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Case number 20-3081, United States of America versus Amistad Jimon Benet Abelant.

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Ms.

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Wright, Ferdi Abelant.

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Mr. Hemsford, Ferdi Abelant.

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Morning.

[00:00:14] Speaker 03:
Morning.

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May it please the court.

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Lisa Wright, representing Mr. Amistad Benet.

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I'd like to reserve two minutes for rebuttal.

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The district court here committed legal error

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and concluding that Mr. Beeney's continuation of his forward motion was per se inconsistent with submission to Officer Torres' show of authority.

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Is that microphone on?

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Is it on?

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Microphone?

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There's a green light.

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Yeah.

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Can you hear me?

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OK.

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Must be me.

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No, I was having trouble too.

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Oh.

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Maybe pull it a little closer to you.

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Is that better?

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Yes.

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Yes.

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OK.

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Because the district court mistakenly concluded that Mr. Veney could not submit while he continued to walk, the district court did not address at all or even mention Mr. Veney's argument that he submitted by immediately turning around as Torres had requested.

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Here we have the body worn camera video from which the court can see that Mr. Veney did indeed submit.

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Because the facts are fully available to this court via the VWC, the court can and should conclude that

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that there was a submission and suppress the evidence that was the fruit thereof.

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In the alternative, if this court agrees that the district court committed legal error in finding that Mr. Vini's forward motion was determinative, but was inclined to have the district court address the significance of Mr. Vini's turn in the first instance, a remand for that purpose would also be appropriate.

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Can you clarify what your test is for submission?

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Does Mr. Vini have to

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both stop and turn around in order for there to be submission?

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No, no, no, because one would be enough.

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Well, the request was was to we would say the request was to turn around.

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It was a rejection of Mr. Vini's rejection of the request to turn around.

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And you think that he fully turned around and face the officer?

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I think that he gave the officer the view that the officer was requesting, because he wanted to see his front.

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And he could see his front because of the way the angle was he was able to see.

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In fact, I mean, the side view was really the best.

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So I've watched that body cam, you know, at 15 seconds over and over.

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And I guess, what if I did, what if I

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do not disagree with any of the district courts factual determinations.

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Is it possible for you to still win this appeal?

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I believe so because the court didn't even address the turn.

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That was our argument below that he had to submitted by turning and the district court does not even mention that argument in the opinion because the court thought did not matter since he was moving.

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And we understand that the video is very fast.

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Everything happens in two seconds.

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And in fact, he really submits in the first second.

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Because if you look, when he says no, the counter's at 33.

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And then he takes a step.

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He takes a left step and turns his head.

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And that's on page 19, I believe.

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Takes the right step and turns his body.

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And that's 20.

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And then on 21 is when he hesitates.

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And the counter there is still 34.

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So we understand it's fast, but there is a way, and I don't know if others are more tech savvy than I am, but you can put playback into super slow mode, and that does help.

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But we believe our screenshots do show the submission.

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Do you think he stopped walking away?

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I think he continued to move.

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At worst for us, what the district court said was that he would not feel free to leave until he showed that he did not have a gun.

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So that's not saying there was no halt, there was no hold on or stop order.

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So what we would say is he couldn't leave without turning around.

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And he did do that.

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He did turn around.

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And he wasn't walking away.

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Because he was already walking and the government acknowledges that he was within his rights to have walked away.

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That's when he walked away initially.

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After that, he's simply continuing to do what he's doing, only he's turning around to show his front.

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And I think it's really on all fours with the Gibson case, where the command was, let me see your waistband.

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In that case,

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Police had pulled up the side someone who was walking that person continue walking while their shirt was lifted in the court.

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The district court found that that was a submission and in here we would say it's even stronger case because in it's and they were maintaining the same distance.

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And here, Mr. Vini actually hesitates before taking that third step, such that they're getting closer.

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And he's allowing Torres to draw closer to him.

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He covered like half a tree box distance while Torres covered the whole tree box.

