[00:00:00] Speaker 03:
Case number 14-3051, United States of America versus Mark Stubblefield Appellant.

[00:00:07] Speaker 03:
Mr. Parker for the amicus curi, Ms.

[00:00:09] Speaker 03:
Hughes for the appellate.

[00:00:21] Speaker 00:
May it please the court.

[00:00:23] Speaker 00:
I'm Josh Parker, presenting argument as amicus in support of Mark Stubblefield, and I'd like to reserve two minutes for rebuttal.

[00:00:31] Speaker 00:
Mark Stubblefield's bank robbery convictions rested largely on pretrial photo array identifications, with no physical evidence tying him to any of the robberies.

[00:00:42] Speaker 00:
His trial counsel rendered ineffective assistance by failing to move to suppress those identifications, even after the trial court expressly invited counsel to do so.

[00:00:54] Speaker 00:
Had trial counsel so moved, the evidence would have been suppressed as the fruit of a warrantless arrest without probable cause, and there's a reasonable probability the jury would not have found Mr. Stubblefield guilty.

[00:01:07] Speaker 00:
Accordingly, this court should grant Mr. Stubblefield a certificate of appealability and either order the district court to vacate his sentence as one imposed in violation of the Sixth Amendment,

[00:01:18] Speaker 00:
or at minimum remand to the district court for an evidentiary hearing because the record does not conclusively show he's entitled to no relief.

[00:01:27] Speaker 04:
Well, suppose we agree with the government that there was sufficient evidence to support probable cause for the arrest.

[00:01:33] Speaker 04:
Then we don't have to get to that issue, right?

[00:01:37] Speaker 00:
Isn't that right?

[00:01:39] Speaker 00:
To be clear, the relevant standard laid out in Kimmelman is that the petitioner needs to show an ineffective assistance.

[00:01:47] Speaker 04:
No, but if probable cause supported the arrest, then the photos mark the fruits of an illegal search, right?

[00:01:55] Speaker 00:
Yes, Your Honor.

[00:01:56] Speaker 04:
So you agree we need to deal with that issue first?

[00:01:59] Speaker 00:
I would agree with that.

[00:02:01] Speaker 00:
But just to be clear, Your Honor, if this court doesn't think that there is enough in the current record to support a finding with no probable cause, a remand is what the appropriate action would be.

[00:02:11] Speaker 04:
I understand that.

[00:02:11] Speaker 04:
So maybe you want to focus on the probable cause.

[00:02:14] Speaker 00:
Yeah, so starting with probable cause, the match between the witness descriptions of the suspect, of the bank robbery suspect, and Mr. Stubblefield's appearance on the day of May 12th arrest,

[00:02:27] Speaker 00:
was not sufficiently specific to contribute meaningfully to probable cause.

[00:02:32] Speaker 00:
Mr. Stubblefield matched the description insofar as he was a short, middle-aged black male.

[00:02:38] Speaker 00:
He lacked the distinctive scarring on the left side of his face or marks on the left side of his face that was depicted in the sketch and described by the robbery witnesses.

[00:02:47] Speaker 00:
Although he had somewhat loose facial skin, both Agent DeJesus and Detective Baylor testified

[00:02:53] Speaker 00:
But that skin only created indentations or became distinct when he made certain facial expressions.

[00:02:59] Speaker 04:
Wait, excuse me.

[00:03:00] Speaker 04:
Are you focusing now on the stop or the arrest?

[00:03:04] Speaker 00:
Focusing on the arrest.

[00:03:07] Speaker 04:
OK, you're focusing on the arrest.

[00:03:09] Speaker 04:
OK, but in addition to that, they had, in addition to the facial, he was only, he was very, very shy, right?

[00:03:18] Speaker 04:
In fact, the government says,

[00:03:20] Speaker 04:
A few within 5% of American males are that short, right?

[00:03:25] Speaker 00:
Yes, your honor, but they get very short.

[00:03:27] Speaker 04:
They had a tip, almost a double tip, right?

[00:03:30] Speaker 04:
Person identified and said and found him and said he was at that very spot after the robbery.

[00:03:39] Speaker 00:
Your Honor, I have two responses to that.

[00:03:41] Speaker 00:
First, there is no evidence in the record suggesting that or we cannot conclude from the record that the person stopped Mr. Stubblefield was the same person that the tipster pointed out.

[00:03:51] Speaker 00:
The tipster didn't say that

[00:03:54] Speaker 00:
the suspect was wearing a red hoodie or was wearing a black shirt or anything that would cause them to be able to identify him.

