[00:00:02] Speaker 04:
Case number 18-3093, United States of America versus Antoine C. Delaney Appellate.

[00:00:08] Speaker 04:
Ms.

[00:00:08] Speaker 04:
Rowland for the appellate, Ms.

[00:00:10] Speaker 04:
Alanis for the appellate.

[00:00:19] Speaker ?:
Good morning.

[00:00:22] Speaker 05:
Sandra Rowland with the Federal Court of Defender in the House of Mr. Delaney.

[00:00:27] Speaker 05:
I hope I have that on right.

[00:00:28] Speaker 05:
Can you hear me?

[00:00:28] Speaker 03:
Yes, no.

[00:00:29] Speaker 03:
I was about to say.

[00:00:30] Speaker 03:
I don't know what the problem is.

[00:00:32] Speaker 03:
You're awfully quiet.

[00:00:34] Speaker 05:
Keep your voice up, please.

[00:00:38] Speaker 05:
You can't hear me at all.

[00:00:39] Speaker 03:
No, we can hear you, but it's very quiet.

[00:00:40] Speaker 03:
This is a new experiment, as you know.

[00:00:44] Speaker 05:
Yeah.

[00:00:45] Speaker 03:
Can you hear me now?

[00:00:46] Speaker 03:
Yes.

[00:00:50] Speaker 03:
I'm not sure there's any real... Let me just ask, can people sitting out there hear her too?

[00:00:56] Speaker 05:
See, that's the problem.

[00:00:59] Speaker 03:
Okay.

[00:00:59] Speaker 03:
Yeah.

[00:01:02] Speaker 03:
I mean, I know you have a lot of really interesting things to say, so we want people to hear you.

[00:01:08] Speaker 05:
Okay.

[00:01:08] Speaker 05:
Is this better for everyone?

[00:01:12] Speaker 03:
But not perfect?

[00:01:13] Speaker 05:
Well, I hope I say something really profound now.

[00:01:18] Speaker 05:
I'm not sure there's any real dispute about the law here.

[00:01:22] Speaker 05:
We have the benefit of Mendenhall, Chesternot, Drayton, and Brennan.

[00:01:27] Speaker 05:
So we know that the question is whether the police conduct would have made a reasonable innocent person think that their liberty had been restrained in some way.

[00:01:36] Speaker 05:
And I focus on that in some way because that is the language of the Supreme Court.

[00:01:42] Speaker 05:
So whether they were not free to leave or because they were not free to ignore the police.

[00:01:47] Speaker 05:
Blocking a person.

[00:01:48] Speaker 00:
The government seems to say that

[00:01:52] Speaker 00:
The test is a little different than what you articulate in your briefs in that the test is whether Mr. Delaney would have been impeded from leaving, you know, by foot for instance.

[00:02:10] Speaker 00:
And the test isn't just, we shouldn't just look at whether he was impeded from leaving by vehicle.

[00:02:17] Speaker 05:
What's your response to that?

[00:02:22] Speaker 05:
There isn't one test for walking and one test for driving.

[00:02:27] Speaker 05:
The test is whether a reasonable, innocent person would feel that their liberty was restrained in some way.

[00:02:34] Speaker 05:
So here, because the circumstances are that he was in a car, operating a car, we think the test is whether he could have driven away.

[00:02:45] Speaker 05:
Whether or not he could have driven away, the act of parking in such a way that

[00:02:51] Speaker 05:
he would have hit the police car if he had pulled forward, he would have had several, make several tight maneuvers to get out of the lot, would communicate to any reasonable person that their liberty was being restrained.

[00:03:03] Speaker 05:
And so whether he could have gotten out of the car and walked away, which of course we think it's completely absurd that the police would have allowed that, his liberty was restrained by blocking the car.

[00:03:16] Speaker 05:
If you see the police block your car,

[00:03:18] Speaker 05:
You don't think you can drive away.

[00:03:20] Speaker 05:
You don't think you can walk away.

[00:03:21] Speaker 05:
You think your liberty has been restrained.

[00:03:24] Speaker 00:
Well, in Florida v. Bostic, the evidence was that the police officer was partially blocking the person's seat and ability to get up from the bus.