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I mean, he was letting him come to him in a way that Gibson wasn't.

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So the dialogue that precedes all of this is,

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Big man, you got nothing on you, man.

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In vain, he responds.

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I don't got s on me.

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And then he says, you might you mind turning around for me?

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And he says, I'm not man.

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I'm going to walk off.

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That's what the district court.

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Yes.

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And then Boris presses the matter by saying, no, I just want to make sure you got no gun.

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The district court makes a finding at the bottom of page 84, a 34 hearing over to the next page that as far as the seizure goes, the district court makes a finding that veiny has satisfied his burden of producing evidence showing that a reasonable person in his shoes would not have felt free to leave.

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until he proved to the officer that he did not possess a gun.

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You don't challenge that ruling.

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They said, yeah, they sent that's a factual finding.

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I mean, we, we actually actually believe that our initial, our main argument

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We believe we prevail under that interpretation of the exchange, but we actually think that it's simpler than that, and it's just he wants him to turn around, he refuses, and he says no.

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And that it really is just a rejection of Mr. Vini's rejection.

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And he's saying, no, turn around.

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I asked you to turn around, and you declined.

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I'm saying no.

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But even under this interpretation of that passage, we would still

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So, so if the ruling is that he, a reasonable person would not have felt free to leave until he proved to the officer that he did not possess a gun, then the district court followed from that.

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Then that he was seized and he was not free to leave.

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And because he continued walking, he did not submit.

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So if the ruling is correct that a reasonable person would feel that they were not free to leave, but he left, tried to leave by walking, how is that an erroneous rule?

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Well, a couple things.

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I mean, he isn't actually leaving Officer Torres, because Officer Torres has followed him.

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He left Torres.

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That's one thing.

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I would say that I guess to the extent he was worth amendment, you have to be successful in leaving.

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You have to get away.

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I mean, if, if you, even if you don't successfully leave, I mean, we wouldn't have cases if, if the people who fled were successful.

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Right.

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There's no flight.

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I mean, this is not a flight situation, but I understand what you're saying.

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Um, but,

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If you start walking, that is different than continuing to walk.

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That is our point.

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And I think Brendan, the Supreme Court said, what you're doing beforehand is significant to whether there's been a submission.

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And here, all he does is continue.

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And in fact, he doesn't exactly continue.

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He slows down.

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He hesitates.

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And I guess this is... We'd have to find clear error to find that, though, right?

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Because the district court finds that he walked at the same pace.

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I guess I think that that is probably correct, but there is clear error on the Body 1 camera, because you can count the steps and you can see him hesitate on page 20.

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I think I actually have a typo in the brief, where he's hesitating most clearly at the top of page 21, not page 20.

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Yeah, I do think when the district court said he walked at the same pace, that's not accurate.

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And partly it was because, you know, the judge really didn't care what case it was, I think, because he just thought he was moving and he was leaving.

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But as far as with him saying you have to prove to the officer he didn't possess a gun, I want to be clear, you know, there's

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We are not certainly thinking that that would mean or agree that that would mean that he had to strip down or in some way literally prove he didn't have a gun.

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But it's until he shows the government what the cop is asking to see, because the cop is interested in the gun and whether he has a gun.

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And I think he says, like we say in the reply, when he's basically saying, would you mind doing X for me,

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And Mr. Veaney says, no, I'm not going to do X. I'm going to do Y. And the officer says, no, I just want to make sure, you know, Z, make sure you don't have a gun.

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And so the no is really saying, give me what I want, which is to see that you don't have a gun.

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And the turning around satisfies that.

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And indeed, that's exactly what the officer had asked for originally and been refused.

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I mean, that is the request.

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And he's already legitimately walking.

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There is a difference between starting to walk when you think you can't leave without showing.

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But this is all happening simultaneously.

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He's already walking, just as in Gibson.

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And the government doesn't dispute that Gibson is correctly decided.

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They try to distinguish Gibson.

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I'm not really clear on the distinction they're making, but they seem to be saying that somehow Mr. Gibson is keeping up with the police car and really just as here, the police car is keeping up.

