[00:00:00] Speaker 01: Case number 22-3017, United States of America versus Johnny Gamble at balance. [00:00:07] Speaker 01: Mr. Axum for the balance, Ms. [00:00:08] Speaker 01: Gallo for the appellee. [00:00:11] Speaker 04: Good morning, counsel. [00:00:12] Speaker 04: Good morning. [00:00:12] Speaker 04: Mr. Axum, please proceed under ready. [00:00:14] Speaker 03: May it please the court, counsel. [00:00:16] Speaker 03: Tony Axum on behalf of appellant Johnny Gamble. [00:00:20] Speaker 03: I'd like to reserve a few minutes for rebuttal. [00:00:23] Speaker 03: Appellant Johnny Gamble was seized 26 armed officers in tactical gear [00:00:30] Speaker 03: came upon him quickly at night in a limited area sidewalk and singled him out. [00:00:35] Speaker 03: Specifically, Officer Tejada singled him out. [00:00:38] Speaker 03: The specific moments of seizure were, first, when Officer Tejada positioned himself to stop Mr. Gamble's movement away from the officers. [00:00:48] Speaker 03: Second, when Officer Tejada announced, just making sure there ain't no guns, that's it. [00:00:55] Speaker 03: And then asked Mr. Gamble if he had a gun. [00:00:57] Speaker 03: This accomplished two purposes. [00:01:00] Speaker 03: uh, accused Mr Gamble of a crime and suggested that Mr Campbell, Mr Gamble needed to remain in place to dispel the officer's accusations. [00:01:11] Speaker 03: And the third moment of seizure was when Mr Gamble said that he did not have a gun. [00:01:17] Speaker 03: And Officer Tejada said, um, let me see your waist. [00:01:21] Speaker 05: So, so you want us to hold that [00:01:26] Speaker 05: He was seized when Tejada walks up to him and singles him out before he even others a word. [00:01:36] Speaker 05: That's a seizure. [00:01:40] Speaker 03: In this case, there was a seizure at that point. [00:01:43] Speaker 03: And, um, Hey, [00:01:47] Speaker 03: I will say that in general, when an officer approaches someone and doesn't utter a word, there is a seizure. [00:01:53] Speaker 03: But in this case, Mr. Gamble was backing away with his hands up, and Officer Tejada came and stood in his path. [00:02:00] Speaker 03: So I would say to the court, yes, if an officer walks up to someone and stands in the path, [00:02:07] Speaker 03: their path of movement. [00:02:08] Speaker 03: That officer is conveying without words that I want you to stop. [00:02:12] Speaker 03: Mr. Gamble did stop. [00:02:14] Speaker 05: What was Officer Tahata supposed to do that would have been compliant with the Fourth Amendment? [00:02:20] Speaker 03: Well, this report has suggested that officers come up and [00:02:26] Speaker 03: If it's a consensual encounter, make it consensual. [00:02:30] Speaker 03: Come up and say, hi, we're out here. [00:02:33] Speaker 03: We're investigating this. [00:02:34] Speaker 03: Would you mind talking to us? [00:02:36] Speaker 03: You are free to go about your way if you do not want to talk to us. [00:02:40] Speaker 03: None of that occurred. [00:02:42] Speaker 03: This was immediately like, [00:02:44] Speaker 03: multiple officers descending at once in tactical gear at night. [00:02:49] Speaker 03: Um, the atmospheres of the situation did not convey a consensually they convey the exact opposite. [00:02:56] Speaker 03: Of course, that everyone there should comply with. [00:03:01] Speaker 05: Let's zero in on the moment that Officer Tejada says. [00:03:05] Speaker 05: Let me see your waist. [00:03:09] Speaker 05: Um, the government says that that's not a seizure at that point. [00:03:15] Speaker 05: what's your best case or cases that it was a seizure at that? [00:03:24] Speaker 03: Well this court's case in United States v. Wood where an officer arrives at a location and [00:03:39] Speaker 03: see someone walking away and says, stop, freeze. [00:03:43] Speaker 03: And the person stops and freezes and immediately drops the gun. [00:03:48] Speaker 03: The command itself was a show of authority. [00:03:51] Speaker 03: And when the person stopped, that was submission to the authority. [00:03:55] Speaker 03: And this court found that that was a seizure. [00:03:58] Speaker 03: There are other cases as well. [00:04:01] Speaker 04: We've also said that the question, can I see your waistband, does not demonstrate a seizure. [00:04:09] Speaker 04: I think we said that in gross and so if that I take we could take that as a given at least for now that a request and I see your waistband would not establish a seizure and so I guess my question is can the words let me see your waistband can they ever be a question if they're framed if they're said very politely if just leave off the [00:04:37] Speaker 04: can you let me see your waistband if it's just let me see your waistband? [00:04:41] Speaker 04: Can they be a question? [00:04:44] Speaker 03: No, there's always an imbalance between officers in uniform, certainly in this situation, but let's just say an officer and an officer. [00:04:55] Speaker 03: And even if there's an imbalance, words have meaning. [00:04:59] Speaker 04: I mean, even if there's an imbalance in power, [00:05:03] Speaker 04: It's true that, notwithstanding that imbalance in power, the words, could I see a waistband, are not indicative of a seizure. [00:05:12] Speaker 03: A question this court has held is not indicative of a seizure. [00:05:15] Speaker 03: It is not necessarily a seizure. [00:05:18] Speaker 03: I don't think the court has gone so far as to say questions are never a seizure. [00:05:23] Speaker 04: Right. [00:05:23] Speaker 04: It doesn't have to be a seizure. [00:05:25] Speaker 03: But this is not a question. [00:05:28] Speaker 03: Can it never be a question? [00:05:30] Speaker 03: Can it work? [00:05:32] Speaker 03: I'd have to say a command by a police officer, given the imbalance in power, it's logical that we want people to obey commands by police officers. [00:05:44] Speaker 03: And if a command is not a show of authority, which somebody has to comply with, [00:05:56] Speaker 04: So I think I might agree with you that if it's a command, then it shows a seizure. [00:06:05] Speaker 04: I guess my question is, there's a question or request on one hand and a command on the other hand. [00:06:11] Speaker 04: It seems to me there are words that could be either. [00:06:15] Speaker 04: It could be a command, it could be a