[00:00:17] Speaker 03: Good morning, Your Honors. [00:00:19] Speaker 03: Kevin King for Appellant Antoine Miller. [00:00:21] Speaker 03: I'd like to reserve two minutes for rebuttal. [00:00:25] Speaker 03: Your Honors, I'll start with the Fourth Amendment issue. [00:00:28] Speaker 03: We submit that the officers unconstitutionally and unlawfully seized Mr. Miller on the sidewalk through a show of authority, and as a result, Mr. Miller's conviction must be vacated and the evidence against him must be suppressed. [00:00:43] Speaker 03: Specifically, the officers seized Mr. Miller on the sidewalk through the show of authority when they did four things together in the totality of the circumstances. [00:00:54] Speaker 03: First, the officers pursued Mr. Miller on foot after he attempted to walk away after the first two questions. [00:01:01] Speaker 03: He was asked, do you have a firearm? [00:01:03] Speaker 03: He responded, no. [00:01:05] Speaker 03: He was asked again. [00:01:06] Speaker 03: He responded, no. [00:01:07] Speaker 03: And yet after those two questions, he attempted to walk away and the officers pursued him on foot. [00:01:13] Speaker 03: Second, the officers asked him a total of four times, four times, whether he had a firearm. [00:01:21] Speaker 03: Third, the officers directed the fourth of those questions to a specific crime, possessing a firearm unlawfully, and to a specific part of his body, to his front waistband. [00:01:33] Speaker 03: And immediately after doing that, the officers directed him, told him, is the word that they used, to quote, turn around. [00:01:41] Speaker 03: Fourth and finally, they did all of these things at a point in time when Mr. Miller's path to walk away was effectively blocked. [00:01:51] Speaker 03: To the east, there was a stone wall and a tall iron fence, much higher than Mr. Miller's head. [00:01:58] Speaker 03: To the west, there was a row of parked cars and trees, a two-way street, and an approaching police car, which was turning around. [00:02:05] Speaker 03: To the south was Detective Delpo, just maybe 20 feet away. [00:02:10] Speaker 03: And to the north, immediately behind Mr. Miller or to his side, was Officer Hiller. [00:02:15] Speaker 03: So he had nowhere to go. [00:02:16] Speaker 01: Well, he could have just walked down the sidewalk, couldn't he? [00:02:20] Speaker 01: Look at that picture you've got in your brief. [00:02:23] Speaker 01: The sidewalk was pretty wide. [00:02:25] Speaker 01: Couldn't he have just walked away? [00:02:26] Speaker 03: I'm not so sure, Your Honor. [00:02:28] Speaker 03: The sidewalk is, I think, I've been there. [00:02:30] Speaker 03: It's a pretty standard D.C. [00:02:32] Speaker 03: sidewalk. [00:02:33] Speaker 03: To do so, he would have had to push past Detective Delpo if he wanted to continue south with Mr. Morton. [00:02:39] Speaker 03: If he wanted to go north and turn around, he would have had to push past Officer Hiller. [00:02:43] Speaker 03: Certainly, I don't think he could have gone left or right. [00:02:45] Speaker 01: No, but he could have gone just the sidewalk. [00:02:47] Speaker 01: There was room for a couple of people. [00:02:48] Speaker 01: There was a grass strip. [00:02:51] Speaker 01: The cars weren't parked nose to nose. [00:02:55] Speaker 01: There was space. [00:02:56] Speaker 01: Couldn't he have just walked away? [00:02:58] Speaker 03: I would concede, Your Honor, that it's possible, physically possible, that he could have tried to push past Detective Delpo and go to the south. [00:03:05] Speaker 03: But I guess what I'd say is no one of these factors on its own caused the seizure. [00:03:10] Speaker 02: It's the totality of the circumstances. [00:03:15] Speaker 03: The police he was walking south and this is a 52 in the appendix After the second question the officer testified that mr. Miller continued walking south and mr. Morton who had walked ahead maybe 20 or 30 The officers were in the car at this point. [00:03:35] Speaker 02: This is after the second question [00:03:41] Speaker 03: What's happening is that the officers and Mr. Miller are going in opposite directions at the time