[00:00:00] Speaker 03:
Faith number 20-3034, United States of America versus Chauncey Allen Jones of Belant.

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Mr. Lohler for the Belant, Mr. Hobel for the Epolyn.

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Good morning.

[00:00:15] Speaker 01:
Good morning, Your Honor.

[00:00:16] Speaker 00:
And is it Lawler?

[00:00:18] Speaker 01:
Lawler is correct, Your Honor, yes.

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All right, Mr. Lawler, you may proceed when you're ready.

[00:00:23] Speaker 01:
Thank you, Your Honor.

[00:00:24] Speaker 01:
Your Honor, in this case, we believe that the police lacked reasonable, articulable suspicion to stop and detain Mr. Jones shortly after hearing a call for shots fired.

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We believe that because the police lacked reasonable, articulable suspicion, the lower court should have granted Mr. Jones' motion to suppress the evidence retrieved from that stop and that his conviction should be reversed.

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In this case, your honor, although the government, as we said in our reply brief, teases out a number of what we submit are innocuous facts, we believe that the only relevant facts here that the police possessed at the time they encountered and ultimately stopped Mr. Jones were a call for shots fired and Mr. Jones being in the vicinity of the call for shots fired.

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There's sort of a vigorous debate about whether or not he was walking swiftly or walking at a normal gait, if you will.

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But we submit that even that fact, as the government contends that he was walking swiftly, still does not give rise to reasonable, articulable suspicion in this case.

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Well, it's not just the government's contention.

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It's the district court's finding.

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It is, Your Honor.

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As I indicated, I think this is a case where the body worn camera is in evidence, it's part of the record, it speaks for itself, and I certainly submit, notwithstanding as I said, sort of an appellate standard of review that, you know, when you have an

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something that the court here itself can can review and make a decision on that it's not subject to interpretation.

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I think in Fourth Amendment land we tend to use

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particular verbiage, walking briskly, blading, furtive gesturing, that are subject to some interpretation.

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But be that as it may, even if the court finds that it is sort of hands are tied, if you will, by the lower court's finding, we still don't believe that that fact, walking swiftly,

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near an area where shots were fired gives rise to a reasonable, articulable suspicion that Mr. Jones is the person who committed the crime.

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We don't doubt, as we said below and as we've indicated here, number one, that shots were fired.

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The government, again, there's some debate about how proximate the science is in terms of pinpointing exactly where those shots were fired.

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But as I indicated again, if the court is satisfied, number one, that shots were fired, which it should be, there's no debate about that.

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And number two, that there's a proximate block that where those shots came from.

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We don't have any debate about that.

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And again, if you look at officer turn.

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So you're down to one block and the officers arrive one to two minutes after the shots are fired.

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and it's late at night, so there are few, if any, people on the street and Jones is on the street.

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Correct.

[00:03:46] Speaker 01:
I agree with all that.

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Do you have any case on those facts that doesn't find reasonable suspicion?

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Well, Your Honor, as we indicated, a lot of these facts we believe are completely innocuous and don't

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you know, facts get cited in cases as being relevant to a particular determination.

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It is late at night, but we don't believe that that fact is particularly germane.

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Again, shots were fired and certainly is late at night.

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If there were 100 people on the street, maybe it wouldn't tell you very much that Jones was on the street.

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And I'm certainly not.

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I'm certainly not saying that Jones presence in the area isn't of some value.

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Of course it is.

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And the fact that no one else is there is of some value.

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But when you look at the totality of the facts, does this give rise to a reasonable articulable suspicion that Mr. Jones is the person who fired the shots?

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And that's where we believe that it does not.

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We obviously are relying heavily on Delaney.

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But if you look at Officer Turner's testimony, what she indicates is that

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They heard the shots fired.

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They went to the place where they believe the shots were fired.

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They found Jones proximate to the location, but not at the specific location.

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And what they say to your honor is that he's walking swiftly.

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That's when they first see him.

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So I do believe that this is a circumstance where you're taking an innocuous fact and trying to make it look as if it is somehow indicative of evidence of a crime.

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But when the officer first observes

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Mr. Jones, she says that he's walking briskly so we never there's no change in his gate.