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And in fact, our case gaining on defendant.

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I mean, it's clear that Torres is walking faster and then the appellant because I mean, he's several feet away from the appellant when the appellant starts walking.

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So, so,

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I'm not sure where that gets you, where the district court finds that they are essentially parallel when Torres observes what he believes to be an imprint of a weapon.

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And the district court makes that fun, right?

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Well, I believe we do dispute the court's summary of the body worn camera footage.

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The court skips over entirely the turn, which was our whole argument below.

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He summarizes it as Officer Torres, while walking a few feet behind Vini, quote, no, I just want to make sure you've got no guns, and then skips and says the next thing, Vini, as he walked at the same pace down the street with Officer Torres, walking parallel beside him, don't write S on me.

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What are you talking about?

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we do we don't not accept those that actual description of the body worn camera and I understand it's quick but that's simply not what happened and you know I just think it's telling that the district court doesn't doesn't even take on the term so I mean if this court you know were to remand to the district court just to take it on that would be one thing but I don't see how we can lose on the facts here when the district court didn't even really address the fact that we're focusing on

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just kind of skipped over.

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Because you can't go from being a few feet behind to walking at the same pace parallel.

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I mean, in fact, something happened, which was that he caught up with him.

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And part of the reason he caught up was that hesitation on that third step.

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I mean, they're keeping pace with each other.

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Are you saying that the district court found that the two men, Torres, Officer Torres and Baney, were walking at the same pace?

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Oh, no.

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I guess, well, no.

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He's saying that Beeney continued to walk at the same pace with Officer Torres walking parallel beside him.

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But again, the court gets him there from walking a few feet behind and doesn't dress like how it was.

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It was because Mr. Beeney turned and hesitated.

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They were keeping the same pace initially, although the four steps were bigger.

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they were taking the same number of steps.

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When he said no head turn, no head turn, body turn, at that point is when Mr. Weeney hesitates and Torres takes a step and then together they take the opposite step.

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And by that time, but truly in that first second is when the turning and the hesitation took place.

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And the court just didn't consider that below because it didn't think it mattered.

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Your argument revolves around the proposition that he was stopped earlier than the district court found.

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That he was stopped.

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But why wouldn't it still be justified as a Terry stop?

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Because it's a high crime area known for firearms.

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He was walking away making furtive gestures trying to conceal something in his waistband.

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And why isn't that enough to stop him anyway?

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And then, once having stopped him, and noticing the bulge, which turned out to be a firearm.

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Well, the government has- You didn't dispute that part of the district court's findings, did you?

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Well, we dispute the district court's characterization for his testimony with respect to the hand positioning.

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Positioning, yeah.

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But I'm not talking about that.

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I'm talking about the observation

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but he was making gestures to try to conceal something in his waistband.

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Yeah, but that's not what Tora said, what we're saying.

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So we don't agree with- First of all, district judges don't even have to write an opinion in this kind of a case.

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They can just say denied, right?

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The district court did not find that there was reasonable suspicion at that point.

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The district court said the linchpin of its reasonable suspicion finding was the seeing of the bulge.

[00:16:07] Speaker 00:
Yeah, well, we're not banned by that.

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This is de novo review.

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Well, the government isn't asking this court to find reasonable suspicion.

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The government's asking for a remand for the district court to consider that, because it was never considered.

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We would say the district court implicitly rejected that, because it did not even mention that potential thing that it was holding open.

[00:16:28] Speaker 00:
Well, that doesn't mean the court rejected it, because he didn't mention.

[00:16:31] Speaker 03:
Well, if he had, well.

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He didn't need to mention.

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That's correct.

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All right.

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Can I get clarity on something your client said on the body cam?

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Your theory today and then your brief is that we know he submitted because he turned around enough for the officer to see the ball.

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Right.

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That yes.

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That yes.

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So far.

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Sorry.

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Not a yes, but is that a yes.

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Yes.

