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Case number 21-3032, United States of America versus Theodore B. Douglas Appellant.

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Mr. Axum for the appellant.

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Mr. Hansberg for the appellee.

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Good morning, Mr. Axum.

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Good morning.

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May it please the court, counsel, Tony Axum representing the appellant, Theodore Douglas.

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I'd like to reserve three minutes for rebuttal.

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Police did not have reasonable suspicion to stop Mr. Douglas.

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Mr. Douglas's objectively innocent conduct was not of a nature that created reasonable suspicion.

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And it did not match conduct that the observing officer, Officer Jackson, based on his knowledge and experience, said typically meant reasonable suspicion standard giving rise to a belief that criminal activity was afflicted.

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The facts in this case, individually, were entirely innocent and collectively, even when combined with the high crime nature of the area, did not rise to the level of reasonable suspicion.

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Mr. Douglas was on a sidewalk, open to the public in the middle of the afternoon on a sunny day, which itself was not unusual or suspicious.

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Officer Jackson testified that

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He saw someone walk up to him with a bag, and the bag didn't come from anywhere hidden.

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It was openly displayed.

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Officer Jackson could describe the bag, and the person handed the bag to Mr. Douglas, who openly accepted it.

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The bag itself was not a container that was associated with illicit transactions, but was a small, fancy leather backpack.

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And Mr. Douglas took the backpack and placed it on his back.

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And I realize that it's referred to as a backpack the entire time.

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But government exhibits four and defense exhibit four show that it's not actually a backpack with two straps on the side.

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It's a backpack with a cross strap.

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And I point this out because

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It might not fit easily on the back, over the coat.

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It makes it understandable that Mr. Douglas took his coat off, put the strap on across.

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Obviously, this is not captured on the body-worn camera.

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It's not described by Officer Jackson.

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the government exhibits demonstrate that the strap is a cross, which might not be comfortable to go across the zipper of the coat if you want to unzip the coat.

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It's also understandable that in a high crime area that Mr. Douglas would wear something that he doesn't want others to see under his clothes or something that appears valuable to, may appear valuable to others out of sight.

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Oh, let me ask you a question.

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Given your position about innocent conduct, and basically entrapment, would you take the same position were

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we to accept your description of what the officer saw, but that given his experience, there was a ground to approach Mr. Douglas and his companion and ask some questions.

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Police always have the right to approach a person on the street just as any citizen can and ask questions and precisely that's what the police should do.

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If, if, if they do not actually have reasonable suspicion, but want more information and that of course it's not what happened here.

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Well, what I'm getting at is, um,

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I'm not sure it technically, and maybe you're more familiar with that than the law in this area, technically entrapment, but because the two men voluntarily went into this, I'm gonna describe it as an alley, you say it's the sidewalk.

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And this officer saw conduct that

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was consistent with the type of conduct where he had previously indicated that there was exchange of illegal drugs or some other illegal activity.

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So I'm just wondering, where is it that you think the line was crossed?

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Is it when the arrest team came

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and pushed him against the wall and, you know, crossed his hands and put the handcuffs on?

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No, Your Honor, I'd say in terms of the Fourth Amendment, there was not reasonable suspicion to actually stop him.

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So I guess- Not even to stab, I thought you agreed the police could say,

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to the two men, hey, guys, I'd like to ask you some questions.

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Will you just stop a moment?

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I don't think there's anything wrong with the police approaching someone and asking questions and asking them to stop and answer those questions.

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Right.

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So that's my point.

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I just want to understand under that scenario, what is the action that was taken by anyone of the officers?

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that crossed the line?

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Well, I'd say first, the first officer to reach my client walked up to him and immediately touched him.

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And touching a defendant is a touchstone of seizure.

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I mean, it is.

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Once he touched him, he was seized.

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So that took it past a conceptual account of simply asking questions.

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Let me ask you, and I'll do.

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respect, that's a very broad reading of when a arrest occurs.

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If I just, the officer just tapped me on the arm and said, could I ask you some questions?

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Here, there was a push against the wall, I realized, but given that guns are everywhere,

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And this officer who called in the arrest team and presumably the arrest team even knew the alley had a reputation for a place where illegal transactions occurred.

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Well, can I address.

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I'd ask the court to look carefully at the exhibits submitted, both the pictures and the digital exhibits.

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It's not actually an alley.

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It is a sidewalk.

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It's a walkway.

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There is a fence on one side.

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There is grass on either side behind the fences.

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And then there are apartment buildings.

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So this is a bit.

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What information did the office see?

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But I'm excited that they were out of the general public view that you would be in, where you

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out on what I'm referring to a sidewalk.

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I take issue with that.

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And that's why I can only refer to the record evidence.

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And the observing officer is parked in a car on the street.

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So that fact alone establishes that they were not out of public view.

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This isn't an alley.

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It's not a cul-de-sac.

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It is a walkway from one street to a parking lot on the other side.

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It is open, the buildings you can look down.

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It's public.

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I don't want to argue on this to point Mr. Axelman.

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I don't think this is key to your argument, but I just want to understand where the line is crossed in your view.

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Well, I think the line is crossed.

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The actual initial touch by a member of the arrest team.

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I think at the point that my client is touched, he ceased.

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But I think that the touch is escalated when the officer immediately puts handcuffs on him.

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And it only escalates from there.

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There are several frisks.

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Accusatory questioning, and he's led away.

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There are officers on both sides.

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There's an overwhelming show of force by multiple officers.

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Did the government contest that there was a seizure from essentially the moment that the officers encountered him?