[00:04:02] Speaker 00:
And this was a Monday morning, a block away from the Shaw Metro station.

[00:04:05] Speaker 00:
There absolutely could have been other short middle-aged black males in the area.

[00:04:09] Speaker 00:
The second response is that the government asserts that Mr. Stubblefield was in this 5-1 to 5-3 range, and the police knew that.

[00:04:18] Speaker 00:
But that is not supported by the record.

[00:04:21] Speaker 00:
All that information simply comes from Agent DeJesus' affidavit.

[00:04:26] Speaker 00:
Agent DeJesus was just one of the officers who investigated the April 7th robbery.

[00:04:31] Speaker 00:
As in Mark Moseley's testimony, he was another employee at the bank.

[00:04:34] Speaker 00:
He explains that everyone was interviewed.

[00:04:37] Speaker 00:
And in his description at trial, he said Mark Stubblefield was, he said the suspect was at around 5'5".

[00:04:45] Speaker 00:
And even the clerk, Dolores Gonzalez, who Agent DeJesus

[00:04:50] Speaker 00:
said was between 5-1 and 5-2 at trial.

[00:04:52] Speaker 00:
She said he had a maximum height of 5-5.

[00:04:55] Speaker 00:
So we can conclude he's short on the record, but we can conclude that he is within that 5 percentile range that the government said.

[00:05:03] Speaker 02:
And if you look at comparable...

[00:05:06] Speaker 02:
apparently the police sketch that was done was fairly good, better than such sketches usually are, not so generic.

[00:05:17] Speaker 02:
It was good enough at least for someone who was in that vicinity to recognize that sketch and to say, I think I know this person and I think his name is Mark, which is, you know, seems to take it out of the generic category.

[00:05:32] Speaker 00:
Your Honor, a couple of responses to that.

[00:05:35] Speaker 00:
First, Mr. Stubblefield was missing the one very distinctive characteristic of that sketch, which is scarring remarks on the left side of his face.

[00:05:44] Speaker 00:
But second, there is no evidence in the record that the arresting officers even saw Mr. Stubblefield's face.

[00:05:50] Speaker 00:
All we know is that as they approached in their police car, at some point, Mr. Stubblefield fled.

[00:05:55] Speaker 00:
And the next thing we know, the police are ordering him to lie to the ground.

[00:05:59] Speaker 00:
So they don't know it's the same person that the tipster was pointing out, because for all we know, the tipster just said go to the intersection at 7th and Rhode Island.

[00:06:08] Speaker 00:
We have no idea what the time gap is.

[00:06:10] Speaker 00:
This is a Monday morning, and as the D.C.

[00:06:12] Speaker 00:
Court of Appeals explained in Brown, street scenes change rapidly.

[00:06:15] Speaker 00:
So we can't rely on him matching the sketch to a selfish probable.

[00:06:19] Speaker 03:
When do they have to have probable cause rather than reasonable suspicion?

[00:06:23] Speaker 03:
At the moment he was ordered to lie on the ground or when the FBI agent arrived and arrested him?

[00:06:30] Speaker 03:
At what moment do they need to have probable cause?

[00:06:33] Speaker 00:
Well, our understanding is when they ordered him to lie to the ground, there was no separate, they ordered him to lie to the ground and placed him in handcuffs at basically the same instance, so at that moment is when they needed probable cause.

[00:06:46] Speaker 00:
And to be clear, the government abandoned the reasonable suspicion argument, so that's not even pursued.

[00:06:52] Speaker 03:
that he had.

[00:06:55] Speaker 03:
I thought the description was that he had indentations or markings on his skin.

[00:07:03] Speaker 03:
Is that accurate?

[00:07:04] Speaker 00:
That's accurate in certain situations.

[00:07:06] Speaker 00:
As we say in the brief, both Agent DeJesus and Detective Baylor said those indentations

[00:07:11] Speaker 00:
became a parent and stood out when he made certain facial expressions.

[00:07:16] Speaker 00:
If you look at his resting face, if you look at the booking photograph, sure, there are kind of loose wrinkles, but most... I can't tell much from that booking photograph, to be honest.

[00:07:24] Speaker 00:
It's hard to tell.

[00:07:25] Speaker 03:
And that might be the exact... But are the indentations on both sides of his face or left side, primarily?

[00:07:30] Speaker 03:
Is there a way to say that?

[00:07:32] Speaker 00:
Based on trial testimony, it was both sides of the face.

