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Case number 22-3024, United States of America versus D'Angelo Evans, also known as D'Angelo Evans Appellant.

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Ms.

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Berman for the appellant, Ms.

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Colu for the appellant.

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Good morning.

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Mr. Evans was convicted of being a felon in possession of a firearm that Park police officers seized from his prison back in September of 2019.

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During his encounter with police, Mr. Evans forcefully asserted his Fourth Amendment rights by declining the incentives of the person.

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And the Park police officers violated those rights when they searched him anyway without a warrant.

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The only basis for a warrantless pat-down frisk was that the officers claimed that they saw a bowl in Mr. Evans' place

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that testimony was not credible.

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I think an important starting point is that even though Judge Jackson ultimately denied the motion to suppress, she was taken aback by many of the testimony.

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No body camera and video because the park police in the latest 2019 still didn't have body cameras.

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The officers contradicted themselves and each other repeatedly.

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They testified that they were in what they described as the high crime area and saw a bulge in Mr. Evans's pants, but for several minutes did not secure the weapon.

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During the suppression hearing, Judge Jackson said that she had, quote, never heard anything like that.

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He asked the AUSA if she had ever, quote, seen a case where an officer who believes someone is armed because they've seen the weapon would just let somebody sit there and not pat him down.

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What was the, I thought you just said several minutes and I thought elsewhere I'd read it was like one minute.

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What is the fact finding on the time between when the first officers saw the bulge and thought it was a gun perhaps?

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and when the pat-down actually happened.

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Do you know exactly what that time frame was?

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I don't think that they established a precise time frame.

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There was a period between when Officer Keane first observed the bulge and then later Officer Sinicor did.

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And then they waited several minutes while two other units reported after those other units reported that Officer

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We do know, I think, that the time between the request for backup and the backup arriving was a minute or two.

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But one of the other things that Judge Jackson noted was that she was asking whether the government was asking her to credit the officer's testimony because it's so peculiar.

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When she ruled on the motion, she referred to their odd judgment and the fact that it seems like we set the junior varsity

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But then having stepped to the brink of making a finding at their testimony was not credible.

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He backed away from that and ultimately denied the motion.

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And we submit this was clearly wrong.

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We recognize that this is a very high standard.

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We recognize that the court defers to factual findings.

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And it can only reject those factual findings when the district court credit exceedingly improbable testimony.

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But we submit that that's the case.

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Let me briefly set the context.

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Because I think the context is important here.

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I'm sorry, but I wanted to get to your context.

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I just want to clarify, make sure I'm clear on understanding one thing.

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You are bringing just a challenge to the district court's credibility determination as to the officers reviewing the gun and conducting the search.

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You are not arguing, and I think you even agreed, that if in fact she finds and we uphold the finding that the officer saw a bullet and thought it was a gun,

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that a search that would be sufficient by itself, believing that he was armed alone would be sufficient to justify the search, if that is credited.

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Yes, Your Honor.

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I think everyone agreed, just reportedly, all the others.

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You don't argue that they had to separately find that he was dangerous.

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I agree that if you accept the credibility findings, that's the end of the case.

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I want to set the context here, which is that if you look at many of the other cases that Mr. Evans was wearing, he wasn't doing anything inherently suspicious at the outset of the encounter.

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clothing, answer a button, voluntarily left the vehicle, he wasn't making any hurt of gestures, he didn't lie, he wasn't sweating, he didn't try to flee, there was no smell of drugs.

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And so, as Your Honor said, this entire case is based on the testimony about the observation of a bulge.

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to not display that side of his waistband.

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Yes.

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Yes, Your Honor.

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The facts I was setting forth were kind of leading up to the testimony about those observations after he got out.

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And we submit that if you look at the entirety of their testimony, there's a series of inconsistencies.

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There are inconsistencies about the speed of the vehicle.

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Officer Payne testified he was going at a high rate of speed.

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He started out in superior court.

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He made no mention

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Officer Payne was inconsistent on the issue of calling for backup.

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He testified that before he got out of the vehicle, he merely called in the location to stop, but he was impeached with grand jury testimony.

