[00:00:00] Speaker 06: Case number 19-3050, United States of America versus Walter Mabry at balance. [00:00:07] Speaker 06: Mr. Axum for the appellant, Mr. Coleman for the appellate. [00:00:13] Speaker 01: May it please the court? [00:00:14] Speaker 01: Tony Axum representing Walter Mabry and I'd like to reserve two minutes for rebuttal. [00:00:25] Speaker 01: When someone wants to end a consensual encounter, one way to do so is by walking away. [00:00:30] Speaker 01: One of Mr. Mabry's companions tried to slowly walk away here, and officers promptly stopped him and patted him down. [00:00:37] Speaker 01: The stop of Mr. Mabry's companion contributed to the totality of the circumstances that conveyed to Mr. Mabry that he was not free to leave. [00:00:44] Speaker 01: In fact, for some time, Mr. Mabry did not try to leave, but remained against the fence in submission to the officer's authority. [00:00:51] Speaker 01: The other circumstances that contributed to the totality of circumstances establishing Mr. Mabry's seizure included the time of night. [00:01:00] Speaker 01: It was late into the evening. [00:01:02] Speaker 01: It was dark. [00:01:03] Speaker 01: Mr. Mabry was on a limited span of sidewalk. [00:01:06] Speaker 01: Multiple officers approached in unison. [00:01:09] Speaker 01: There were three officers. [00:01:11] Speaker 01: They had pulled up abruptly. [00:01:13] Speaker 01: During the course of the encounter, another marked police car arrived. [00:01:20] Speaker 01: The car that the officers [00:01:22] Speaker 01: arrived in and parked. [00:01:24] Speaker 01: They parked directly in front of Mr. Mabry and his companions so that Mr. Mabry had a wrought iron fence behind him and the police car and the officers in front of him. [00:01:34] Speaker 01: As the officers exited the car, they began to corral Mr. Mabry and his companions, stopping one from walking away, as I said. [00:01:46] Speaker 01: They [00:01:48] Speaker 01: got out with purpose and they approached each person directly as though someone has committed a crime. [00:01:56] Speaker 01: And I submit that a reasonable person in Mr. Mabry's position would have felt targeted and would not feel free to leave. [00:02:05] Speaker 01: That is especially so given that Mr. Mabry had, he witnessed the first person be physically obstructed and stopped and become irate [00:02:19] Speaker 01: as officers patted that first person down. [00:02:22] Speaker 01: With regard to the second person who was right next to Mr. Mabry, he is standing as the officer approaches with his hands in the air, a sign of submission, a sign again, that he does not feel free to leave. [00:02:37] Speaker 01: And I understand that that's not Mr. Mabry, but it adds to the atmosphere. [00:02:42] Speaker 01: It adds to the totality of circumstances that would [00:02:48] Speaker 01: make a reasonable person in Mr. Mabry's position not feel free to leave. [00:02:53] Speaker 01: And finally, there's Mr. Mabry himself, and he is standing in close, the officer is standing in the close personal space of Mr. Mabry, and he is shining a light on him and essentially commanding him to show him his waste. [00:03:07] Speaker 01: And Mr. Mabry does that. [00:03:14] Speaker 01: Mr. Mabry shows his waste not one time, but a second time, and then ultimately a third time. [00:03:24] Speaker 01: Each of these points is a point of seizure. [00:03:27] Speaker 01: And I submit that Mr. Mabry was seized from the very first, but certainly throughout this encounter, Mr. Mabry. [00:03:40] Speaker 03: Mr. Axel. [00:03:43] Speaker 03: At what point are you saying there was a show of authority? [00:03:52] Speaker 01: I would say there was a show of authority from the very moment that the officers exited the car. [00:03:57] Speaker 01: They didn't walk up in a casual way and say, hey guys, how are you doing? [00:04:01] Speaker 03: That would be a rather broad interpretation if we were to say that. [00:04:09] Speaker 03: I mean, when officers get out of the car, [00:04:12] Speaker 03: without their weapons out, I mean, it's not as if they're charging after somebody. [00:04:16] Speaker 03: Surely that can't be the show of authority. [00:04:19] Speaker 01: No, no, I'm not saying that there is any one single thing that is the show of authority. [00:04:27] Speaker 01: I know that it makes it more convenient to understand like the point of seizure. [00:04:31] Speaker 01: So if I had to identify the strongest show of authority was, [00:04:38] Speaker 01: initially physically stopping someone who is slowly walking away. [00:04:44] Speaker 03: That was not Mabry, right? [00:04:46] Speaker 01: No, but it conveyed to everyone else there that if you choose not to engage with us, you will be stopped and you will be searched. [00:04:55] Speaker 01: It was circumstantial evidence to anyone who was present. [00:04:57] Speaker 01: And I direct the court to United States v. Drayton where [00:05:04] Speaker 01: The circumstances are slightly different. [00:05:07] Speaker 01: They're on a bus. [00:05:08] Speaker 01: But the court was very clear in deciding that no seizure had occurred. [00:05:17] Speaker 01: The court, one factor was that no one else had been stopped. [00:05:21] Speaker 01: One factor was that the exit was not blocked for anyone else to leave here. [00:05:28] Speaker 01: we essentially have on this limited span of sidewalk, the exit being blocked by the police. [00:05:35] Speaker 01: And that conveyed to everyone present, we are here to search you and you will comply even if you attempt to walk away, even if you exhibit like a clear sign that you do not want to engage with us. [00:05:52] Speaker 01: So that was the first most dramatic point of seizure [00:05:58] Speaker 01: of all three, while that is going on, there are two other officers engaged with Mr. Mabry and the person right next to