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Okay.

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But I think on the body cam video, uh, your client says something like, you didn't see nothing, man.

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I walked off.

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So how is that consistent with your theory?

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Is your honor referring to when he says, no, I'm going to walk off?

[00:17:21] Speaker 04:
No, it's later.

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I think the officer says, I saw the outline, bro.

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This is not a direct quote.

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Right.

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And then Mr. Vini responds with something like, you didn't see nothing, man.

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I done walked off.

[00:17:39] Speaker 03:
Not sure exactly what point.

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You were saying that was in response to Taurus saying what?

[00:17:46] Speaker 04:
I saw the outline.

[00:17:47] Speaker 03:
Saw the outline.

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I think that's much later when he's when they're arguing at by that point.

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Right.

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But that's that's my point.

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I think is that if it's much later and Mr. Beanie is saying you couldn't have seen the outline of the gun.

[00:18:04] Speaker 03:
I think he's saying, you can't see it.

[00:18:08] Speaker 03:
I mean, right now, as you're looking, he's pointing at it at one point, and he's saying, well, what is this?

[00:18:14] Speaker 03:
And he's like, this is about, and he is disputing what the officer is seeing.

[00:18:22] Speaker 04:
Just help me see, or explain why there's not tension between your theory that Mr. Vini turned around enough to show the officer, the bulge, what the gun was.

[00:18:34] Speaker 04:
Contrast it with Mr. Vini's later statement, you, the officer, couldn't have seen anything.

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I was walking off.

[00:18:45] Speaker 03:
I would want to listen to that tape again, because I don't really remember the wording being like what Ron is saying.

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I thought it was, if anything, he was saying as the, whereas, you know,

[00:19:02] Speaker 03:
pointing at him and his waist, he's saying, what are you talking about?

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This is a belt.

[00:19:06] Speaker 03:
He's acknowledging that the officer can see a bulge.

[00:19:09] Speaker 03:
He's trying to persuade him that it's not contraband.

[00:19:14] Speaker 03:
That's different than acting like he thinks that it couldn't be seen.

[00:19:19] Speaker 03:
I'm not saying

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Mr. Vini might have been hoping he didn't see it, but he did reveal what he asked for.

[00:19:25] Speaker 03:
I mean, it's kind of notable that in a couple of the cases where evidence has been suppressed for compliance with a command like both Mabry, for example, and in Brody, the compliance doesn't actually yield the fruit.

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The person runs off, and then the fruit is revealed.

[00:19:46] Speaker 03:
Here, you know,

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He actually gave him exactly what he wanted.

[00:19:50] Speaker 03:
It yielded exactly what he wanted.

[00:19:52] Speaker 03:
And I guess we would say that is very clear submission.

[00:19:56] Speaker 01:
Thank you.

[00:19:56] Speaker 01:
We'll give you a couple of minutes in rebuttal.

[00:20:09] Speaker 01:
Mr. Hansford.

[00:20:11] Speaker 05:
Good morning, your honors, and may it please the court, Eric Hansford, the United States.

[00:20:17] Speaker 05:
The defendant's claim that he submitted in this case fails for two separate and independent reasons.

[00:20:23] Speaker 05:
First is, as the district court found, the show of authority meant that the defendant was not free to leave, and yet the defendant was continually trying to walk away throughout the encounter.

[00:20:34] Speaker 05:
And the district court specifically finds that he was trying to walk away in footnote four of the opinion.

[00:20:42] Speaker 05:
Second,

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Even assuming that the defendant would have complied by turning around as he was leaving, the video makes clear that he did not ever turn around.

[00:20:51] Speaker 05:
And instead, as the district court found, the officer spotted the gun from the side as he was overtaking the defendant.

[00:20:59] Speaker 05:
But for both those reasons, the defense argument does not.

[00:21:04] Speaker 01:
I suppose we don't agree with the first proposition

[00:21:09] Speaker 01:
and we agree that he could have submitted by turning around, but there's no finding by the district court as to exactly whether he did turn around, whether it was sufficient to be a submission.