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He had called for backup.

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Officers were inconsistent about whether or not officer Sinecor asked for Mr. Evans' consent to search.

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Payne said he didn't, but Sinecor said that he did.

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They were inconsistent about whether Mr. Evans initially did anything suspicious.

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Officer Payne said that he didn't detect anything suspicious about Mr. Evans' appearance.

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Pain testified that it was not normal for Evans to position himself as he did with respect to the vehicle, but Sinicor said that was not unusual.

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Pain and Sinicor both testified that even after they allegedly detected a bulge, they didn't perform a pat-down wait for several minutes.

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And we suppose that this is simply not plausible.

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But police routinely do pat downs when they don't have overwhelming numerical knowledge.

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You have two armed officers consulting in front of a teenage girl and a skinny, shivering, anemic suspect in what they claim was a high crime area.

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Now, the district court rationalized all these oddities by saying that the fact that their testimony was not well polished, well rehearsed, in some ways adds to their credibility.

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This is sort of an odd standard in which heads of the government wins and tails the defendant loses.

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Government agents testify clearly and consistently.

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The government wins if they testify in a way that's somewhat confusing and inconsistent.

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The defendant loses if we submit that this is not an adequate basis for credibility.

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Well, what did the court actually say about that increasing their credibility?

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Pardon me?

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What exactly did the court say about that?

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the lack of coordination in the testimony, increasing their credibility.

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Well, she said, she said, she said the fact that they're in appendix 21, the fact that their testimony was not polished or well-reversed in some ways adds to their credibility.

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In some ways.

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And that's where I think we get into a heads and tails.

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Right.

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So, well, so that's, what does that tell us?

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We're sort of quaint, right?

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Quaint, rather quaint, and maybe even charming.

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I don't want to consume my rebuttal time here, but I was going to point out that we have cited the cases, the civil case in this circuit, the Bishop case, the criminal case in the second and third circuit where courts have applied the Anderson standard and reverse credibility finding criminal cases we would ask.

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Thank you.

[00:08:03] Speaker 04:
Good morning, Your Honors.

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May it please the court and counsel, Chief Namsu Okalu, on behalf of the United States.

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Your Honors, we are asking this court to affirm the district court's denial of Mr. Evans' motion to suppress, because the district court, the record does not show that the district court clearly erred in crediting the officer's testimony.

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Well, one of our rationales was that they were the junior varsity.

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But in fact, at least one of the officers had been serving for a decade and participated in, I said, 20 to 40 gun recoveries.

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That was part of the record, too.

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So I was incredible for the district court to conclude that these were sort of inexperienced, naive officers when, in fact, at least one of them was highly experienced.

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Well, I think that the comment about the officers being sort of junior varsity perhaps went to a critique of their tactical judgment in this situation.

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I don't take that to say that she thought that they were totally inexperienced.

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Perhaps rather that they, as she said later,

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Let's see, 282 in the appendix, she said, she talked about the fact that they didn't use all available force.

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And I think perhaps- She didn't use any.

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They let him go sit over on the sidewalk.

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Which the officers explained.

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And the court did discuss the officer's testimony that the reason that they chose not to, for example, draw their service weapons or take Mr. Evans down was because they had gotten to where they thought the situation was safe, where the situation was wrong.

[00:09:53] Speaker 01:
Well, the question is why they didn't just do a pat down, which officers routinely do in tense situations for their own

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safety and both of these officers had been involved in many, many, many, many, many, many gun recoveries.

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I mean, are you aware, you're an USA prosecutor in these cases, how common is it for officers when they suspect someone has a gun to, instead of putting them down, tell them to go sit over there on the sidewalk with no officer around them and wait one to two minutes before a pat down occurs?

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I can't say how common it is.

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Have you ever seen it?

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I have not personally.

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Aside from this case, I do want to push back a little, Your Honor.

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Officer Sinicor testified that when Mr. Evans went to go sit on the grass with his ankles crossed, his arms away from his waistband, that Officer Payne was standing two feet away from him and was facing Mr. Evans.

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So he was not unattended.