[00:03:38] Speaker 00:
I believe it was there.

[00:03:39] Speaker 05:
Right.

[00:03:40] Speaker 00:
But the court held that that was not a seizure because they could have made their way out and it wasn't

[00:03:48] Speaker 00:
You know, they weren't reasonably restrained at that point, right?

[00:03:52] Speaker 05:
Well, my recollection of BASIC is that the aisles were not blocked so that the person, so people could move in the aisles.

[00:03:59] Speaker 05:
I think the officer had been kind of careful not to block the exit.

[00:04:03] Speaker 00:
Well, there was language that said one officer stood in front of respondent's seat partially blocking the narrow aisle through which respondent would have been required to pass to reach the exit of the bus.

[00:04:16] Speaker 05:
Okay, but the exits were not blocked.

[00:04:20] Speaker 05:
Anyone could have gotten off the bus.

[00:04:26] Speaker 03:
How important is the takedown light to your theory?

[00:04:32] Speaker 05:
I think it's an added fact, but the most significant fact is that they parked in such a way that Mr. Delaney would have hit their car if he pulled straight forward.

[00:04:44] Speaker 05:
And to get out, he would have had to make several tight maneuvers.

[00:04:48] Speaker 05:
He also would have hit the police officer who walked in front of his car to get around to the driver's side of his Jeep, which, of course... But didn't that occur later?

[00:04:58] Speaker 05:
Yeah, yes, that's true.

[00:05:02] Speaker 03:
That occurred once... That doesn't help you.

[00:05:03] Speaker 03:
That doesn't help you.

[00:05:04] Speaker 03:
If your theory is that the seizure occurred when the officers pulled in and blocked the car.

[00:05:11] Speaker 05:
Our theory is that the

[00:05:13] Speaker 05:
Seizure occurred when they stopped their car in a way that blocked his car.

[00:05:20] Speaker 05:
We also argue in the alternative that the seizure occurred when they approached his car on both sides and began talking to them.

[00:05:30] Speaker 05:
And in the alternative, as the district court found, when the officer opened his car door.

[00:05:37] Speaker 04:
I'm curious, Ms.

[00:05:38] Speaker 04:
Rowland, how you're separating out

[00:05:41] Speaker 04:
these different stages because having watched the video, it seems like they park, get out of the car, and really hustle toward Mr. Delaney's car.

[00:05:56] Speaker 04:
And that would make a difference, I think, to whether a reasonable person in Mr. Delaney's position would have seen that as a show of authority or would have felt free to leave.

[00:06:11] Speaker 04:
the fact of the speed with which they exit the car and head toward his parked car would seem to me to factor into whether he felt free to leave, even before they get very far.

[00:06:23] Speaker 05:
Yes, I think that that's true.

[00:06:25] Speaker 05:
And now that we have body worn camera that's available to the court, you can actually splice these things very thinly.

[00:06:33] Speaker 03:
But, excuse me, but once you go beyond, as I read your brief or your theory of the case,

[00:06:40] Speaker 03:
It seemed to me it was important to your theory that the seizure occurred when the officers pulled in with their light on behind the defendant's car or in front of it.

[00:06:53] Speaker 03:
Because the later we go into the action, even when the police get out, you've got a finding from the district court that, you know, that's when they saw the sunroof was open.

[00:07:05] Speaker 03:
So your reasonable suspicion case gets harder, right?

[00:07:11] Speaker 03:
Yes, although I would like to address those facts, but... No, but just isn't that right that you're... I understood you were emphasizing that this all, the seizure occurred when the car, the police car blocked because that's where your best case is for no reason.

[00:07:33] Speaker 03:
Right.

[00:07:34] Speaker 03:
Right.

[00:07:35] Speaker 05:
At that moment, all they knew was shots had come from somewhere, somewhere close by,

[00:07:40] Speaker 05:
and they found some people in an alley.

[00:07:43] Speaker 05:
So yes, that is where we locate the show of authority when they block the car and they turn on their takedown lights.

[00:07:54] Speaker 05:
I think it's following up on Judge Pillard's comment.

[00:07:58] Speaker 05:
I think that it is significant.

[00:08:01] Speaker 05:
This all happens so quickly.