Mr. Mabry. [00:06:06] Speaker 01: So this is a show of force. [00:06:11] Speaker 03: It's not. [00:06:14] Speaker 03: At one point, as soon as I think at the outset, well, or anyway, during this brief interval where Mabry is actually in conversation with the police, at one point he says, he says, I'm going to leave. [00:06:30] Speaker 01: That's correct. [00:06:31] Speaker 03: It would certainly suggest that anything prior to that did not leave him thinking he could not leave. [00:06:37] Speaker 01: Well, the first thing that I would say to that is the test is whether a reasonable person would feel free to leave. [00:06:44] Speaker 01: And so Mr. Mabry's subjective belief in whether he could leave or not is not the most relevant. [00:06:51] Speaker 01: It does inform whether a reasonable person would feel that they could leave. [00:06:55] Speaker 01: And, but the second thing that I would say to that is when Mr. Mabry says that, the officer has, by that point, the officer has made several demands of Mr. Mabry, demands, commands, and Mr. Mabry has indicated that he does not wish to continue to comply with the officer. [00:07:16] Speaker 01: Specifically, at that point that Mr. Mabry says, I'm going to leave, he starts to take a step to the left or two steps to the left [00:07:24] Speaker 01: And the officer again with the flashlight shines the flashlight at him and take steps with him, suggesting again that you are not going to leave. [00:07:34] Speaker 01: And Mr. Mabey already has the circumstantial evidence of the stop of the first person. [00:07:40] Speaker 01: And I would submit even the stop of the second person who when police arrived is standing as the officer approaches immediately puts his hands up in a form of submission. [00:07:54] Speaker 01: that would convey to a reasonable person that we are all seized. [00:07:58] Speaker 03: Did you just say, I just want to be clear about this, that after saying, I'm going to leave, the officer moved in such a way as to make that more difficult? [00:08:14] Speaker 01: I would say he did two things. [00:08:16] Speaker 01: He shined his flashlight on Mr. Mabry a third time. [00:08:21] Speaker 01: And what I need to say about the flashlight [00:08:23] Speaker 01: The flashlight is a nonverbal tool, a nonverbal form of communication. [00:08:31] Speaker 01: Just as holding your hand up without saying anything would indicate halt, the flashlight the officer is using is flashed in a way to get compliance or to control the situation. [00:08:48] Speaker 01: At this point, when Mr. Mayberry starts to leave, the officer does again shine the flashlight at Mr. Mayberry's waist again. [00:08:55] Speaker 01: And Mr. Mayberry, in fact, lifts his waist again while saying, I'm going to leave. [00:09:01] Speaker 01: So he is still submitting. [00:09:02] Speaker 01: He's still in compliance. [00:09:06] Speaker 01: But it's also telling that Mr. Mayberry doesn't leave because he doesn't feel that he can. [00:09:11] Speaker 01: To answer your question very directly, yes, the officer takes steps. [00:09:16] Speaker 01: You can see his shadow move with Mr. Mabry. [00:09:18] Speaker 01: As Mr. Mabry says, I'm going to leave and starts to move to the left, the officer moves with him while using the flashlight to control Mr. Mabry. [00:09:26] Speaker 01: So I would submit Mr. Mabry, yes, was seized. [00:09:32] Speaker 01: Definitely at that point. [00:09:34] Speaker 03: At that point, he actually does leave, right? [00:09:38] Speaker 03: Right after the third showing of his waist. [00:09:41] Speaker 04: Yes. [00:09:42] Speaker 04: Yes. [00:09:43] Speaker 04: What you do with the district court's finding that the district court found that the officers observed the defendant trying to remove, trying to move the right side of his body in a way to manipulate the satchel away from the officer. [00:10:10] Speaker 00: Doesn't that suggest that he was not submitting at that point? [00:10:16] Speaker 00: Your honor, I strongly disagree with that. [00:10:20] Speaker 00: With what? [00:10:20] Speaker 00: With the district court or with what I just said? [00:10:23] Speaker 00: Well, I disagree. [00:10:25] Speaker 00: Or both. [00:10:28] Speaker 01: I'll take both. [00:10:32] Speaker 01: I disagree with the characterization. [00:10:34] Speaker 01: And I disagree that he was trying to, that he was not in compliance even if you accept that characterization. [00:10:48] Speaker 01: Mr. Mabry, and taking the second first, Mr. Mabry was not asked turn your body this way or that way. [00:10:54] Speaker 01: These were nonverbal commands with the flashlight. [00:10:58] Speaker 01: And Mr. Mabry lifted his shirt. [00:11:02] Speaker 01: There's no command, you're turning the wrong way. [00:11:05] Speaker 01: If you look at the video, and this is to the first question, whether there's actually blading or trying to hide or manipulate something, [00:11:16] Speaker 01: I think those are very strong words for what you see in that video, because as Mr. Mabry lifts his waist, you can see the satchel. [00:11:26] Speaker 01: He is not turning that satchel away. [00:11:29] Speaker 01: If there is a turn, it is ever so slight. [00:11:32] Speaker 01: He does not touch it. [00:11:33] Speaker 01: He doesn't move it. [00:11:34] Speaker 01: He does not manipulate it at all. [00:11:38] Speaker 01: So I think that is just a mischaracterization of the record. [00:11:45] Speaker 04: Well, even if it's not, do you think, could you make an argument that it really doesn't make any, pardon me? [00:11:55] Speaker 04: It doesn't make any difference because under your theory, he had submitted before that. [00:12:00] Speaker 04: Is that? [00:12:00] Speaker 01: Yes, absolutely. [00:12:04] Speaker 01: Mr. Mabry had already submitted by lifting his clothes in the first instance, but [00:12:11] Speaker 01: The other thing that I think I need to