when the officers are in the vehicle. [00:03:47] Speaker 03: And so Miller's going this way and the officers are coming this way and they're both stopped. [00:03:56] Speaker 03: Well, it's not a running pursuit, but I guess what I'm meaning to say. [00:04:03] Speaker 03: Well, they were going in opposite directions before the third question. [00:04:06] Speaker 03: And then Mr. Miller, the testimony is stopped and turned around and faced the officer. [00:04:10] Speaker 03: In other words, Mr. Miller was leaving the scene until the officers came out of the car and asked him the third question. [00:04:17] Speaker 01: No, I'm sorry. [00:04:20] Speaker 03: That's the officer's testimony. [00:04:21] Speaker 03: That's Officer Hiller's testimony at page 52 of the appendix. [00:04:25] Speaker 03: And so to recap it, Miller is leaving until the officers get out of the car. [00:04:29] Speaker 03: The officers getting out of the car and asking him that third question, do you have a firearm, is what caused him to stop and turn around. [00:04:35] Speaker 02: And that's the officer's testimony. [00:04:42] Speaker 03: It could be courtesy, but an element of our defense here is submission to a show of authority. [00:04:50] Speaker 03: That stopping and turning around and then later grabbing that wrought iron fence and assuming the position. [00:04:55] Speaker 03: That shows that Mr. Miller submitted to the officer's show of authority. [00:05:01] Speaker 02: I don't want to rely too much. [00:05:02] Speaker 02: The officers did not testify to that. [00:05:09] Speaker 03: That's Mr. Miller's testimony. [00:05:10] Speaker 03: We're not relying on that. [00:05:12] Speaker 01: I think you said that the officer told Miller to turn around, but this record's finding is that the officer posed these questions to Miller in a conversational tone. [00:05:28] Speaker 03: Absolutely, Your Honor. [00:05:31] Speaker 03: We're not challenging the tone, but the word is told, and this is at page A63. [00:05:36] Speaker 03: Officer Hiller testifies, quote, I, quote, told Mr. Miller to, quote, turn around. [00:05:42] Speaker 03: And so you can characterize told however you want, but I think that that's right in the neighborhood of an instruction or a command. [00:05:49] Speaker 03: Now, it may have been commanded in a conversational, calm way. [00:05:51] Speaker 03: We're not challenging that. [00:05:52] Speaker 03: But I think, nevertheless, a reasonable person in this situation is not going to feel free to leave. [00:05:58] Speaker 03: That's really the focus of the analysis under the Fourth Amendment. [00:06:02] Speaker 03: You've got to ask yourself, would a reasonable person, after being asked four times about a specific crime in the fourth time, directed to a specific part of your body, your front waistband, [00:06:13] Speaker 03: and the officers have come out of their car, walking after you, after you've tried to walk away, would a reasonable person feel free to leave at that instant? [00:06:20] Speaker 03: I think the answer clearly is no. [00:06:22] Speaker 01: What do you think your best case is? [00:06:24] Speaker 03: The best case for us is the Jackson case from the DC Court of Appeals. [00:06:28] Speaker 01: Well, that's a problem, right? [00:06:29] Speaker 01: Because I don't think the DC Circuit's adopted that standard, have they? [00:06:34] Speaker 03: Well, in this court's recent Castle ruling from 2016, and Judge Edwards wrote that decision, this court referred to the D.C. [00:06:44] Speaker 03: Court of Appeals decision in JF as instructive, helpful, albeit not binding. [00:06:48] Speaker 03: And I would say the same thing. [00:06:50] Speaker 03: It's persuasive authority. [00:06:51] Speaker 03: It's not binding. [00:06:53] Speaker 03: But let me tell you what happened to Jackson. [00:06:54] Speaker 03: The facts are almost identical to the facts that we have here. [00:06:57] Speaker 03: What happened there is that there was a call from a woman who said she was afraid about a person who was standing on the stoop of her apartment building. [00:07:06] Speaker 03: And the officers responded. [00:07:08] Speaker 03: There was