[00:08:02] Speaker 05:
Within nine seconds, they're opening the car door.

[00:08:06] Speaker 05:
But it is significant that they pull in.

[00:08:08] Speaker 05:
When you watch the video, you'll hear Officer Bucholt say, yes, that's it.

[00:08:16] Speaker 05:
Or, well, he says, yep.

[00:08:17] Speaker 05:
I think, yep, that's it.

[00:08:19] Speaker 05:
Or, yep, that's him.

[00:08:20] Speaker 05:
It's a little hard to tell.

[00:08:21] Speaker 05:
They jump out of the car and they make,

[00:08:23] Speaker 05:
a beeline to the Jeep.

[00:08:26] Speaker 05:
So if the show of authority isn't located at that moment when they block his car and turn on those lights, then there are

[00:08:39] Speaker 05:
significant facts subsequent to that that show that there was a seizure a few seconds later.

[00:08:47] Speaker 05:
I think it is significant that they turned on the lights.

[00:08:50] Speaker 05:
The most significant fact, of course, is that they blocked his car.

[00:08:56] Speaker 05:
no reasonable person whose car has been locked and is under the glare of those high intensity lights would think that they were not the subject of this stop, that they were just free to drive away, walk away, that their liberty was not restrained.

[00:09:18] Speaker 05:
I do think it's a case in which the

[00:09:22] Speaker 05:
the order and the timing of events matters, particularly with regard to the kissing and the apology.

[00:09:31] Speaker 04:
Yes?

[00:09:31] Speaker 04:
Let me just ask you, he, the question is whether the, a reasonable person in the defendant's position would have felt free to leave under your first theory, which is that the location of the police cruiser was the seizure, what is,

[00:09:51] Speaker 04:
the show of authority and what is the evidence of Mr. Delaney's submission to authority?

[00:09:57] Speaker 05:
The show of authority is blocking his car and putting him under the spotlight.

[00:10:04] Speaker 05:
And the submission is when he does what they implicitly commanded, which is don't leave, stay put.

[00:10:13] Speaker 05:
So by doing nothing, by not getting out of his car and walking away, by not trying to maneuver out,

[00:10:20] Speaker 05:
he submitted to their authority.

[00:10:23] Speaker 05:
I think that you have to look at what the show of authority is telling a person.

[00:10:33] Speaker 05:
And in this case, the show of authority was not telling him, you know, don't kiss, although I have to say I have some comments about the order of the kissing and why that's not significant.

[00:10:44] Speaker 03:
But... I'm confused about your case now.

[00:10:49] Speaker ?:
Okay.

[00:10:50] Speaker 03:
If your theory is that the show of authority occurred when they pulled in with their light on and blocked the car, right?

[00:10:57] Speaker 05:
Yes.

[00:10:58] Speaker 03:
Then what difference does it make?

[00:11:00] Speaker 03:
What happened later?

[00:11:03] Speaker 05:
It only matters because I'm covering all bases if the court disagrees with me.

[00:11:08] Speaker 03:
So this is an alternative argument.

[00:11:10] Speaker 05:
Absolutely.

[00:11:10] Speaker 03:
I'm sorry.

[00:11:11] Speaker 04:
OK.

[00:11:11] Speaker 04:
But I'm asking under your first theory, what is the evidence that Mr. Delaney was submitting to

[00:11:19] Speaker 04:
to what you've characterized as a show of authority by parking the car and shining the light.

[00:11:25] Speaker 04:
The submission to that show of authority taken in isolation.

[00:11:29] Speaker 05:
The show of authority was don't leave and the submission was not leaving.

[00:11:36] Speaker 05:
A person doesn't have to do something active to submit like as he did later putting his hands up.

[00:11:43] Speaker 05:
A person can simply not leave.

[00:11:46] Speaker 05:
Just like in Brendan when they talk about a person who's sitting and who's then seized submits by continuing to sit, not getting up.

[00:11:57] Speaker 04:
What about, you said you had some comments on the kissing, the notion that if he really felt that this was a police stop aimed at him, that as soon as the car parked he wouldn't have been

[00:12:12] Speaker 04:
Why doesn't the law require that he would gesture in some way submission?

[00:12:19] Speaker 05:
Well, I have two answers to that.