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And so this is one of those instances where we believe the government is taking an innocuous fact, the speed at which Mr. Jones walks.

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and turning it into something that it is not, which is evidence that Mr. Jones committed a crime because the circumstance that would make that suspicious is if his gate changed, the speed of his gate, i.e.

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I see the police and I begin to walk more quickly.

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What we have here is the static speed, if you will.

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Mr. Jones is walking at a particular speed.

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Again, you know, briskly, we believe is somewhat of a term of art and a loaded term and the court can observe Mr. Jones' gate

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for itself.

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What about, Mr. Lawler, the fact that Mr. Jones does not promptly respond when Officer Turner calls out to him repeatedly?

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And you point out, well, he's wearing headphones.

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And the district judge acknowledged, and Officer Turner acknowledged, that actually she pretty quickly, when he turned and took them out, realized that he was wearing headphones.

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But the point that your brief doesn't really contend with

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is that it was reasonable for her initially, because he was wearing a hood, to not necessarily assume that he was listening to headphones, but to feel like he was not responding to her.

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So that was a, you know, it's like a speeding up fact to have someone walking and ignoring a police officer calling.

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Right, but I think again, when we're looking at the totality of the facts,

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I don't think we should just look at them in a vacuum to determine whether or not they are in fact suspicious.

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Here, what may have seemed suspicious initially ultimately is not because it is determined that he is wearing headphones and he does take them out, which would lead any reasonable person to conclude I suggest that he couldn't hear because he was listening to music.

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Well, what's your position on exactly when the Terry stop occurred?

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Well, we think the Terry stop occurred when the officer is yelling out stop.

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He hears takes the headphones out and complies.

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You know, the officer indicated that, you know, from jump when they first observed him, their intention was and they did stop him.

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The officer concedes that she

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intended to conduct a stop here, an investigatory stop, and this was not a request.

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This was not a maya.

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Her intent doesn't matter, does it?

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Under Wren, the officer's intent and the fact that she said, I'm planning to stop this dude, doesn't actually bear either way on whether it's a stop as opposed to, as you say, consensual questioning.

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I think it's whether or not a reasonable person would believe that they're not free to leave, that they are being stopped.

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I don't think the government argued below, nor in their moving papers here, that this was something less than a Terry stop.

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No, but my point is just that you did rely on the notion that she had formed a decision to stop

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this individual before the observations, before he was, for example, unresponsive to her calling out.

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But that's neither here nor there, isn't it?

[00:09:06] Speaker 01:
Well, to me, Your Honor, the facts that are obtained by the police are on a moving scale.

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They're gathering more information as time goes on.

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And so their intention

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is relevant to show that it was a stop because whether or not I intend to stop someone I believe is relevant to the ultimate inquiry about whether or not you know they thought they were being stopped and then obviously the language used here is stop.

[00:09:37] Speaker 01:
uh so it's not you know it's not a debatable proposition that mr jones believed he was being stopped obviously then he's being surrounded by the officers so we believe that you know when she first says stop to him and he complies and takes the headphones out that's when we have a fourth amendment event and at that point in time we submit your honor that you know the police are in in in view of only

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only two relevant facts.

[00:10:02] Speaker 01:
Shots are fired and Mr. Jones is present proximate to the location of those shots, which Delaney says is not enough, that the presence in the area of a crime is not evidence that you're the person who committed the crime.

[00:10:20] Speaker 01:
I see that I'm coming up on my time.

[00:10:22] Speaker 02:
Excuse me, when you refer to the area, the shot fire device

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was more precise than that wasn't it.

[00:10:34] Speaker 01:
Your honor, as I said, I think we're prepared to concede that this was

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in a fairly precise location and Mr. Jones was proximate to that location exactly how proximate I think is a little unclear.

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I think the officer said perhaps half a block or a block away by the time they pulled up 60 or 90 seconds had elapsed from the time of the shots to the time.

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What was the district court's finding?

[00:11:06] Speaker 01:
I think the district court's finding was that it was at a particular block.

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That's what I thought.

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I'm confusing the cross streets, but 1300 Trenton Street.

