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Case number 14 is 3037, United States of America versus Harold Delante Castle appellant.

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Mr. Axon for the appellant, Mr. Malone for the athlete.

[00:00:10] Speaker 02:
Good morning.

[00:00:13] Speaker 02:
Good morning.

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May it please the court counsel, Tony Axon representing the appellant, Harold Castle, and I'd like to reserve three minutes for rebuttal.

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The evidence in this case should have been suppressed, because at the moment the police officer seized Mr. Castle, they did not have reasonable or articulable suspicion that criminal activity was afoot.

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Mr. Castle was seized at the moment he submitted to the officer's command that he showed his hands.

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That's Officer Ozak.

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And that submission to the show of authority was based on the information that the officer had at the time that Mr. Castle had walked quickly or was walking quickly when the officer first saw him.

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He was in a high drug area and he had been near the U-Haul truck.

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Now, where did you argue below that it was the order to show his hands by itself, that that alone was the seizure?

[00:01:09] Speaker 02:
I'm not sure that we argued that that alone was the seizure, but we argued that that was the seizure in the argument.

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If the court will allow me a moment.

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I did cite it in my reply brief.

[00:01:22] Speaker 02:
I cited the exact... I like what you said.

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It was always in combination with the tap on the arm and hold a sack.

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I didn't see you.

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breaking out just the order to show hands by itself as the seizure apart from the touch on the arm.

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And hold a sec.

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Yes, I understand.

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I think that this court in Bailey, I believe, held that in the Fourth Amendment context,

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We understand that we have to specifically argue, but the argument here is that the officers did not have reasonable, articulable suspicion.

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So the question is whether the court was aware of the specific legal argument that we were making.

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The court was not unaware, was not caught off guard.

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It's not as though there were not facts before the court for the court to reach the right decision.

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Although I think it would be a bit unusual if your client thought he was seized at that moment, you would have told the court.

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And if he didn't think he was seized, you weren't telling the court that that's when he thought he was seized.

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It's a bit much for the court to go, oh, actually, you were seized earlier than you thought you were, since the whole test focuses on whether the individual thought they were at liberty to go.

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I think I take issue as to whether that's what the test is.

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The test is when did the individual submit to the show of authority.

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And we know that the first show of authority is when the officer says, show me your hands.

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That wasn't something that the district court could not ascertain for itself.

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So every submission to a show of authority by a police officer constitutes a seizure?

[00:03:21] Speaker 02:
Yes.

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So if you're walking down the sidewalk and there's something going on, a police officer is telling everybody, walk over there, walk over there.

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Keep on moving.

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All those people have been seized when they walk over there and keep on moving?

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I'm not sure that that's a submission to a show of authority so much as following the instructions of the police officer.

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A submission to a show of authority is actually

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recognizing the authority of the officer and I guess stopping what you were doing.

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An officer directing a crowd of people.

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Well, they stop walking where they are and they walk somewhere else.

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The officer hasn't taken any control of anybody.

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He's redirected their path.

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I prefer to walk on the sunny side of the sidewalk, but now I have to walk over on the shady side of the street.

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Well, then I guess the question would be, if you stayed on the other side, would that be your right?

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And I think that there are cases that say, where the officer doesn't have reasonable suspicion that criminal activity is afoot, you don't have to obey that command.

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Just because officers are people in our society that enforce the law doesn't mean that every command that they make is something that we have to obey.

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So in that situation, I think if you stayed on the wrong side of the street and the officers

[00:04:57] Speaker 05:
It cannot be in any show of authority as a seizure.

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It has to be something that restricts your ability to move or elsewhere.

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What is the, suppose there's no seizure until there was a tap on the shoulder, then what is your position?

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I'd still say that the officers didn't have reasonable, articulable suspicion.

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What's different?

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What more information did the officer have between the time of show me your hands and tapping on your shoulder?

[00:05:29] Speaker 05:
Well, I believe Officer Olszak... And stop tapping his shoulder and stopping him?

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Testified that in that range, he recognized Mr. Kasin as Mr. Kasin and somebody that he had previously had contacts with.

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So you would concede that once he recognized Mr. Castle, then it was a legitimate Terry stop?

[00:05:53] Speaker 02:
No, I don't concede that.

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While he recognized Mr. Castle and knew Mr. Castle from prior contacts, the record still doesn't reflect any articulable reason

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that the officer believes criminal activity is afoot.

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I do recognize that because Mr. Castle has been involved in crimes before, the officers come closer, but that... He walks down a dark alley, he leans over and drops something behind a dumpster, right?

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No, I disagree with that.

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That is not what the record reflects.

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It leaves over and apparently drops something, doesn't it?

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I don't think the record even reflects that.

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His leg goes up like a... It reminded me of a whooping crate.

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His leg goes up and that must mean he's dropping something.

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Doesn't it look like that?

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What I'll say is that the district court factual finding on that issue was that the police officers didn't know.

[00:07:13] Speaker 02:
Didn't know what?

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Didn't know what happened back there.

[00:07:17] Speaker 05:
But was it enough to be suspicious?

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Was it enough to be suspicious?

[00:07:22] Speaker 02:
No, it may make you curious, but... Well, wait a minute.

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If you combine that with the recognition,

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the recognition of Mr. Castle as someone who's been involved in criminal activity before.

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The guy is in a high-crime area.

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And is in a high-crime area.

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And every time he... And touched down a black alley.

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And every time he bends over, he is subject to a stop.

[00:07:49] Speaker 05:
Not bending over.

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He's bending over like he's dropping something behind something.

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I'd have to... Andy had a... I'll add, Andy had a history of destroying evidence when he spotted the police.

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He also had a history of flight, and he walks directly to the officers.

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After he goes behind the U-Haul, bends over in an odd position.

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He does bend over, but that's all we know about what takes place back there.

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Was that a blind alley?

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Could he have gone the other direction?

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He could have not come back out to the police officers.

[00:08:22] Speaker 05:
No, but he couldn't go any other direction.

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That was an end to an alley.

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He could have gone the other way.

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Yes, there's no fence in the back of this yard and the police officers refer to it as an alley, but it's actually just the side yard of the house.

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So he could have walked back there and continued to walk out the back.

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to another street, to another part of the city.

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But that's not what happened.

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And I have to vigorously dispute that he dropped something.

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We don't know that he dropped something.

[00:08:57] Speaker 05:
No, you're right.

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It's not established that he dropped something, but it looks like he dropped something, doesn't it?

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It looks like he bends.

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And without the officers saying, well, in my experience, when someone goes to that location or when someone's back there and bends like that, I believe that they drop.

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In this case, you had the officers almost say the exact opposite.

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I did not see him put anything down.

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I didn't see him pick anything.

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I didn't see anything in his hands.

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There's no indisha of criminal activity.

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As I walked over here this morning, I bent to touch something on my shoe.

[00:09:32] Speaker 00:
No, but he said, to be fair, he was walking.

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They recognize the police.

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He goes down the alley, bends, and then comes back.

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So he made a special trip to go behind the U-Haul and then came back.

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Isn't it significant that, in fact, he had that little detour and then came back?

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I think if... Again, given his history of destroying evidence.

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I think if

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he indeed recognized the police, it becomes more problematic for him.

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But again, the record does not reflect that at any point he recognized the police or did anything in response to the police.

[00:10:05] Speaker 00:
No, but the police thought he recognized them.

[00:10:07] Speaker 02:
Right, but that's not a particularized hunch.

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That is nothing.

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They have to articulate why they think that.

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We're looking at what information they had, whether they had a reasonable suspicion.

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So they turn on a road.

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They believe that he recognizes them as police officers, maybe not as individuals, but as police officers.

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and decides then to go back behind the U-Haul, bend over, and then come back out.

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It wasn't like he was walking in that direction.

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He didn't keep going.

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He went there solely to go behind the U-Haul and bend, for whatever that reason was, and come back out.

[00:10:35] Speaker 02:
I'm sorry, Your Honor.