question. [00:06:17] Speaker 04: You just have to look and listen and figure out in context. [00:06:22] Speaker 04: Was it framed as a question, or was it framed as a command? [00:06:24] Speaker 03: Well, I think the Supreme Court has said that it's the tone of the officers of the words chosen. [00:06:32] Speaker 03: And words chosen, again, have to have meaning. [00:06:40] Speaker 03: This was not something that began with. [00:06:44] Speaker 03: If the officer was, if this was a consensual encounter, [00:06:50] Speaker 03: my client was free to resist the command, then it's a very simple thing for the officer to say, may I see your stand? [00:06:58] Speaker 03: That is not what occurred. [00:06:59] Speaker 03: It's a very simple thing to advocate and again, the language has to have meaning and the declarative statement or command is simply never a question. [00:07:13] Speaker 05: Here's how the district court characterized it at J 175. [00:07:19] Speaker 05: Um, he says, and at that point he specifically tells a defendant and it wasn't a hostile tone of voice, but he clearly makes a demand. [00:07:28] Speaker 05: Show me your waist. [00:07:31] Speaker 05: So what do we do with that? [00:07:37] Speaker 05: Well, you're not saying that any of that, but to the extent that's a factual finding is clear air, right? [00:07:45] Speaker 05: No, I don't think the government argues that that's clear error either. [00:07:51] Speaker 03: I don't take issue with either the finding that it's a demand or that the tone is nice, but saying things nicely doesn't change that you are requiring someone to do something. [00:08:07] Speaker 07: Mr. Axum, if we assume that it was a demand, and the first time the officer demanded that Gamble show his waistband was a show of authority, and then we assume that the seizure occurred when he actually raised his shirt and showed his waistband, it seems to me that there were three factual findings in the record that could amount to reasonable suspicion that would support that seizure. [00:08:34] Speaker 07: First, there's a finding that we're in a high crime area, quote, specifically related to gun possession, both violent and nonviolent related gun matters. [00:08:43] Speaker 07: The first one. [00:08:45] Speaker 07: Second, the court found it was, quote, unusual when Gamble backed away with his hands up in response to the police arrival. [00:08:52] Speaker 07: And the court did say that that could be consistent with consciousness of guilt. [00:08:58] Speaker 07: I'm paraphrasing here, but said that that's subject to other interpretations as well. [00:09:02] Speaker 07: But third and most importantly, the court said it was quote unquote suspicious when Gamble did not immediately comply with the directive, but instead pulled up his pants and quote, um, was seeking to try and actually conceal his waistband, which occurred here. [00:09:20] Speaker 07: So those three findings of fact, which nobody is saying were clearly erroneous. [00:09:28] Speaker 07: Why don't those add up to reasonable suspicion that would support a seizure at that point of seizure when he raised his shirt? [00:09:37] Speaker 03: Well, the first thing I'd say about the neighborhood and the high crime designation, that's just a contextual matter. [00:09:45] Speaker 03: And the court certainly had to look at the circumstances of this case, decide whether [00:09:53] Speaker 07: But the Supreme Court has held in Wardlow that that's a factor in finding reasonable suspicion. [00:09:58] Speaker 03: It's certainly a factor. [00:09:59] Speaker 07: So that's one factor, and then there's two more. [00:10:02] Speaker 03: But the question is, how do the facts of this case, how are they influenced by the high crime designation, we'll call it? [00:10:17] Speaker 03: Slowly backing away. [00:10:18] Speaker 03: does not become a crime because you're in a high crime area. [00:10:22] Speaker 07: It's not a crime, but the court found that it was unusual and is consistent with. [00:10:28] Speaker 03: Well, that would place my hand in the double blind. [00:10:30] Speaker 03: If he has the right to walk away, it can't be that then walking away is a basis for reasonable suspicion. [00:10:39] Speaker 03: The Supreme Court has also said that defendants have the right to walk away when police arrive at a scene. [00:10:45] Speaker 03: They don't have to stay and talk or do anything. [00:10:48] Speaker 03: For that to be a factor of, I can't say that it's never a factor in the reasonable suspicion analysis, but it's not significant here. [00:10:59] Speaker 03: I'd say that it is entitled to very little, if any, weight under these circumstances. [00:11:05] Speaker 07: I think in all of these Fourth Amendment analyses, [00:11:09] Speaker 07: There's behavior that could be innocent in some context, but could be construed as suspicious in others. [00:11:16] Speaker 07: I think that's just a normal part of this analysis. [00:11:18] Speaker 07: And here the court said it could be construed in different ways. [00:11:22] Speaker 07: It could be construed as suspicious behavior, trying to suggest that he hadn't done anything when in fact he did. [00:11:29] Speaker 07: because I think it's unusual just because the police arrive on the scene and somebody backs away from them. [00:11:35] Speaker 07: And not just backs away, like he doesn't want to have contact with them, but also is raising his hands in a manner that would suggest or could suggest that he was trying to conceal the fact that he was involved in criminal behavior. [00:11:46] Speaker 07: Although it could be construed otherwise as well. [00:11:50] Speaker 03: So that's a finding by the district court. [00:11:55] Speaker 03: I fully appreciate that. [00:11:58] Speaker 03: There is no explanation. [00:12:00] Speaker 03: The government didn't elicit from Officer Tejada why back, what crime? [00:12:07] Speaker 03: Backing away statement. [00:12:09] Speaker 03: And really that gets to the heart of it because backing away is an innocent act. [00:12:16] Speaker 03: So if it is suspicious, what is it suspicious of? [00:12:20] Speaker 03: General suspicion, general hunches are not sufficient for reasonable suspicion. [00:12:25] Speaker 03: General hunches don't allow the police [00:12:28] Speaker 03: because something looks odd or something looks