[00:11:18] Speaker 01:
There's obviously, again, a block is not a specific

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longitude and latitude at a particular point, it's somewhat of an area.

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But I don't think that that's particularly germane.

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We're prepared to concede, of course, that the police had reason to investigate a crime at a general, fairly specific area where the crime had occurred.

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Certainly saw Mr. Jones proximate to that location.

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Again,

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60 or 90 seconds had elapsed and he wasn't at that precise spot where they believe the shots were fired at the time they pulled up.

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He was about half a block away, but his presence near where crimes certainly had occurred, we submit is not sufficient to support anything than a suggested consensual encounter as opposed to what happened here, which was a Fourth Amendment event.

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Let's see, I only have about one minute left for rebuttal and I'd like to reserve that with the court's permission.

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Could the police have stopped him on the theory that even if they didn't know or have suspicion that he was the shooter, he might have been a witness?

[00:12:36] Speaker 01:
Well, again, I don't think they could have made a request.

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Could they have done a Terry stop on that theory just to

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Question him, hey, we heard about shots.

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Did you see anything?

[00:12:51] Speaker 01:
I don't believe so, Your Honor.

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I don't believe they could have stopped him under the guise of a Fourth Amendment stop, anything above, as I said, a consensual encounter.

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We submit violates the Fourth Amendment and Terry here.

[00:13:06] Speaker 04:
Because Terry doesn't extend to witnesses or because there wasn't reasonable suspicion on these facts that he might be a witness?

[00:13:16] Speaker 01:
I think, well, more the latter than the former, Your Honor, for the same reasons we believe that it was improper for them to stop him as a suspect, we submit that it would have been improper to stop him as a witness.

[00:13:34] Speaker 01:
Understand, thanks.

[00:13:35] Speaker 01:
Thank you.

[00:13:41] Speaker 01:
I believe that that is my time, Your Honor.

[00:13:42] Speaker 01:
I've sort of lost track of the time we're here, but I'll submit for rebuttal at this point.

[00:13:47] Speaker 00:
We'll give you some time for rebuttal if you'd like it.

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You don't need to take it, but we'll give you a minute or two.

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Mr. Hobel?

[00:13:55] Speaker 03:
Good morning.

[00:13:56] Speaker 03:
Good morning.

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May it please the court.

[00:13:57] Speaker 00:
Is it Hobel or Hobel?

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Hobel.

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Hobel.

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Thank you, Your Honor.

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May it please the court, Mark Hobel for the United States.

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The police had reasonable articulable suspicion to stop and question the defendant, who was the only person

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seen leaving the immediate area, the precise location where four gunshots had just been fired.

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Now the defendant is not disputing that gunshots were fired.

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And he's not disputing that the police had a precise location they were directed to by shots fired.

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And I'd like to focus on the four key factors that together with rational inferences drawn from those facts provided police with reasonable articulable suspicion to believe that the defendant was involved in the shooting.

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And I just note here, subjective intent is irrelevant under RET.

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We're talking an objective inquiry for reasonable or takeable suspicion.

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The four key factors are briefly, first, the specific location, which the defendant has now conceded was a precise block that shot, spotted, directed the officers to.

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Second, the near immediate arrival on that block of police after the shooting.

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Third,

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the fact that the defendant was the only person seen outside on that block when police arrived, and fourth, the fact that he was walking, leaving the scene quickly when they arrived.

[00:15:18] Speaker 02:
Let me stop you and ask a question about that.

[00:15:23] Speaker 02:
The district judge found that he was moving away quickly, right?

[00:15:29] Speaker 02:
Yes, Your Honor.

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Now, counsel says we should look at the recording

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and make our own judgment as to whether he was walking away quickly or not.

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Is that correct or are we bound by the factual determination by the district judge unless we conclude it was a demonstrable error?

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That's right.

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This court is bound unless it can conclude that there was clear error in that finding.

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And there's no basis for this court to find clear error in the district court's finding that the defendant was walking at a fast pace.

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I think the most important thing here is that the defendant stipulated to that fact at the trial that he was walking away at a fast pace when police first arrived.

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it's very difficult to find, it's probably impossible to find clear error with the defendant as in fact admitted that disputed fact at trial.