[00:10:36] Speaker 02:
The testimony is that he... There is no testimony that he changed direction.

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And there is no evidence that he ever recognized the police.

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So that's something else that I have.

[00:10:45] Speaker 00:
But you went to the U-Haul and then came right back on the exact same path.

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So that's a detour.

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People don't normally walk to U-Hauls and back, do they, in the middle of the night?

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Or early evening?

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Well, what I'd say to that is the defendant does not have to explain his actions in any way.

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The officers, the government has to explain why that is criminal.

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It may make you curious, but it is not in and of itself criminal to walk behind unless the officers add something more.

[00:11:15] Speaker 02:
The government did not carry their burden to have the officers establish why that creates criminal suspicion.

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Do they have to suspect a crime was committed, or can they suspect that evidence was being hidden or destroyed?

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The only way evidence could be hidden or destroyed is if there's a crime.

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So I view those two statements as the question is one and the same.

[00:11:47] Speaker 05:
Counsel, I'm a little curious about the significant

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amount of drugs that was found in the container behind the dumpster.

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If that had been found before there was a seizure, would it have clearly been articulate suspicion?

[00:12:15] Speaker 02:
Yes.

[00:12:16] Speaker 05:
No question, right?

[00:12:18] Speaker 05:
So if

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So is it not, it was found afterwards, right?

[00:12:26] Speaker 05:
That's correct.

[00:12:28] Speaker 05:
If it had been found and your client had walked away, the police would certainly have had grounds to stop him walking down the street, right?

[00:12:41] Speaker 05:
Yes.

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So I'm a little curious why the government can't argue that it inevitably would have been a stop anyway.

[00:12:57] Speaker 05:
I think the government makes that argument in a brief.

[00:13:01] Speaker 05:
Not very strongly, but they suggest it.

[00:13:08] Speaker 02:
That's correct.

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The evidence that I'm seeking to suppress is evidence that is recovered before.

[00:13:16] Speaker 02:
Fourth Amendment analysis always turns on timing.

[00:13:18] Speaker 02:
It always turns on what happens first.

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If the government has the evidence that the defendant is seeking to suppress before anything occurs, then we never have a Fourth Amendment analysis.

[00:13:29] Speaker 05:
But it's inevitably been found anyway.

[00:13:33] Speaker 05:
Doesn't that undermine your position?

[00:13:36] Speaker 02:
It would undermine my position if I was seeking to suppress what is back at the van, back at the truck.

[00:13:42] Speaker 02:
But in this intervening time is when Officer Mosley witnesses Mr. Castle take the small vial out of his glove while he is seized, before this back here is discovered.

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So it is not, I have to revise my earlier statement.

[00:14:02] Speaker 02:
I'm not sure that, I still agree that they could have seized Mr. Castle, but if he had gone on his way and when they seized him, not had this small vial on him.

[00:14:18] Speaker 02:
We don't know what would have happened in the interim.

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He wouldn't have had to have a small vial to seize him.

[00:14:29] Speaker 02:
That's all I'm seeking to suppress.

[00:14:31] Speaker 02:
That's what we sought to suppress.

[00:14:34] Speaker 05:
Well, I see your point.

[00:14:36] Speaker 05:
But if the police had caught up to him, it wouldn't say, oh my gosh, look what we found, this enormous amount of drugs.

[00:14:47] Speaker 05:
They could have seized him at that point.

[00:14:48] Speaker 05:
Of course, search him.

[00:14:49] Speaker 05:
Right.

[00:14:50] Speaker 05:
All of that is supposition.

[00:14:51] Speaker 02:
No, but the inevitable consequence.

[00:14:54] Speaker 02:
What is the doctrine?

[00:14:56] Speaker 02:
But it's not the inevitable discovery doctrine.

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Yeah.

[00:15:00] Speaker 02:
But it's not inevitable if Mr. Castle goes on his way.

[00:15:04] Speaker 02:
Maybe he goes into a house.

[00:15:06] Speaker 02:
Maybe he takes off his coat.

[00:15:07] Speaker 02:
Maybe he takes off his mittens.

[00:15:09] Speaker 02:
At that point, we don't know that it's inevitable that they discover what is on him, because he has left the scene.

[00:15:17] Speaker 02:
Now, if they... I see your argument.

[00:15:19] Speaker 05:
I see your argument.

[00:15:21] Speaker 00:
Because the record was a little unclear to me.

[00:15:23] Speaker 00:
How much time elapsed between when he said, hold on a sec, and when the officer found the large amount of PCP behind a U-Haul truck?

[00:15:34] Speaker 02:
I think the record is clear enough.

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At the end,

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We're close to the end of, I think, Officer Mosley's testimony.

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We know that, I think it's Officer Mosley, but it could be Olsak.

[00:15:49] Speaker 02:
It says, it was 20 minutes from the time we initially encountered Mr. Castle.

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We called for transport after finding this bottle.

[00:16:00] Speaker 00:
Yeah, but he said he said it was often mostly but he said I didn't want to arrest him right away because it was at that point it was one police officer and two Two individuals and he was nervous about trying to effectuate arrest until more police officers came so that's a different measure of time than the one that

[00:16:15] Speaker 00:
I was inquiring about, maybe the record just doesn't say.

[00:16:18] Speaker 00:
I'm interested in, there's the moment when Officer Olszak and your client intersect in the alley and he touches the one that buys out and says, hold on a sec, and then runs back, the officer runs back behind the U-Haul and sees the PCP bottle.

[00:16:36] Speaker 00:
At the same time, your client is walking towards Mr. Mosley.

[00:16:39] Speaker 02:
I'm sorry, he actually, he testifies that he actually has, he goes back there to look.

[00:16:45] Speaker 02:
His flashlight goes out.

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He has to call for another officer.

[00:16:48] Speaker 02:
He has to wait for that other officer to arrive.

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In the meantime, Mr. Castle is seated over here on the curb.

[00:16:57] Speaker 00:
Do we know when that other officer arrived?

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How much time that was?

[00:17:01] Speaker 00:
And do we know that he didn't see anything?

[00:17:03] Speaker 00:
He didn't see the PCP until that other officer with the flashlight showed up?

[00:17:06] Speaker 02:
We do know that he did not see the PCP until the other officer arrived, because he says that the other officer is the one that finds the PCP.

[00:17:12] Speaker 02:
Got it.

[00:17:13] Speaker 02:
And then we know that Mosley, again, I'm fairly certain it's Mosley, says that

[00:17:23] Speaker 02:
He doesn't know what was going on over there.

[00:17:25] Speaker 02:
But when they came back to him and said, we have this PCP, is when they called for transport.

[00:17:31] Speaker 02:
So Mosley, before they called for transport, another officer has already arrived to help Mosley put Mr. Castle in handcuffs.

[00:17:43] Speaker 02:
So I don't think it's an assumption that it was 20 minutes, because

[00:17:53] Speaker 02:
They find the big bottle and say, we found the big bottle.

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And everything that has taken place with Mosley is complete.

[00:18:01] Speaker 00:
Everything Mosley has witnessed with the little bottle is complete.

[00:18:04] Speaker 00:
So the record doesn't show any shorter time?

[00:18:06] Speaker 05:
No.

[00:18:07] Speaker 05:
Incidentally, counsel, your position that the district judge was finding on one issue was clearly erroneous.

[00:18:16] Speaker 05:
That is to say that your client was walking away after

[00:18:21] Speaker 05:
seeing a car, your argument is there's no evidence to support that proposition?

[00:18:28] Speaker 02:
That is correct.

[00:18:31] Speaker 05:
So your contention is the district judge's finding on that is clearly erroneous?

[00:18:37] Speaker 02:
It is clearly erroneous.

[00:18:40] Speaker 02:
The district judge found it was not unreasonable.

[00:18:44] Speaker 02:
I wouldn't even say it's a very strong finding by the district court.