strange, there are many things that look odd and strange, and officers don't have the right to stop someone to investigate that further. [00:12:39] Speaker 03: What officers have to do is to articulate how that odd or strange behavior is criminal. [00:12:47] Speaker 03: And backing away, in this very case, no one has explained how backing away is criminal. [00:12:55] Speaker 07: And so can you address the third factor, which was that he tried to actually conceal his waste? [00:13:06] Speaker 03: The first thing that I would say about trying to conceal his waste is that that's a very subjective finding. [00:13:16] Speaker 03: It's what the officer said. [00:13:18] Speaker 03: It seemed to him that maybe he was trying to conceal his waste. [00:13:21] Speaker 03: But one, there is no concealment. [00:13:24] Speaker 03: His waste was not concealed. [00:13:25] Speaker 07: So you're saying the finding by this report is clearly erroneous? [00:13:28] Speaker 07: It seems that you're conceding it was supported by the testimony of the officer. [00:13:34] Speaker 03: The finding that the defendant was trying to do something. [00:13:38] Speaker 03: He was trying to conceal his waist. [00:13:39] Speaker 03: Trying to conceal his waist is different from concealing his waist. [00:13:42] Speaker 03: I'm making a distinction between those two things. [00:13:44] Speaker 03: Concealing waist is an objective fact that this court could review and determine. [00:13:48] Speaker 03: Was his waist concealed? [00:13:49] Speaker 03: Did he do something to obstruct the officer from seeing his waist as the officer again ordered him to lift his clothes and show his waist? [00:13:57] Speaker 05: I'll give Government Council a preview of one of the questions I'll have for her, but isn't the more salient point that the demand was made before that happened? [00:14:07] Speaker 05: So how can that factor in as reasonable suspicion for let me see your waste when he doesn't do that until after that statement is made to that demand? [00:14:18] Speaker 03: I would say yes at that point he has he's he's already been seized officer does not or I should say at that point officer did not have reasonable suspicion and had made the man. [00:14:31] Speaker 03: So what's the point of seizure. [00:14:33] Speaker 03: The point of seizure is is obviously when their submission which is when you look at his shirt. [00:14:39] Speaker 03: At the moment he begins to submit. [00:14:42] Speaker 03: And if you look at government exhibits one. [00:14:46] Speaker 03: They refer to it as pulling up his pants, but it's an adjustment of his waist. [00:14:51] Speaker 03: And an officer gives an explanation for that. [00:14:54] Speaker 03: He says, the pants are sagging. [00:14:55] Speaker 03: That is a logical explanation. [00:14:58] Speaker 07: He doesn't say because there's a crime. [00:15:00] Speaker 07: How is that a submission to the show of authority? [00:15:03] Speaker 07: If the show of authority was show me your waistband and you're not showing the waistband, you're instead adjusting your pants, [00:15:09] Speaker 07: That's not the point of seizure. [00:15:11] Speaker 03: I would take strong disagreement that you're not showing your wasteman. [00:15:14] Speaker 03: It was all on movement. [00:15:15] Speaker 03: He lifted his pants. [00:15:17] Speaker 07: It's the district court that held that. [00:15:20] Speaker 07: he was concealing his waistband at that point. [00:15:23] Speaker 07: The point of seizure is when he lifts his shirt. [00:15:26] Speaker 07: So if the concealing happened before that, that goes to reasonable suspicion. [00:15:30] Speaker 03: I have to take this agreement that the court found that he was concealing. [00:15:34] Speaker 03: There is no finding that something was concealed. [00:15:36] Speaker 03: Trying to conceal and conceal, there is a distinction there. [00:15:40] Speaker 03: Trying to conceal is an assessment of what the defendant is trying to do. [00:15:47] Speaker 03: And concealing is, [00:15:49] Speaker 03: From the officer's perspective, I could not see his waist. [00:15:52] Speaker 03: There is no testimony, there is no finding that there was any concealing in this case. [00:15:59] Speaker 03: So as the client, in fact, Mr. Gamble lifts his clothes above his belly button, the officer again gives an explanation for why he has adjusted his waist. [00:16:10] Speaker 03: And the explanation is because his pants are sagging, because he's not wearing a belt. [00:16:15] Speaker 05: Can you address [00:16:18] Speaker 05: what the court should do if we find that the seizure does not occur until he lifts his shirt. [00:16:32] Speaker 05: Do we, is there a case that says we assess reasonable, articulable suspicion based on everything that happened [00:16:44] Speaker 05: before the submission to authority? [00:16:48] Speaker 05: Or do we assess reasonable, articulable suspicion as to what the officer knew at the time he made the demand? [00:16:59] Speaker 05: Is there a case that answers that question? [00:17:01] Speaker 03: I don't think there's a case that answers that question. [00:17:04] Speaker 07: What about Hodari D? [00:17:07] Speaker 07: Hodari D is the case where the youth is running. [00:17:10] Speaker 07: And there was no reasonable suspicion from before he was running. [00:17:13] Speaker 07: And then he throws an object. [00:17:15] Speaker 07: And then he's seized. [00:17:16] Speaker 07: And the Supreme Court held that the throwing of the object counts in deciding whether there was reasonable suspicion, because he didn't submit until they actually caught him. [00:17:24] Speaker 07: Isn't that exactly on point? [00:17:26] Speaker 03: No, it's not exactly on point, because what RID is a case of direct defiance of the officer's command. [00:17:33] Speaker 03: It is not doing something else in addition to complying with the officer's command. [00:17:39] Speaker 03: And here you have on the way. [00:17:42] Speaker 07: Do you have any authority that distinguishes the Darii D from the situation? [00:17:47] Speaker 07: Is there a case about doing something? [00:17:48] Speaker 03: No, I don't have a case. [00:17:51] Speaker 03: But I think the facts of how Darii D made clear that there is a command, a show of authority, and then headlong flight away. [00:18:03] Speaker 