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I don't think the government questions that it was a seizure from the outset of contact with him.

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What information

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Did the officers who conduct, the two officers who were first on the scene, the uniformed officers who conducted the frisk, what information did they have?

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The only information they had was what they had been told by Officer Jackson.

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Well, that's the question.

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What were they told by Officer Jackson?

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According to Officer Pupart, he was not told anything except to stop

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this individual person in the blue jacket.

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It just gave them a description of who they were without any other information or is that clear on the record?

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It's not clear to me.

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I may be missing something.

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I'm not, I'm not sure I would take a moment and take a look, but I know why I'm asking this.

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As I recall, there is a doctrine under the fourth amendment and also under Tory versus Ohio that the officer who conducts the frisk conducts the search.

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If that officer receives information from another officer in the first and the officer that conveys the information may be mistaken.

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But nevertheless, the search is valid if the information that the searching officer gets would justify the search.

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You know that, I haven't stated it very well.

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Yes, I'm familiar with that line of cases, but that line of cases deals specifically with

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Warrants and information contained in databases that is sometimes not accurate warrant License revocations has never been applied in a Terry versus I'm not aware of it ever being applied in the various rejected though It hasn't been rejected but there would be very good reason for rejecting it because it would essentially create good faith exception to

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officers observations in the field.

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So if they thought they saw something and the objective facts revealed that they did not see that, as long as they thought they saw it, their good faith reliance on what they believed at the time would sustain a Fourth Amendment violation.

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The Fourth Amendment itself can't sustain good faith exception for officers observations in the field.

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Terry and really every significant Fourth Amendment decision goes directly to what are the objective facts, not what did the officer believe or how did the facts appear.

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The question is not did it appear to be money.

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The question is whether it was money.

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And I'd suggest to the court, that's the only way that the court, after the fact,

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When outside of the heat of the moment, actually a neutral evaluation of the situation can only look at the objective facts.

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So one thing that troubles me about this case, and I'm going to ask your friend on the other side of this, is government's exhibit three is the radio communication.

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And the officer, I believe his name is Jackson.

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That's correct.

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who was undercover and did the observation.

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He posted the lookout and the description of the people he wanted to be stopped, that he saw undertake this hand-to-hand exchange, he thought might have been a drug transaction.

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And then he says he needed the officers to check that book bag for him, essentially giving them

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a directive that that's what he wants.

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He wants the book bag to be checked out.

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And the reason that that alerted me is because, you know, as the Supreme Court has said in many cases, including New Jersey VTLO,

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whole purpose of the Fourth Amendment was because the framers were concerned and rejecting the pre-revolutionary practice of having soldiers without any sort of warrants or judicial supervision undertaking searching.

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In here, it wasn't

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the directive to stop these people, question them, you know, um, you know, see, see if, um, you know, you can learn anything that would either confirm or dispel the suspicion that, um, there was an illegal transaction that was, I want you to stop them and check that book.

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Um, the window officers without warrants,

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get the authority to just tell other officers to go, essentially, search a book bag, search a purse or other container that someone on the street is carrying.

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I don't think there's any authority for that.

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There's certainly no authority under Terry to immediately search a container that someone is carrying.

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And I think the officer's actions in this case bear out that they were there to search the book bag.

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Officer Pupart.

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through a series of escalating intrusions into, and Officer Taylor, a series of escalating intrusions into my client's personal space and personal property, walk up to him immediately, start squeezing his back.

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It's not what you would picture a typical frisk.

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They don't start at the top and move around.

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They both immediately go to the back, just as they were instructed to by Officer Jackson.

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we'd submit was was closer to a search at the very outset, but they don't stop it at squeezing, manipulating and trying to figure out everything in the bag.

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Officer Pupart and Jackson take additional steps.

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Officer Pupart at one point asks for consent to search the bag.

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They unzip Mr.

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Mr. Douglass is they pull the coat down over his arm.

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These are not minor indignities.

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This is a full on search.

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Um, and, um, the Fourth Amendment simply doesn't allow that process.

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To Judge Rogers point, it would allow them to walk up and try to dispel any suspicion that they may have.

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While we're submitting that the facts in this case don't establish even the minimum of suspicion, officers blow right past that point and are into a full-on search.

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To go back to where Officer Pupar is after he has unzipped my client's bag, my client's

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Coke and has been denied permission to search the bag, he then waits again for some other authorization from someplace else.

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You can tell on the radio.

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I think it's a fair assumption that it's Officer Jackson saying yes, unzip the bag, and he unzips the bag.

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So he's being directed by Officer Jackson.

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It shows that he's feeling around in the bag before he unzips it.

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And in the video,

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indicates that he found something.

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That's correct.

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That's correct.

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But even within the context of Terry and Frisk, officers are allowed to frisk, but not to frisk, to search.

[00:18:04] Speaker 05:
Well, the feeling of a hard object with a barrel and a handle on it is what the testimony was.

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It gave him probable cause to open the bag.

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That wasn't part of the frisk.

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Once he felt that, then there certainly was probable cause.

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You would not deny that.

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If that is indeed what he felt.

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What you have to argue is he was not entitled to even pat or feel the bag.

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That's got to be your argument, because once he does that,

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and feels the outline of a gun in there, he's got probable cause.

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Well, I think there are two aspects to frisking.

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I mean, one is the actual frisk, and two is feeling the outline of a gun.

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You're to frisk to rule out that there are not weapons.

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You're not

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supposed to frisk, to search, to figure out everything that is in the bag.

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And by Officer Kupar's own testimony, he testifies that he's trying to articulate what is in there.