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I'd also- Well, I have two questions.

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One, what about Scott versus Harris in which the Supreme Court said, we can look at the video and we could make a determination and we can overcome any determination on the district court's part that a reasonable jury could disagree in looking at the video?

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Well, I think first, as to the clear error standard, this court can look at the video to determine whether there was clear error and see that, in fact, Officer Turner was hurrying after, basically running after the defendant on the block.

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So that is some evidentiary support for the district court's finding.

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And second, in terms of where the video shows the defendant,

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That's after he has turned the coroner onto Trent in place.

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That's not where they first see him.

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So there isn't any video of him to dispute the testimony of Officer Turner.

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And with respect to the walking away, the key inference here, I understand the defendant is disputing and saying this is not, even if he was walking fast, this isn't a factor that leads to reasonable suspicion.

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It's a common sense inference from human behavior that whoever was involved in that shooting the shooter would be trying to leave the scene quickly and would not be trying not to attract undue attention.

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So it's consistent and just a rational inference to see somebody walking quickly away and think they might have been involved.

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It's a reasonable inference to draw as to, Judge Pillard, your point.

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Officer Turner wasn't sure whether he was wearing headphones.

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It was a possibility, but it was also a little bit odd that he wasn't responding to her calls for attention.

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And that's a factor that also contributes to reasonable articulable suspicion here.

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And she's not required to rule out the innocent possibilities.

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Council, let me ask you a question.

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Suppose the defendant was standing on the street

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smoking a cigarette or sitting down and was the only person on the street, would there be articulate, damn, I can never pronounce it, suspicion adequate to stop?

[00:18:43] Speaker 03:
I think that would be a closer case because it does take that a certain factor.

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I know it's closer, what's your answer?

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I think the answer would be,

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Yes, here, but acknowledging that's a little bit more challenging because you still have a specific the key factors a specific precise block where gunshots have just been detected.

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arrival within 60 to 90 seconds of the shots.

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And here is the only person outside on this block in a residential neighborhood where you'd expect residents to be inside at 11, I guess, 15 PM standing out there.

[00:19:24] Speaker 02:
It's a little- Wait a minute, wait a minute, wait a minute.

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Secondhand smoke.

[00:19:28] Speaker 03:
Yeah, excuse me.

[00:19:30] Speaker 02:
What about the possibility of the shot came from one of the buildings inside?

[00:19:35] Speaker 03:
It's certainly a possibility, but the police weren't required to rule out all alternative possibilities before taking action under Terry.

[00:19:45] Speaker 03:
I note that the fact that neighbors called in to report these gunshots makes it more likely that the gunshots were coming from outside because you had neighbors on either side of the 3500 block of 13th place Southeast who heard these gunshots.

[00:20:01] Speaker 00:
So they didn't follow that I know you made that argument and, for example, if somebody were.

[00:20:08] Speaker 00:
leaning out a window, shooting, and then pulling their head back in and closing the window, neighbors would just as likely have called in, or even if the shot took place inside a residence, if people can hear it, I guess that's the, is that the hypothetical you're responding to, that it would be more muffled and therefore people on either side wouldn't have heard it and therefore wouldn't have called in?

[00:20:32] Speaker 03:
Right, your honor.

[00:20:32] Speaker 03:
Yes, your honor.

[00:20:34] Speaker 00:
So you're not responding to the scenario in which somebody leaned out a window and shot someone out of doors.

[00:20:41] Speaker 03:
That's right.

[00:20:42] Speaker 03:
And I think if somebody is leaning out a window and firing a gun out the window, I guess it would have the same effect for the neighbors.

[00:20:51] Speaker 03:
But the police who are familiar with this neighborhood and familiar with responding to shootings on the street, I think can reasonably infer

[00:20:59] Speaker 03:
based on their knowledge of the neighborhood that it's more likely this is occurring out on the street than it is somebody reading out a window and firing at people down below or firing a gun out the window, but even so again under under Terry they weren't.

[00:21:14] Speaker 03:
they didn't need to rule out all possibilities.

[00:21:17] Speaker 03:
There were other alternative possibilities here.