say about that is that the district court said that it didn't have to make a reasonable suspicion determination, didn't have to reach that question at all because it found that the entire encounter was consensual. [00:12:29] Speaker 01: So, although there's an implication in what the district court says that [00:12:37] Speaker 01: it could go to reasonable suspicion. [00:12:39] Speaker 01: The district court has not made that finding in the first instance. [00:12:42] Speaker 04: Okay. [00:12:44] Speaker 04: Unless either of my colleagues has a question, we'll hear from the government. [00:12:48] Speaker 04: Oh, I do. [00:12:48] Speaker 04: Sorry. [00:12:48] Speaker 05: Go ahead, Merrick. [00:12:49] Speaker 05: I have a couple of questions. [00:12:50] Speaker 05: Yeah. [00:12:53] Speaker 05: Hold on. [00:12:54] Speaker 05: Could you hold on just one second? [00:12:55] Speaker 05: Sure. [00:12:56] Speaker 05: I just want to find my place. [00:13:09] Speaker 06: So first I want to get straight in my mind, sort of a hypothetical. [00:13:14] Speaker 06: If the police come up to me and they say, you know, show me under your shirt. [00:13:24] Speaker 06: And I say, or they just come up to me and they start asking me questions. [00:13:30] Speaker 06: And I say, I don't have to answer your questions. [00:13:33] Speaker 06: I'm a lawyer. [00:13:34] Speaker 06: I know I don't have to answer your questions. [00:13:36] Speaker 06: I'm going to leave. [00:13:38] Speaker 06: Is that submission? [00:13:40] Speaker 06: even if they're surrounding me? [00:13:43] Speaker 06: That's not enough for submission, right? [00:13:47] Speaker 06: There's clearly two different requirements. [00:13:50] Speaker 06: So there has to be a show of authority and submission, correct? [00:13:53] Speaker 01: Yes. [00:13:54] Speaker 06: Okay. [00:13:54] Speaker 06: So is that submission if the person says, well, I'm just not going to answer your questions and I'm going to leave? [00:14:00] Speaker 01: Well, I think it's very difficult to submit when officers are simply asking questions. [00:14:05] Speaker 01: So you need that condition precedent. [00:14:08] Speaker 01: You need the show of authority. [00:14:10] Speaker 01: And asking questions, I think this court has held, simply asking questions is not a show of authority. [00:14:16] Speaker 06: OK, what about a command? [00:14:17] Speaker 06: What about a command to which your answer is, I'm not going to do what you say. [00:14:24] Speaker 06: I'm a lawyer. [00:14:25] Speaker 06: I know you don't have any probable cause or reasonable suspicion. [00:14:29] Speaker 06: I'm leaving. [00:14:30] Speaker 06: Is that a submission? [00:14:33] Speaker 01: I would say yes. [00:14:35] Speaker 06: Even if you say no, I'm going to leave. [00:14:38] Speaker 01: Well, I think it depends on what the question is. [00:14:42] Speaker 01: If the question is, please stand here, will you please stand here, and you say no, and you leave, you have not submitted. [00:14:50] Speaker 01: But I'd almost have to say that in the time it takes you to answer, you have momentarily submitted. [00:14:58] Speaker 06: If that's the case, and there's no separation between the show of authority and the submission requirement. [00:15:06] Speaker 01: In some circumstances, the separation, I think, would be very quick. [00:15:12] Speaker 06: Yes. [00:15:13] Speaker 06: All right. [00:15:14] Speaker 06: So just to explain why I'm asking this question, I guess it probably seems obvious. [00:15:20] Speaker 06: On the question, I don't have any doubt about a show of authority in this case. [00:15:24] Speaker 06: The question is when, but there's clearly a show of authority. [00:15:27] Speaker 06: I'm concerned about when the submission occurs or if there is a submission. [00:15:31] Speaker 06: So you say he submits by showing his waste. [00:15:36] Speaker 06: As far as I can tell, there's no command to show the waste. [00:15:39] Speaker 06: Is that right? [00:15:39] Speaker 06: At least there's no verbal command that we can hear. [00:15:43] Speaker 06: Is that right? [00:15:46] Speaker 01: There is no verbal command that we can hear to show your waist. [00:15:50] Speaker 01: That is correct. [00:15:51] Speaker 06: And the burden is on the defendant, on the person who was seized to show he was seized, right? [00:15:57] Speaker 01: That's correct. [00:15:58] Speaker 06: Okay. [00:15:59] Speaker 06: So one reading of what he did with respect to the showing of the waist is he knew he didn't have a gun under the jacket, underneath his shirt. [00:16:11] Speaker 06: So he was showing the waste not as submission, but as a way to get out. [00:16:17] Speaker 06: Look, I don't have any gun here. [00:16:20] Speaker 06: That's what he was doing. [00:16:21] Speaker 06: If he wasn't commanded to do it and he did it. [00:16:24] Speaker 06: Go ahead. [00:16:26] Speaker 01: Go ahead. [00:16:28] Speaker 01: Again, I strongly disagree that he was not commanded to do it because the use of the flashlight was a nonverbal command. [00:16:36] Speaker 01: I understand that. [00:16:38] Speaker 01: the law has developed so that we are looking for words from the police, but the use of the flashlight is a nonverbal command. [00:16:46] Speaker 01: Just like me spinning my fingers around means wrap up or I could turn my hands so that someone looks behind them. [00:16:53] Speaker 06: I mean, you're saying the police can't use a flashlight even to see whether somebody that they're talking to has a gun without that being a command? [00:17:02] Speaker 01: No, I'm not saying that, but we know that the officer used the flashlight repeatedly here to control Mr. Mabry because you can see the video that each time he wants to control him, he moves the flashlight around his waist area. [00:17:15] Speaker 01: And each time that happens, Mr. Mabry does in fact lift his