[00:18:47] Speaker 02:
The district judge says it's not unreasonable for officers to believe that the defendant was walking quickly to evade them.

[00:18:55] Speaker 05:
And that's not walking away, walking quickly.

[00:19:00] Speaker 05:
No, no, no, walking quickly, that's true.

[00:19:02] Speaker 05:
But the key is whether there's a response to seeing the car, seeing the car as a police car.

[00:19:08] Speaker 02:
Well, we know from Officer Mosley that he says, I immediately turned the corner and saw

[00:19:15] Speaker 02:
two people walking quickly and I nudged my partner officer Olsack and said look at the two speed walkers.

[00:19:22] Speaker 02:
We know that this is at the top of Yuma a full city block.

[00:19:25] Speaker 02:
A city block is a quarter of a mile.

[00:19:28] Speaker 02:
I realize that's not in the record but.

[00:19:31] Speaker 02:
Oh if it's not a record we can't look at it.

[00:19:33] Speaker 02:
I'm sorry.

[00:19:34] Speaker 05:
What's in the record the question was whether district judge could infer

[00:19:40] Speaker 05:
from the evidence that your clients walked fast after seeing, in response to seeing the police car.

[00:19:48] Speaker 02:
I don't think there is the slightest shred of evidence that would allow such an inference.

[00:19:54] Speaker 00:
What about Mr. Olzac, or Officer Olzac's statement on page 22 of the transcript that they were, quote, walking faster than a normal pace when they made us out, end quote.

[00:20:04] Speaker 00:
So it sounds like Officer Olsack and Moseley just had different views on this.

[00:20:09] Speaker 02:
I think if you... When they made us out.

[00:20:12] Speaker 02:
When they made us out.

[00:20:13] Speaker 02:
He doesn't say they started walking... But isn't it ambiguous?

[00:20:19] Speaker 00:
Walking faster than a normal pace when they made us out.

[00:20:21] Speaker 00:
Right.

[00:20:22] Speaker 05:
It's ambiguous as to whether or not

[00:20:24] Speaker 05:
that statement is a response to seeing us or was the status when we turned whether or not he saw us?

[00:20:31] Speaker 05:
I agree.

[00:20:32] Speaker 05:
So if it's ambiguous, why can't the district judge's finding be accepted under the limited review we have?

[00:20:39] Speaker 02:
Because when he went on cross-examination, when he clarified that statement, he said he had no evidence that they made him out.

[00:20:48] Speaker 05:
That's what I thought your response was.

[00:20:52] Speaker 05:
I'll ask counsel for the other side on that.

[00:20:56] Speaker 02:
I see that I've exceeded my time.

[00:20:58] Speaker 00:
We'll give you a couple minutes for rebuttal.

[00:20:59] Speaker 02:
Thank you.

[00:21:00] Speaker 00:
Thank you.

[00:21:17] Speaker 01:
Good morning, Your Honors, and may it please the Court, Ryan Milan for the United States.

[00:21:21] Speaker 05:
May I go right to that last point?

[00:21:23] Speaker 05:
Why isn't the district judges finding all that clearly erroneous?

[00:21:27] Speaker 01:
It's not clearly erroneous.

[00:21:28] Speaker 05:
Why is it not?

[00:21:29] Speaker 05:
When it particularly went on cross-examination, we also said, I can't say that they walk fast in response to our car.

[00:21:41] Speaker 05:
In other words, something to that word.

[00:21:43] Speaker 05:
Did that affect?

[00:21:44] Speaker 01:
Well, Your Honor, he also testified on page 60 that he thought they knew we were the police when we first pulled into that block.

[00:21:50] Speaker 01:
There was evidence.

[00:21:51] Speaker 05:
Who's women?

[00:21:52] Speaker 05:
Say that again.

[00:21:53] Speaker 01:
Officer Olsak testified.

[00:21:55] Speaker 05:
What's the testimony exactly?

[00:21:56] Speaker 01:
He says, and I'm quoting here, I think they knew we were the police when we first pulled into the block.

[00:22:02] Speaker 01:
And the evidence for that, and this is very similar to the evidence in the Edmonds case, where they were also driving an unmarked vehicle, but it was a vehicle that was routinely used to patrol that area, and quite routinely in this case, up to five times a week.

[00:22:17] Speaker 00:
I'm sorry.

[00:22:18] Speaker 00:
I don't mean to back you up, but what page did you say that?

[00:22:20] Speaker 01:
It was on page 60, Your Honor, of the 6-0 of the suppression hearing on June 3rd.

[00:22:29] Speaker 05:
Was that in your brief?

[00:22:32] Speaker 01:
I don't know if that quote is in our brief, Your Honor.

[00:22:34] Speaker 05:
It would have been helpful.

[00:22:37] Speaker 01:
I think there is other extensive evidence.

[00:22:39] Speaker 05:
Yeah, I know, but that quote, which is useful, was not in your brief.

[00:22:42] Speaker 05:
Not that I remembered.

[00:22:44] Speaker 01:
I don't think that quote is in our brief, Your Honor.

[00:22:48] Speaker 05:
So what do we do with the person who wrote the brief?

[00:22:51] Speaker 05:
No, I'm teasing.

[00:22:53] Speaker ?:
Go ahead.

[00:22:54] Speaker 01:
Your Honor, I think that the evidence, like an admin, supports an inference.

[00:22:58] Speaker 01:
It's certainly not a clearly erroneous finding by the judge.

[00:23:01] Speaker 05:
Yeah, well, that is a significant alteration, in my conclusion.

[00:23:08] Speaker 05:
Go ahead, I'm sorry.

[00:23:09] Speaker 05:
I mean, I wish I'd been in the brief.

[00:23:13] Speaker 01:
This car was routinely used to patrol the block.

[00:23:16] Speaker 01:
It was a distinctive car.

[00:23:18] Speaker 01:
And I think there's a common sense aspect to this too, which is that individuals who are standing on the street would often see a car before the people in the car see them.

[00:23:28] Speaker 01:
And the fact is, the manner in which these individuals were walking, putting yourselves in the shoes of these experienced police officers, they were walking in a suspicious enough manner that at that moment,

[00:23:41] Speaker 01:
Officer Mosley turned to Officer Olsack and said, look at those fast walkers.

[00:23:47] Speaker 01:
He saw them.

[00:23:47] Speaker 01:
They weren't walking just in a normal, quick fashion.

[00:23:50] Speaker 01:
They're walking enough that it elicited suspicion.

[00:23:52] Speaker 01:
And then when you take the totality of the circumstances, as you should under our visor,

[00:23:57] Speaker 01:
You should look at where they were walking from.

[00:23:59] Speaker 01:
Now, this is not a case where there are blithe general assertions about the neighborhood being a high crime area.

[00:24:06] Speaker 01:
We're talking about a specific building, 133 Yuma Street, which the district court made a factual finding, a very specific factual finding,

[00:24:14] Speaker 01:
That's a building where men stand outside and sell PCP.

[00:24:17] Speaker 01:
Not just drug activity, and not just any drug, but PCP.

[00:24:20] Speaker 01:
And not just that block, but that building.

[00:24:22] Speaker 06:
You're saying the facts in Edmonds are the same?

[00:24:25] Speaker 06:
They're not the same.

[00:24:27] Speaker 06:
The finding there was his eyes got pretty big and he immediately pivoted and turned away and began to walk rapidly toward the van.

[00:24:35] Speaker 06:
There was a clear identification, a clear, there was clear testimony indicating that the defendants had spotted the police and reacted.

[00:24:44] Speaker 06:
There is no testimony here to that effect and indeed that when pressed on cross-examination the officers said

[00:24:51] Speaker 06:
We really don't have a basis for saying that.

[00:24:54] Speaker 06:
And all you're saying is if there's a police car in a high-crime area, we can always surmise that if someone's walking fast, they must be trying to escape.

[00:25:03] Speaker 06:
That's silly.

[00:25:04] Speaker 06:
That's just a silly argument.