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And I also do think that, although it might seem unusual in the district court,

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said that this was an unusual situation.

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Unusual does not equal not credible.

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She took all of these factors into consideration.

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She also accepted, again, the officer's testimony that they were endeavoring to maintain

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calm situation, which one could argue was reasonable.

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There were two officers.

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There were two individuals that they had stopped as well.

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They believed one of them to be armed.

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There was not a revolt.

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That's pretty common that there's not just one person being stopped.

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Really, the point is so everything they felt, the officers felt safe enough.

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could keep doing their business without doing a pat down as long as Mr. Evans was over on the sidewalk and I forget he had to have his hands in a certain place.

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So then what happened that made it between the time that he was sitting there just being they kept an eye on him.

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but did not feel a pat-down necessary.

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And then backup shows up and a pat-down's done.

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Now what happened in his behavior?

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What factual change occurred that suddenly made a pat-down necessary when it hadn't been necessary for the proceeding to minutes?

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They have to show necessity at the time of the pat-down.

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So what made it necessary at that point?

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I don't think that the officers ever testified they believed pat-down was not necessary.

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What I took from their behavior and from their testimony was that they believed that a pat-down was necessary, but that they needed to do it in a safe manner.

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And in their judgment,

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They believed that the safest way to accomplish a pat down in this situation, where Mr. Evans was initially agitated, and then responded favorably to being calmed down, I believe is the word they used by Officer Payne, they wanted to maintain that calm situation.

[00:13:00] Speaker 01:
He was calmed down before he went over to the sidewalk.

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He was calmed down when he was still at the side of the car.

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They calm enough.

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They're like, okay, just fine.

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Go sit over there.

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Keep your hands out where we can see them.

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So he was calm long before this.

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I could have patted him down once he calmed down by the car.

[00:13:18] Speaker 04:
Again, the officers were, I think it might be a different situation if it were two officers and one person, but they saw what they believed was a firearm on Mr. Evans and

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didn't know what was going on with the driver of the car.

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You know, potentially she could be armed or get involved in the situation.

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Did they pat her down?

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They did not pat her down.

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At any point.

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At no point.

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But there also was no testimony that they saw anything that they believed to be her.

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Right, so they didn't have any reason to think there's no evidence they thought she was armed or dangerous.

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Aside from the fact, perhaps, that they believe Mr. Evans to be armed, and there is some case law, I believe, suggesting that where one occupant of a car is armed, that

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would be permissible to pat down the others.

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But even all of that said, again, I think that the key in this case is whether it was clear error for Judge Jackson to have credited this testimony.

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And for everything that we have been discussing this morning that may come across as unusual, the officers explained why they took the actions that they took.

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And the judge accepted their explanations.

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And I think that because there is support in the record for the findings that you can't say that she clearly erred in finding that the officers were credible in testifying as to.

[00:14:46] Speaker 01:
There's testimony that for a while it was just one officer.

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And then when he was on the sidewalk, the second officer who was on the other side of the car saw the bulge.

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So they thought, at least by the time he was over on the sidewalk, they both thought he

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armed, but again, didn't, and he was calm at that point, but neither of them did anything.

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What evidence is there on the record that they thought he was both armed and dangerous?

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I think that the danger would be inferred from the extended, there was officer Payne testified to seeing not only a bulge at waistband, but also a

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a long, hard object poking out of Mr. Anson's hands.

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He thought that that was a metal or hard object based on the way that it was interacting with things.

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And as Judge Jackson pointed out in her ruling,

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And this is at 280 in the appendix.

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There was no attempt to even argue that the magazine would not have created the bulge that was described by Officer Payne and that was consistent with the way the firearm was in fact found in the defendant's pants.

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And so I think that based on those

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Factors that And and based on factual finding by the judge.

[00:16:12] Speaker 01:
There's no testimony by either officer that they felt he was Dangerous because he was armed and the behavior was inconsistent with thinking he was an immediate or imminent danger to them and I agree you're right to point out that there was sort of a long bolt but there's again no testimony that I saw and tell me if you're wrong that they thought this was

[00:16:36] Speaker 01:
a particularly dangerous firearm or an illegal firearm given the size and length of the bulge.