clothes. [00:17:20] Speaker 01: Mr. Mabry, if the police had walked up without a flashlight, I find it very hard to believe that Mr. Mabry would have [00:17:29] Speaker 01: just lifted his clothes. [00:17:30] Speaker 06: Now- I understand, but you said it's dark. [00:17:33] Speaker 06: So it doesn't seem, maybe if there were some other circumstance, but in a dark circumstance, the use of the flashlight to see isn't necessarily a command, it's to see. [00:17:46] Speaker 06: And then the question is whether Mr. Mabry is responding out of submission or responding out of evasion. [00:17:54] Speaker 06: Let me ask you another question. [00:17:56] Speaker 06: So he says, I'm going to leave. [00:17:59] Speaker 06: Doesn't that indicate lack of submission at that point? [00:18:02] Speaker 06: I'm going to leave? [00:18:04] Speaker 01: Not until he leaves. [00:18:06] Speaker 01: Why? [00:18:07] Speaker 06: Why? [00:18:08] Speaker 06: Again, if the police come up to me and start demanding that I say things and I stand there, I say, I'm an American citizen. [00:18:17] Speaker 06: I can stand on this sidewalk if I want to. [00:18:20] Speaker 06: And I'm not going to answer you. [00:18:22] Speaker 06: It's not submission. [00:18:24] Speaker 06: Normally what might happen after that is a police will put their hands on me, but then we have a physical seizure and we don't have the question of submission. [00:18:32] Speaker 06: At that point, submission is no longer an issue. [00:18:35] Speaker 06: But if they don't put my hands on me, we just stand there talking to each other or even yelling at each other. [00:18:43] Speaker 06: Is there a case that says that that's submission? [00:18:46] Speaker 01: I'm not sure that there's a case that says that [00:18:50] Speaker 01: police officer walking up to you and commanding that you do something and you standing there is submission. [00:18:58] Speaker 01: But there are cases that say, if you are there and the police arrive and they command you and you are in the same state that you were in, [00:19:15] Speaker 01: the court, or I should say a court should look at what you were doing before the police arrived. [00:19:21] Speaker 01: If you were standing there before the police arrived and you're still standing there when the police come, even though you have expressed that you do not wish to engage with the police, you are submitting by remaining there. [00:19:34] Speaker 06: Well, in this case, it's about 10 seconds after the last time he says, [00:19:39] Speaker 06: Well, I don't even know if there is a first time, because I can't hear it exactly. [00:19:43] Speaker 06: And the judge only finds one circumstance in which the defendant says, I'm going to leave. [00:19:49] Speaker 06: And then 10 seconds later, he leaves. [00:19:51] Speaker 06: So he says to the police, I'm going to leave. [00:19:57] Speaker 06: And then 10 seconds later, he leaves. [00:20:00] Speaker 06: How is that submission? [00:20:01] Speaker 01: Submission can be brief as Brody says, but we can't ignore what is happening during that time. [00:20:11] Speaker 01: And during that time, Mr. Mabry is being accosted by the police, borderline harassed by the police. [00:20:18] Speaker 01: And we can't divorce this from what has already happened at that scene. [00:20:23] Speaker 01: Someone else has been forcibly stopped. [00:20:26] Speaker 01: Someone else has been [00:20:27] Speaker 01: pat it down while holding their hands up. [00:20:29] Speaker 01: The officers have descended in force. [00:20:33] Speaker 01: This is not a casual encounter. [00:20:35] Speaker 01: This is very targeted and direct. [00:20:38] Speaker 01: And there is an expectation. [00:20:40] Speaker 01: The officers are expressing, with all of their behavior, they are expressing an expectation of compliance. [00:20:47] Speaker 01: And by remaining there, Mr. Mabry is giving compliance implicit in the commands that the officer [00:20:57] Speaker 01: Officer is making implicit in the command, let me see your satchel is the directive. [00:21:03] Speaker 01: You're not free to go until I see your satchel. [00:21:06] Speaker 06: He does- No, I agree. [00:21:06] Speaker 06: I definitely get that. [00:21:08] Speaker 06: That's why I say I have no problem on the show of authority. [00:21:10] Speaker 06: I think when he says that at the very latest, that is the moment of a show of authority for sure. [00:21:17] Speaker 06: Because that's not a may I please, that's a let me see. [00:21:20] Speaker 01: So I agree with you on that. [00:21:22] Speaker 01: And during that time, Mr. Mabry is pleading with him not to [00:21:26] Speaker 01: show the satchel and that is compliance because he is not fleeing at that time. [00:21:33] Speaker 01: He doesn't have to, again, if this is consensual, Mr. Mabry doesn't have to stay there for one second, for half a second. [00:21:41] Speaker 01: He can immediately walk away, but he is staying because there's been a show of authority and implicit in that is remain here until, and Mr. Mabry is resisting that until he does leave. [00:21:56] Speaker 01: but that brief compliance is nonetheless compliance. [00:22:00] Speaker 06: Okay. [00:22:01] Speaker 06: Thank you, Mr. Axel. [00:22:02] Speaker 01: Thank you. [00:22:04] Speaker 04: Thank you. [00:22:05] Speaker 04: We'll hear from the government. [00:22:12] Speaker 06: I can't hear you. [00:22:17] Speaker 02: Good morning. [00:22:19] Speaker 02: May it please the court. [00:22:20] Speaker 02: My name is Nick Coleman representing the United States. [00:22:23] Speaker 02: I'd like to begin, it seems to me that Pellant is sort of asserting a seizure at either of one of two moments. [00:22:36] Speaker 02: One is when a Pellant is initially approached by Officer Volson and shows his waste. [00:22:42] Speaker 02: The second, of course, is when Officer Volson asks to see the