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He is trying to palpitate what is in there, to figure out, those are his words, to figure out what is in there.

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That is a search.

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That is not, I am patting him down to rule out that he has a weapon.

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He does not actually testify that I felt a heart on my knee.

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So make sure there's no gun in there.

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I'm sorry?

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I mean, that happens in every frisk where they feel in the pockets and in the belt and so on to make sure there's no weapon there.

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That's what he's doing.

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That's correct.

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But again, this is not a pocket.

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This is not something

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against the body of the person, it is a bag.

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And what he is describing is manipulating the objects in the bag to figure out what they are.

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That is a search.

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And I understand that it is a small distinction, but it is a significant one in the Fourth Amendment context, because if every time an officer stops someone with a bag, they can methodically go through and field each object.

[00:20:14] Speaker 01:
Let's just be clear, though.

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You're not arguing

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Lisa, I don't believe I saw it in your argument that you can't, that a bag is outside the scope of the frisk.

[00:20:28] Speaker 06:
I'm not arguing that a bag is outside the scope of the frisk.

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If, for example, Officer Hupart had said, I was feeling, I felt something hard and wanted to figure out what it was, that's different.

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But he feels outside of the bag.

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He feels something that he says,

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seemed to be a glasses case, and I continued to articulate what else was in there.

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At that point, he has not said, I figured out there was a gun in there.

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He doesn't put his hands on the bag and say, aha, there's a gun.

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That's not his testimony.

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He doesn't have to say that, as long as he has some cause to believe it may be a gun.

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That's what probable cause means.

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But his testimony has to be that I thought it was a gun.

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I mean, to get to probable cause, it hit me that I wanted to figure out everything that was in there.

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Probable cause means it's sufficient if he says, I thought it might be a gun.

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That's enough.

[00:21:31] Speaker 01:
Why don't you wrap up?

[00:21:32] Speaker 01:
We'll give you some time on your bottle.

[00:21:39] Speaker 06:
I suppose that takes me to really the third argument that I raised, which is if Officer Hupart thought it was a gun, he did not react in a way that suggested that.

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It's our position that he did not.

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And it's inherently incredible that he believed that he was touching a gun, and he continued to squeeze it for so long that he did not immediately seize it.

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If he thought he had probable cause to seize it, he didn't need to ask Mr.

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to go into the back.

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He didn't need to call radio in for further permission from Officer Jackson to go into the back.

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I'd submit that looking at government exhibit 4.

[00:22:23] Speaker 01:
We'd have to find that the district court findings otherwise were clearly wrong.

[00:22:29] Speaker 06:
Yes, this court would have to be left with a definite and firm conviction that the findings were clearly erroneous, that, um,

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And I'd submit they are so inconsistent with what we would expect from a police officer and human nature and knowledge that they are.

[00:22:47] Speaker 06:
All right.

[00:22:48] Speaker 06:
We have your argument.

[00:22:49] Speaker 01:
We'll hear from you on that.

[00:23:07] Speaker 01:
Mr. Hansford.

[00:23:09] Speaker 03:
Good morning, and may it please the court, Eric Hansford for the United States.

[00:23:15] Speaker 03:
Each of the defendant's three arguments for suppression fails and escapes.

[00:23:19] Speaker 03:
First, the district court correctly concluded that when an experienced undercover officer who was operating in a block known for drug trafficking saw the defendant engage in a hand-to-hand transaction and then saw him immediately and hurriedly hide the backpack he'd just gotten underneath his jacket,

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The police had reasonable suspicion to stop the defendant for investigation.

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Second, this was a Terry stop and not an arrest.

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Police specifically told the defendant they were stopping him as part of an investigation for a minute.

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And the officers on the ground decision to use handcuffs in this case was reasonable.

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Even if the handcuffing had been unreasonable, that would not be a ground for suppression.

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And third, the defendant fails to show clear error in the district court's credibility findings on the scope of the search.

[00:24:13] Speaker 03:
And instead, the body worn camera is very much consistent with the testimony about the scope of the search.

[00:24:19] Speaker 01:
Let's start with your first argument, the first issue.

[00:24:25] Speaker 01:
Officer Jackson testified at, was it a preliminary hearing?

[00:24:31] Speaker 03:
He testified both at a preliminary hearing, but the suppression hearing is what is

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really here.

[00:24:37] Speaker 01:
Because the testimony that seemed to be cited in the district court's order was from the preliminary hearing, I thought.

[00:24:47] Speaker 01:
I don't think that's correct.

[00:24:49] Speaker 01:
I think it's from a suppression.

[00:24:51] Speaker 01:
But at any rate, the testimony that was cited, at least what I read, said that he

[00:24:59] Speaker 01:
um did not know whether what was exchanged for the bag was money some light colored object that could be money but may not have been mine and then of course no money was found on the gentleman that he had the hand-to-hand exchange right so no money was found but both the testimony of the officer and the district court's findings are that it appeared to be so on a 247 the officer says

[00:25:28] Speaker 03:
the undercover officer says it appeared to be the exchange of U.S.

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currency.

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And on A159, in the district court's opinion, it says that Williams handed, the other person handed Douglas the backpack, quote, in exchange for what appeared to be money.

[00:25:46] Speaker 03:
So that's both in the district court opinion and the officer's testimony.

[00:25:51] Speaker 03:
And that is very much consistent more broadly with how the officer- Oh, there was cash recovered from Douglas, wasn't it?

[00:25:57] Speaker 03:
No cash was recovered from Williams, meaning the person.