[00:12:21] Speaker 05:
The first is that Officer Willis testified that the kissing began as they drove into the lot.

[00:12:28] Speaker 05:
So the kissing began before the show of authority.

[00:12:35] Speaker 05:
And the second point is that

[00:12:42] Speaker 05:
Well, I have three points.

[00:12:45] Speaker 05:
The second is that they were not commanded don't kiss.

[00:12:50] Speaker 05:
They were commanded don't move implicitly.

[00:12:53] Speaker 05:
So the kissing wasn't inconsistent with submission.

[00:12:57] Speaker 05:
And I'm trying to remember the third.

[00:13:01] Speaker 05:
Oh, well, just the obvious, that kissing is not a suspicious act.

[00:13:07] Speaker 05:
It's not like shoving something down your pants or hiding something under the seat.

[00:13:13] Speaker 05:
And it's especially not a suspicious act on New Year's Eve.

[00:13:20] Speaker 03:
OK.

[00:13:21] Speaker 03:
Thank you.

[00:13:23] Speaker 03:
Don't forget to hand in your headset there.

[00:13:40] Speaker 01:
Good morning and may it please the court, Dan Lenners for the United States.

[00:13:45] Speaker 01:
If I might start with Judge Pillard's question about the officers hustling quickly to the car, I don't understand the defendants to have made that argument below or the district court to have made any factual findings on it.

[00:13:57] Speaker 01:
And I think that the actual sequence of events belies any immediate beeline toward the defendant's car.

[00:14:06] Speaker 01:
Officer Bucholt, upon leaving the police cruiser, didn't go directly to the car.

[00:14:10] Speaker 01:
He went to the back of the alley with his flashlight to look for other people.

[00:14:15] Speaker 01:
And Officer Willis testified that as he approached the car, he'd made casual conversation.

[00:14:22] Speaker 01:
and asked the occupants whether they had heard gunshots.

[00:14:25] Speaker 01:
And so that's, I think, inconsistent with the finding that something about the police's exit from their vehicle would have been an additional show of authority sufficient to establish a seizure.

[00:14:38] Speaker 01:
And even if it had, upon exiting the car, Officer Willis saw the open sunroof and open passenger side window from which the defendant could have been shooting a gun.

[00:14:51] Speaker 03:
Would you address the antecedent moment when the police pull in immediately in front of the car with their takedown light on?

[00:15:02] Speaker 03:
Why isn't that, at that moment, the show of authority?

[00:15:08] Speaker 01:
It's not a show of authority.

[00:15:10] Speaker 03:
I realize you didn't take a position in your brief, but that's their argument.

[00:15:15] Speaker 01:
Yes, Your Honor.

[00:15:16] Speaker 01:
We don't believe it's a show of authority sufficient to

[00:15:21] Speaker 03:
But why not?

[00:15:23] Speaker 01:
Tell us a person that they were not free to disregard the police and go about their business.

[00:15:28] Speaker 01:
All the officers did was park their car in what the district court found to be a natural parking position.

[00:15:36] Speaker 01:
They did not block the defendant's car.

[00:15:38] Speaker 01:
They were not immediately in front of it.

[00:15:40] Speaker 01:
They were more than three feet away.

[00:15:42] Speaker 00:
What do you mean they weren't immediately in front of it?

[00:15:44] Speaker 00:
If they were going to, the court found that they were going to have to do several back and forth turns to get around it.

[00:15:51] Speaker 00:
then they're in front of it.

[00:15:52] Speaker 00:
If they're not in front of it, then they can pull right out and leave.

[00:15:56] Speaker 01:
I think there is an area in between those two things, Your Honor.

[00:16:00] Speaker 01:
The defendant's car could have pulled forward, reversed, and then pulled forward again around the officer's vehicle and out of the parking lot.

[00:16:10] Speaker 03:
What about the argument they make that any action like that would have itself been suspicious behavior?

[00:16:18] Speaker 03:
And you didn't, the government didn't respond to that in your brief.

[00:16:22] Speaker 01:
I don't understand the legal question of whether a person, whether the police's actions would have caused a reasonable person not feel as though they were at liberty to go about their business to then play out the following scenario and imagine what the officers

[00:16:41] Speaker 01:
could or could not choose to do.