satchel. [00:22:48] Speaker 02: With respect to the first alleged show of authority, we submit that that isn't, that Judge Friedman certainly did not err in concluding that it was not a show of authority. [00:23:02] Speaker 02: Officer Volson approached appellant and his companion. [00:23:06] Speaker 06: Can I just check with you Mr. Coleman? [00:23:08] Speaker 06: That conclusion, is that a fact or a law? [00:23:12] Speaker 06: conclusion, because that make others. [00:23:15] Speaker 02: So obviously, whether there was a show of authority is a legal conclusion. [00:23:20] Speaker 02: OK, Your Honor. [00:23:22] Speaker 02: Some of obviously, as I'll get to some of the factual findings that Judge Friedman makes, however, are very significant. [00:23:32] Speaker 02: With respect to that initial approach, Officer Voltson walks up to appellant and his and appellant's immediate companion, who we've called the second man, [00:23:43] Speaker 02: alone. [00:23:44] Speaker 02: The other two officers have approached across the street the third man. [00:23:48] Speaker 02: So Officer Volson at that point is certainly not surrounding Appellant. [00:23:53] Speaker 02: And I disagree with Appellant's characterization of what Appellant's position was at that point that he was somehow blocked or impeded. [00:24:03] Speaker 02: The fence that he's against is pretty low fence. [00:24:07] Speaker 02: He's at a corner. [00:24:08] Speaker 02: He certainly can go, he's not blocked to his left and he's not blocked behind him. [00:24:14] Speaker 02: Obviously, I suppose if he went in front, Officer Volson's there, and if he went to his right, the other officers are there, but he's certainly not being blocked or sort of kept up against a fence. [00:24:24] Speaker 02: I don't think that's a fair characterization of what was happening at that moment. [00:24:29] Speaker 02: As for the pat down of the second man, [00:24:33] Speaker 02: Judge Friedman, we submit, did not err, and certainly didn't clearly err in concluding that that was, in fact, a consensual pat down. [00:24:42] Speaker 04: If you listen to the tone of voice. [00:24:45] Speaker 04: Isn't the point that, from the defendant's point of view, he saw two of his friends stopped and patted down by the police, and a reasonable person would conclude from that that they're not, that that's a show of authority. [00:25:03] Speaker 04: that that's what he saw. [00:25:05] Speaker 02: So Judge Friedman certainly considered that argument, Your Honor, and I think correctly rejected it because I think you have to take a look at sort of what actually happened, particularly with respect to the second man, who is the one who's right next to appellant. [00:25:21] Speaker 02: That second man isn't just subjected to a pat down without being asked. [00:25:27] Speaker 02: He's not ordered to be patted down. [00:25:30] Speaker 02: He's asked. [00:25:32] Speaker 02: And if you listen to Officer Volson's tone of voice, since we have that audio on the body worn camera footage, I think that tone of voice errs out Judge Freeman's finding on that point. [00:25:43] Speaker 02: It's a fully, it's a consensual request. [00:25:46] Speaker 02: And I think as the Supreme Court held in Drayton, [00:25:52] Speaker 02: It's not reasonable for a person to assume that simply because the people that he's with, some of them get patted down. [00:25:58] Speaker 02: In Drayton, I think he even said somebody was arrested. [00:26:01] Speaker 02: That doesn't necessarily mean that a parent or everybody there is being seized or won't be allowed to leave without submitting to a pat down. [00:26:09] Speaker 02: In fact, if anything, the fact that Officer Bolson asks, [00:26:13] Speaker 02: and certainly in a tone of voice that isn't a command indicates that the second man had the option of saying no. [00:26:21] Speaker 02: Now, I think one of the interesting points that appellant is making is that somehow, because the second man raises his hands up as officer Volson approaches, and then appellant shows his waistband, [00:26:35] Speaker 02: that that was submission. [00:26:37] Speaker 04: But what about, let me see your satchel, which he says at least five times. [00:26:43] Speaker 02: All right. [00:26:44] Speaker 02: So I think at that, again, that's the second alleged show of authority. [00:26:51] Speaker 02: And the reason why I think the initial approach is important is because if there has been no show of authority up to that point, [00:26:59] Speaker 02: then at most what we have, and certainly Judge Friedman concluded that that was not a show of authority, that it was a request. [00:27:07] Speaker 02: And that was a factual finding that it was a request. [00:27:09] Speaker 02: But even if this court were to disagree with that. [00:27:12] Speaker 06: I'm sorry. [00:27:13] Speaker 06: We have the exact same words that Judge Friedman has. [00:27:16] Speaker 06: Are you talking about the, let me show me your satchel? [00:27:19] Speaker 06: Let me see your satchel. [00:27:20] Speaker 02: Let me see your satchel. [00:27:21] Speaker 02: Yes. [00:27:22] Speaker 02: Judge Friedman did conclude that that was a request and not a command. [00:27:26] Speaker 03: This is his word question. [00:27:28] Speaker 03: I'm sorry, Your Honor. [00:27:28] Speaker 03: Didn't he say that was a question? [00:27:30] Speaker 02: Right, a question. [00:27:31] Speaker 02: But again, a question is different from a command. [00:27:33] Speaker 03: It could not reasonably be characterized as a question. [00:27:39] Speaker 03: I understand that you want to characterize it as a request, and maybe so. [00:27:44] Speaker 03: But it's certainly not a question. [00:27:47] Speaker 02: So again, I think that what Judge Freeman was trying to say was he did not interpret it as a command. [00:27:55] Speaker 02: even if this court were to disagree with that