[00:26:01] Speaker 04:
But there was cash.

[00:26:02] Speaker 04:
Yeah, there was cash recovered from Douglas.

[00:26:05] Speaker 03:
I do not recall if there was cash recovered from Douglas.

[00:26:08] Speaker 03:
But I think in terms of the lack of recovery of money, it was, and the district court addresses this in its opinion, Williams saw Douglas get searched and then Williams continues.

[00:26:21] Speaker 05:
The reason I'm asking that question is, is it clear

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that whatever was exchanged was something Douglas gave Williams or was it the other way around?

[00:26:31] Speaker 05:
Or could they not tell what was going on?

[00:26:34] Speaker 03:
So the undercover officer's testimony is that Williams, who's dismissed, gives the backpack to Douglas.

[00:26:42] Speaker 03:
Douglas then gives back a small light colored object that the officer testifies appears to be money.

[00:26:50] Speaker 03:
But the lack of money recovered in this case, the district court says

[00:26:54] Speaker 01:
I'm you know really it's easy reason this report's findings different read the district court found that there was a hand-to-hand transact.

[00:27:04] Speaker 01:
This report found that Jackson.

[00:27:07] Speaker 01:
Believe that it was current.

[00:27:11] Speaker 01:
But that's.

[00:27:13] Speaker 01:
Not sure what that gets you.

[00:27:16] Speaker 01:
Might have believed that it was currency but he testifies.

[00:27:21] Speaker 01:
um under oath that he didn't really see um couldn't really see what it was but he believed because there was an exchange that it was likely current so that's that's that's a hunch so so it's two two answers to that first it's it's not he describes based on the size the color how it's being handled why it is he believes as currency and that's in footnote five of our

[00:27:51] Speaker 03:
that's collecting all those record sites.

[00:27:53] Speaker 03:
But the more important point, I think, is that the key is that there's an exchange, that it's not just someone receiving an object.

[00:28:03] Speaker 03:
So what this court says in Johnson is receiving an object has many innocent explanations.

[00:28:09] Speaker 03:
But this court in Johnson specifically says there was not an item exchanged in that testimony, in that very sentence where the court is saying receiving an object has many

[00:28:20] Speaker 03:
uh, innocent explanation.

[00:28:22] Speaker 03:
So this was a hand-to-hand transaction just as the undercover officer testified he was looking for.

[00:28:28] Speaker 03:
And then on top of that, we have to look at the totality of the circumstances.

[00:28:32] Speaker 03:
So that Wesby rejects the sort of divide and conquer approach to looking at each factor individually and trying to determine whether or not we can provide an innocent explanation for each one.

[00:28:45] Speaker 03:
We have to look at the full picture.

[00:28:46] Speaker 03:
So what we have is that this is a block

[00:28:49] Speaker 03:
that's known for drug trafficking, a sidewalk where the undercover officer himself has seen prior drug use.

[00:28:56] Speaker 03:
He sees the hand-to-hand transaction he's looking for, and then he sees Douglas make this suspicious movement of hiding the backpack underneath his jacket.

[00:29:07] Speaker 01:
But I have not seen a case from our circuit where the object that is exchanged, even if we

[00:29:18] Speaker 01:
assumed that it was a reasonable belief that what he saw Douglas hand money to William.

[00:29:29] Speaker 01:
The object that he got in return in that exchange was a bag.

[00:29:36] Speaker 01:
It wasn't packaged like anything that, you know, small baggies or anything like resembling drugs.

[00:29:45] Speaker 01:
He had no prior knowledge about either of these individuals.

[00:29:50] Speaker 01:
So the prior knowledge that he had was of the neighborhood and what occurred in the neighborhood.

[00:30:01] Speaker 01:
So it seems to me that we would be breaking new ground to say that this is reasonable, articulable suspicion to walk up to somebody in broad daylight who's in the public area.

[00:30:12] Speaker 01:
after making an exchange where you can even be sure that it's currency, but you see someone hand someone something and get handed something back.

[00:30:23] Speaker 01:
And it's a bag that they put on and then they put their coat on.

[00:30:28] Speaker 01:
And we're willing to assume that that's concealment, even though furtive gestures is only credited when it's furtive because you're trying to hide something from someone you know to be policed.

[00:30:42] Speaker 01:
But this was an undercover.

[00:30:45] Speaker 01:
And so they weren't trying to hide anything from the police.

[00:30:52] Speaker 01:
So we're going to break new ground and say that you can just walk up to somebody and then handcuff them and detain them based on that.

[00:31:04] Speaker 03:
So I think there was a lot in that question, and I want to

[00:31:08] Speaker 03:
kind of make three points.

[00:31:10] Speaker 03:
I don't think this would be breaking new ground.

[00:31:12] Speaker 03:
I think specifically the green case that we cite in the briefs from this court finds probable cause in very similar circumstances.

[00:31:20] Speaker 03:
There's a lot more in green.

[00:31:22] Speaker 03:
There is more in green, but it's also probable.

[00:31:25] Speaker 03:
Well, I'm not sure there is a whole lot more in, but there is, we agree there's more in green, but it's also a much higher standard of probable cause.

[00:31:33] Speaker 03:
This is a reasonable suspicion.

[00:31:35] Speaker 03:
The question is whether the police can stop the person

[00:31:38] Speaker 03:
just to investigate what's going on.

[00:31:40] Speaker 01:
Well, they were told, I want you to check that back.

[00:31:44] Speaker 01:
So that's what the directive was.

[00:31:46] Speaker 01:
You agree with that, right?