[00:25:05] Speaker 06:
Do you realize the reach of that argument?

[00:25:07] Speaker 01:
Your Honor, and that's not our argument, of course.

[00:25:09] Speaker 01:
This is not just people walking.

[00:25:10] Speaker 06:
But I think Dr. Sillman asked the right question.

[00:25:12] Speaker 06:
You have no evidence to support.

[00:25:14] Speaker 06:
There are other pieces of the case, but with respect to them walking quickly,

[00:25:19] Speaker 06:
You know, I can make the argument that people in high crime areas always walk quickly.

[00:25:23] Speaker 06:
It's just safer to walk quickly.

[00:25:26] Speaker 06:
I don't know what it means.

[00:25:27] Speaker 06:
But there's nothing to indicate they were reacting to police officers.

[00:25:31] Speaker 06:
And a police officer just saying, well, I know I'm a police officer.

[00:25:35] Speaker 06:
They're probably responding to me with nothing more.

[00:25:37] Speaker 06:
That's silly.

[00:25:38] Speaker 01:
Your Honor, I understand your point.

[00:25:39] Speaker 01:
But I think that that is... I just wanted to clarify.

[00:25:43] Speaker 00:
Did Officer Olzac retract his statement explicitly?

[00:25:48] Speaker 01:
No, Your Honor.

[00:25:50] Speaker 01:
I don't think he did retract his statement.

[00:25:52] Speaker 00:
Mr. Mosley, who was quite, who is the one who said, at least in cross-examination, that I don't, I didn't know, they could have been walking fast before.

[00:25:59] Speaker 00:
They were already walking fast when we turned the corner, but I wasn't clear.

[00:26:02] Speaker 00:
I wasn't clear, maybe counsel.

[00:26:05] Speaker 01:
I believe that is Officer Mosley who retracted that statement.

[00:26:07] Speaker 01:
I don't know if Officer Olsak retracted that at all.

[00:26:10] Speaker 01:
He was very confident that they had made out the police.

[00:26:13] Speaker 06:
Yeah, but it was based on nothing.

[00:26:15] Speaker 01:
Well, Your Honor, it wasn't based on that fact.

[00:26:16] Speaker 06:
It's not like Edmonds.

[00:26:17] Speaker 06:
I mean, Edmonds is a great case if you have the same facts, but you don't have those facts.

[00:26:21] Speaker 01:
Your Honor, I disagree with you.

[00:26:23] Speaker 06:
Well, do you have his eyes got pretty big and he immediately pivoted and turned away and he began to walk rapidly toward the van?

[00:26:30] Speaker 06:
Those are your facts?

[00:26:31] Speaker 01:
No, Your Honor.

[00:26:32] Speaker 01:
And that specific point, I think Edmonds is quite clear on the timing.

[00:26:35] Speaker 01:
But I think what Your Honor's question implies is the sort of divide and conquer analysis that the Supreme Court has forbidden in our visor.

[00:26:43] Speaker 01:
I think you have to look at the totality of the circumstances here.

[00:26:45] Speaker 01:
In Edmonds, the companion of the defendant was walking to a car in a parking lot.

[00:26:51] Speaker 01:
In this case, the people were walking from a known PCP dealing house to an abandoned property.

[00:26:58] Speaker 06:
No, but we're talking about whether the police will recognize.

[00:27:01] Speaker 06:
That's the point Edmonds made.

[00:27:03] Speaker 06:
Your so-called furtive gestures are only significant if they were undertaken in response to police presence.

[00:27:10] Speaker 01:
Yes.

[00:27:10] Speaker 06:
And there has to be evidence to support that.

[00:27:13] Speaker 01:
Yes.

[00:27:14] Speaker 06:
And there's nothing to indicate that other than the officers saying, well, I'm an officer, and we turn the corner.

[00:27:20] Speaker 06:
That's the evidence that they're reacting to the officers?

[00:27:23] Speaker 01:
I think in Edmonds, it's not just the timing, and I agree that your honor is describing the facts in Edmonds correctly, but there was also evidence in Edmonds that the car had been recognized.

[00:27:34] Speaker 01:
This is an unmarked part that was routinely used to patrol the area and took that into account.

[00:27:39] Speaker 06:
Yeah, but we have no evidence here that the car was recognized.

[00:27:42] Speaker 06:
We have evidence that supports an inference that was recognized because it was routinely as a distinctive vehicle And it was used to reach any control and that was also double triple I just read an article on triple quadruple Inferences and you know that's well.

[00:27:55] Speaker 00:
I thought they testified that they thought they actually had the only Dodge Ram in town I'm not sure that's true, but that it was a very rare car at least in that yes area It was just it was a very gorgeous not car truck was a very distinctive vehicle.

[00:28:08] Speaker 00:
Yes, sir Were there any other vehicles like that in this area?

[00:28:11] Speaker 05:
Yes, and that's a testimony.

[00:28:13] Speaker 05:
You said it's not in the brief again.

[00:28:16] Speaker 05:
We'll repeat that.

[00:28:18] Speaker 05:
Is that in response to judge Edwards point?

[00:28:20] Speaker 05:
I'm not sure.

[00:28:22] Speaker 01:
Well, your honor, this is what officer also all sack your honor.

[00:28:27] Speaker 01:
He said specifically and I'm quoting here.

[00:28:29] Speaker 01:
I think they knew we were the police when we first pulled into the block.

[00:28:33] Speaker 06:
That's it.

[00:28:34] Speaker 01:
That's what he says.

[00:28:35] Speaker 05:
I think we know they're a criminal.

[00:28:36] Speaker 05:
What is the reason for that?

[00:28:38] Speaker 05:
There isn't any.

[00:28:39] Speaker 01:
Well, the reason that he just gave was his knowledge that the car had been recognized.

[00:28:44] Speaker 06:
Yeah, his experience.

[00:28:45] Speaker 06:
It's a high crime area.

[00:28:46] Speaker 06:
So I think they knew we were police.

[00:28:47] Speaker 06:
That just, we can't have gone that far.

[00:28:50] Speaker 06:
It just makes no sense.

[00:28:51] Speaker 00:
Nobody says our vehicle.

[00:28:52] Speaker 00:
Is there anything to indicate that?

[00:28:54] Speaker 00:
Our vehicle, we pull in there almost on a daily basis.

[00:28:57] Speaker 00:
It's our vehicle.

[00:28:57] Speaker 00:
It's a Dodge Ram.

[00:28:59] Speaker 00:
And there's testimony about how rare Dodge Rams are in that area.

[00:29:04] Speaker 06:
Why don't these guys keep going in the alley if they felt they had been spotted?

[00:29:09] Speaker 06:
Why would they come back to the police, so to speak?

[00:29:14] Speaker 06:
If they were fleeing, why wouldn't they just keep fleeing through this alley?

[00:29:20] Speaker 06:
Your whole argument is they were fleeing because they had spotted the police.

[00:29:24] Speaker 01:
What they did was not consistent.

[00:29:26] Speaker 01:
Our argument is not that they were fleeing.

[00:29:28] Speaker 01:
Our argument is not that they were phony.

[00:29:30] Speaker 01:
Our argument is that they proceeded to make – well, let's talk about what they did when they got to the property, because there are two individuals, both of whom acted very suspiciously and not consistently with someone, as the appellant suggests, visiting a friend at the house or entering their own home.

[00:29:46] Speaker 01:
Mr. Banks stops and pretends to urinate in the front yard.

[00:29:49] Speaker 01:
And there's testimony that he wasn't even urinating, he was pretending to urinate.

[00:29:53] Speaker 01:
That's at page 58 of the suppression here.

[00:29:57] Speaker 01:
Mr. Castle, the appellant, proceeds into this cut or alley behind an abandoned truck and makes very suspicious gestures.

[00:30:07] Speaker 01:
Now, I agree the police don't know exactly what he's doing.

[00:30:11] Speaker 01:
He could be retrieving a weapon.