[00:21:26] Speaker 01:
Why shouldn't we remain instead of kind of making that factual finding ourselves in the first instance?

[00:21:34] Speaker 01:
We don't do as a court of appeals.

[00:21:37] Speaker 05:
So I think you do have a factual finding, an important factual finding from the district court on page 65 of the FSUF, which I think is 36 of the appendix, where the district court is saying the officer saw the gun from the side and contrasting that with the post arrest photos or the arrest photos that are taken from the front and explaining that

[00:22:02] Speaker 05:
it makes sense that the officer would have been able to see the gun from the side, even if you couldn't make it out front.

[00:22:08] Speaker 05:
And so I think that's perhaps not the most explicit finding, but I think that is a finding that the, uh, the officer is seeing it from the side and therefore that's inconsistent.

[00:22:21] Speaker 01:
Um, I think that tells that inconsistent with the turning theory.

[00:22:27] Speaker 01:
I mean, if, if you see something from the side,

[00:22:32] Speaker 01:
that is in the front of the other person.

[00:22:38] Speaker 01:
You either have to be in front of that person slightly or that person has to turn slightly to you for you to see their front.

[00:22:47] Speaker 05:
Well, I think when you take it in conjunction with the body worn camera, which shows the officer walking past the defendant looking over to his right as he's doing so, I think the finding that it's made from the side

[00:23:03] Speaker 05:
does mean that the officer is spotting it not as the defendant is turning because then the finding I think would be that he's seeing the gun from the front.

[00:23:15] Speaker 01:
So we have to infer that that's what the district court found since we don't have an explicit statement to that effect.

[00:23:27] Speaker 05:
I think you don't have a completely explicit finding on that, but I think that's the reasonable inference from what the district court's saying.

[00:23:35] Speaker 05:
I think you can also look at the body-worn camera here and say that no district court is going to be able to find that the defendant did turn based on this body-worn camera, where there's no indication in the transcript, there's no testimony or other evidence that he did turn.

[00:23:53] Speaker 05:
There's just nothing to suggest that he

[00:23:56] Speaker 01:
You don't think I can look at the body worn camera and see that there's at least a slight turn?

[00:24:03] Speaker 05:
I don't think so.

[00:24:04] Speaker 05:
I don't, I don't think there's a slight turn in the body worn camera.

[00:24:07] Speaker 05:
I think if you, especially the full scope of the all three body worn cameras, I think from certain angles, it might seem like he was starting to turn.

[00:24:19] Speaker 05:
But then I think when you're looking at Jacobs and McCaw camera, it's clear what he's doing.

[00:24:25] Speaker 05:
is actually plating the body.

[00:24:30] Speaker 05:
But I do think the reason there's more explicit findings on the first point that the defendant was not free to leave is because that was the primary rationale of the district court's opinion.

[00:24:41] Speaker 05:
And we do think that rationale is fully supported by what the district court's saying,

[00:24:52] Speaker 05:
I guess I'm having trouble understanding the defense argument.

[00:24:56] Speaker 05:
As I understood to the court's questions, to Judge Wilkins' questions, the defense is accepting the finding that there was a show of authority that required the defendant not to leave until he proved that he didn't have a gun.

[00:25:13] Speaker 05:
And so I don't think that is, I think that show of authority finding

[00:25:20] Speaker 05:
is going to control the fact that the defendant was continually walking away.

[00:25:26] Speaker 01:
So let's do a little demonstrative.

[00:25:28] Speaker 01:
Sure.

[00:25:29] Speaker 01:
Let's suppose I'm the defendant.

[00:25:31] Speaker 01:
You're the officer.

[00:25:34] Speaker 01:
I do like this.

[00:25:35] Speaker 01:
See?

[00:25:37] Speaker 01:
Walk.

[00:25:38] Speaker 01:
I don't stop moving.

[00:25:40] Speaker 01:
Have I submitted?

[00:25:42] Speaker 00:
No.