no suspicion of crime. [00:07:10] Speaker 03: They just showed up and they interviewed this guy. [00:07:12] Speaker 03: And what they did, the D.C. [00:07:13] Speaker 03: Court of Appeals said, is they repeatedly questioned him without any reasonable suspicion. [00:07:18] Speaker 03: And in addition to that, they told him, just as the officers told Mr. Miller here, to quote, turn around. [00:07:24] Speaker 03: Those facts together, that repeat questioning, [00:07:27] Speaker 03: showing to a reasonable person that you're not going to be free to leave until the officers are satisfied and that they get the answer they want, together with that instruction, equaled a seizure. [00:07:36] Speaker 03: And the same thing is true here. [00:07:38] Speaker 03: But if you want to go beyond Jackson, there are two other cases I'd call your attention to, Your Honor. [00:07:41] Speaker 03: The first is, again, another from the D.C. [00:07:43] Speaker 03: Court of Appeals called Gordon, which relied on repeat questioning, quote, accusatory in nature. [00:07:51] Speaker 03: to find a seizure, and then this court's castle decision, which I referred to just a moment ago, in which the officers effectively blocked the path of the defendant by intercepting him in a dark, narrow alleyway. [00:08:04] Speaker 03: So those are our best cases on the Fourth Amendment. [00:08:07] Speaker 03: I guess the other thing I want to highlight here, I know my time is limited, is that the officers testified repeatedly that they had no suspicion of criminal activity whatsoever at any point in this encounter up until the moment when Mr. Miller said, yes, I have a gun. [00:08:22] Speaker 03: And that sets this case apart from the mine run of other cases where officers almost always have some kind of suspicion, some basis, [00:08:30] Speaker 03: for doing what they're doing here. [00:08:31] Speaker 03: They testified at least twice that there was no reasonable suspicion whatsoever. [00:08:36] Speaker 03: So a ruling for Mr. Miller here is not going to create some great wave. [00:08:39] Speaker 03: This is a pretty special case in that regard. [00:08:42] Speaker 02: Was that true and gross as well? [00:08:45] Speaker 03: I don't believe so. [00:08:48] Speaker 03: You know, there are some differences between this case and Gross. [00:08:52] Speaker 03: I guess I'm not sure about what the officer said about suspicion, and I don't want to misrepresent the case. [00:08:57] Speaker 03: But what I can tell you about Gross is that there was no [00:09:01] Speaker 03: All the interaction in that case was between the officers when they were in their vehicle and the defendant when he was on foot. [00:09:10] Speaker 03: The officers did eventually get out of their vehicle and interact with the defendant, but the defendant did not argue a seizure at that point. [00:09:16] Speaker 03: And so the court had no occasion to reach the type of issue that's presented in this case. [00:09:22] Speaker 03: If I could, I'd turn then to the sentencing issue with my limited remaining time here. [00:09:29] Speaker 03: This issue obviously matters only if Mr. Miller's conviction is upheld. [00:09:34] Speaker 03: We hope that it won't be. [00:09:35] Speaker 03: We believe that it shouldn't be. [00:09:36] Speaker 03: But if you do reach this issue, we think that there's a clear error by the district court in denying Mr. Miller a two-level reduction for acceptance of responsibility under Section 3E1.1 of the sentencing guidelines. [00:09:49] Speaker 03: The government, to its credit, much to its credit, has conceded that the district court made an error in [00:09:55] Speaker 03: denying Mr. Miller that acceptance of responsibility reduction based on his failure to exercise an option that does not exist. [00:10:03] Speaker 03: And the Supreme Court held just this most recent term that that option does not exist. [00:10:07] Speaker 03: Judge Jackson said that Mr. Miller should have just pled guilty straight up, and his failure to do so in his decision to go to trial, quote, made it therefore unclear to the court that he actually was accepting responsibility. [00:10:21] Speaker 03: That's page 388. [00:10:23] Speaker 03: That was the sole basis for the district court's denial of the acceptance responsibility reduction. [00:10:29] Speaker 03: And as a result, a remand is required under 18 USC 3742. [00:10:33] Speaker 03: A statute, by the way, I'll note that the government does not address in its brief. [00:10:38] Speaker 03: I see that my red light is on. [00:10:40] Speaker 01: Okay, thank you. [00:10:41] Speaker 03: Thank you. [00:11:01] Speaker 00: Good morning, Your Honors. [00:11:02] Speaker 00: May it please the Court? [00:11:03] Speaker 00: My name is Chris Ellen Cole, but I represent the United States in this matter. [00:11:06] Speaker 00: With me at council table are Emery Cole and Elizabeth Troceman. [00:11:11] Speaker 00: Your Honor, first, with respect to the motion to suppress [00:11:14] Speaker 00: This court should affirm the district court's decision. [00:11:17] Speaker 00: The district court issued a careful, well-reasoned opinion based on the precedent of this court and the Supreme Court. [00:11:24] Speaker 00: I'd like to first, before I go through the contours of my argument, address a few of the discrete points that defense counsel made today that they seem to rely on heavily and I don't think are supported by the record with all due respect. [00:11:37] Speaker 00: The first is with respect to what occurred [00:11:41] Speaker 00: when the defendant walked up, excuse me, when the officer walked up to Mr. Miller and sought to further engage him in conversation. [00:11:55] Speaker 00: Counsel used the word pursuit. [00:11:57] Speaker 00: It wasn't a pursuit. [00:11:58] Speaker 00: The testimony was he walked up, and that's what the district court found. [00:12:04] Speaker 00: And that testimony is at A53, A91. [00:12:08] Speaker 00: And the district court found it at A196. [00:12:12] Speaker 00: Now, as I think the court recognized below, and I think this court has recognized, police officers are allowed to do this type of investigative work and to have these types of conversations with people on the street. [00:12:26] Speaker 00: That's what was happening here. [00:12:28] Speaker 01: Now, the second point that defense counsel... Well, that's not... The question we have to answer is whether, under all the circumstances, a reasonable person would have felt free to leave. [00:12:37] Speaker 01: Agreed. [00:12:37] Speaker 00: That's the question. [00:12:38] Speaker 00: Yes, sir. [00:12:39] Speaker 00: I agree, Judge Tatel. [00:12:40] Speaker 00: And let me just address another point, though, I think, in reference to Your Honor's question. [00:12:46] Speaker 00: Defense counsel today stated that the officer told [00:12:49] Speaker 00: the defendant in this case to turn around. [00:12:51] Speaker 00: We disagree with that. [00:12:52] Speaker 00: That is not so in the record. [00:12:54] Speaker 00: And I would ask the court to... That wasn't his testimony? [00:12:56] Speaker 00: No, it is not. [00:12:57] Speaker 00: And I would respectfully request the court to look at A62 in the record. [00:13:03] Speaker 00: Question, tell us what happened next. [00:13:05] Speaker 00: Answer. [00:13:06] Speaker 00: Then I asked Mr. Miller to turn around, you know. [00:13:09] Speaker 00: I can't hear you. [00:13:10] Speaker 00: I actually said something to the effect we're both men. [00:13:13] Speaker 00: We can talk face to face. [00:13:16] Speaker 00: Defense counsel refers to the next page of the testimony at age 63 in his argument. [00:13:21] Speaker 00: And he says, this is the full quote from this witness, from Officer Hiller. [00:13:27] Speaker 00: No, I said, I'm like, you know, you don't have to face away from me. [00:13:31] Speaker 00: We're both adults. [00:13:31] Speaker 00: I'm just talking to you. [00:13:32] Speaker 00: There's no reason for you to be against the fence facing away from me. [00:13:36] Speaker 00: At this point, I'm just having a conversation with him. [00:13:39] Speaker 00: So I don't know why he put himself in that position. [00:13:41] Speaker 00: That's why I told him, I can't understand you. [00:13:44] Speaker 00: Turn around. [00:13:45] Speaker 00: We can continue talking like this. [00:13:47] Speaker 00: So the totality of the record, which is what the district court found, [00:13:52] Speaker 00: and this is clear in the district court's decision. [00:13:56] Speaker 01: What about the other circumstances of this? [00:13:59] Speaker 01: When you look at that picture, that photograph in the brief, you know which one I'm talking about? [00:14:04] Speaker 01: Yes, Your Honor. [00:14:08] Speaker 01: It isn't clear [00:14:10] Speaker 01: how, sure, he could have walked away, maybe, but the district court says, this is the district court's finding, Officer Wright turned his car around in order to secure the perimeter. [00:14:31] Speaker 01: Um, and then the officer who drove the car says, uh, he says once the two gentlemen not go back the other way. [00:14:41] Speaker 01: I turned my vehicle around in case they decided to run south. [00:14:47] Speaker 01: So you've got both the district court and the driver. [00:14:51] Speaker 00: saying that the officers were blocking his... Well, that's not what... With all due respect, Judge Cadell, that testimony is true. [00:14:59] Speaker 00: The officer did turn his car around. [00:15:01] Speaker 00: I don't dispute that. [00:15:03] Speaker 00: But it's not. [00:15:03] Speaker 00: And the fact that the district judge found, he never blocked his egress in any way. [00:15:08] Speaker 00: Now, the fact that the officer might have thought, in case things go bad, I want to take this position, I don't think that makes a seizure. [00:15:16] Speaker 00: And in fact, the district court very clearly found [00:15:20] Speaker 00: that defendant was never surrounded by the police. [00:15:23] Speaker 00: She discredited the defendant's testimony on that point. [00:15:26] Speaker 00: And there's multiple points in the testimony where the officers testified that there was no one else in the immediate vicinity of Mr. Miller and Officer Hiller in this case. [00:15:40] Speaker 00: I'd also point out, Judge Tatel, that if you look at the picture, with all due respect, I think counsel and I probably respectfully disagree. [00:15:48] Speaker 00: I don't think that sidewalk looks very narrow at all. [00:15:50] Speaker 00: We've had cases in alleys, very different, like in Castle. [00:15:54] Speaker 00: We've had cases in buses, in trains. [00:15:57] Speaker 00: I mean, look at Drayton in the Supreme Court. [00:16:00] Speaker 00: That's a bus in the small aisle of the bus where there was an officer walking up and down the aisle, an officer standing in the back of the bus, and an officer who was sitting in one of the seats in the front. [00:16:11] Speaker 00: And the Supreme Court found that that was not a seizure. [00:16:15] Speaker 00: So if it's not a seizure in Drayton, [00:16:17] Speaker 01: Well, Drayton's a very different case. [00:16:19] Speaker 01: In Drayton, the police officers were... In Drayton, the officer... I'm looking at what the court said. [00:16:30] Speaker 01: It says Officer Hoover, he's that guy. [00:16:35] Speaker 01: He knelt on the seat and faced the rear of the bus. [00:16:38] Speaker 01: so that you could observe the passengers and ensure the safety of the other two officers without blocking the passageway. [00:16:44] Speaker 00: For sure. [00:16:45] Speaker 00: That's absolutely true. [00:16:46] Speaker 01: In other words, the police officers in that case were being very careful not to block. [00:16:50] Speaker 01: And also, it was a bus full of people. [00:16:53] Speaker 01: They weren't focused on one person as they were here. [00:16:56] Speaker 00: It's a very different case, isn't it? [00:16:58] Speaker 00: This is a public street. [00:17:00] Speaker 00: And it's only 930 at night. [00:17:01] Speaker 01: Yeah, I get that. [00:17:03] Speaker 01: I get that. [00:17:03] Speaker 01: But it's just all their focus is this incessant questioning of one person. [00:17:08] Speaker 01: Whereas in Drayton, it was a bus full of people. [00:17:12] Speaker 01: And the police officers were located themselves in the bus for purposes of safety and not the block. [00:17:21] Speaker 01: Sort of the opposite of