03: Clear defiance, clear obstruction, clear non-compliance with the command. [00:18:07] Speaker 07: The Supreme Court didn't phrase it that way. [00:18:09] Speaker 07: They just said the moment of seizure is when he submits to the show of authority. [00:18:16] Speaker 03: That's correct. [00:18:17] Speaker 03: That's the standard. [00:18:19] Speaker 03: That's correct. [00:18:20] Speaker 03: So if it begins at the moment of submission, the second that Mr. Gamble brings his hands down to submit, [00:18:32] Speaker 03: to comply with what the, it's, I'm not saying that under the formulation the court is suggesting any deviation, minor deviations from 100% compliance is, would, [00:18:53] Speaker 03: would be non-compliance, would be a lack of submission. [00:18:56] Speaker 03: And that's not what occurred here. [00:18:58] Speaker 03: It wasn't even one second of him adjusting his waist as he lifted his clothes. [00:19:02] Speaker 03: It was on the way, lifting his pants. [00:19:06] Speaker 03: I'd say it was all one movement. [00:19:07] Speaker 03: So submission is as he says in his mind, I am going to do what the officer says. [00:19:14] Speaker 03: I am pulling my hands down. [00:19:16] Speaker 03: And because my pants are hanging low, I adjust them and lift my clothes. [00:19:21] Speaker 03: So the submission begins as he brings his hands down. [00:19:24] Speaker 03: That's what I would say. [00:19:25] Speaker 03: If we're going to have to pinpoint that degree of precision, [00:19:30] Speaker 03: Yes, there was submission before he adjusted his pants. [00:19:38] Speaker 03: Adjusting his pants did not interfere with the officer's observation in any way. [00:19:44] Speaker 03: The officer, even closer to the end of the hearing, didn't identify adjusting his pants as a basis for the stop at all. [00:19:53] Speaker 03: The officer said it was the backing away and the cell phone in his hand. [00:19:59] Speaker 04: Make sure there's no additional questions for you at this time. [00:20:02] Speaker 04: We'll give you a little bit of time for rebuttal. [00:20:07] Speaker 04: Here from the government now. [00:20:09] Speaker 04: Mrs. Kalu. [00:20:21] Speaker 06: Good morning. [00:20:21] Speaker 06: May it please the court and council. [00:20:24] Speaker 02: Ching Nam So Kalu on behalf of the United States. [00:20:28] Speaker 02: Your honors, we're asking the court here to affirm the district court's judgment in this case. [00:20:35] Speaker 02: The district court did not err in denying Mr. Gamble's motion to suppress because the evidence that came in during the hearing establishes that there was no seizure prior to the second time that Mr. Gamble. [00:20:50] Speaker 04: So can I ask you about the first time, though? [00:20:52] Speaker 04: So the first time is let me see your waistband. [00:20:55] Speaker 04: And that's the first one that the district court [00:20:58] Speaker 04: called a demand on page 175 as Judge Wilkins pointed out, but he clearly makes a demand. [00:21:06] Speaker 04: And then on page 180, he did make several demands of him to show his waistband. [00:21:12] Speaker 04: So if it's a demand, a demand is something that can't be said no to, it can't be declined. [00:21:19] Speaker 04: If it's a demand, how is it not a seizure? [00:21:23] Speaker 02: Well, something that the, your honor brought up, [00:21:28] Speaker 02: when Mr. Axum was arguing, is that under this court's case law, similar questions, can I see your waistband have been held to not- But that's a question. [00:21:40] Speaker 04: I mean, I guess to me the thing is, and your brief says, uses the word request a few times. [00:21:44] Speaker 04: And I totally get that because I'll tell you, if you watch the video and you listen to what's said, I think somebody could look at that and say the words are a question. [00:21:52] Speaker 04: Somebody could look at that and say the words are a demand. [00:21:56] Speaker 04: It seems to me that a lot turns on whether one construes those words as a question on one hand or a demand on the other hand. [00:22:03] Speaker 04: And once, let's just play out the scenario where it's a demand as opposed to a question, because I'm doing those to be different. [00:22:09] Speaker 04: If it's a demand, how can it be that there's not a seizure? [00:22:12] Speaker 04: Because the definition of a demand is that this is something that you have to comply with. [00:22:17] Speaker 04: If it's something that you have to comply with, it seems to me you're necessarily seized. [00:22:23] Speaker 02: I would disagree with that, Your Honor, because I think the judge can raise some of her questions. [00:22:30] Speaker 02: There's no seizure until the suspect has submitted to the show of authority. [00:22:36] Speaker 04: That, I have to say, if that's true, then that would mean that if an officer tells a subject, you need to show, and with no suspicion whatsoever, just walks up to a random person on the street and said, you're going to have to show me what's inside that bag. [00:22:51] Speaker 04: And suppose the person resists and says, I don't even know whether or not you're going to have to show me what's inside that bag. [00:23:00] Speaker 04: And then he opens the bag, and there's something in there. [00:23:03] Speaker 04: It can't be that the submission didn't occur until he shows what's inside the bag, and therefore it's OK to demand that the contents of the bag be shown. [00:23:12] Speaker 04: That just turns the Fourth Amendment on its head, right? [00:23:15] Speaker 04: So it can't be that the submission happens at the time that you reveal the very thing that the officer demanded [00:23:21] Speaker 02: feel. [00:23:23] Speaker 02: I think that would certainly be that's certainly not the fact that we have here what we have here as counsel conceded was that Mr. Gamble started adjusting his pants and contrary to what he said there is testimony in the record from the officer that that adjustment of the pants this is at page 71 of the JA that the the officer [00:23:46] Speaker 02: understood that movement as an attempt to conceal something from him. [00:23:50] Speaker 02: And he did that before he complied with the command, which was, if we're going to call it a command for the purposes of the question, to lift his waistband. [00:24:00] Speaker 02: And so I