[00:25:42] Speaker 05:
Not on the district court's fact line.

[00:25:44] Speaker 00:
They couldn't detect any bulges with a robe on anyway.

[00:25:49] Speaker 05:
So I think you can see that for a couple of things, both factually and legally.

[00:25:55] Speaker 05:
So the factual bucket is the full context of what the conversation happened.

[00:26:05] Speaker 05:
So the officer approaches, says, do you have anything on you?

[00:26:07] Speaker 05:
And it says, no.

[00:26:09] Speaker 05:
The officer says, would you mind turning around for me?

[00:26:12] Speaker 05:
That's not a show of hands.

[00:26:14] Speaker 05:
The defendant says, no, I'm going to walk off.

[00:26:17] Speaker 05:
The officer then says, no, I just need to make sure you don't got no guns on.

[00:26:22] Speaker 05:
That's the show.

[00:26:24] Speaker 01:
And the way that he wanted him to do that was turning around.

[00:26:28] Speaker 05:
I don't think a reasonable person would understand that merely turning around as you're walking away in that full context is going to satisfy the officer.

[00:26:38] Speaker 05:
Instead, I think what you have here is the reasonable inference is the officer, with the district court's finding, the officer is trying to determine if the defendant has

[00:26:47] Speaker 05:
Part of that may be turning around, but it's not for the defendant to decide on his own that all he needs to do is turn around and then that's kind of sad.

[00:26:57] Speaker 01:
That's all he was told to do is turn around or ask.

[00:27:00] Speaker 05:
I mean, no, I think he's, I think what he's being asked to do and what the show of authority is, is to stop the,

[00:27:10] Speaker 05:
The no, I just need to make sure you don't have no guns.

[00:27:14] Speaker 05:
That comes directly after the defendant says, I'm going to walk off.

[00:27:18] Speaker 05:
And then he starts walking off.

[00:27:20] Speaker 05:
The no, I think, is most easily understood as responding to that.

[00:27:24] Speaker 05:
And that's supported by the larger context.

[00:27:26] Speaker 01:
But the defendant's no is most easily or reasonably responding to the request that I want you to turn around for me.

[00:27:37] Speaker 05:
That may be right, but I don't think the defendants know is what's controlling the show of authority here.

[00:27:42] Speaker 05:
It's the officer's words in the show of authority.

[00:27:45] Speaker 05:
And I think you also see this in the case both in the more general sense that how this court commonly and the Supreme Court commonly defines what a show of authority is, what a seizure is.

[00:27:58] Speaker 05:
is a situation where the person's not free to leave.

[00:28:01] Speaker 05:
So we go through some of that case law in 21 to 22, even just the language of it's a Terry stop.

[00:28:08] Speaker 05:
It's a detention.

[00:28:10] Speaker 05:
That is indicating that you are not free to leave at that point.

[00:28:15] Speaker 05:
But then you also have the more specific cases.

[00:28:17] Speaker 05:
Brody's the cleanest example, where the officer is

[00:28:23] Speaker 05:
pulls up beside the defendant, says, put your hands on that car.

[00:28:28] Speaker 05:
The defendant does so for a few seconds, and then the officer turns away, and the defendant runs off.

[00:28:33] Speaker 05:
What this court says is that when he puts his hands on the car and remains there for a few seconds, that's brief submission, but that when he runs away, that's no longer submission.

[00:28:44] Speaker 05:
So in other words, implicitly what this court is saying in Brody

[00:28:48] Speaker 05:
is consistent with Mabry is that it's not just that he had to literally comply with the man by putting his hands on the car and then he can he's free to leave.

[00:28:59] Speaker 01:
It's that he has to put his hands on the car and remain there until the officer indicates that he's putting your in order to put your hands on the car as a different purpose in an order to turn around.

[00:29:12] Speaker 01:
The officer didn't

[00:29:14] Speaker 01:
and Brody didn't order him to put his hands on the car just so that he could see his hands and observe his hands.