[00:07:36] Speaker 03:
And was the witness testimony consistent

[00:07:40] Speaker 03:
consistent in that the scarring or marking was only on the left side, or was it ambiguous?

[00:07:45] Speaker 00:
No, there is witness testimony, some saying right, some saying left side.

[00:07:50] Speaker 00:
But the point is, that's not sufficiently distinctive.

[00:07:53] Speaker 00:
Many middle-aged men have wrinkles or marks or a mole or a birthmark.

[00:07:57] Speaker 00:
At that level of generality, that's not specific enough to generate probable cause.

[00:08:00] Speaker 00:
Moving quickly to the photo array, the suppressibility of the photo array evidence, the government does not dispute that.

[00:08:09] Speaker 04:
I'm looking at the quote, maybe Judge Mollett and I will get the same one.

[00:08:14] Speaker 04:
It says, this is one of the witnesses, indentations on his face or some type of marking or scars that were very pronounced.

[00:08:27] Speaker 04:
He's not saying this is sort of an average middle-aged face with moles on it.

[00:08:33] Speaker 00:
Sure, there were varying witness descriptions.

[00:08:36] Speaker 00:
That's one of them.

[00:08:37] Speaker 00:
But if that is the description you take, Mr. Stubblefield does not match that description.

[00:08:42] Speaker 00:
Both Detective DeJesus and Detective Baylor testified that there was no scarring or cuts on his face.

[00:08:52] Speaker 04:
Are you challenging the district court's finding that Stubblefield fled?

[00:09:00] Speaker 00:
Um, no, we're not.

[00:09:02] Speaker 00:
We are not challenging the finding.

[00:09:03] Speaker 00:
We fled.

[00:09:04] Speaker 00:
We're just saying that there's no indication what the war.

[00:09:07] Speaker 00:
It tells us the nature of the flight is important.

[00:09:09] Speaker 00:
Was it in response to a command to halt?

[00:09:12] Speaker 00:
Was it headlong?

[00:09:13] Speaker 00:
And all we know on the current record is that he walked Chris Lee away, which contributes little, if anything, to probable cause.

[00:09:21] Speaker 00:
If I could, moving briefly to the suppressibility of the photo array evidence, just the long-standing rule under the Fourth Amendment is that the fruit of warrantless arrests made without probable cause is suppressible, and that's grounded in the very deterrence considerations the government emphasizes.

[00:09:38] Speaker 00:
The police are charged with knowing the probable cause standard, and when they engage in deliberate conduct that results in stopping someone without probable cause, appreciable deterrence results when you exclude evidence that comes by way of that stop.

[00:09:52] Speaker 03:
The government... And what happens when the evidence is your face, which is already on...

[00:09:57] Speaker 03:
public display at all times.

[00:10:00] Speaker 03:
It's not ordinarily what's being suppressed is something that's yielded up to the police or disclosed to the police as a result of the wrongful conduct.

[00:10:07] Speaker 03:
But the face is there.

[00:10:08] Speaker 00:
Your Honor, with due respect, the evidence is not the face.

[00:10:11] Speaker 00:
The evidence is the booking photograph and the pretrial identifications, a specific depiction of the face, where the courts regularly suppress lineups and show ups that use the defendant's body and face.

[00:10:23] Speaker 00:
But we don't say those aren't suppressible.

[00:10:25] Speaker 00:
Similarly here, a photo array is a particular form of evidence, and they needed to arrest him.

[00:10:30] Speaker 00:
It attends an arrest, so the police needed to engage in an illegal arrest to secure that photo array, and that's why that's suppressible.

[00:10:39] Speaker 04:
Okay, thank you.

[00:10:53] Speaker 01:
Good morning.

[00:10:55] Speaker 01:
Lena Hughes on behalf of the United States.

[00:10:57] Speaker 01:
May it please the court.

[00:10:59] Speaker 01:
Mr. Steffelfield was not denied effective assistance of counsel.

[00:11:03] Speaker 01:
His sole claim on appeal is that defense counsel was ineffective and failing to move to suppress his booking photograph and the pretrial identifications that referenced it.

[00:11:11] Speaker 01:
That claim does not entitle him to relief because he cannot show that defense counsel's performance was incompetent or that he was prejudiced by it.

[00:11:18] Speaker 01:
And I'd like to begin with why defense counsel's performance was not deficient.

[00:11:23] Speaker 01:
The defense counsel does not perform efficiently in not making a motion of doubtful merit that even if granted is unlikely to positively affect the course of her client's trial.

