.

[00:30:55] Speaker 04:
I see him out of time.

[00:30:55] Speaker 04:
I can just briefly finish responding.

[00:30:58] Speaker 04:
I think, you know, at base, you know, what Mr. Armstrong's presence adds is

[00:31:03] Speaker 04:
a connection is essentially just a bootstrapping, right?

[00:31:09] Speaker 04:
The idea of gain affiliation, which we know is not enough from Hammond and as imputing, right?

[00:31:15] Speaker 04:
A sense of suspicion from one to another.

[00:31:19] Speaker 04:
That is just not what we do under the Fourth Amendment as far back as a basic principle in a bar.

[00:31:24] Speaker 04:
And for those reasons, I'm out of time.

[00:31:26] Speaker 04:
The court has no further questions.

[00:31:27] Speaker 04:
I'd simply ask you to reverse the district court's ruling.

[00:31:31] Speaker 02:
Seeing no further questions, thank you council for your arguments.

[00:31:34] Speaker 02:
The case is submitted and councilor excused.