[00:29:22] Speaker 01:
It was so that he would be there in a position so that he would be seized and could be frisked, right?

[00:29:33] Speaker 01:
We don't know exactly what.

[00:29:35] Speaker 01:
Well, why else would an officer lawfully, what other lawful basis would an officer have to tell somebody to put their hands on the car?

[00:29:43] Speaker 01:
other than your hands on the car because I intend to frisk.

[00:29:48] Speaker 05:
I mean, I think it I think Brody what you have is a situation where a defendant's leaving the scene of a warrant.

[00:29:54] Speaker 05:
So it may just be that they're ultimately identifying him.

[00:29:57] Speaker 05:
It may be that they're frisking, but I would say that's the same as this case.

[00:30:01] Speaker 05:
Which is that it does the officer no good if the defendant as he's walking away, turns around revealing a gun that would confirm the officer's suspicions.

[00:30:11] Speaker 05:
And you understand at that point that the defendant is nonetheless still free to walk away.

[00:30:17] Speaker 05:
What, what is understood?

[00:30:19] Speaker 01:
It seems like you're blurring the analysis here with that state.

[00:30:25] Speaker 01:
I mean, if Vaney had turned around,

[00:30:29] Speaker 01:
as soon as the officer asked him to and said, Look, okay.

[00:30:37] Speaker 01:
And then started walking away.

[00:30:39] Speaker 01:
He would have complied with the office, right?

[00:30:45] Speaker 01:
I unless and until the officer told him to stop.

[00:30:49] Speaker 05:
So there is no show of authority at the time that he's he's asked to turn around and it's a request.

[00:30:54] Speaker 05:
It's not a command to turn

[00:30:57] Speaker 05:
But, and so, I mean, I think at that point, yes, he's fully free to leave because there has not been a show of authority.

[00:31:03] Speaker 04:
But once there's a show of authority, isn't there a presumption, maybe a rebuttable presumption, but a presumption that the suspect is not free to leave?

[00:31:13] Speaker 05:
Right.

[00:31:13] Speaker 05:
I mean, I think that's generally what a show of authority means.

[00:31:17] Speaker 05:
Exactly.

[00:31:18] Speaker 05:
And I think that is what this court is saying in the Mabry case and the Delaney case in defining a show of authority.

[00:31:25] Speaker 05:
as a situation where the defendant's not free to leave.

[00:31:28] Speaker 05:
And I think this goes to, Grendelin more generally talks about how there are public safety concerns any time there are these sorts of interactions and what you want to address those public safety concerns.

[00:31:42] Speaker 05:
He says to this as well, put the officer unquestionably in charge of the situation for the officer to be the one who's indicating when the seizure is terminated.

[00:31:55] Speaker 05:
And that's what a reasonable person would understand in that content.

[00:31:59] Speaker 05:
So if there is no legal basis for it, then the remedy there is to go to court and test whether or not there's reasonable article of suspicion, as opposed to the defendant deciding on his own to narrow the officer's request and turn away and walk away.

[00:32:17] Speaker 05:
That's when you run into public safety problems that are indicated in rent

[00:32:25] Speaker 05:
And just lastly on Judge Randolph's questions about reasonable articulable suspicion in this case, we do agree that given the district court's finding of the furtive movements plus the high crime area could support a finding of reasonable articulable suspicion.

[00:32:45] Speaker 05:
We do understand there are kind of challenges to the factual findings related to the district court's opinion on that score.

[00:32:53] Speaker 05:
And the district court didn't resolve the hand-to-hand transaction findings.

[00:32:58] Speaker 05:
So that's why we are asking for remand there.

[00:33:02] Speaker 05:
Straight affirmance on the reasonable articulable suspicion.

[00:33:07] Speaker 05:
But that would be our position on that.

[00:33:12] Speaker 05:
If there are no further questions, we'd ask the court

[00:33:15] Speaker 01:
All right, thank you.

[00:33:18] Speaker 01:
That's right, we'll give you two minutes for rebuttal.