[00:16:47] Speaker 04:
I believe Officer Payne testified to the potential that Mr. Evans might run.

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That initially before they were able to calm him down, that he was looking side to side like he might run.

[00:17:01] Speaker 01:
That's not a reason that he wouldn't go let him sit on the sidewalk by himself, would you?

[00:17:05] Speaker 04:
Well, because by the time he went over and actually spoke to him, he was able to calm him down.

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But again, I think the danger is sort of the officer's perception of danger is inherent in the way that they approach to this situation, which was that they wanted backup.

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They did not feel safe enough to conduct the pat-down at that moment by themselves.

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When did they call for backup?

[00:17:29] Speaker 04:
They called.

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So there were two calls for backup, or two calls to the other units that they were controlling.

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was when they initially stopped the car.

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Before they felt endangered or saw him.

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Was Mr. Evans still in the car the first time they called for backup?

[00:17:50] Speaker 04:
There was a clarification that Officer Payne made in his testimony.

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He testified in the grand jury that that was a call for backup, that that first time when they stopped, but he clarified during his testimony that when he said backup, that he was giving his location, their location, to the other officers just to let them know where they were.

[00:18:12] Speaker 04:
The actual call for backup, in other words, please come to where we are, please respond and assist us, was after they had

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steps Mr. Evans out of the vehicle and they have both seen the bulge.

[00:18:24] Speaker 04:
Two different, and I see I'm over my time, and so unless there are further questions, we would just ask the court to affirm.

[00:18:32] Speaker 01:
Thank you very much.

[00:18:33] Speaker 01:
Thank you, Your Honor.

[00:18:35] Speaker 01:
Mr. Berman, how much time does Mr. Berman have?

[00:18:38] Speaker 01:
Two and a half?

[00:18:39] Speaker 01:
Okay.

[00:18:41] Speaker 03:
First of all, Council has correctly stated that there is only one health

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When Officer Payne initially made the stop, he said that he called in the location of his stop.

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That's it.

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Second point the responsible counsel said is that no one testified that he thought that what was in going down Mr. Evans' leg was an extended magazine or any other kind of weapon.

[00:19:08] Speaker 03:
They find that out after the fact.

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Officer Payne's testimony simply that you saw a large bulge going down his camp leg That's an appendix 49 and 50 and that he believed the lower bulge was either a metal object or a hard object appendix 3 but that isn't suspicion weapon

[00:19:29] Speaker 03:
I think it's important to note in reviewing these credibility determinations, in reviewing the district court's finding that the officers made an odd judgment and clear setting, is that this case didn't arise out of routine traffic enforcement.

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It arose out of officers looking to make a gun stop.

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This was not a traffic unit.

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It was a crime patrol unit.

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unmarked car.

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They were doing a proactive patrol or an investigation in appendix 110 and 126.

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They made a high number of stops that evening in appendix 124.

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They were highly motivated.

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They asked again and again and again for consent, even when Mr. Evans said no.

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I think that's something that the court can consider in assessing the credibility of their testimony about the bulge, and particularly consider in assessing the credibility of testimony that they saw bulge, and a firearm that everyone agrees was only three inches long and one inch wide.

[00:20:27] Speaker 03:
Anderson says that, refer to the trial judge if the witnesses have told a coherent and facially plausible story that is not internally inconsistent, we submit that pain is going to fulfill that test.

[00:20:38] Speaker 03:
We would ask the court to reverse and remand the instructions to grant the question.

[00:20:42] Speaker 03:
Thank you.

[00:20:43] Speaker 01:
Any more questions?

[00:20:44] Speaker 01:
All right.

[00:20:45] Speaker 01:
Thank you.

[00:20:46] Speaker 01:
Mr. Berman, you were appointed by the court to represent Mr. Evans.

[00:20:49] Speaker 01:
That's correct.

[00:20:50] Speaker 01:
That's correct.

[00:20:50] Speaker 01:
Mr. Evans in this case, and the court thanks you for your assistance.

[00:20:53] Speaker 03:
Thank you.