would argue that it's not until that point when he actually does lift up his shirt that he potentially has been thieves. [00:24:12] Speaker 02: I don't think that, I'm not arguing that it would never be, walking up to somebody and saying, let me see your waistband, would never be, that would never result in a seizure. [00:24:25] Speaker 02: But rather, that's not what we have here for a number of different reasons. [00:24:29] Speaker 02: Some of them related to the officer's interaction with Mr. Gamble and some of those reasons related to the circumstances surrounding him. [00:24:38] Speaker 05: Before you get to that, what do we do with the district court saying he clearly makes a demand, show me your ways? [00:24:45] Speaker 05: Isn't that a factual finding? [00:24:47] Speaker 02: I think I would answer that to two parts of that answer. [00:24:52] Speaker 02: The first, certainly the court was ruling from the bench and the court was [00:25:00] Speaker 02: taking pains to distinguish this case from Maybury, where there were, this court, as I understand it, held in that case, that it was the persistence of the questioning, not necessarily the question itself, that led to, or rather, they transformed the consensual encounter into a seizure. [00:25:18] Speaker 02: And the second part of that, my answer to that question, Your Honor, is that it's not just the words that are used, but also the tone of voice. [00:25:29] Speaker 02: And another factual finding that Judge Walton made here was that the officer's tone of voice was not hostile. [00:25:37] Speaker 05: You're not answering my question. [00:25:38] Speaker 05: If the first part of the sentence, it wasn't a hostile tone of voice, is a factual finding, because you like that. [00:25:46] Speaker 05: Isn't the next part of the sentence where he says, but he clearly makes a demand, show me your waist. [00:25:51] Speaker 05: Isn't that also a factual finding? [00:25:55] Speaker 02: I was what I was talking to say, yes, but that I think it's important to keep in mind that the court was. [00:26:02] Speaker 05: So the district court made a factual finding that there was a demand to show me your way. [00:26:09] Speaker 02: I mean, that is what the district court said, but you're not saying that that's clear error. [00:26:14] Speaker 05: I didn't see that in your brief. [00:26:16] Speaker 02: We referred to the clear error standard. [00:26:21] Speaker 05: Did you ever argue in your brief that the finding that show me your waist or lift up your shirt, let me see your waistband, that the finding that that was in fact a demand was clear error? [00:26:37] Speaker 05: Is that in your brief? [00:26:39] Speaker 02: Oh, I see what you're saying. [00:26:40] Speaker 02: We did not. [00:26:42] Speaker 02: We do not argue that in the brief, Your Honor. [00:26:44] Speaker 02: But what I would say is that demands could be under, we would argue they could be, should be understood on a spectrum. [00:26:56] Speaker 02: You know, if a police officer walked up to somebody and said, you know, in a hostile tone of voice, for example, you know, get on the ground or, [00:27:12] Speaker 02: said to somebody in an urgent turn of voice, move out of the way. [00:27:17] Speaker 02: Those are different. [00:27:18] Speaker 02: Um, there's, there's a different results from, I guess, I don't know. [00:27:22] Speaker 04: I'm not following the spectrum. [00:27:25] Speaker 04: Once you were in it, once either of the end points is a demand, because even a polite demand, it could be the politest demand ever. [00:27:32] Speaker 04: It could be, listen, I hate to bother you. [00:27:34] Speaker 04: I'm so sorry, but I'm going to need you to show me your waistband. [00:27:39] Speaker 04: And suppose the person whose approach says, I'd actually rather not, is that OK if I don't? [00:27:47] Speaker 04: No, look, I mean, this is a demand. [00:27:50] Speaker 04: It's a very polite demand, but it's a demand. [00:27:52] Speaker 04: You're going to need to show me the waistband. [00:27:55] Speaker 04: Isn't it? [00:27:55] Speaker 04: That's a seizure. [00:27:57] Speaker 02: But I think what has with the facts that the court described in that hypothetical, there's repetition with the questioning, which is something that this court focused on in Maybury. [00:28:08] Speaker 02: And certainly the court can see in government's exhibit one that's in the record in this case, the nature of the... So one demand isn't enough. [00:28:18] Speaker 05: It's got to be two. [00:28:19] Speaker 05: That's what we should write. [00:28:21] Speaker 02: I think that that is in large part what this court did write in Mayberry. [00:28:27] Speaker 02: there's reference to the persistence of the questioning, and that is something that... But that's because persistence of questioning can turn an interaction, can turn the words into a demand. [00:28:40] Speaker 04: But if the words are a demand in the first place, I don't know how it can be that something's a demand and there's an option. [00:28:50] Speaker 04: The whole point of a demand is there's not an option. [00:28:52] Speaker 04: If there's not an option, then there's a seizure. [00:28:55] Speaker 07: Assuming it is a demand and it is a seizure, was there reasonable articulable suspicion to support seizure? [00:29:04] Speaker 02: We think that there was reasonable articulable suspicion to support the seizure because Mr. Amel did not submit until [00:29:18] Speaker 02: All right. [00:29:20] Speaker 02: We're talking with respect to the first. [00:29:22] Speaker 02: The first. [00:29:23] Speaker 02: Let me see. [00:29:24] Speaker 02: Until he has submitted to the officer's show of authority, there was not a seizure. [00:29:30] Speaker 02: And the finding that the district court made was that, oh, and because of that, we'll finish the answer. [00:29:38] Speaker 02: I'm sorry. [00:29:39] Speaker 02: Because of that, what the officer can see, or knew at the time that it's in a high crime area, [00:29:47] Speaker 02: And I agree backing away, walking away, not enough on its own for reasonable suspicion. [00:29:53] Speaker 02: But it is what the officer testified to. [00:29:56] Speaker 02: And I believe what the court found, that was enough in this situation to bring the officer's attention to Mr. Gamble, because he was the only one