assessment, the question is, even if it was a show of authority, there still has to be a submission for there to have been a seizure. [00:28:04] Speaker 02: Appellant certainly does not submit to that. [00:28:06] Speaker 06: Mr. Exum's argument is that staying around is the submission. [00:28:13] Speaker 02: So I think that is starting to parse things too finely. [00:28:17] Speaker 02: If the request from the officer is, [00:28:20] Speaker 02: even if it's a command, let me see your satchel. [00:28:22] Speaker 02: And the appellant basically says, no, I'm not going to show it to you. [00:28:26] Speaker 02: I'm going to leave. [00:28:28] Speaker 02: The officer may repeat it. [00:28:30] Speaker 02: But there isn't an implicit [00:28:32] Speaker 02: man there that I see, you have to stay put that such that we can say that if appellant stays put for a second or two as he does, that he's somehow submitted to a separate show of authority. [00:28:43] Speaker 02: The show of authority, if there is one at all, is let me see your satchel. [00:28:48] Speaker 02: Appellant clearly says, uh-uh. [00:28:51] Speaker 02: And with respect to the Judge Friedman's [00:28:55] Speaker 02: know, conclusion that appellant was trying to blade his body or turn it away. [00:28:59] Speaker 02: I don't think that that was that Judge Friedman found that sort of some sort of service to reasonable suspicion. [00:29:07] Speaker 02: What he's saying is it's further proof that appellant is not submitting. [00:29:11] Speaker 02: He is not showing that satchel. [00:29:15] Speaker 02: So even if this court were [00:29:18] Speaker 02: to have a concern with Judge Friedman's conclusion that the repeated requests to see the satchel worry show authority, there's no submission to that show of authority. [00:29:28] Speaker 04: But he didn't leave at that point. [00:29:33] Speaker 02: I'm sorry? [00:29:34] Speaker 04: He didn't leave at that point. [00:29:36] Speaker 04: So again, he didn't leave. [00:29:40] Speaker 04: In that sense, it's like Delaney, where the defendant just sat in the car and didn't leave, and that was considered submission. [00:29:48] Speaker 02: So I think Delaney is a very different, I'm sorry. [00:29:54] Speaker 02: I think Delaney was a very different case, Your Honor, for the simple reason that in that instance, the defendant was inside a vehicle. [00:30:05] Speaker 02: He's parked. [00:30:07] Speaker 02: And as this court found or ruled, the police officers positioned their vehicle in such a way that it was extremely difficult, if at all possible, for the defendant to be able to move his vehicle and go around the officer. [00:30:24] Speaker 02: So in other words, to be able to leave in his vehicle [00:30:27] Speaker 02: had to make several turns. [00:30:28] Speaker 02: And at the same time, the officers used a takedown light. [00:30:32] Speaker 02: And a takedown light, we submit, is a much different thing from a flashlight. [00:30:37] Speaker 02: A takedown light is designed essentially to render the driver of a vehicle or whoever the search light is being pointed at from being able to see very well. [00:30:48] Speaker 02: So that, of course, if you're in a vehicle, your park, the officers put their vehicle in a way that it's almost impossible for you to get around. [00:30:56] Speaker 02: And then they shine a very bright light in your face. [00:31:00] Speaker 02: Yeah, you're not really going to be able to move. [00:31:02] Speaker 02: It's going to be very difficult to get out. [00:31:03] Speaker 02: That isn't what happens here. [00:31:06] Speaker 02: And I disagree with the penalty characterization of the use of the flashlight as being some sort of nonverbal command. [00:31:13] Speaker 02: The flashlight, again, it's designed to be able to [00:31:17] Speaker 02: see where you can't because it's dark. [00:31:21] Speaker 02: Certainly the officer never shines the flashlight in Appellant's face in a way that would sort of impede Appellant's ability to see what was going on around him and thus to get out of the way. [00:31:32] Speaker 06: Can you see, so now I can't remember from the video, but can you see from the video, maybe Mr. Axman can answer this also on rebuttal, whether he sort of waved the flashlight in a direction indicating [00:31:45] Speaker 06: you know, lift your shirt? [00:31:49] Speaker 06: I don't see that, Your Honor. [00:31:51] Speaker 02: I don't see that. [00:31:52] Speaker 02: And again, I'd have to go back and check. [00:31:55] Speaker 02: But I don't think that Judge Fremont was asked to make a finding that the flashlight was used in such a way or waved around in such a way that it was a nonverbal command. [00:32:07] Speaker 02: Appellant lifts his shirt and he does it repeatedly, but I think the better interpretation of that is, yes, he wanted to essentially sort of show the officer, hey, look, I don't have anything. [00:32:20] Speaker 04: Isn't that the interpretation of that? [00:32:25] Speaker 04: Because he wanted to leave and he was showing him that he had nothing under his shirt in order to get the officers to let him leave. [00:32:36] Speaker 04: So in other words, [00:32:38] Speaker 04: it demonstrates his, according to the defendant's argument, demonstrates his submission. [00:32:42] Speaker 04: He had submitted, he was not leaving, he was raising his shirt in order to convince the officers to let him leave. [00:32:51] Speaker 02: So, Your Honor, what I'd submit here is, again, in order for submission to amount to a seizure, there has to be a show of authority. [00:32:59] Speaker 04: No, no, we're assuming there has been a show of authority. [00:33:03] Speaker 04: I agree with you. [00:33:04] Speaker 04: I kind of see the case the way Judge Garland does. [00:33:08] Speaker 04: I think there is a show of authority here. [00:33:11] Speaker 04: The tricky question is this issue of