[00:30:12] Speaker 06:
Why are they suspicious if we don't know what – I don't know what to make of the gestures that are described.

[00:30:19] Speaker 01:
Why are they suspicious?

[00:30:21] Speaker 01:
The analysis here should be putting yourself in the shoes of an experienced police officer.

[00:30:26] Speaker 01:
And so someone leaving 133 Yuma, a known drug house, and proceeding to an abandoned house across the street, who then tries to hide himself from view, clearly going behind the truck.

[00:30:40] Speaker 01:
and bends over as if he's placing something there or picking something up.

[00:30:44] Speaker 01:
They don't know quite what he's doing, but it's so suspicious to Officer Olsak at the moment that he jumps out of the car and starts running to that very spot, to the very spot where he sees the defendant, the appellant, bending over.

[00:30:56] Speaker 01:
Now, I don't think that there's any case that says the police have to know what the furtive gesture is.

[00:31:02] Speaker 01:
You know, if you look at Edmonds, the gesture there, Your Honor, is actually very similar to the gesture here.

[00:31:06] Speaker 01:
They see the defendant sort of going under the dashboard and coming back up.

[00:31:12] Speaker 01:
It turned out he was putting a gun or other contraband under the seat.

[00:31:15] Speaker 01:
But the police don't have to know that.

[00:31:18] Speaker 01:
The standard is, is there a suspicion that there's crime afoot?

[00:31:21] Speaker 01:
And that's considerably less than preponderance of the evidence, of course, I've said.

[00:31:26] Speaker 01:
So I don't think they have to know.

[00:31:28] Speaker 01:
Now, it's true that the evidence is not clear that these people were fast walking in response to the police coming up.

[00:31:37] Speaker 06:
That's an understatement.

[00:31:38] Speaker 01:
But I think there's a very reasonable inference that they weren't.

[00:31:42] Speaker 01:
Get based on the recognition of the car, which was well established,

[00:31:45] Speaker 05:
If you lose on that point, there's no evidence that the two responded to the police.

[00:31:52] Speaker 05:
Is that the end of your case?

[00:31:54] Speaker 01:
No, Your Honor, because these these facts have to be taken in totality.

[00:31:58] Speaker 05:
It's not just the timing.

[00:32:00] Speaker 05:
If there's no evidence that they responded to the case, responded to the police, then the walking behind the

[00:32:11] Speaker 05:
dumpster is not of any significance.

[00:32:15] Speaker 01:
I thought you were referring to the walking quickly, Your Honor.

[00:32:18] Speaker 01:
I think if you were to conclude that the furtive gestures behind the truck were not in response, then I think that's a problem for our case.

[00:32:26] Speaker 01:
But I don't think that's a fair infringement of facts.

[00:32:29] Speaker 05:
So it has to be for your case a legitimate finding that the two responded to seeing the police car as police.

[00:32:42] Speaker 05:
Without that, you have no case.

[00:32:44] Speaker 01:
If none of their actions were taken in response.

[00:32:48] Speaker 05:
Just respond.

[00:32:49] Speaker 05:
If you do not have that, you lose the case.

[00:32:52] Speaker 01:
I'm confused about what you mean by that.

[00:32:54] Speaker 05:
If there is no legitimate finding that they responded

[00:32:59] Speaker 05:
to the car coming up as police, that there's no legitimate finding that they recognize the police car when they took further action.

[00:33:10] Speaker 05:
That's the end of your case.

[00:33:12] Speaker 01:
No, I don't think that's correct.

[00:33:13] Speaker 05:
Well, tell me how.

[00:33:14] Speaker 01:
I think that, imagine an observation post on the street that's clearly, that's clearly secreting.

[00:33:19] Speaker 05:
So if the police, yeah, the police are watching from a, or a spike, or the least, binoculars from a,

[00:33:31] Speaker 05:
down the alley, bend over, and walk back.

[00:33:36] Speaker 01:
That's enough.

[00:33:37] Speaker 05:
That's enough to jump out.

[00:33:38] Speaker 01:
No, there was more to it than that.

[00:33:40] Speaker 01:
The companion also pretends to urinate in the front yard, and they're coming from a known drug house.

[00:33:46] Speaker 05:
So anybody coming from a known drug house can be stopped?

[00:33:49] Speaker 01:
No, Your Honor, there could be an innocent explanation for that.

[00:33:52] Speaker 01:
But taken together, I think, again, we're taking these facts separately.

[00:33:59] Speaker 00:
There was some debate about whether the instant they turned on the street and saw them walking fast, whether that was in response to the police.

[00:34:07] Speaker 00:
And that's where the debate was.

[00:34:08] Speaker 00:
But I thought there was no dispute that, because the police keep coming down the street, so that by the time he's going in the alley, he knows it's a police car.

[00:34:16] Speaker 00:
Is there any dispute about that?

[00:34:17] Speaker 01:
No.

[00:34:17] Speaker 00:
That's what sends him into the alley to the U-Haul.

[00:34:21] Speaker 01:
I don't think there could be any serious dispute.

[00:34:23] Speaker 00:
Or that would certainly be a reasonable inference.

[00:34:26] Speaker 06:
You don't think there can be any serious dispute why now?

[00:34:29] Speaker 01:
Based on evidence.

[00:34:31] Speaker 01:
Well, at that point, the car was so close to them, and the fact that the police officer at that point was actually getting out of the car, they'd stopped the car.

[00:34:40] Speaker 06:
So you're saying at the point when the police officer got out of the car.

[00:34:44] Speaker 01:
No, I think there's a certain point where it's not likely that the people were not recognizing the officers.

[00:34:50] Speaker 01:
They were wearing tactical vests that said police.

[00:34:52] Speaker 01:
So it was a distinctive car, but they also were in uniform.

[00:34:56] Speaker 01:
Yeah, when they got out of the car.

[00:34:58] Speaker 05:
That depends on them getting out.

[00:35:01] Speaker 05:
I think Judge Edwards and I are saying the same thing.

[00:35:04] Speaker 05:
The key question is whether they recognize the car as a police car and alter their behavior because of that.

[00:35:12] Speaker 01:
I took Judge Miller's question to be whether there's any inference possible that the furtive movements behind the truck

[00:35:20] Speaker 05:
by themselves.

[00:35:21] Speaker 00:
Just taking those.

[00:35:22] Speaker 01:
We're not in response to the police and I think they were in response.

[00:35:25] Speaker 00:
Heading down the alley and then going to be involved.

[00:35:28] Speaker 01:
Yes, I think that was clearly in response to the police presence.

[00:35:31] Speaker 05:
Okay, that's your point.

[00:35:33] Speaker 00:
The evidence was that these police were there in this unique car almost daily and that Mr. Castle had been there frequently before and had encountered these police

[00:35:43] Speaker 00:
frequently.

[00:35:44] Speaker 00:
So even if they didn't recognize, even if they didn't walk fast when they first turned the corner on the end of the block as they approached, he would have recognized the vehicle.

[00:35:53] Speaker 01:
Yes, yes.

[00:35:54] Speaker 01:
And I think that that is at least a fair inference from the facts and certainly not a clearly erroneous finding by the judge.

[00:36:01] Speaker 05:
Incidentally, what happened with respect to the large

[00:36:04] Speaker 05:
of drugs behind the dumpster.

[00:36:08] Speaker 05:
Was the defendant ever charged with possession of those?

[00:36:11] Speaker 01:
Yes, Your Honor.

[00:36:12] Speaker 01:
The defendant was convicted on a lesser included offense of possession with intent to distribute a detectable amount of PCP.

[00:36:19] Speaker 01:
The initial charge I think was

[00:36:21] Speaker 01:
possession was intended to distribute a hundred grams or more.

[00:36:25] Speaker 00:
But that was the small vial, wasn't it?

[00:36:27] Speaker 00:
I'm sorry.

[00:36:27] Speaker 00:
I thought his conviction was based on the small vial that was found during the search of his body and he wasn't convicted of... Was the big vial introduced in evidence?