that was backing away. [00:30:05] Speaker 02: So that just added to what was happening. [00:30:08] Speaker 02: And then trying to conceal the act of trying to conceal something [00:30:16] Speaker 02: So yes. [00:30:21] Speaker 05: Why do we why do we count the even if we credit that it was an act of trying to conceal by adjusting his ways before he pulls up his shirt? [00:30:33] Speaker 05: Why does that get to be added to the reasonable or applicable suspicion calculus when the officer didn't know that because it hadn't happened yet when he made the demand [00:30:53] Speaker 02: And just because he had not submitted yet. [00:30:56] Speaker 04: I find that notion pretty darn puzzling, I have to say, because then officer could come in full guns blazing. [00:31:05] Speaker 04: And it can be the most emphatic command ever. [00:31:08] Speaker 04: Show me what's in your bag. [00:31:10] Speaker 04: You've got to show me what's in your bag right now. [00:31:11] Speaker 04: And then the person is nervous and tries to put the bag behind their back. [00:31:16] Speaker 04: Boy, and then you say, well, you're trying to conceal the bag. [00:31:17] Speaker 04: That's reasonable suspicion. [00:31:18] Speaker 04: Now open the bag. [00:31:19] Speaker 04: It can't be that the fact that you've created reasonable suspicion by trying to conceal the bag in the face of a demand for which there was no reasonable or takeable suspicion itself creates reasonable or takeable suspicion to look inside the bag, can it? [00:31:32] Speaker 02: It is. [00:31:35] Speaker 02: I guess it's just the fact that we're assuming that it's a demand, and that those are all of the factors. [00:31:51] Speaker 02: high primary, the unusualness of him backing up with his arms up, the adjusting of his hands. [00:31:58] Speaker 02: The district court did not find that there was RAS until the second time that Mr. Gamble was asked. [00:32:07] Speaker 07: Isn't the answer to Judge Srinivasan's question, yes? [00:32:11] Speaker 07: I mean, the Supreme Court has held at the point of seizures when there's a submission to a show of authority, and everything up until that point goes into the calculus for reasonable suspicion. [00:32:21] Speaker 07: that that's the way the court has interpreted this, and isn't that what happened in Hodari D.? [00:32:26] Speaker 02: I would agree with your honor. [00:32:30] Speaker 04: Really, so the government's position, I want to make sure I understand, the government's position is that an officer gets to come up to a subject and just bring down holy rain terror, and then the way the person reacts itself creates suspicion, [00:32:48] Speaker 04: That's just, what's the point of the fourth amendment? [00:32:50] Speaker 04: If you just get to walk up to somebody and impose what everybody would agree is an emphatic demand, and then say, boy, if you're nervous, that creates suspicion. [00:33:02] Speaker 04: That's kind of extraordinary, isn't it? [00:33:06] Speaker 02: I guess I would say what we are, the finding that we're defending here is that, is Judge Walton's finding. [00:33:14] Speaker 02: I agree with Judge Pan that this case is, [00:33:18] Speaker 02: similar to Dari D. And your honor, if I may, I just wanted to respond going back to your questions about Mayberry. [00:33:24] Speaker 02: The questions that were asked in Mabry were, let me see your sack. [00:33:27] Speaker 02: Let me see your sack. [00:33:29] Speaker 02: There's the transcript of the questions laid out in the opinion. [00:33:33] Speaker 02: And so there are similar questions here. [00:33:35] Speaker 02: And so I think when I say persistence of questioning, those were also demands. [00:33:38] Speaker 02: And the bodywork camera is on file in that case. [00:33:41] Speaker 02: And it is what happened in Mabry is quite different from this case. [00:33:45] Speaker 04: And I also would say Mabry, there's a camera is [00:33:50] Speaker 02: The body where camera was submitted as part of the record in that case. [00:33:56] Speaker 02: If the court would like to compare, and we also would be happy to provide it if the court would be interested. [00:34:03] Speaker 02: But if the court is inclined to disagree with us, I hope that your honors will, if I may, I know I'm over time, [00:34:12] Speaker 02: To note that we would also argue that this is this case is distinguishable from Brody and which is this is the third third issue we brought up in our brief and that. [00:34:25] Speaker 02: So we're not asking, to be clear, that this court overrule. [00:34:29] Speaker 02: We understand that that is not something that this panel could do. [00:34:33] Speaker 02: But we do think that the decision incentivizes people to, in interaction with police, submit, or maybe briefly submit, and then run and throw away weapons or contraband in a dangerous manner. [00:34:50] Speaker 02: clear on government's exhibit one that's in the record. [00:34:53] Speaker 02: In this case, that when Mr. Gamble fled with the loaded firearm with one round in the chamber, he threw it against an apartment wall. [00:35:02] Speaker 02: It audibly hits the wall. [00:35:04] Speaker 02: You can hear that on the bodywork camera. [00:35:05] Speaker 02: Thankfully, the gun didn't go off. [00:35:08] Speaker 02: However, it could have gone off. [00:35:12] Speaker 02: You know, in getting ready for argument, I did go back and look at some of the documents in the district court socket. [00:35:18] Speaker 02: The government admittedly did not raise this particular argument at the suppression hearing, but did in its sentencing memorandum refer to the dangerous... So, counsel, I find this alternative argument quite extraordinary because a person running and throwing a gun is a very common factor that we see over and over again. [00:35:38] Speaker 07: And as a trial judge, I saw it over and over again. [00:35:40] Speaker 07: And the government is taking the position that every time that happens, any Fourth Amendment violation that took place before running and throwing a gun is purged? [00:35:50] Speaker 02: I think that the position we're taking in this case is the way that Mr. Campbell fled in this case, throwing up a loaded firearm out of building so hard that- So it has to be out of building? [00:36:03] Speaker 02: I don't want to... [00:36:06] Speaker 07: I'm limiting it to the facts of this case, because we're arguing this case, but I would say... But the general principle is that you think the government is taking the position that if a suspect runs and throws a gun, anything that happened before that, any Fourth Amendment violation is purged. [00:36:26] Speaker 02: I think it would depend on the facts of the case, if the manner of flight were filmed to be dangerous. [00:36:36] Speaker 02: And that is something that this court did carve out in Brody, the manner of life. [00:36:43] Speaker 02: Admittedly, generally, the court was talking about leaving in a vehicle. [00:36:48] Speaker 02: But there are, you could imagine a situation where somebody in running tosses a gun perhaps onto grass or into a bush. [00:36:58] Speaker 02: maybe that in and of itself is not dangerous. [00:37:00] Speaker 02: But if you then have someone does that near a school. [00:37:03] Speaker 07: But then you're asking us to adopt a standard that depends on where the gun lands? [00:37:08] Speaker 02: Not where. [00:37:09] Speaker 02: I think it would still be totality of the circumstances. [00:37:13] Speaker 02: And now it's all part of the Fourth Amendment, totality of the circumstances, whether the manner of flight was dangerous. [00:37:19] Speaker 02: Excuse me. [00:37:20] Speaker 02: Yes, manner of flight was dangerous. [00:37:22] Speaker 04: I just want to make sure that that you did argue in the brief that if the first let me see your waistband. [00:37:32] Speaker 04: The second one is a little bit different, I guess, but the first statement that the district court deemed to be a demand that even if that is a demand. [00:37:40] Speaker 04: There was still reasonable argue to give a suspicion by the time of the seizure. [00:37:48] Speaker 02: Yeah, you did argue that if there was. [00:37:52] Speaker 04: Oh, I'm sorry. [00:37:54] Speaker 02: We argued that the district court didn't err in finding that the second time, fixing the point of seizure at the second request, was that the court didn't err in doing that. [00:38:10] Speaker 02: So we did not make that argument. [00:38:16] Speaker 04: As to the first one, as to the first of those. [00:38:19] Speaker 04: two statements. [00:38:20] Speaker 04: Correct. [00:38:20] Speaker 02: With the second... We're still missing on what the court found. [00:38:23] Speaker 04: Yeah, by the time of the second statement, I take it your point is that by the time of the second statement, there was reasonable argument or suspicion, and there might well have been. [00:38:30] Speaker 02: Yes, and we would point the court in addition to the facts that we've been discussing to Judge Walton's factual finding at 175 and 181 in the JA, that in viewing the body worn camera, something was visible when Mr. Gamble lifted his jacket. [00:38:45] Speaker 04: And I guess what's come up in argument today is the possibility that [00:38:49] Speaker 04: there might have been reasonable or articulable suspicion that arose between the time of the first, what the district court called a demand and the time of what the second, what the district court called a demand. [00:39:02] Speaker 04: And there would be a question as to whether that's the seizure had occurred by then because there had been no submission ostensibly to the demand. [00:39:12] Speaker 07: Yes. [00:39:13] Speaker 07: Our review is de novo, correct? [00:39:16] Speaker 07: Our review of whether a seizure occurred is de novo. [00:39:18] Speaker 01: Yes, yes. [00:39:23] Speaker 02: And if there are no further questions. [00:39:27] Speaker 05: I think I want to just make sure that I understand your response to Chief Judge Srinivasan's question. [00:39:38] Speaker 05: Because I believe that appellant pretty clearly makes an argument in his brief that the seizure occurred earlier. [00:39:48] Speaker 05: than the second, let me see your waist statement, demand, question, whether we want to call it. [00:40:01] Speaker 05: Did you argue in your brief, even if you find that the seizure occurred earlier after the first, let me see your waist. [00:40:16] Speaker 05: Um, statement demand question that there was reasonable particular suspicion at that point. [00:40:24] Speaker 02: We did not do that. [00:40:27] Speaker 02: We argued that the district court did not care in finding that seizure occurred at the second request. [00:40:36] Speaker 02: And we also went through each of the points of seizure that Mr. Gamble is. [00:40:46] Speaker 02: So the fact that the officers arrived in cars and were wearing uniform. [00:40:51] Speaker 02: And we went through each of those planes and discussed why there was no seizure at those points. [00:41:05] Speaker 01: And yes, if the court has no further questions. [00:41:08] Speaker 04: You have one further question. [00:41:09] Speaker 04: Sorry, just to keep you a little bit longer. [00:41:11] Speaker 04: So the statement by the district court twice calling the first, let me see your waistband demand. [00:41:19] Speaker 04: Do you agree that that's a finding of fact? [00:41:25] Speaker 02: I think that those are the words the court used. [00:41:32] Speaker 02: I think that in view of the fact that the court was distinguishing this case from Maverick, and that the language that is used in Maverick was so similar in the sense that it was phrased as let me see, that even if this court views that finding as the use of the word demand as a factual finding, that that doesn't demand. [00:41:57] Speaker 02: No one intended that this court then say that there was a seizure when that first [00:42:02] Speaker 02: demand with me. [00:42:04] Speaker 04: Okay. [00:42:04] Speaker 04: But you're not taking issue with the proposition that that was a finding of fact. [00:42:06] Speaker 04: In other words, I mean, I suppose one could try to argue that whether it's a demand or not is a conclusion. [00:42:15] Speaker 04: And we look at the historical facts on the ground to figure out whether it in fact constitutes a demand, necessary upshot of which could be that there was a seizure. [00:42:25] Speaker 01: It's supposed, it could be viewed as, um, [00:42:33] Speaker 02: You know, to the extent that the court is, that the district court was characterizing the, that that word is used to inform whether the district court was finding the police