[00:16:43] Speaker 01:
In fact, the test presupposes a reasonable innocent person.

[00:16:48] Speaker 01:
And so a reasonable innocent person would believe that if the officers left them free to go about their business, either by continuing kissing or getting out and walking away.

[00:16:59] Speaker 03:
This is an earlier point.

[00:17:01] Speaker 03:
I'm asking you about the earlier point.

[00:17:04] Speaker 03:
I understand.

[00:17:05] Speaker 03:
The officers pulled in

[00:17:08] Speaker 03:
just a few feet in front of the car with their takedown light on, correct?

[00:17:13] Speaker 01:
Yes, Your Honor.

[00:17:13] Speaker 01:
And those are the only facts.

[00:17:15] Speaker 01:
There's no... Right.

[00:17:17] Speaker 03:
You could still have a strong case with only two facts.

[00:17:20] Speaker 03:
The number isn't important.

[00:17:23] Speaker 03:
It's the facts.

[00:17:26] Speaker 01:
I understand.

[00:17:26] Speaker 03:
So let me ask you, what about the takedown light?

[00:17:30] Speaker 03:
Courts have routinely found... It's called a takedown light.

[00:17:33] Speaker 03:
What does that mean?

[00:17:36] Speaker 03:
And the defendants cite a case, I think it's a Seventh Circuit case, which says that takedown lights are intended to blind and disorient the occupants.

[00:17:51] Speaker 01:
Your Honor, there was no testimony in this case that this light blinded or disoriented the occupants.

[00:17:56] Speaker 01:
The officers used a bright white light to illuminate a darkened alley.

[00:18:01] Speaker 01:
Courts have routinely found, and I think the First Circuit pointed out, that were courts to find that that caused an unconstitutional seizure, that it would put officers in danger, because officers would feel as though they could not illuminate darkened places.

[00:18:17] Speaker 00:
But here's, I guess, the point, though.

[00:18:21] Speaker 00:
If you're going to use a light which your government council below called a flood light and you're going to shine it in the face of someone in their car and then you're going to park your car such that they have to do some pretty fancy maneuvering to get around your car with a flood light trained in their eyes, wouldn't that cause a reasonable person to feel like it's not really appropriate for them to try to

[00:18:50] Speaker 00:
leave and that the government doesn't really, that these police officers really don't intend for them to leave.

[00:18:58] Speaker 01:
I have two responses to that, Your Honor.

[00:19:00] Speaker 01:
One, I don't think it's a fair characterization to call it a floodlight trained in their eyes.

[00:19:04] Speaker 01:
It was not a spotlight.

[00:19:05] Speaker 00:
It is a general... The court found it to be a spotlight.

[00:19:08] Speaker 00:
The district court called it a spotlight three or four times.

[00:19:11] Speaker 01:
If you watch the body-worn camera, Your Honor, it is not a spotlight.

[00:19:14] Speaker 01:
It is a bar of white lights that are used to illuminate a darkened place.

[00:19:18] Speaker 01:
It illuminated the entire alley.

[00:19:20] Speaker 00:
So the district court calling it a spotlight was clearly erroneous?

[00:19:24] Speaker 01:
I don't believe the district court made a factual finding that this was a spotlight as opposed to a general illuminating of the alley.

[00:19:30] Speaker 04:
I'm not sure which way that cuts because one of my questions was, is this light, do we have any information in the record about whether this light is directional?

[00:19:42] Speaker 04:
Can it be swiveled around or is it more ambient?

[00:19:46] Speaker 01:
I don't know if there is information in the record specific.

[00:19:50] Speaker 01:
It is a bar of lights across the top of the police car below the colored lights.

[00:19:56] Speaker 01:
The bar of lights illuminates in front of the vehicle.

[00:20:00] Speaker 01:
As you can see on the body-worn camera, it is not a spotlight focused on the defendant's car.

[00:20:05] Speaker 01:
It is generally illuminating the parking lot as a whole.

[00:20:10] Speaker 04:
It seems like the defendant's case implicitly is that in order not to seize

[00:20:17] Speaker 04:
this defendant, the cruiser would have had to pull into one of the many spaces that was empty on the near side of the Jeep.