submission. [00:33:13] Speaker 04: So just assume for a minute that I think there's a show of authority. [00:33:17] Speaker 04: Why isn't his constant raising of his shirt evidence of his submission? [00:33:24] Speaker 04: That is, he raised it because he wanted them to let him go. [00:33:27] Speaker 02: So I think he wanted to use it to see if he could get the officers to go away. [00:33:31] Speaker 02: But I don't think that that means that he's trying to leave. [00:33:34] Speaker 02: There's no indication here that appellant doesn't think he's able to leave. [00:33:38] Speaker 02: In fact, he tells the officer, I'm going to leave. [00:33:40] Speaker 02: You have nothing on me. [00:33:42] Speaker 02: And so again, I don't think that his constant raising of his shirt, which the officer never asks him to do, [00:33:49] Speaker 02: It never says, lift your shirt, show me your waistband. [00:33:53] Speaker 02: He doesn't do that. [00:33:54] Speaker 02: Appellant chooses to do that. [00:33:55] Speaker 02: Just as the second man who's with him, he's never told, put your hands in the air. [00:33:59] Speaker 02: He just does that. [00:34:01] Speaker 02: And that doesn't now render what would otherwise be. [00:34:05] Speaker 02: Officers are entitled, and the Supreme Court's been very clear, this court's been very clear. [00:34:09] Speaker 02: Officers can approach citizens on a sidewalk. [00:34:13] Speaker 02: They can do that. [00:34:13] Speaker 02: They can approach them, they can ask them questions. [00:34:15] Speaker 02: And the fact that the person whom they approach [00:34:20] Speaker 02: decides to do things like lift his hands or in the air or show his waistband doesn't now turn what would otherwise be a consensual encounter into a non-consensual one. [00:34:31] Speaker 02: Again, it takes two to tango here. [00:34:34] Speaker 02: And I don't think that the unilateral act of the person on the sidewalk renders what would otherwise be a consensual encounter to a non-consensual one. [00:34:46] Speaker 02: If there is a show. [00:34:47] Speaker 04: I just have a technical question. [00:34:50] Speaker 04: What do we do with the fact that, so for the second and third times when he raised his shirt, the audio was on then and we know what the officer said. [00:34:59] Speaker 04: We don't know what the officer said the first time, right? [00:35:02] Speaker 04: Because the officer hadn't turned on the audio at that point. [00:35:05] Speaker 02: I think that's correct, but certainly there's no evidence in the record that he commanded anyone to show me your waistband. [00:35:13] Speaker 04: There's no evidence in the record. [00:35:14] Speaker 04: My point is we have no idea what the officer said at that point because the audio wasn't turned on. [00:35:19] Speaker 04: So how do we think about that? [00:35:23] Speaker 02: So the burden is on appellant to show that he was in fact seized. [00:35:28] Speaker 04: But how can the defendant, unless the defendant has turned on his [00:35:34] Speaker 04: his phone to record, do the police have an obligation to turn on the audio? [00:35:42] Speaker 04: How does that work? [00:35:43] Speaker 04: Could you just explain it to me? [00:35:45] Speaker 04: What is their obligation? [00:35:46] Speaker 04: Well, let me ask you this. [00:35:48] Speaker 04: Is the video on all the time or do they have to turn that on too? [00:35:51] Speaker 02: My understanding, Your Honor, and again, since I don't, I haven't practiced in the trial sections for a while. [00:36:00] Speaker 02: My understanding, Your Honor, is that the video is always on. [00:36:05] Speaker 02: The officers in order to, but in order for it to be recorded, they have to hit a button, which will then actually record the data and sort of save it. [00:36:17] Speaker 02: And then the audio only turns on after a certain amount of time. [00:36:21] Speaker 02: I think that has to do with there are data storage issues when you have sort of that many people with cameras. [00:36:29] Speaker 04: Yeah, I understand that. [00:36:30] Speaker 04: But should this officer turn on his audio before he encountered the defendant? [00:36:37] Speaker 02: So I think he did, Your Honor. [00:36:40] Speaker 02: The problem is that he hits the button as they pull up. [00:36:42] Speaker 02: But it's that the audio doesn't turn on. [00:36:45] Speaker 02: There's a lag. [00:36:47] Speaker 02: There is a time lag. [00:36:48] Speaker 02: Although the video gets saved, [00:36:50] Speaker 02: The video feed gets saved before the audio feeds begins to get saved. [00:36:55] Speaker 02: That's my understanding of how it works. [00:36:58] Speaker 04: So he didn't hit the button between the first encounter and the first shirt encounter and the second one. [00:37:05] Speaker 04: It just came on at that point. [00:37:07] Speaker 02: I think right. [00:37:08] Speaker 02: I believe he hit his button before they even got out of the car. [00:37:14] Speaker 02: That's my understanding. [00:37:16] Speaker 02: So, but the problem is that even if he hits his button at that point, there's going to be a lag in the audio. [00:37:23] Speaker 03: Oh, that's 30 seconds. [00:37:25] Speaker 02: Right. [00:37:26] Speaker 02: So because and that, you know, unfortunately, of course, that means that not everything gets, gets recorded. [00:37:32] Speaker 02: But after all, I, you know, in terms of going back to the question of what could, you know, how is the defendant supposed to be able to prove otherwise, [00:37:40] Speaker 02: Well, it's kind of how like everybody had to prove these things before there was body worn camera footage or in a case where there isn't video. [00:37:47] Speaker 02: it's done by testimony. [00:37:49] Speaker 02: And the judge hears the testimony and draws conclusions based on as to whether he credits testimony and makes factual findings. [00:37:56] Speaker 02: Now, in this case, my understanding is that appellant did not seek to introduce any testimony as to whether or not Officer Volson commanded him to show his waistband or not during that brief period of time. [00:38:10] Speaker 02: But again, that's just the evidence that was presented to Judge Friedman. [00:38:16] Speaker 02: And he didn't clearly err in finding that the lifting of the waistbands or the raising of the hands by the second man was not in response to a command. [00:38:28] Speaker 02: There certainly isn't clear error here as to that point. [00:38:32] Speaker 02: So again, if going back to the point that I made at the beginning, [00:38:38] Speaker 02: We sort of have two separate questions here. [00:38:40] Speaker 02: The first is when Officer Volson approaches appellant and during that initial, he consensually pats down the second man and he's talking to appellant and appellant is showing his waistband. [00:38:50] Speaker 02: Was that a show of authority such that we have submission and a seizure? [00:38:56] Speaker 02: Second, when Officer Volson repeatedly asked to see the satchel, was that a show of authority first and was there submission? [00:39:05] Speaker 02: And I think certainly what is clear on this record, we submit, is that there certainly wasn't any submission to any show of authority with respect to the satchel. [00:39:18] Speaker 02: And without those two findings or without those two sort of pieces of the puzzle, we don't have a seizure. [00:39:27] Speaker 02: And when appellant runs and then discards the satchel, there are no grounds here for suppression of the evidence. [00:39:36] Speaker 02: If there are no further questions, we respectfully submit that the judgment should be a firm. [00:39:43] Speaker 04: Okay. [00:39:43] Speaker 04: Thank you. [00:39:45] Speaker 04: Um, Mr. Jackson, you were out of time, but you can take one minute. [00:39:49] Speaker 01: Thank you, your honor. [00:39:50] Speaker 01: Um, I, I, well, with regard to the body worn cameras, I believe that officer Goss testified and, uh, it's my understanding that [00:40:02] Speaker 01: Officers, according to NPD regulations, are supposed to turn on their body-worn cameras before an encounter occurs. [00:40:09] Speaker 01: And as you can see, that did not occur here. [00:40:12] Speaker 01: But what happens is... Well, is that because there was a delay when the audio came on? [00:40:16] Speaker 01: Well, what happens when they press the button, the last two minutes are recorded. [00:40:21] Speaker 01: The previous two minutes, because the recorder is always running, the previous two minutes are recorded without sound. [00:40:29] Speaker 01: So if you look at Officer Bolson's [00:40:32] Speaker 01: you'll see at two minutes, you start to hear the sound. [00:40:37] Speaker 01: But you can see video from before the two minutes, from before the sound starts. [00:40:44] Speaker 01: So it's a two minute video with no sound. [00:40:48] Speaker 01: And then when they press the button, when they hit it, the sound starts. [00:40:53] Speaker 01: That is recording with sound. [00:40:55] Speaker 01: So if the officers chose not to press their recorders when they got out the car, which, [00:41:02] Speaker 01: appears to have happened here, you only get it once, you only get sound once they press record. [00:41:08] Speaker 03: I think that's correct at JA 81, Mr. Axum, that says just that. [00:41:14] Speaker 01: Yes. [00:41:14] Speaker 01: Thank you, your honor. [00:41:16] Speaker 01: The burden to show the seizure is on us, but what I'm, what we have submitted is that the use of the flashlight is a nonverbal command. [00:41:24] Speaker 01: Like Mr. Maywee wasn't standing on the street and just [00:41:28] Speaker 01: flipping his clothes up and down, if the officers had truly walked up in a casual fashion to say, hey, what's going on? [00:41:36] Speaker 01: How's it going? [00:41:37] Speaker 01: I find it very hard to believe that Mr. Magri would have just lifted his clothes. [00:41:42] Speaker 01: But here you have an added factor. [00:41:45] Speaker 01: You have the flashlight being directed at his waist. [00:41:48] Speaker 01: And it's not directed at his waist once, twice, it's directed at his waist three times. [00:41:53] Speaker 01: And every single time in that video that it's directed at his waist, he lifts his clothes. [00:41:58] Speaker 01: he is, there's only one inference to be drawn from that. [00:42:03] Speaker 01: And that is at the initial point when he gets out and the officer shines at his waist, he is indicating, show me your waist. [00:42:14] Speaker 01: The last thing that I want to say about. [00:42:21] Speaker 01: the point at which the officer is actually making commands and Mr. Mabry says, come on, I'm gonna leave because I don't have anything on me and I'm gonna leave. [00:42:29] Speaker 01: And the officer commands satchel, satch. [00:42:32] Speaker 01: If we believe that up until that point, the entire encounter is consensual, when Mr. Mabry is saying, I don't want to show you my satchel and I'm going to leave, he is withdrawing consent. [00:42:46] Speaker 01: And when the officer continues to insist, that is seizure. [00:42:51] Speaker 01: that is seizure as Mr. Maybe remains there saying, I don't want to be involved with this, but I am remaining because implicit in your commands is that I must remain to negotiate my way out of this because I've already seen someone else's stop. [00:43:06] Speaker 01: Just as the government said, he wanted to get the officers to go away. [00:43:10] Speaker 01: He wanted to get the officers to go away is correct because he did not feel free to leave and he was being talked about. [00:43:17] Speaker 04: Thank you. [00:43:18] Speaker 04: Okay, thank you. [00:43:19] Speaker 04: Mr. Maxson, Mr. [00:43:20] Speaker 04: Coleman, thank you both the case is submitted.