[00:11:33] Speaker 01:
And it is especially reasonable to forego making that motion when defense counsel instead concentrates her efforts on motions that if granted

[00:11:41] Speaker 01:
will eliminate certain evidence from trial.

[00:11:44] Speaker 01:
And here, defense counsel could reasonably conclude that the motion described by Mr. Stubblefield would be a waste of her limited resources because even if she succeeded in suppressing the booking photograph and the pretrial identifications, the prosecution could easily obtain another photograph of Mr. Stubblefield.

[00:12:03] Speaker 03:
So that just doesn't seem accurate on this record.

[00:12:05] Speaker 03:
I thought the point was that by the time of trial he had gained weight, he'd had some surgery or something, dental surgery that affected the way the skin was on his face and presumably there's a reason that the government didn't do any in court at all, identifications of him at all.

[00:12:22] Speaker 03:
His appearance changed.

[00:12:23] Speaker 01:
I think that might relate to whether there can be prejudice here as to whether there's a reasonable likelihood, a reasonable probability that the result of the trial would have been different, but I don't think that could go to whether defense counsel's performance is deficient.

[00:12:36] Speaker 03:
I thought you just said the government would be able to get a picture and just identify him another way, and I'm not sure how that's true in this situation.

[00:12:44] Speaker 01:
Well, I don't think that defense counsel could have anticipated or should, as a matter of professional prevailing norms, anticipated that her client's appearance was going to transform vastly by the time of trial.

[00:12:57] Speaker 01:
So if we are considering whether it was objectively reasonable for defense counsel to believe that this motion wasn't going to positively affect the course of her client's trial, that was reasonable.

[00:13:08] Speaker 01:
And the reason that she could believe that a second photograph would be taken and not be suppressible has to do with basic attenuation principles.

[00:13:17] Speaker 04:
Can I ask you?

[00:13:18] Speaker 04:
I'm curious about why you began with this argument.

[00:13:26] Speaker 04:
Is the government having some doubts about its antecedent point that the arrest was supported by probable cause?

[00:13:33] Speaker 01:
Not at all, Your Honor.

[00:13:34] Speaker 01:
However, this is an ineffective assistance of counsel claim, and we think that it's important to note what additional work.

[00:13:41] Speaker 04:
Do you do you disagree with the answer?

[00:13:44] Speaker 04:
I got to my first question, which is if we think that you're right that there is probable cause, we don't have to address anything else in the case, right?

[00:13:52] Speaker 01:
That's absolutely right.

[00:13:53] Speaker 04:
Under Kimmelman... Right, so maybe you could respond to the argument Mr. Parker made about why there isn't sufficient probable cause, and particularly his arguments about the sketch and Stubblefield's face.

[00:14:09] Speaker 01:
I believe that contrary to Amicus' argument that there were only generic descriptions or two varied of descriptions, the descriptions here were actually very detailed and quite consistent.

[00:14:21] Speaker 01:
So three witnesses to the April 7th robbery described two officers, the robber, as being between five foot one and five foot three, thin, middle-aged African-American with a sunken face,

[00:14:33] Speaker 01:
distinctive facial markings and a mustache.

[00:14:36] Speaker 01:
And Mr. Stubblefield matches that to a tee.

[00:14:39] Speaker 01:
At the time of his arrest, he was five foot two and he weighed 123 pounds.

[00:14:43] Speaker 01:
He had a sunken face and he had deep impressions or indentations on his cheeks.

[00:14:48] Speaker 01:
And it's just not the case that those impressions or indentations are only visible when he's making certain facial expressions.

[00:14:54] Speaker 01:
There was repeated testimony here that the indentations are visible when his face is in a normal posture.

[00:15:01] Speaker 01:
That's at J72 and 188.

[00:15:03] Speaker 03:
Is Amicus correct that some witnesses also said he might be as tall as 5'5"?

[00:15:09] Speaker 01:
So Amicus has cited the testimony of Mark Mosley, the loan administrator at Washington First Bank, who at trial testified that the robber was possibly 5'5 or shorter.

[00:15:21] Speaker 01:
There are a couple points I'd like to make about that.

[00:15:23] Speaker 01:
For one thing,

[00:15:24] Speaker 01:
three out of the four witnesses to the robbery told officers that he was between five foot one and five foot three.

[00:15:31] Speaker 01:
And even if we look at all of the robberies here, which is something Amicus has also asked you to do, the majority of the witnesses to the charged robbery said that the robber was between five foot and five foot three.

[00:15:42] Speaker 01:
And there were only three out of the 14 witnesses to the charged robberies who said it was even possible that the robber could have been taller than five four.