[00:31:48] Speaker 01:
So I do not agree with that, but so you're, you're I didn't hear that on the tape.

[00:31:53] Speaker 03:
You want me to tell you where that is on the tape?

[00:31:55] Speaker 03:
So you're,

[00:31:56] Speaker 03:
I think there were a number of questions about reasonable suspicion if I could address those before we go to the scope of the frisk because this court also wants to the frisk.

[00:32:06] Speaker 01:
It goes to the question of was this a frisk or was this top them so you can check the bag.

[00:32:11] Speaker 03:
So I'm happy to address the frisk, but I do have the court asked me a number of questions, including about furtive movements that I do want to be able to address.

[00:32:21] Speaker 03:
The questions about whether or not furtive movements or concealment can be considered absent the police involvement.

[00:32:29] Speaker 03:
The green case specifically says, it's another undercover officer case, specifically says when the people are concealing the object that is being exchanged, that that is something that provides the police with suspicion.

[00:32:43] Speaker 03:
That's one of the key green factors that it cites.

[00:32:46] Speaker 03:
And that's an undercover officer case that is not in response to police presence.

[00:32:50] Speaker 01:
So if somebody gets something and they put it in their pocket, that's concealment?

[00:32:55] Speaker 01:
No, Your Honor.

[00:32:57] Speaker 01:
I mean, it's all... Well, they're hiding it.

[00:33:00] Speaker 01:
So every time someone puts something somewhere where it can't be seen, that's suspicious concealment.

[00:33:06] Speaker 03:
No, Your Honor.

[00:33:07] Speaker 03:
But so you have to look at the circumstances and whether or not it looks like they're hiding something or they're not.

[00:33:14] Speaker 03:
So in this case, what the officer describes is that he takes off the jacket hurlingly, he puts the backpack on, then puts the jacket over it.

[00:33:25] Speaker 03:
I think this court is supposed to use its common sense in trying to assess whether or not that's suspicious.

[00:33:32] Speaker 03:
The officer testifies that it is suspicious to him the experience

[00:33:37] Speaker 03:
undercover officer.

[00:33:39] Speaker 03:
And that is very similar to what this court found in Green was suspicious and helped provide the reasonable suspicion.

[00:33:46] Speaker 03:
I think it's also, I'll cite the Supreme Court's Cipron case, which is the Terry companion cited in the reply brief.

[00:33:54] Speaker 03:
There, the court cites furtive tiptoeing in an apartment hallway.

[00:33:59] Speaker 03:
And that is, I think, actually the source of the furtive movements or furtive actions, kind of case law.

[00:34:07] Speaker 03:
That is not in response to police presence.

[00:34:10] Speaker 01:
That's just... You know, I was a public defender for 10 years and there are a lot of people who are represented in their families and lived in neighborhoods like this and made way worse neighborhoods.

[00:34:25] Speaker 01:
And they did things that were a little different than the way you and I might do.

[00:34:30] Speaker 01:
They did things like, you know, guys didn't carry water.

[00:34:35] Speaker 01:
because the wallet was just a convenient compartment for a robber to steal all of their money.

[00:34:42] Speaker 01:
Instead, they hid their money.

[00:34:45] Speaker 01:
Women hid their money in their bras.

[00:34:49] Speaker 01:
If they wore a purse, it was a very small purse that they could put underneath a jacket so they couldn't be seen.

[00:34:58] Speaker 01:
That's another consequence of living in a high crime.

[00:35:04] Speaker 01:
Sure.

[00:35:05] Speaker 01:
I do.

[00:35:05] Speaker 03:
I'm asking you these questions about concealment.

[00:35:08] Speaker 03:
Of course, your honor.

[00:35:09] Speaker 03:
And I understand that there could be innocent explanations, especially when you're taking the factors one by one.

[00:35:15] Speaker 03:
But the question here, it's far less than preponderance of the evidence.

[00:35:19] Speaker 03:
It's less than probable cause.

[00:35:21] Speaker 03:
It's just whether or not the police can stop the person to investigate what's going on.

[00:35:26] Speaker 03:
And here we do have very good record evidence from the undercover officer.

[00:35:30] Speaker 03:
that he's looking for this sort of hand-to-hand transaction.

[00:35:33] Speaker 03:
He describes the backpack transfer as being consistent with this bulk narcotics or firearms transaction.

[00:35:41] Speaker 03:
He's looking for people to hide as part of these hand-to-hand transactions, to hide what they're doing, consistent with what this court said agreed.

[00:35:49] Speaker 03:
And so we do have the record evidence.

[00:35:52] Speaker 05:
Where was Williams carrying the backpack?

[00:35:54] Speaker 05:
Did he have it on his

[00:35:57] Speaker 05:
Was he carrying it by hand or was it on his back?

[00:36:00] Speaker 03:
He was just carrying it by hand, was the record evidence in terms of that.

[00:36:05] Speaker 03:
Your Honor, you also asked about the frisk here.

[00:36:09] Speaker 03:
The testimony or the undercover officer saying to check the bag, I don't think that's cited in the briefs or suggested that that's

[00:36:23] Speaker 03:
Under the reason for the press, my recollection.

[00:36:27] Speaker 03:
So I haven't specifically reviewed that part of the.

[00:36:32] Speaker 01:
The government's exhibit 3, that's true radio communication.

[00:36:36] Speaker 01:
You put in the evidence, your government.

[00:36:40] Speaker 03:
So all I'm saying is that my recollection is that comes after the frisk.