this. [00:17:23] Speaker 01: Well, your honor, I don't think Drayton helps you. [00:17:25] Speaker 01: You've got a lot of cases that help you. [00:17:27] Speaker 01: I don't think Drayton helps you. [00:17:28] Speaker 00: Well, your honor, I was pointing to Drayton in terms of the issue of spatial proximity, and I think Drayton is very good for us on that point. [00:17:35] Speaker 00: But I think you have cases like Goddard and Gross in this court, where the court has said... Isn't Gross the case where they never left the car? [00:17:44] Speaker 00: Well, they started to leave the car, and then the defendant fled in Gross. [00:17:47] Speaker 01: Yeah, well, my point is they never left the car. [00:17:49] Speaker 01: It's not like this case. [00:17:50] Speaker 00: It's a little different than this case. [00:17:52] Speaker 00: I agree, Your Honor. [00:17:53] Speaker 00: But the other case that we also relied on below and that we rely on our brief is the First Circuit case called Ford, which is very similar, we think, factually. [00:18:01] Speaker 00: And in that case, the court found no seizure. [00:18:04] Speaker 00: Your Honor, the defense counsel relied heavily in the argument today on Jackson, which is a D.C. [00:18:09] Speaker 00: Court of Appeals case, of course not binding. [00:18:11] Speaker 00: Nonetheless, the facts in Jackson are very different, we submit, than this case on one very important point. [00:18:19] Speaker 00: Because in Jackson, if you look at the citation 805A2 at 988, the court found that the officer in that case told the defendant, please turn around for me, without any basis to do that. [00:18:36] Speaker 00: And that's different than this case, because they were engaged in a conversation. [00:18:39] Speaker 00: And I read to the court earlier the pages from A62 and A63. [00:18:43] Speaker 00: That's a very different scenario than this case, I submit to you, Your Honors. [00:18:48] Speaker 00: The final thing I guess I would mention is that defense counsel has argued that there were two questions put to the defendant at the very outset of this encounter. [00:18:58] Speaker 00: And I don't think that's really true. [00:19:00] Speaker 00: The second question, as the trial court found, was directed towards Mr. Morton, but somehow Mr. Miller decided to answer that again in a frantic way. [00:19:10] Speaker 00: And that's, I think, a little bit different than the characterization that I think the defense is taking in this case. [00:19:16] Speaker 00: And the final point I guess I would make is I do think that this was not a seizure for all the reasons that district court articulated, but even in the worst case scenario, we think that this entire encounter would qualify under Terry and that there was a reasonable articulable suspicion to [00:19:34] Speaker 00: to ask these further questions, but I don't think the court needs to reach that. [00:19:38] Speaker 02: If I could just address... You based that on what? [00:19:41] Speaker 02: On the nervous demeanor? [00:19:44] Speaker 00: The three findings of the district court at A201. [00:19:47] Speaker 00: District court found one, defendant was frantic and nervous throughout the entire encounter. [00:19:52] Speaker 00: Two, defendant intentionally shielded the front of his waistband from the officers. [00:19:58] Speaker 00: Three, Officer Hiller testified that [00:20:02] Speaker 00: that type of behavior was indicative of possession of a weapon. [00:20:07] Speaker 00: Those three factors, we submit, plus the high crime nature of the area, which the judge doesn't rely on, but this court could, under Wardlow. [00:20:14] Speaker 02: How can the last one give articulable suspicion with respect to an individual? [00:20:21] Speaker 00: Well, because I think, well, standing alone, it wouldn't. [00:20:24] Speaker 00: That sounds a lot. [00:20:24] Speaker 00: I agree. [00:20:25] Speaker 00: Standing alone, I totally agree. [00:20:26] Speaker 00: But I think both parties here agree. [00:20:28] Speaker 00: You look at the totality of the circumstances. [00:20:31] Speaker 00: And I think that's just one dot on the map. [00:20:33] Speaker 00: I'm not relying