[00:15:51] Speaker 01:
And in addition, I actually think the record establishes that the testimony of Mark Mosley, which is trial testimony that amicus claims the police knew, was not known to the police prior to Mr. Stubblefield's arrest.

[00:16:04] Speaker 01:
And that's because at the preliminary hearing,

[00:16:09] Speaker 01:
Special Agent Luisa Jesus testified that only three witnesses to the April 7th robbery gave descriptions to the police, and he listed them by title.

[00:16:19] Speaker 01:
And Mark Mosley, who is the loan administrator and not the assistant branch manager, as I think amicus history accidentally refers to him as, was not among those people.

[00:16:29] Speaker 01:
And that's also consistent with what Mr. Mark Mosley's testimony was at trial.

[00:16:33] Speaker 01:
He said that he couldn't recall whether he provided any description to the police.

[00:16:37] Speaker 03:
On the question of probable cause, what do we do with the fact that because no motion was filed, there's some critically important gaps in the record here in determining probable cause?

[00:16:51] Speaker 03:
No information at all about how much time elapsed between the tip from the informant and when the officers showed up in this area, where we're told thousands of people are coming and going on a Monday morning.

[00:17:06] Speaker 03:
We don't know that the officers saw his face or facial markings before ordering him to lay down on the ground.

[00:17:12] Speaker 03:
There's just no information at all.

[00:17:14] Speaker 03:
In fact, the government has given up the issue of what the actual arresting officers

[00:17:19] Speaker 03:
saw when they stopped him.

[00:17:21] Speaker 03:
And we have nothing about the nature of the flight.

[00:17:24] Speaker 03:
And we don't have it, obviously, because no motion was filed.

[00:17:26] Speaker 03:
Don't we need a record on that information to determine probable cause?

[00:17:31] Speaker 01:
Of course, these gaps could be filled in at an evidentiary hearing if Your Honor thought it was necessary, but we think that even with them, it is still clear, it is conclusively established by the record, that there was probable cause... How can it be conclusively established by the record if we don't know that anybody saw his face or the markings?

[00:17:50] Speaker 03:
Maybe they just saw a short black man and chased him.

[00:17:53] Speaker 01:
Well, there are a couple of things about that, Your Honor.

[00:17:56] Speaker 01:
One is that we know that the officers were dispatched to this intersection to look for the robbery suspect and that when they arrived there, they saw the suspect and they approached him.

[00:18:08] Speaker 01:
There was also testimony that his indentations are visible when his face is in a normal posture, but also note that every single witness who observed the robber, even those who were not face to face with him, noticed some form of facial disfiguration or markings.

[00:18:22] Speaker 01:
So I actually think that there's every reason to believe that officers would have been able to notice something off about the suspect's face that they approach.

[00:18:31] Speaker 01:
And, of course, probable cause is not certainty.

[00:18:33] Speaker 01:
They don't need to be certain that the person that they're approaching and arresting is the robber.

[00:18:38] Speaker 01:
There just need to be facts that, on the basis of which, a prudent officer would be warranted in believing.

[00:18:43] Speaker 03:
Do we need to know, does the law?

[00:18:45] Speaker 03:
Make it pretty important to know how much time elapsed between the tip from this fellow who said, hey, he's back here again, and when the officers arrived, again, given that you've got an area that's heavily trafficked.

[00:18:59] Speaker 01:
two points in response to that.

[00:19:00] Speaker 01:
One is I don't think the amount of time that passed here was significant.

[00:19:04] Speaker 01:
Although we don't know the exact number of minutes between the phone call and the police arrival, we do know that both of these things happened on the morning of May 12th.

[00:19:11] Speaker 01:
The police arrived at 7 30 a.m.

[00:19:14] Speaker 01:
and I would point this court to its decision in United States versus Lucas.

[00:19:18] Speaker 01:
where an entire 24 hours passed between the time when the officers received the tip about the location of two women and the time when the officer then observed the women at that location.

[00:19:27] Speaker 01:
And the court found that there was probable cause to believe that the women observed were the women described by the district.

[00:19:32] Speaker 03:
Was that a full month after the crime had been committed in Lucas?

[00:19:36] Speaker 03:
No, it was not.

[00:19:37] Speaker 03:
Don't we need to factor that in?

[00:19:39] Speaker 03:
I mean, you've got a month after, I think at least a month after the crime was committed, and then an unknown time from a tifster, and we have no idea what that gap is, and all we know is that they thought somebody who fit this description was there at the same time, probably a couple thousand other people were there.