[00:36:44] Speaker 03:
It may be wrong, because I haven't specifically checked that, because I don't think that was an argument that was made.

[00:36:50] Speaker 01:
But my recollection is... That officer Jackson said that after the frisk had occurred?

[00:36:55] Speaker 03:
That is my recollection in this case.

[00:36:58] Speaker 03:
But I think the more important question is that what we're operating on is objective standards, not subjective standards.

[00:37:07] Speaker 03:
And this frisk in this case was probably

[00:37:10] Speaker 03:
As Judge Randolph was saying, they feel an L-shaped object in the background.

[00:37:15] Speaker 03:
Indeed, if you look, especially at government exhibit four, but if you just look at appendix page 150, which is a still photo from the body worn camera, you can see the L-shaped outline of the heart object at the very outset of the frisk.

[00:37:30] Speaker 03:
Which, which, which exhibit is this?

[00:37:32] Speaker 03:
This is, I believe it's four, but it's A150 in the appendix, appendix page 150.

[00:37:38] Speaker 03:
is where you see that.

[00:37:39] Speaker 03:
You can see it better in the video where he's moving the object, and you can see this whole L-shaped move.

[00:37:46] Speaker 03:
But that is where you're seeing.

[00:37:49] Speaker 03:
And more importantly, I think the question is not whether the body-worn camera definitively proves what the officer is saying, but whether the officer does testify that he feels this hard object and recognizes it as a gun in the very first seconds of this frisk.

[00:38:07] Speaker 03:
we collect the kind of sites on page seven of our brief.

[00:38:11] Speaker 03:
And so the officer is testifying that he knows almost from the outset that he has a gun in this case.

[00:38:18] Speaker 03:
And so at that point, the officer is free to squeeze the object to make sure that it is a gun.

[00:38:25] Speaker 03:
As long as he's looking for a weapon, he is free to do those things.

[00:38:31] Speaker 03:
And so that does not go beyond the scope of the frisk.

[00:38:35] Speaker 01:
So you would say that distinguishes this from Minnesota v. Dickerson where the officer squeezed the bag and continued squeezing not because the officer thought that there was a weapon, but because the officer just wanted to figure out what was in the bag.

[00:38:53] Speaker 03:
That's correct.

[00:38:54] Speaker 03:
And this coordinate Johnson specifically says the limitation imposed by Dickerson is that once the officer finds an object on the person of a suspect, he may not help obtain it more than is necessary to determine whether it is a weapon.

[00:39:09] Speaker 03:
Once he, as long as he thinks he has a weapon, he is allowed to determine if it's a weapon and to take the weapon to disarm the person who he's stopping for officer safety.

[00:39:21] Speaker 03:
That's what happens in Terry.

[00:39:22] Speaker 03:
Holmes, from this court, sees for that proposition as well.

[00:39:27] Speaker 03:
The Dickerson issue is when you go beyond looking for a weapon.

[00:39:31] Speaker 03:
When you have an object you know is not a weapon, you are continuing to search.

[00:39:35] Speaker 03:
That's when there's an additional search.

[00:39:37] Speaker 03:
That's when there's a problem.

[00:39:39] Speaker 00:
So one of the questions here isn't it that most of these cases occur where the

[00:39:52] Speaker 00:
outline or the hard object that seems to be a gun is on the physical person of the defendant, not in a separate bag that would have to be unzipped for the person carrying the bag to actually take it out and threaten the officers.

[00:40:15] Speaker 00:
So what do you do with that fact?

[00:40:18] Speaker 03:
So I think there are two parts of that.

[00:40:21] Speaker 03:
One is that I understood from Mr Aksum's argument earlier that he's not disputing that part of the permissible risk was searching the backpack in this case.

[00:40:33] Speaker 00:
I want to ask my question, answer my question.

[00:40:36] Speaker 03:
Sure, so what we have here is that the defendant, he's wearing the backpack and it's under his jacket.

[00:40:45] Speaker 03:
So if you watch the body worn camera, there's not like a

[00:40:49] Speaker 03:
It's not like there's a separate bag that they are kind of feeling that couldn't be easily separated from the defendant.

[00:40:56] Speaker 03:
He's wearing the bag underneath his.

[00:41:00] Speaker 00:
The officer, all he needs to do is take the bag under your presentation.

[00:41:06] Speaker 00:
There's no reason to open the bag.

[00:41:10] Speaker 03:
I mean, I think the invasiveness of taking the bag would be

[00:41:14] Speaker 03:
more than just frisking the defendant.

[00:41:17] Speaker 03:
Because the bag is under the jacket, in order to take the bag, they would have to unzip the jacket, take off the jacket, take off the bag.

[00:41:27] Speaker 00:
The physical difficulty of the defendant threatening the officer with the gun, unless

[00:41:42] Speaker 00:
He takes several steps.

[00:41:47] Speaker 00:
Either he has, would you say take off his jacket?

[00:41:51] Speaker 00:
Then he has to take off the bag.

[00:41:53] Speaker 00:
Then he has to unzip the bag.

[00:42:00] Speaker 00:
Most of the cases don't present this type of obstacle to getting to the source

[00:42:13] Speaker 00:
of what may endanger the investigating officer.

[00:42:20] Speaker 03:
So I think that's kind of looking at it from hindsight.

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

[00:42:28] Speaker 00:
The arresting officer knew what he felt was under the jacket, in a bag,

[00:42:41] Speaker 00:
So that's not after the fact, it's what he was presented with the facts.

[00:42:46] Speaker 00:
And you do not want to acknowledge what's in the government exhibit about the instruction from Jackson was to check the bag.