[00:36:37] Speaker 00:
Oh, they were both introduced in evidence enticing him?

[00:36:39] Speaker 01:
Yes, they were both introduced in evidence.

[00:36:41] Speaker 05:
Now what about the question I asked at the outset, the inevitable discovery?

[00:36:47] Speaker 05:
What is your position on that?

[00:36:49] Speaker 05:
Well, I think that... There was only a suggestion of that in the brief.

[00:36:53] Speaker 01:
I think that the way that the issue is presented here, where the appellant is only seeking to suppress the small vial and statements, I don't think that is necessarily covered by the inevitable decision.

[00:37:07] Speaker 05:
That's what I was afraid of, yes.

[00:37:09] Speaker 01:
You know, the large vial, they were going to find that no matter what happened with Mr. Castle.

[00:37:13] Speaker 01:
It was just a matter of getting the flesh out.

[00:37:14] Speaker 05:
But even if that's true, that doesn't justify the

[00:37:20] Speaker 05:
I don't think so, Your Honor.

[00:37:22] Speaker 01:
I don't think that resolves the case.

[00:37:24] Speaker 05:
Right, exactly.

[00:37:26] Speaker 01:
And I would like to say that Judge Millett began the last period of argument by asking about when the seizure happened.

[00:37:33] Speaker 01:
I want to talk about that for a second.

[00:37:35] Speaker 01:
Yes.

[00:37:35] Speaker 01:
Even though we believe under Edmonds the seizure is constitutionally justified even if it begins, even if the seizure begins when he's asked to show his hands.

[00:37:43] Speaker 01:
But that was not the argument below.

[00:37:46] Speaker 01:
And I would direct Your Honors to page 117, to the quote that immediately precedes the quoted section in the reply brief by Appellant.

[00:37:55] Speaker 01:
The court, Judge Castler says to the parties, I thought we all agreed that the seizure occurs when he sits on the curb.

[00:38:02] Speaker 01:
And Appellant's counsel says, and I'm quoting here, we would put it when Officer Olsak touches Mr. Castle and said, you know, hold on a second.

[00:38:11] Speaker 01:
That's not what he, that's after he's told to show his hands.

[00:38:15] Speaker 01:
Pellants counsel then goes on to conflate the touching with the saying, hold on a second, and then ultimately says there's probably no legal significance between those two things.

[00:38:24] Speaker 01:
We think there is some legal significance because in that time... Between which two?

[00:38:28] Speaker 01:
Between the showing of the hands and when officers... You mean taking the hands out of the pocket?

[00:38:33] Speaker 01:
Yes.

[00:38:34] Speaker 01:
And then a few seconds later, or however long it was, when Officer Alstack tapped the appellant and said, hold on a second.

[00:38:41] Speaker 01:
Well, the evidence is clear that in that time frame, he recognized Mr. Castle.

[00:38:46] Speaker 01:
And this is not just, oh, I know who that person is.

[00:38:49] Speaker 01:
He had had personal experience in arrests for PCP use and PCP distribution for Mr. Castle.

[00:38:56] Speaker 01:
This was a known offender of the very type of offense that this block and this building is known for.

[00:39:02] Speaker 00:
Well, he'd also known him for destroying evidence when he saw the police, right?

[00:39:06] Speaker 00:
He poured a vial of PCP out right in front of the guy once before.

[00:39:09] Speaker 01:
Absolutely.

[00:39:10] Speaker 01:
He was not only present there, he used napkins to try to wipe up the PCP.

[00:39:13] Speaker 01:
So he was very familiar.

[00:39:14] Speaker 05:
Sure, if the argument had been made that the seizure was when he was asked to show his hands, your case would be a lot weaker.

[00:39:21] Speaker 05:
That's your concession here, right?

[00:39:24] Speaker 01:
I don't think it's a lot weaker because I think that's the least factor in our analysis, the recognition.

[00:39:30] Speaker 01:
I don't think that's a tremendous additional factor.

[00:39:33] Speaker 05:
The recognition is the least factor?

[00:39:34] Speaker 05:
That's pretty damn important.

[00:39:36] Speaker 05:
This guy's been arrested a number of times.

[00:39:40] Speaker 01:
He certainly has, and for this very same offense.

[00:39:43] Speaker 01:
But we would not concede that simply showing hands, I agree with Judge Silverman, I think even the inherent nature of the word seizure implies some restriction on movement.

[00:39:55] Speaker 01:
You can imagine a situation where a police officer tells someone to show their hands as they're walking away, and they continue to walk away.

[00:40:02] Speaker 01:
There's no way that person has been seized by the police simply because they take their hands out of their pockets.

[00:40:07] Speaker 00:
Well, but we were at night.

[00:40:08] Speaker 00:
We're in an alley.

[00:40:08] Speaker 00:
It's just the two of them.

[00:40:10] Speaker 00:
It's a confined area.

[00:40:11] Speaker 00:
It's dark.

[00:40:12] Speaker 00:
One has a gun.

[00:40:13] Speaker 00:
One doesn't.

[00:40:14] Speaker 00:
One has authority.

[00:40:15] Speaker 00:
One doesn't.

[00:40:15] Speaker 00:
And he's ordered, show your hands.

[00:40:17] Speaker 00:
Now what's going to happen to him if he doesn't show his hands?

[00:40:19] Speaker 00:
I mean, what is Mr. Castle thinking at that moment?

[00:40:23] Speaker 01:
Well, he may think that if he shows his hands, he'll be free to leave.

[00:40:27] Speaker 01:
And I think that would not be a seizure.

[00:40:29] Speaker 06:
And if he doesn't show his hands,

[00:40:32] Speaker 00:
He doesn't comply.

[00:40:34] Speaker 00:
Your Honor, it's not a test of what he thinks.

[00:40:35] Speaker 06:
There's plenty of cases.

[00:40:36] Speaker 06:
I mean, your overstatement was a big overstatement.

[00:40:39] Speaker 06:
There's no such case where if police makes a command like this, we wouldn't call it a seizure.

[00:40:43] Speaker 06:
Sure, there are cases that state that.

[00:40:45] Speaker 06:
The question is whether this one is one of them.

[00:40:47] Speaker 01:
Yes.

[00:40:48] Speaker 01:
And I think that there are, in the cases, if I'm thinking of the same cases, those are cases where there are additional factors, such as the policeman pulling his gun and saying, show me your hands, or an additional show of force.

[00:40:58] Speaker 01:
And those are the kind of facts that weren't fleshed out.

[00:41:01] Speaker 01:
at the district court level because this argument was not even recognized by the district court.

[00:41:05] Speaker 01:
District court says, and this is in the appendix, page 46, she takes the appellant's argument to be, the seizure happens when he says, hold on a second.

[00:41:16] Speaker 01:
There was no objection to that.

[00:41:19] Speaker 01:
Your honors, if there are no further questions, we would urge you to affirm the judgment of the district court.

[00:41:24] Speaker 01:
Thank you.

[00:41:28] Speaker 00:
Mr. Axon, we'll give you two minutes.

[00:41:30] Speaker 00:
Could you, or I'm sorry to intrude right away on your two minutes, but would you be willing to clarify whether Mr. Olzac, Officer Olzac, walked back the testimony about believing that they recognized the car very early when they turned onto the block and walked faster?

[00:41:43] Speaker 02:
Yes, I can clarify that.

[00:41:45] Speaker 02:
I think the government is mistaken.

[00:41:47] Speaker 02:
It is Officer Mosley who is driving.

[00:41:49] Speaker 02:
It is Officer Mosley who says, immediately when I turned, I saw two speed walkers.

[00:41:54] Speaker 02:
Immediately.

[00:41:56] Speaker 02:
And he is asked on cross whether he ever saw them walk slowly.

[00:42:01] Speaker 02:
Officer Mosley says, I never saw them walk slowly.

[00:42:04] Speaker 02:
They were always walking fast from the moment we saw them.