[00:20:27] Speaker 04:
And one question I had as a factual matter was whether that would have made the light ineffective in illuminating the car area.

[00:20:34] Speaker 04:
But it sounds like you're saying no, that the light would have remained effective in adequately illuminating the area.

[00:20:41] Speaker 01:
The defendant's argument below was that the officer should have pulled past the defendant's car into the back of the parking lot.

[00:20:49] Speaker 01:
And the district court rejected that argument because it would have required the officers to walk back into gunshots.

[00:20:55] Speaker 04:
I didn't read that to be the defendant's argument, but I did.

[00:20:58] Speaker 04:
You're right, the district court talked about saying she didn't think they had to pull past.

[00:21:02] Speaker 04:
But when you see the second video in the record, it just raised the question with all those empty spaces, if someone not wanting to

[00:21:11] Speaker 04:
If a police officer did not want to execute a show of force, there were places to park.

[00:21:19] Speaker 01:
There were places to pull in, Your Honor, although in response to your question and Judge Wilkins' question earlier, my second response is the district court found this to be a natural parking spot.

[00:21:28] Speaker 01:
The officers had to pull in far enough not to block the parking lot driveway.

[00:21:32] Speaker 01:
The district court found that had they pulled further,

[00:21:35] Speaker 01:
they would have put themselves in danger.

[00:21:37] Speaker 01:
And they did not block the car in.

[00:21:39] Speaker 01:
There are very few cases out there in which, merely by the placement of their car alone, have the police had a sufficient sort of authority.

[00:21:51] Speaker 03:
Why does that make any difference, what the alternatives were?

[00:21:54] Speaker 03:
Seriously.

[00:21:56] Speaker 03:
The question is whether the actions of the officers at that moment was a seizure.

[00:22:05] Speaker 03:
And explain to me why it makes any difference what the alternatives were to the officers.

[00:22:12] Speaker 03:
Maybe the only option they really had

[00:22:16] Speaker 01:
was something that would have been a seizure.

[00:22:20] Speaker 01:
I think a reasonable innocent person would understand these other options.

[00:22:26] Speaker 01:
They would see that the officers had not blocked the parking lot driveway.

[00:22:30] Speaker 01:
It would seem that the officers had not driven past and that the officers had parked in a natural parking position.

[00:22:36] Speaker 00:
They would see that they didn't park in a parking space and if they had parked in a parking space by definition it wouldn't have

[00:22:43] Speaker 00:
even partially blocked their position.

[00:22:49] Speaker 03:
Wouldn't that signal even more so the fact that the officers chose not to use the parking space?

[00:22:57] Speaker 01:
I don't think so, Your Honor.

[00:22:59] Speaker 01:
I think the fact that they chose not to park directly in front of the defendant's car, leaving him a way of driving away.

[00:23:06] Speaker 01:
And that's all that occurred.

[00:23:07] Speaker 01:
There's no use of their police lights.

[00:23:10] Speaker 01:
There's no command or even speaking to the defendant.

[00:23:13] Speaker 01:
There's no show of weapons.

[00:23:16] Speaker 01:
There's not even an approach of the car.

[00:23:18] Speaker 00:
I'm going to ask you a very important question that I want you to think carefully before you answer.

[00:23:24] Speaker 00:
In US v. Brown,

[00:23:26] Speaker 00:
There's a lot of discussion about how dangerous traffic stops are for police and how courts should take into account that danger when judging the reasonableness of officers actions.

[00:23:42] Speaker 00:
Should we take into account the fear, the reasonable fear that an innocent person would have when they are in the middle of a police encounter

[00:23:56] Speaker 00:
when we determine whether they would feel like they have been seized or whether they have the ability to avoid the encounter or leave.

[00:24:12] Speaker 01:
I think the answer is no, Your Honor.

[00:24:14] Speaker 01:
And for that answer, I rely on one of the first circuit cases that we cited in our brief, whose name I don't have.

[00:24:22] Speaker 01:
I have my fingertips.

[00:24:23] Speaker 01:
But the court there discussed the inherent coercion in any police-citizen encounter and discussed the fact that notwithstanding that inherent coercion, that was not a factor taken into consideration during the

[00:24:40] Speaker 01:
question whether a person has been seized because you presuppose a reasonable, innocent person.