[00:19:56] Speaker 03:
This just seems like important gaps.

[00:19:58] Speaker 01:
Well, what I would say actually in response to the proposition that amicus has put forward here that there could have been a number of other men in the area that also match the descriptions of the robber, I think that's wrong for a number of reasons.

[00:20:11] Speaker 01:
To begin with,

[00:20:12] Speaker 01:
If there were a number of other men in the area that looked like Mr. Stubblefield, that is something that is within his personal knowledge, and he submitted a sworn statement here in support of his motion to vacate, and he never said that was the case.

[00:20:25] Speaker 01:
And the amicus has faulted the district court for failing to make a factual finding about the presence of other such men, but I don't think it was incumbent upon the district court to make that finding when nobody was claiming that that factual dispute existed.

[00:20:38] Speaker 03:
And in addition, I was because his attorney didn't raise this whole issue.

[00:20:42] Speaker 03:
That's why there's no record.

[00:20:43] Speaker 03:
We can't sort of blame him when he was telling his attorney.

[00:20:46] Speaker 03:
It is on the record.

[00:20:47] Speaker 03:
He asked his attorney to make the suppression motion, and she didn't.

[00:20:52] Speaker 01:
Actually, my point is that he's submitted a sworn statement in support of his motion to vacate, where he described the circumstances of his arrest.

[00:21:00] Speaker 03:
Perhaps he can know how many.

[00:21:02] Speaker 03:
I mean, he's going to say, I know other folks in this area who are short like me.

[00:21:07] Speaker 01:
I think he could have mentioned if there were other men at the exact intersection that was described that looked like him.

[00:21:12] Speaker 03:
The police could say there wasn't anyone else that size, too, but we don't have anything from police.

[00:21:16] Speaker 03:
We don't know anything about what these police saw when they approached.

[00:21:19] Speaker 03:
That's the problem, isn't it?

[00:21:21] Speaker 01:
If your honor thought that it were necessary to have an evidentiary hearing on that point, then those gaps could be filled in.

[00:21:26] Speaker 01:
But of course, we don't think that he can establish either deficient performance or prejudice even absent that.

[00:21:35] Speaker 04:
OK.

[00:21:35] Speaker 04:
Thank you.

[00:21:36] Speaker 04:
Mr. Parker was out of time, right?

[00:21:40] Speaker 04:
Mr. Parker was out of time.

[00:21:41] Speaker 04:
You can take one minute if you'd like it.

[00:21:46] Speaker 00:
Couple of quick points on probable cause.

[00:21:48] Speaker 00:
First, as Judge Muller has emphasized, there's no evidence that the person stopped was the same person that the tipster pointed out.

[00:21:56] Speaker 04:
And there's no evidence that the arre... Does there have to be such evidence for probable cause?

[00:22:00] Speaker 00:
We think that it's important here because there does not have to be such evidence for probable cause.

[00:22:07] Speaker 00:
But the other factors, the government says that he had a mustache, that he was thin.

[00:22:12] Speaker 00:
There's absolutely no evidence.

[00:22:14] Speaker 00:
A, the trial court didn't make any findings on that, didn't say he matched the description insofar as he had a mustache and he was thin.

[00:22:20] Speaker 00:
And there's no evidence that the arresting officer saw he had a mustache or his weight.

[00:22:24] Speaker 00:
And just one other point, which is that the level of detail when you're looking, when you're just matching a lookout description has to be quite detailed.

[00:22:33] Speaker 00:
In the United States, to be short, this court's case, this court was faced with a description of an 18 to 19-year-old black male with a waist-length brown jacket, short afro haircut, blue pants, found 15 minutes after the robbery, a block and F from the robbery scene.

[00:22:47] Speaker 00:
That did not suffice for probable cause.

[00:22:49] Speaker 04:
In that case, there was a conflict in the record about the color of his coat.

[00:22:53] Speaker 04:
At minimum, there were other differences, right?

[00:22:55] Speaker 00:
The conflict was whether it was camel colored or brown.

[00:22:57] Speaker 00:
That was not sufficiently said.

[00:22:59] Speaker 00:
At the very least, this court should remand for an evidentiary hearing, because there is no way this record conclusively shows Mr. Stubblefield is entitled to no relief.

[00:23:07] Speaker 00:
Thank you.

[00:23:08] Speaker 04:
Mr. Parker, the court appointed you as amicus, and we're grateful to your help.

[00:23:13] Speaker 04:
Thank you.