[00:42:08] Speaker 02:
It is Officer Mosley who nudges his partner and says, look at the two speed walkers.

[00:42:12] Speaker 02:
His partner is Officer Olsak.

[00:42:14] Speaker 02:
Officer Olsak is the officer upon whose

[00:42:21] Speaker 02:
testimony the government is relying that I think they made us out.

[00:42:26] Speaker 02:
But even that, on cross-examination he concedes he has no evidence that they made him out.

[00:42:33] Speaker 00:
Well, he says, I mean, he says, I suspected that they made us out.

[00:42:37] Speaker 00:
He can't read their minds.

[00:42:38] Speaker 00:
And then he goes on to talk about the Dodge Ram.

[00:42:41] Speaker 00:
He thinks this is the only Dodge Ram in the city, that it's there on the street all the time.

[00:42:46] Speaker 00:
They know.

[00:42:46] Speaker 00:
Everybody there knows their vehicle.

[00:42:49] Speaker 00:
And this isn't Mr. Castle's first time on that street.

[00:42:52] Speaker 00:
Respectfully, Your Honor.

[00:42:53] Speaker 00:
That's evidence for our purposes, even if the officer says that's suspicion for his purposes.

[00:42:59] Speaker 02:
Respectfully, Your Honor, he says that the Dodge Ram is there once a day during an eight hour shift.

[00:43:06] Speaker 02:
He does not say it's distinctive.

[00:43:08] Speaker 00:
No, he said on page 75, page 75.

[00:43:11] Speaker 00:
That's where he says he thinks it's the only one in the city.

[00:43:13] Speaker 02:
Yes, one Dodge Ram in the city, which I submit to the court is patently absurd.

[00:43:20] Speaker 00:
They're almost every day out of five days of the week.

[00:43:22] Speaker 00:
They know it's the police.

[00:43:23] Speaker 00:
They know it's the car.

[00:43:25] Speaker 00:
At least once in an eight hour shift were there.

[00:43:27] Speaker 00:
They know our cars.

[00:43:28] Speaker 00:
I'm just asking whether that's evidence.

[00:43:32] Speaker 02:
The type of evidence that I would say that is, is unparticularized hunch.

[00:43:36] Speaker 02:
It is not based on, he doesn't say, I've spoken to people.

[00:43:41] Speaker 00:
He doesn't say.

[00:43:41] Speaker 00:
Does he also say there's people who will jump out saying Joe Joe, jump out, jump out, Joe Joe when they see their vehicles?

[00:43:48] Speaker 02:
But again, this is the Fourth Amendment.

[00:43:51] Speaker 02:
This is an individual right that Mr. Castle possesses.

[00:43:54] Speaker 02:
So it would have to be Mr. Castle that knows.

[00:43:58] Speaker 02:
I understand the officer's general belief, if it's a patrol car even.

[00:44:02] Speaker 02:
Maybe officers generally believe that everybody recognizes a patrol car.

[00:44:05] Speaker 00:
Reasonable suspicion turns on the actual subconscious knowledge of the person who stopped?

[00:44:11] Speaker 00:
No, not subconscious, but on... I thought it turned on Mr. Olzak's, whether Mr. Officer Olzak had a reasonable suspicion.

[00:44:19] Speaker 02:
Right, but he's imputing knowledge to Mr. Castle based on general knowledge in the community, for which he provides no basis.

[00:44:28] Speaker 02:
And he's imputing that specific knowledge to Mr. Castle.

[00:44:34] Speaker 02:
And the government is asking, based on that inference, for you to further infer that because Mr. Castle was speedwalking, he must have recognized the police.

[00:44:43] Speaker 05:
Take the speedwalking out for a moment.

[00:44:45] Speaker 05:
Please, counsel, excuse me for interrupting.

[00:44:47] Speaker 05:
Take the speedwalking out.

[00:44:49] Speaker 05:
Let's assume that there's no evidence that the two defendants

[00:44:57] Speaker 05:
although I don't know Mosley who's still in the case.

[00:45:01] Speaker 05:
But let's assume that there's no evidence that two defendants responded to the police car.

[00:45:08] Speaker 05:
If there is no seizure until there's a tapping on the shoulder, do you lose the case?

[00:45:22] Speaker 02:
I think the case becomes problematic if the defendants are responding to the police.

[00:45:35] Speaker 05:
that the defendants responded to the police.

[00:45:37] Speaker 05:
No testimony at all, nothing.

[00:45:38] Speaker 05:
Nothing at all.

[00:45:40] Speaker 05:
Nothing happens until... Well, all you see is somebody walking down the alley and the whooping crane gesture.

[00:45:49] Speaker 05:
Then he walks back and the officer recognizes who he is.

[00:45:56] Speaker 05:
thinks about that further gesture uh... realizes that he's a known pcp distributor and taps him on the shoulder and that's the first if that's true do you lose the case uh... and i realize the court has characterized as being as a part of gesture no okay and and again it's this is just a strange gesture

[00:46:27] Speaker 05:
The point is, at this point, the officers recognize the defendant.

[00:46:33] Speaker 05:
And he has an old record.

[00:46:35] Speaker 05:
He walked from that distribution, PCP distribution house.

[00:46:41] Speaker 05:
They know that.

[00:46:42] Speaker 05:
He walked down the alley.

[00:46:44] Speaker 05:
It looked like he dropped something.

[00:46:46] Speaker 05:
And he comes back, and he's tapped on the shoulder and says, stop.

[00:46:51] Speaker 05:
Your case was pretty weak at that point, isn't it?

[00:46:54] Speaker 05:
How can you say it's not?

[00:46:55] Speaker 05:
It's certainly weakened.

[00:46:57] Speaker 05:
So everything depends on the seizure being taking your hands out of the pocket.

[00:47:04] Speaker 05:
And the problem with that is it wasn't argued below.

[00:47:07] Speaker 05:
How can we say it's clearly erroneous?

[00:47:09] Speaker 02:
Your Honor, I can direct the court to what the government just read.

[00:47:15] Speaker 02:
And I'd ask the court to read it.

[00:47:20] Speaker 02:
The district court asked, I thought we were in agreement.

[00:47:23] Speaker 00:
What page are you on?

[00:47:24] Speaker 02:
I'm sorry, page 117 of the motion, sir.

[00:47:26] Speaker 02:
I thought that the seizure was made when Mr. Castle was told to sit down on the curb.

[00:47:34] Speaker 02:
And counsel says, yeah, we would put it slightly earlier, Your Honor.

[00:47:37] Speaker 02:
We would put it when Officer Olzak touches Mr. Castle and said, you know, hold on a sec.

[00:47:42] Speaker 02:
We would put the seizure slightly before that, before he touches him.

[00:47:48] Speaker 02:
That is... No, no, no, no.

[00:47:51] Speaker 02:
That's before the same... That's before the... Okay, can I finish?

[00:47:55] Speaker 02:
Because he continues.

[00:47:57] Speaker 02:
I'm not sure if it's legally meaningful where it is, but I would say the seizure occurs, I think, under the case law when a police officer tells you to show your hands.

[00:48:05] Speaker 02:
Stop.

[00:48:06] Speaker 02:
Or he says, hold on a sec.

[00:48:08] Speaker 02:
The defense is required to put their legal basis.

[00:48:11] Speaker 02:
We can have more than one legal basis.

[00:48:13] Speaker 02:
We're not stuck with only arguing that the seizure occurs at the tap, or only arguing that the seizure occurs when, show your hands.

[00:48:21] Speaker 00:
Yeah, but that's on the next page 118.

[00:48:25] Speaker 00:
I'm sorry?

[00:48:26] Speaker 00:
Next page on 118, this is defense counsel.

[00:48:29] Speaker 00:
He says, hold on a sec.

[00:48:30] Speaker 00:
Grabs him and says, hold on a second.

[00:48:32] Speaker 00:
And he touched him.

[00:48:33] Speaker 00:
So that's when the seizure occurs on the very next page.