heavily on that. [00:20:34] Speaker 00: I'm relying on the other factors that Judge Jackson found, I think, very specifically in her order. [00:20:41] Speaker 00: Judge, if I could quickly, I see my time is running up, just address the sentencing issue. [00:20:46] Speaker 02: But the case is going back on the ineffective assistance, right? [00:20:49] Speaker 02: Why shouldn't the district judge be the first one to address this? [00:20:51] Speaker 00: There's certainly no reason, and we're not pounding the podium on that. [00:20:55] Speaker 00: I agree with Your Honor. [00:20:57] Speaker 01: You mean like you were on the seizure issue? [00:20:59] Speaker 00: Exactly. [00:20:59] Speaker 00: Not like I was on the Fourth Amendment issue. [00:21:01] Speaker 00: I agree. [00:21:03] Speaker 00: I agree, Judge Ginsburg. [00:21:04] Speaker 00: It is going to go back on the ineffective assistance. [00:21:06] Speaker 00: And there is some ambiguity, but the only point I think the government wanted to make in this appeal is that Judge Jackson made a very clear statement at A391 [00:21:16] Speaker 00: in the transcript where she said, even if it's true that you wanted to go to trial just to preserve your right to appeal, you didn't make that clear in real time to the court. [00:21:26] Speaker 00: And we read that as tantamount to saying, this is last minute remorse, and under three [00:21:32] Speaker 00: 3E1.1, that's a valid basis. [00:21:36] Speaker 02: She made that statement in a context where she was mistaken about. [00:21:39] Speaker 00: For sure. [00:21:40] Speaker 00: And that's what I said. [00:21:41] Speaker 00: This is a situation where a remand is probably, you know, certainly the government wouldn't object. [00:21:48] Speaker 00: And we noted that in our brief at footnote that if there is some ambiguity, that that's what this Court should do. [00:21:54] Speaker 00: And if the Court has no further questions, we respectfully ask the Court to affirm. [00:21:57] Speaker 00: Okay, thank you. [00:21:58] Speaker 00: Thank you, Your Honor. [00:21:59] Speaker 01: Did Mr. King have any time left? [00:22:02] Speaker 01: You can take a minute, Mr. King. [00:22:06] Speaker 03: Thank you, Your Honor. [00:22:07] Speaker 03: I'll be brief. [00:22:08] Speaker 03: In light of the government's recent statement, I'll limit myself to three points, all relating to the Fourth Amendment question. [00:22:13] Speaker 03: First off, counsel said, just as the United States said in its brief, that the driver of the police vehicle did not block a defendant's path. [00:22:21] Speaker 03: That's an inaccurate statement. [00:22:23] Speaker 03: The district court did make that finding, but it made the finding at the point in time when all three officers were in the vehicle. [00:22:28] Speaker 03: And you'll find that we discussed that at page 9 of our reply brief. [00:22:31] Speaker 03: It does not apply to the time when everybody, the two officers were on foot. [00:22:36] Speaker 03: Second, as to the second question and to whom it was directed, Miller had no way of knowing when it's just him and Morton and they're the only guys on the street that this question somehow was directed to his buddy Morton as opposed to him. [00:22:47] Speaker 03: He hears the police ask a second question, he's going to answer. [00:22:50] Speaker 03: That's an understandable thing. [00:22:52] Speaker 03: Third, and finally, the United States just made a brief argument that the officer somehow had reasonable suspicion to do what they did and ask the follow-up questions they did. [00:23:01] Speaker 03: That's contrary to the officer's own testimony at A61 and A881, that they didn't have any suspicion, none whatsoever, up until the point that Mr. Miller acknowledged having a firearm. [00:23:13] Speaker 03: So for all these reasons, we'd urge that Mr. Miller's conviction be vacated and the evidence suppressed. [00:23:18] Speaker 01: Thank you. [00:23:18] Speaker 01: Mr. King, you were appointed by the court to represent Mr. Miller, and we are grateful to you for your assistance. [00:23:23] Speaker 01: Thank you. [00:23:23] Speaker 03: Thank you, Your Honors.