[00:21:20] Speaker 03:
The person, the shot of shooting could have been outside on the street and the person could have gotten in the car and sped away.

[00:21:29] Speaker 00:
That's not- There's been a little bit of confusion about, in the district court back and forth, and I don't think the AUSA was able to answer this question, but Terry doesn't authorize a stop of a potential witness, does it?

[00:21:45] Speaker 03:
I don't believe this court has so found.

[00:21:48] Speaker 03:
There is some authority for that.

[00:21:50] Speaker 03:
The DC Court of Appeals and the Williamson case that we cited upheld a stop on those grounds, but the district court didn't agree with that proposition.

[00:22:02] Speaker 03:
We haven't argued it and certainly, it's possible that the defendant was a witness or a bystander, but it wasn't,

[00:22:12] Speaker 03:
it wasn't necessary to rule those possibilities out.

[00:22:15] Speaker 03:
There was reasonable, articulable suspicion based on his location at the precise block where ShotSpotter heard the shots almost immediately after the shots were fired.

[00:22:26] Speaker 03:
The only one there and walking quickly away to believe that he was involved in the shooting himself, that he wasn't just a witness or a bystander.

[00:22:37] Speaker 00:
And you're not arguing that this was a just a

[00:22:42] Speaker 00:
Consensual query.

[00:22:43] Speaker 00:
Excuse me, sir, sir.

[00:22:44] Speaker 00:
There's been a shooting.

[00:22:45] Speaker 00:
We want to talk to you.

[00:22:46] Speaker 00:
Can you stop?

[00:22:48] Speaker 03:
No, there was a show of authority to stop, take out your headphones, and he submitted to it by stopping and taking out his headphones.

[00:22:54] Speaker 03:
I don't think we're disagreeing with the defendant as to the timing of the stop.

[00:23:02] Speaker 03:
But the factors, at the time of the stop, there was reasonable articulable suspicion for the Terry stop to question him about the shots that had just been fired at the block here.

[00:23:14] Speaker 03:
And I just know I've spent, I've spent some time talking about alternative possibilities and acknowledging those possibilities and repeated that police weren't required to rule them out based on the reasonable articulable suspicion that they had here, especially when there's a serious violent crime they think has just been committed.

[00:23:31] Speaker 03:
that the defendant concedes was committed a shooting, somebody shooting, and that they see the suspect walking quickly away from the scene.

[00:23:41] Speaker 03:
They just required a minimal level of objective justification to make the stop, and we believe they had that here.

[00:23:48] Speaker 00:
So I guess unless- I have one other question, if I may, about the shot spotter and the timing.

[00:23:55] Speaker 00:
It seems like in this case, the appellant has conceded that it was,

[00:24:01] Speaker 00:
very short amount of time between when the shot itself was fired and when the police officers showed up on the relevant block.

[00:24:09] Speaker 00:
But I wonder, just as a matter of process, this was not a case in which the officers themselves saw the shot spotter or heard the shot spotter through the app.

[00:24:22] Speaker 00:
it had to be conveyed to them through a dispatcher.

[00:24:26] Speaker 00:
Is there any way that a defendant in such a case could probe the length of time that it takes or how much time to actually pin down not just what we have here, which is the time between the officers getting the information from the dispatcher and showing up, but the time between the shot

[00:24:50] Speaker 00:
it appearing on shot spotter to the dispatcher and the dispatcher communicating it out.

[00:24:57] Speaker 00:
Is there any way a defendant like how would defending go about probing that and pinning that down.

[00:25:04] Speaker 03:
Yes, and I don't I don't know any reason why defending couldn't.

[00:25:10] Speaker 03:
make an issue of that or argue that.

[00:25:15] Speaker 03:
I just don't think the defendant in this case did that.

[00:25:19] Speaker 00:
No, but I'm just wondering if there's a way to do it.

[00:25:22] Speaker 00:
I mean, unlike in civil litigation, you can't do a deposition of the dispatcher or the people who set the system up, so you have to bring an expert in or

[00:25:33] Speaker 03:
I just to just to be candid your honor I I'm not sure I imagine that you could and I don't necessarily want to want to speculate, but I think whether it's in whether it's trying to have an expert or just more cross examination of the officers or or.