[00:24:47] Speaker 00:
I think I'm saying something slightly different than what your answer conveys.

[00:24:55] Speaker 00:
If a police car partially blocks the vehicle of a reasonable, innocent person and there are lights, very bright lights that have been turned on that weren't turned off,

[00:25:11] Speaker 00:
which make it difficult and perhaps even dangerous for the person to try to maneuver around the police vehicle.

[00:25:20] Speaker 00:
And the person certainly doesn't want to ram the police vehicle unintentionally or hit a pedestrian or a police officer getting out who's gotten out of the car unintentionally.

[00:25:37] Speaker 00:
And the person certainly doesn't want to do anything that would cause them to be shot by the police.

[00:25:46] Speaker 00:
Aren't all those things that a reasonable innocent person should consider at that moment?

[00:25:57] Speaker 01:
I don't know that there's any support in the case law for imputing those concerns to a reasonable innocent person.

[00:26:03] Speaker 00:
I'm not asking you for support in the case law.

[00:26:05] Speaker 00:
I'm asking you, was it reasonable for an innocent person to be thinking about those things at that moment in this encounter?

[00:26:23] Speaker 01:
The only thing I can go back to, Your Honor, are the cases that I've read.

[00:26:27] Speaker 01:
and the First Circuit's suggestion that this inherent element of coercion is not something that court should consider.

[00:26:33] Speaker 00:
We don't decide cases, you know, based on whether we can find, you know, precedent that has all the same facts.

[00:26:42] Speaker 00:
I understand I'm not... We have to write on the clean slate.

[00:26:48] Speaker 01:
I think this court would be breaking new ground that neither the Supreme Court nor other circuits have yet broken if it were to impute to the defendant in this case.

[00:27:03] Speaker 01:
a feeling that he had been seized because he was concerned that if he got out of the car, he would be shot, or he was concerned that if he pulled forward, he would hit an officer who had not yet exited the car.

[00:27:16] Speaker 01:
And again, Your Honor, the temporal question is important because once the officers exited the car, they knew more toward reasonable articulable suspicion than they did before they had exited the car.

[00:27:27] Speaker 01:
So I would not incur, I don't think the court needs to break new ground in order to decide this case.

[00:27:33] Speaker 03:
What's your best argument for reasonable, articulable suspicion at the moment the police pulled in and stopped?

[00:27:44] Speaker 01:
I think it's the four factors that the district court identified, Your Honor.

[00:27:49] Speaker 01:
It's the fact that the officers heard nearby gunshots, that they had located them within a block or so based on their training and experience, that they drove to the location where they believed the gunshots had come from, and that the defendant and his girlfriend were the first and only people they saw in that one minute, that when they approached the defendant,

[00:28:09] Speaker 01:
that they saw no other people either in the parking lot or on the way, and that when they, before they got out of the car, in response to their presence, the defendant and his girlfriend engaged in... Well, but that's at a later moment than I was asking about, because...

[00:28:29] Speaker 01:
The kissing occurred before the officer stopped the car.

[00:28:33] Speaker 04:
So the record reflects that when they were driving in, they saw the kissing?

[00:28:37] Speaker 01:
Yes, Your Honor.

[00:28:38] Speaker 01:
The district court found that the kissing led to a reasonable, articulable suspicion at the moment the officers parked the car.

[00:28:45] Speaker 03:
But she just found that it was strange.

[00:28:47] Speaker 03:
She didn't found that it was deceptive.

[00:28:51] Speaker 01:
She found that it was highly unusual, very strange, and bizarre.

[00:28:55] Speaker 03:
But not deceptive or not designed to mislead the police.

[00:29:02] Speaker 01:
She didn't make that finding.

[00:29:04] Speaker 01:
She didn't expressly find that it wasn't designed to mislead the police.

[00:29:08] Speaker 01:
But I think the takeaway from it being very strange, very unusual, and bizarre is that it could have heightened an officer's suspicions because it was designed to throw off their suspicions.

[00:29:21] Speaker 03:
But the district court didn't find that.