[00:48:36] Speaker 02:
You can't.

[00:48:36] Speaker 02:
I agree.

[00:48:37] Speaker 02:
But the court is asking me whether we put the district court on notice that we were arguing multiple points in the seizure.

[00:48:45] Speaker 02:
And the point that I'm making is the defense

[00:48:53] Speaker 02:
When he says, I think under the case law, when a police officer tells you, show your hands, I understand that that is not, that the court and

[00:49:07] Speaker 02:
the government would rather discuss the seizure at the tap.

[00:49:10] Speaker 02:
And great advocacy, the defense would have said, no, no, no, we're only picking the earliest point in the seizure.

[00:49:19] Speaker 02:
But there is no requirement under the Fourth Amendment that we only pick the earliest point.

[00:49:24] Speaker 02:
We can say

[00:49:24] Speaker 02:
It's either here.

[00:49:26] Speaker 02:
It's either here or here.

[00:49:27] Speaker 00:
But you didn't even do that, right?

[00:49:28] Speaker 00:
Again, on 120, you say the exact same thing.

[00:49:30] Speaker 00:
It's the seizures when he's tapped.

[00:49:32] Speaker 00:
And the only thing you're referring, that's why I asked you, did you ever distinctly say it by itself?

[00:49:36] Speaker 00:
You have a sentence that says, when a police officer tells you, show your hands, comma, stop.

[00:49:41] Speaker 00:
Which combines the two.

[00:49:43] Speaker 00:
Or does the tap.

[00:49:45] Speaker 00:
Right.

[00:49:45] Speaker 00:
But you show your hands stop is how it's described.

[00:49:48] Speaker 00:
That's why I said it always seems to be put together.

[00:49:51] Speaker 00:
I didn't see any point where it was just either this or this.

[00:49:54] Speaker 02:
Your Honor, I respectfully disagree.

[00:49:59] Speaker 02:
Or is disjunctive.

[00:50:02] Speaker 02:
And when you read that statement, when a police officer tells you to show your hands, stop, or he says, hold on a sec,

[00:50:10] Speaker 02:
That would be a seizure.

[00:50:12] Speaker 02:
It has to have some meaning.

[00:50:15] Speaker 02:
He doesn't say, and he's not combining those things.

[00:50:19] Speaker 02:
He's saying or.

[00:50:21] Speaker 02:
And the purpose of the, well, let me back up.

[00:50:32] Speaker 02:
I don't think that the argument is waived.

[00:50:38] Speaker 02:
I think this court can still consider the argument, even if counsel did not raise it specifically.

[00:50:44] Speaker 02:
I don't think.

[00:50:47] Speaker 02:
Where do you get authority for that?

[00:50:51] Speaker 02:
I'd have to say rule 52 does not.

[00:50:58] Speaker 02:
It would be a plain error.

[00:50:59] Speaker 02:
Plain error?

[00:51:08] Speaker 02:
properly?

[00:51:08] Speaker 02:
I'm not sure.

[00:51:23] Speaker 02:
I'm not sure why it would be a waiver, so I'm at a loss to explain why it wouldn't be a waiver.

[00:51:37] Speaker 02:
We're assuming that it's automatically waived.

[00:51:40] Speaker 02:
When we clearly raised the Fourth Amendment, we clearly said they didn't have reasonable, articulable suspicion.

[00:51:46] Speaker 02:
And although... Well, I mean, your problem is you have to... The theory of the case has to be raised.

[00:51:51] Speaker 06:
That's what we're talking about.

[00:51:54] Speaker 06:
The facts are all there, but they're different theories, as you say, that can be raised with reference to a body of facts.

[00:52:02] Speaker 06:
And the moving party is required to say, here's the theory of the case for several reasons.

[00:52:07] Speaker 06:
One, so the district court gets a shot at it.

[00:52:09] Speaker 06:
And secondly, so the other side gets a shot at it.

[00:52:11] Speaker 06:
Otherwise, you're in Plain Arrow land.

[00:52:14] Speaker 06:
Yes, you are in Plain Arrow land with respect to not having raised a theory.

[00:52:19] Speaker 06:
The question is whether you're forfeited.

[00:52:20] Speaker 06:
And if you're in Plain Arrow land, you've got a high hill decline.

[00:52:26] Speaker 06:
Yes, you have to raise a theory.

[00:52:27] Speaker 06:
We just demand that.

[00:52:29] Speaker 06:
Even in the criminal context, it's a little bit different in the criminal context.

[00:52:33] Speaker 06:
It's not enough to say there is a factual record, Your Honors.

[00:52:37] Speaker 06:
It's there, and if you all use your ingenuity, you'll be able to figure out stuff and see that you can glean a really good case for us.

[00:52:45] Speaker 06:
That's not the way we work.

[00:52:48] Speaker 06:
Is justice sometimes done undone?

[00:52:50] Speaker 06:
Yes.

[00:52:52] Speaker 06:
But we are beholden to counsel and those who put the record together.

[00:52:56] Speaker 06:
And so you've got to show us.

[00:52:58] Speaker 06:
I raised it.

[00:52:59] Speaker 06:
And the two reasons are the other side has to have a shot at it, and the district court should have a shot at it.

[00:53:04] Speaker 06:
Otherwise, we're in plain error land.

[00:53:08] Speaker 02:
I understand.

[00:53:09] Speaker 02:
I'd submit that page 117, the defendant raised it.

[00:53:14] Speaker 02:
I know that the district court's focus was someplace else.

[00:53:17] Speaker 02:
I know that the government's focus and that the defense attorney

[00:53:22] Speaker 02:
I can't say it was great advocacy not to bring it back to this initial stop where he says, I think it's earlier, but I think it's fairly raised and the district court could have addressed it.

[00:53:34] Speaker 02:
There are not many points in a seizure when you're arguing reasonable, articulable suspicion.

[00:53:41] Speaker 02:
I do want to just mention one other point in the record that

[00:53:53] Speaker 02:
uh, that will may help the court decide or understand whether Mr Castle recognized the police.

[00:54:05] Speaker 02:
And it's, um, while he is back at the in what the court is calling the alley.

[00:54:13] Speaker 02:
Um, and I apologize.

[00:54:16] Speaker 02:
This is not cited in my brief, but, um,

[00:54:21] Speaker 02:
Officer Olzac is asked, did Defendant Castle- What page are you on?

[00:54:26] Speaker 02:
I'm sorry, page 64 in the middle.

[00:54:29] Speaker 02:
Did Defendant Castle notice Officer Olzac?

[00:54:32] Speaker 02:
Officer Olzac is being asked this question.

[00:54:35] Speaker 02:
And this is, chronologically it's while they are in the alley after Mr. Castle has walked out and shown his hands.

[00:54:47] Speaker 02:
And Officer Olzac answers, yes.

[00:54:50] Speaker 02:
question, you agree with that.

[00:54:52] Speaker 02:
Yes, I didn't know if he knew me, knew I was an officer.

[00:54:57] Speaker 02:
So even at the point that Officer Olsak and... You know, the real problem is Olsak recognized him at that point.

[00:55:10] Speaker 05:
That's the real problem.

[00:55:11] Speaker 02:
Right.

[00:55:14] Speaker 02:
He's not saying, recognize me specifically.

[00:55:17] Speaker 02:
He's saying, knew I was an officer.

[00:55:20] Speaker 02:
No, I'm going the reverse way.

[00:55:23] Speaker 02:
All right, I see your point, counsel.

[00:55:25] Speaker 02:
So the government has made a lot out of whether anything was in response to the police.

[00:55:33] Speaker 05:
No, it doesn't matter at that point whether the defendant recognized the officer.

[00:55:40] Speaker 05:
The important point is the officer recognizes the defendant.

[00:55:45] Speaker 00:
All right, I think we have your arguments.

[00:55:48] Speaker 00:
Thank you very much.

[00:55:49] Speaker 02:
Thank you, Your Honor.