[00:42:59] Speaker 00:
That's very different than the Terry stop for purposes of investigation where the officer can take reasonable steps

[00:43:11] Speaker 00:
to protect himself from injury or something like that.

[00:43:20] Speaker 03:
So what the officer testifies here is in the first five seconds or in the first few seconds of risking the defendant, he feels this guy.

[00:43:29] Speaker 03:
He feels this guy immediate.

[00:43:31] Speaker 00:
And so I'm not sure if the court is asking about that initial feeling of the gun or if the officer can take the... And what Supreme Court Terry was concerned about and what most of our cases, and you have cited one that I'm aware of, are concerned about officer safety in approaching a defendant.

[00:44:01] Speaker 00:
So here, Jackson didn't say, I think there's a gun in the bag.

[00:44:08] Speaker 00:
He said, search the bag.

[00:44:15] Speaker 00:
So we do not think distinction between those facts and the usual facts where the defendant who is being investigated by the police in this Terry context

[00:44:31] Speaker 00:
has ready access to a weapon.

[00:44:35] Speaker 03:
So this court's cases do not require the police officer to figure out exactly how easy a weapon that's on his body is going to be.

[00:44:48] Speaker 00:
I know, and if I have, I mean, it's hypothetical.

[00:44:51] Speaker 00:
I have it in a locked bag.

[00:44:53] Speaker 00:
I can't get to it.

[00:44:55] Speaker 00:
The officer can't get to it until I unlock the bag.

[00:45:00] Speaker 00:
And essentially, it's locked here to the extent that the officer knows it's under the jacket.

[00:45:07] Speaker 00:
So it's unavailable to the defendant until he takes off the jacket.

[00:45:13] Speaker 00:
And then because whether it's described as a backpack or a cross strap bag,

[00:45:19] Speaker 00:
has to take that off too.

[00:45:21] Speaker 00:
And I think talk about objective facts and totality of circumstances.

[00:45:27] Speaker 00:
I don't think you can ignore that.

[00:45:29] Speaker 00:
You have to come to deal with it.

[00:45:31] Speaker 00:
And plus your own exhibit directing the officer to check the bag.

[00:45:38] Speaker 03:
Two things.

[00:45:40] Speaker 03:
One, Mr. Axum

[00:45:42] Speaker 03:
I believe just conceded that it's okay for the police to be frisking the back, that that is permissive.

[00:45:49] Speaker 00:
I wish you would deal with my questions, right?

[00:45:52] Speaker 00:
Because what I'm dealing with is what the Supreme Court was concerned about, namely officer safety.

[00:46:02] Speaker 00:
And so protective searches, protective frisk, you know,

[00:46:10] Speaker 00:
Taking the totality.

[00:46:14] Speaker 00:
So the case law.

[00:46:17] Speaker 03:
I'm sorry, your honor.

[00:46:20] Speaker 03:
So the case law says if a person has a weapon on them or or indeed ready access to a weapon.

[00:46:28] Speaker 00:
I'm not talking about a defendant to basically unlock.

[00:46:41] Speaker 00:
the object in which there may be a gun.

[00:46:52] Speaker 03:
So here the object was not locked and the officer... There's an easy answer.

[00:46:59] Speaker 00:
I know.

[00:46:59] Speaker 05:
The answer is what is the office... When the officer feels something through the coat and in the backpack,

[00:47:09] Speaker 05:
What's he supposed to do?

[00:47:11] Speaker 05:
Say, oh, sorry, I bothered you.

[00:47:13] Speaker 05:
Unleash the handcuffs and let him walk away.

[00:47:17] Speaker 05:
I mean, it would be a dereliction of duty for him not to investigate further.

[00:47:23] Speaker 01:
The question is whether he had a duty to undertake that in the first place.

[00:47:30] Speaker 01:
Let me ask you this question.

[00:47:33] Speaker 01:
What is the evidence as to whether they frisked his person and when they frisked his person?

[00:47:40] Speaker 01:
So meaning the rest of his body?

[00:47:43] Speaker 01:
Yeah, what you normally happen in a stop and frisk situation where you frisk the person, you pat them down.

[00:47:51] Speaker 01:
Did they ever pat him down and if so, when?

[00:47:54] Speaker 03:
I believe they do and I think it's in government

[00:47:57] Speaker 03:
I guess it's defense exhibit 4, which is the partner's video.

[00:48:01] Speaker 03:
I think she is searching the front of him.

[00:48:03] Speaker 03:
But I think the officer immediately feels the gun.

[00:48:07] Speaker 03:
Once he feels the gun, you can see he's tightened his grip on the defendant.

[00:48:12] Speaker 01:
Because the first thing that he does is handcuff him, pull the jacket down, and start filling the backpack.

[00:48:19] Speaker 03:
No, he doesn't pull the jacket down for a couple of minutes.

[00:48:23] Speaker 03:
He leaves the jacket.

[00:48:24] Speaker 03:
The jacket is up for the first couple of minutes.

[00:48:27] Speaker 03:
He the first thing he does is he pulls him over and then he starts risking his back.

[00:48:33] Speaker 03:
And within seconds of starting to frisk his back, he feels the gun.

[00:48:36] Speaker 03:
And again, you can see this in the body.

[00:48:39] Speaker 03:
And this is also what the district court's findings are.

[00:48:43] Speaker 03:
This is how that is one of the one of the photographs shows.

[00:48:46] Speaker 03:
That's right.

[00:48:47] Speaker 03:
That's A-150.