[00:33:23] Speaker 03:
Thank you.

[00:33:23] Speaker 03:
The government says that the court found that he, that Officer Torres saw the bulge from the side and went parallel and that that dooms our argument, but this is not at all inconsistent with him turning because the officer is... What should the officer have done according to your view?

[00:33:45] Speaker 00:
is walking besides the defendant, and the defendant does not turn around, insists on walking.

[00:33:53] Speaker 00:
What should the officer have done then?

[00:33:56] Speaker 03:
Well, it's our position that he shouldn't have told him to stop at all, because there was no reason.

[00:34:03] Speaker 00:
Let's take it from where the video takes it.

[00:34:07] Speaker 00:
The officer's walking beside him, tells the defendant to stop,

[00:34:13] Speaker 00:
or no, and the defendant keeps walking.

[00:34:16] Speaker 00:
What should the officer have done?

[00:34:17] Speaker 03:
Well, he could have said stop at that point, but the officer can do whatever the officer wants, but the question is... You know, we've been debating this now for 20 minutes.

[00:34:28] Speaker 00:
How long did this encounter take?

[00:34:31] Speaker 03:
He stopped within one second.

[00:34:33] Speaker 03:
In one second.

[00:34:33] Speaker 03:
Excuse me, he was seized within one second.

[00:34:36] Speaker 00:
Even if he was the most brilliant expert in the Fourth Amendment,

[00:34:42] Speaker 00:
Do you think he went through all the calculations and machinations that we're going through in 20 minutes of oral argument by competent counsel?

[00:34:52] Speaker 03:
The question is, there was nothing for the officer, no decision to be made by the officer.

[00:34:56] Speaker 03:
Under Hodari, the officer makes his show of authority.

[00:34:58] Speaker 03:
And then it's the defendant's actions.

[00:35:00] Speaker 03:
Nothing the officer could have done or not done would have changed whether Mr. Veney submitted.

[00:35:07] Speaker 03:
It's so there is no split second decision making by the officer.

[00:35:10] Speaker 03:
The split second decision making was when he chose to issue a show of authority, which we would say was a mistake.

[00:35:15] Speaker 03:
And we understand those calls are difficult for officers.

[00:35:18] Speaker 03:
But what we're talking about this afterwards in this sort of at this point is just an objective question of whether his actions were a submission and

[00:35:29] Speaker 03:
You know the government says that there was no turn can be seen on the body worn camera and we would just say that the screenshots on our brief are clearly show there was.

[00:35:37] Speaker 03:
And then in the context merely turning around isn't enough but that's all he was asked to do and then finally the government is saying that a Terry stop is you know it's all about being free to leave and.

[00:35:50] Speaker 03:
What our point is, this is an acquisition by control, in the words of Taurus in Madrid.

[00:35:56] Speaker 03:
And here, Taurus controlled the movements of Mr. Vini.

[00:36:00] Speaker 03:
And the other language from Mendenhall, besides being not free to leave, is giving someone direction and suggesting that compliance might be compelled.

[00:36:09] Speaker 03:
And so if you comply with what they're trying to compel, that also is a seizure.

[00:36:15] Speaker 03:
And we also point to the language in Terry that says,

[00:36:17] Speaker 03:
was the defendant's liberty restrained, quote, in some way.

[00:36:21] Speaker 03:
And here, I just want to finally say that by moving his body in the way Torres was demanding and engaging with him despite his expressed desire not to engage with him, because beforehand, he's looking dead ahead.

[00:36:34] Speaker 03:
I mean, that photograph you can just see.

[00:36:36] Speaker 03:
He's studiously walking.

[00:36:38] Speaker 03:
And he changes his behavior, engages and turns in response.

[00:36:42] Speaker 03:
And in that way, he is allowing Torres to

[00:36:45] Speaker 03:
control him, his movements, and he was thereby seized.

[00:36:49] Speaker 01:
Thank you, counsel.

[00:36:50] Speaker 01:
We'll take the matter under advisement.