[00:29:25] Speaker 01:
But she didn't reject it either, and I think it flows naturally from her finding that it was highly unusual and that it added to the reasonable articulable suspicion analysis was that it wasn't unusual in an innocent way, that it was part of the totality of the circumstances.

[00:29:42] Speaker 03:
Thank you.

[00:29:42] Speaker 01:
Thank you, Your Honor.

[00:29:44] Speaker 03:
Ms.

[00:29:44] Speaker 03:
Rowland, you are out of town, but you have time, but you can take a minute.

[00:29:49] Speaker 01:
Thank you.

[00:29:57] Speaker 04:
Mr. Oland, I think that the case that Mr. Leonard was talking about from the first circuit was the Tangway case, I'm guessing, a recent case, in which the court said precedent precludes us from treating this type of conduct as a command, perhaps because to rule otherwise would be to prevent officers from safely visiting parked vehicles at night.

[00:30:20] Speaker 04:
And I don't know if that's correct.

[00:30:23] Speaker 04:
That's certainly not binding on us, but I'd be interested to know

[00:30:26] Speaker 04:
your response, and these are officers reacting in an area where apparently a lot of people are shooting off guns, it's night, and they come into this somewhat confined area, and the law requires that we have a lot of deference to officer's judgments in the moment and on the ground.

[00:30:51] Speaker 05:
Of course, but here they really had a, well, I don't,

[00:30:56] Speaker 05:
I was going to say they really had a lack of evidence, but that's not really your question.

[00:30:59] Speaker 05:
Your question is about can't they approach parked cars?

[00:31:03] Speaker 05:
And of course, officers can approach parked cars.

[00:31:07] Speaker 05:
I think what they can't do is signal that we're not merely making inquiries like someone might at an airport or anywhere else, but we are blocking you from driving and we are targeting you with our lights.

[00:31:26] Speaker 05:
I think the lights also helps distinguish this case from Bostic, which Judge Wilkins was inquiring about.

[00:31:38] Speaker 05:
I think Mr. Delaney would have felt far more targeted than the passengers on the bus, even the passenger who was at that moment being questioned in Bostic, because not only was his car blocked, but he was targeted by those lights.

[00:31:56] Speaker 05:
And because officers restricting movements of a car, you know, for example, when they pull you over for a traffic violation or some other reason, that is the typical way in which we all recognize that we're not free to leave when officers impede our car's movement in some way.

[00:32:18] Speaker 05:
So I think that that distinguishes us

[00:32:20] Speaker 05:
this case from Boston.

[00:32:22] Speaker 04:
Let me ask you, and I realize this is not this case, and as Judge Tatel's earlier question suggested, it may not be even part of the inquiry whether they have another alternative, but assume the same information about gunshots and they're trying to trace them to a location.

[00:32:42] Speaker 04:
If this parking area had been full and so there was only the driving in lane,

[00:32:50] Speaker 04:
for the police to access.

[00:32:52] Speaker 04:
And if Mr. Jelani's car were the last in the row, by hypothesis, I think your position is that the officers would have had to park out on the street and go in on foot.

[00:33:06] Speaker 04:
If they pulled in, thought they saw someone in a car who they wanted to ask questions about, they would have had to back their car out to the curb and go in on foot.

[00:33:16] Speaker 05:
At that moment, they didn't have reasonable suspicion, and so they needed to do whatever they needed to do not to block his car.

[00:33:23] Speaker 05:
They could have pulled past him, or they could have done what they did at the first alley, which is stop on the street and walk into the alley.

[00:33:33] Speaker 05:
Which reminds me of another point.

[00:33:38] Speaker 05:
The court can see

[00:33:39] Speaker 05:
in the video that there actually are other people out on the street because at the mouth of the first alley you see a car with its... You never made an argument that any of the district court's factual findings were clearly erroneous, did you?

[00:33:55] Speaker 05:
No, we didn't.

[00:33:57] Speaker 05:
But we did argue below and we did argue on appeal that there was no evidence and that it was meaningless whether

[00:34:06] Speaker 05:
There were other people walking about on the street because we don't know where the shots came from, whether they were from a car house or some other location.

[00:34:18] Speaker 03:
OK, thank you.

[00:34:18] Speaker 03:
Case is submitted.