[00:48:48] Speaker 03:
Appendix page 150 shows that gun.

[00:48:51] Speaker 03:
So what the officer is doing is he starts the frisk with the back.

[00:48:55] Speaker 03:
He immediately feels a weapon.

[00:48:57] Speaker 03:
At that point, the defendant, I think as Mr. Axum, the defendant is not going to be released until the officers recover that weapon in this case.

[00:49:09] Speaker 03:
But the officers are allowed to go in and to recover that weapon once they feel a gun in his back.

[00:49:17] Speaker 01:
All right.

[00:49:18] Speaker 01:
Any other questions, Judge Rogers?

[00:49:20] Speaker 00:
No, thank you.

[00:49:23] Speaker 01:
Randolph?

[00:49:24] Speaker 01:
No.

[00:49:24] Speaker 03:
Yes, this is where to refer.

[00:49:26] Speaker 01:
All right.

[00:49:26] Speaker 01:
Thank you, Mr. Hansford.

[00:49:29] Speaker 01:
Mr. Axon, you didn't have any time.

[00:49:31] Speaker 01:
We'll give you two minutes.

[00:49:34] Speaker 06:
I would take that time to refer the court to what Officer Jackson said and that he

[00:49:43] Speaker 06:
He may have at some point said something appeared to be money.

[00:49:46] Speaker 06:
But that was explored further on cross-examination.

[00:49:50] Speaker 06:
And that is what is supposed to happen.

[00:49:52] Speaker 06:
You're supposed to figure out what exactly the officer is saying.

[00:49:56] Speaker 06:
What do the words appear to mean?

[00:50:00] Speaker 06:
And Officer Jackson conclusively explained that he did not know what he saw.

[00:50:04] Speaker 06:
He was too far away.

[00:50:05] Speaker 06:
He couldn't tell if it was money.

[00:50:06] Speaker 06:
He couldn't even tell if it was paper.

[00:50:11] Speaker 06:
That is a 299, a 299, a 278.

[00:50:15] Speaker 06:
And I think that's conclusive.

[00:50:16] Speaker 06:
With regard to concealment, concealment itself is a generic act.

[00:50:21] Speaker 06:
We conceal things.

[00:50:22] Speaker 06:
I conceal putting my kid in my car.

[00:50:23] Speaker 06:
That is a generic act.

[00:50:25] Speaker 06:
And when you have something that is generic and ubiquitous everywhere, people conceal things all day, as is their right under the Fourth Amendment, as the court points out, in order to attach some criminal motive to it,

[00:50:41] Speaker 06:
Police have to explain why.

[00:50:44] Speaker 06:
And that did not occur here.

[00:50:46] Speaker 06:
The officer didn't say, I've seen people who are selling drugs get a backpack and put it under their coat.

[00:50:54] Speaker 06:
That's their emote.

[00:50:55] Speaker 06:
He didn't do that.

[00:50:57] Speaker 06:
So the government, if that was the telltale sign of a drug transaction, should have elicited that testimony from the officer.

[00:51:06] Speaker 06:
They didn't, because it's not.

[00:51:08] Speaker 06:
Because concealment is a general act.

[00:51:10] Speaker 06:
And even the concealment in green that the government relies on very strongly is concealment of drugs.

[00:51:19] Speaker 06:
They are at sight.

[00:51:21] Speaker 06:
You can identify them.

[00:51:23] Speaker 06:
The concealment here is of a bag, something that is innocent of itself.

[00:51:28] Speaker 06:
So it makes sense that you would try to conceal something that everyone knows already is criminal.

[00:51:35] Speaker 06:
The other thing about Reed that I point out is that there was currency, paper US currency in Reed.

[00:51:41] Speaker 06:
So it was an exchange of something, small objects, presumably drugs, or paper US currency.

[00:51:47] Speaker 06:
So Reed is not on all fours with this case.

[00:51:49] Speaker 06:
That is simply inaccurate.

[00:51:51] Speaker 06:
The other thing that I want to say, the government keeps referring to a concession.

[00:51:55] Speaker 06:
When I concede, I will say I concede.

[00:51:57] Speaker 06:
I have not conceded.

[00:51:58] Speaker 06:
I admit that I did not raise the challenge to this search of the bag as a separate search from the frisk.

[00:52:09] Speaker 06:
But I do not concede.

[00:52:11] Speaker 06:
I want that to be very clear.

[00:52:15] Speaker 06:
The last thing that I will refer to is Officer Pupart and his testimony.

[00:52:21] Speaker 06:
And I refer the court to A380, where Officer Pupart is asked, now, when Mr. Douglas says it's a glasses case, at that point in time, you also agree there is at least a glasses case in there.

[00:52:34] Speaker 06:
Yeah, or a similar object.

[00:52:36] Speaker 06:
What you are trying to figure out is if there is something else in there.

[00:52:42] Speaker 06:
The answer, right.

[00:52:43] Speaker 06:
if there is something else in there.

[00:52:46] Speaker 06:
By Officer Pupar's own admission, he did not know whether there was something else in there.

[00:52:52] Speaker 06:
He was trying to figure out whether there was something else in there.

[00:52:56] Speaker 06:
That is a search.

[00:52:57] Speaker 06:
At the moment, he is trying to figure out and not patting down and immediately realizing that it is a gun, it is a search.

[00:53:05] Speaker 06:
And it is beyond the scope of carry and required probable cause.

[00:53:10] Speaker 01:
Thank you.

[00:53:11] Speaker 01:
We have your argument.

[00:53:11] Speaker 01:
We'll take the case under advice.