[00:25:51] Speaker 03:
bringing out an officer witness.

[00:25:54] Speaker 03:
And I'd imagine there'd be witnesses who are more familiar with how shot spotter work, but that just, that didn't happen here.

[00:26:00] Speaker 03:
And on this record with this evidence, we have an immediate alert and immediate response.

[00:26:07] Speaker 03:
And I know too, just to support that, the fact that they're already on scene when they hear the dispatch from the residents, from the neighbors calling 911 about the same gunshots.

[00:26:17] Speaker 03:
So there's a really strong inference here that this was,

[00:26:19] Speaker 03:
This was all very, very fast and that they are very, very fast.

[00:26:24] Speaker 02:
May I ask a question about technology?

[00:26:28] Speaker 02:
Is the shot spotter getting more and more accurate with respect to the precise location where the shot was fired?

[00:26:42] Speaker 03:
I don't, there was the evidence in the record here was that the shot spotter provides the exact location and the exact number of gunshots with respect to the technology that wasn't developed in the record.

[00:26:55] Speaker 03:
I can direct your honor to the, to the Rickman case from the seventh circuit, which is, which is a case from last year that discusses the technology a little bit more, more fulsomely, but, but I'm, I'm, I'm not really aware beyond that, your honor.

[00:27:08] Speaker 02:
You don't know whether it's getting more and more accurate.

[00:27:11] Speaker 03:
I don't, your honor, no.

[00:27:16] Speaker 03:
So unless the court has any further questions, we would ask the court to affirm the judgment of the district court.

[00:27:21] Speaker 03:
Thank you.

[00:27:24] Speaker 00:
Judge Gasses, done?

[00:27:26] Speaker 00:
All right.

[00:27:28] Speaker 00:
Mr. Lawler, would you like any rebuttal?

[00:27:30] Speaker 01:
Yes, I'll keep talking until you tell me I can't or that I've won either, Your Honor.

[00:27:37] Speaker 01:
We'll give you two minutes.

[00:27:39] Speaker 01:
All right.

[00:27:40] Speaker 01:
I guess I'll take that.

[00:27:41] Speaker 01:
So, Your Honor.

[00:27:43] Speaker 01:
Again, I think, you know, part of the issue here from our vantage point is the phrase ology that the government uses precision.

[00:27:52] Speaker 01:
And then taking what we perceive to be the most innocuous fact, which is walking in a residential neighborhood and somehow making that seem as if it's evidence of a crime.

[00:28:04] Speaker 01:
The government didn't mention, you know, this being a high crime area.

[00:28:08] Speaker 01:
Although they argued that in their brief, but again, that is one of these loaded phrases does not bear any evidence as to this case because there's no dispute, we can see that all along that a crime had occurred.

[00:28:21] Speaker 01:
Now, I wouldn't say it's a serious violent crime because there's no evidence of assault of behavior here.

[00:28:27] Speaker 01:
But again, that's not really here or here nor there.

[00:28:30] Speaker 01:
But I think the government uses this verbiage to take innocuous facts, try to string them together to make it seem as if this is evidence of a crime, Mr. Jones, when it simply is not.

[00:28:44] Speaker 01:
What you have here is evidence of a crime and Mr Jones being proximate to it, which we believe gives rise to the police investigating and asking him to consent to a consensual that was redundant.

[00:28:58] Speaker 01:
encounter instead of forcing their authority upon him and making him stop.

[00:29:05] Speaker 01:
We believe in the absence of articulable suspicion about actual facts that are evidence that Mr. Jones committed a crime.

[00:29:16] Speaker 01:
There was no basis here, Your Honor, so we would ask the court to reverse the findings of the lower court in the conviction here.

[00:29:23] Speaker 00:
Thank you.

[00:29:24] Speaker 00:
And I recognize Mr. Lawler that you were appointed by the court to represent Mr. Chauncey Jones.

[00:29:31] Speaker 00:
And we thank you for your service and your briefing and your argument here today.

[00:29:37] Speaker 01:
It's my pleasure.

[00:29:38] Speaker 01:
Thank you.

[00:29:39] Speaker 00:
Case is submitted.