had made a show of authority, the conclusion about whether there was a show of authority necessary to trigger force amendment protections, then it could be viewed as a legal finding. [00:42:59] Speaker 02: So I think either way the court looks at it, that we would say that that first demand was not a command that triggered the Fourth Amendment. [00:43:10] Speaker 04: Yeah, I think the show of authority part would be a conclusion of law. [00:43:13] Speaker 04: The question of whether it's a demand or not could be a factual predicate to whether there was a show of authority. [00:43:21] Speaker 04: The district judge did call it a demand on more than one occasion. [00:43:25] Speaker 04: Yes. [00:43:27] Speaker 04: Okay. [00:43:27] Speaker 04: Let me make sure my colleagues don't have additional [00:43:29] Speaker 04: Thank you, counsel. [00:43:30] Speaker 03: Thank you. [00:43:50] Speaker 03: the court, this court, to find that in that regard, the government has not carried its burden to establish that there's reasonable article suspicion at the time of seizure, if the seizure is indeed earlier. [00:44:01] Speaker 03: But with regard to the demand and the tone, I think Maidenhall is instructed because it says the use of language or the tone of voice. [00:44:16] Speaker 03: Those two things are different, and the use of language is the demand. [00:44:20] Speaker 03: a demand or command or order is not converted into a question, which is, which Mendenhall recognizes the tone of voice can be harsh or can be kind, but the tone of voice does not convert the words themselves into something different. [00:44:40] Speaker 05: Can you address this issue of what do we do about pulling up the pants? [00:44:47] Speaker 05: Do we count it or not count it towards reasonable suspicion? [00:44:51] Speaker 05: And do you have any other authority on further reflection? [00:45:01] Speaker 03: With regards to pulling off the PANTA, the first thing that I would say is that the Fourth Amendment, the difficulty with this is that for the government, I think, is that the Fourth Amendment allows people to keep things private that they want to keep private. [00:45:16] Speaker 03: And the waste area is private. [00:45:19] Speaker 03: So to Judge Srinivasan's point, if officers arrive at a location and demand to see something, that is, by all accounts, private. [00:45:33] Speaker 03: I understand young people walking around with their hands sagging. [00:45:36] Speaker 03: But that's a show of authority, not a seizure. [00:45:39] Speaker 03: It is a show of authority. [00:45:48] Speaker 03: The court is asking whether his reaction to the show of authority can be considered. [00:45:56] Speaker 03: A reaction that is defiant, a reaction that does not have an innocent explanation, a reaction that is obstructive might not be something that should be considered. [00:46:08] Speaker 03: That is not the reaction that we have in this case. [00:46:10] Speaker 03: In this case, we have a reaction that is momentary, brief, that is in the act of complying. [00:46:18] Speaker 03: Officer doesn't say, I couldn't see. [00:46:20] Speaker 03: He doesn't say, don't adjust your waist, don't do anything else. [00:46:24] Speaker 03: There were not very specific instructions that Mr. Gamble failed to obey. [00:46:33] Speaker 03: there's no testimony that he failed to do something. [00:46:38] Speaker 05: So if he had been told, let me see your waist, and he kneeled down to tie his shoe, and in the course of doing that, the officer glimpses an ankle bolster or a gun. [00:46:55] Speaker 05: That could be counted towards, and then he stands back up and lifts his shirt or his jacket [00:47:04] Speaker 05: We count the viewing of the ankle holster there because he's not really that's not part of the submission. [00:47:13] Speaker 05: That's the way we're supposed to slice the baloney. [00:47:18] Speaker 03: I'm not sure that that it can be sliced so fine even there because again that that's there's not currently a standard for what constitutes [00:47:34] Speaker 03: non-compliance, I guess. [00:47:36] Speaker 03: And if that were interpreted, if the officer said in those circumstances that that was non-compliant to me, that was there was not some other innocent explanation for her tying her shoe, that might be [00:48:01] Speaker 03: The district court may be able to find that that was not compliance. [00:48:04] Speaker 05: But didn't the district court, but then the officer testify here and that was a thing brought up in earlier questions that he thought that the pulling up the pants was suspicious and appeared to be concealing. [00:48:19] Speaker 05: because that was done before he showed his ways? [00:48:23] Speaker 03: If we're going to be very precise and if we have to hone in on exactly what the officer believed and what the officer could and couldn't see, I think we also have to be very precise on what the officer said. [00:48:40] Speaker 03: And the officer did not say that it was non-compliant. [00:48:47] Speaker 03: He said, [00:48:50] Speaker 03: It seemed strange. [00:48:52] Speaker 03: That is it. [00:48:53] Speaker 03: He did not say it was suspicious. [00:48:55] Speaker 03: He didn't provide, and I don't want to turn too much attention, but pulling up the pants is not something that is inherently suspicious. [00:49:03] Speaker 03: It's not suspicious in a high-prime area. [00:49:05] Speaker 03: It is not criminal. [00:49:07] Speaker 03: So- Isn't there a factual finding? [00:49:09] Speaker 07: There was a factual finding that it was suspicious, and they're just concealing it. [00:49:13] Speaker 03: Right, but in order to make that factual finding, or I think, [00:49:18] Speaker 03: I'm not sure that that's a factual finding so much as a legal conclusion that it amounts to reasonable suspicion. [00:49:25] Speaker 03: In order to make that legal conclusion, you have to have objective facts. [00:49:29] Speaker 03: What are the objective facts? [00:49:31] Speaker 03: It was adjusting the pants was criminal because what? [00:49:38] Speaker 03: Because there's not a single fact in this record to identify how adjusting the pants is criminal. [00:49:44] Speaker 03: It's, we're talking about concealing and then we're right back to this, this problem with the Fourth Amendment that allows people to conceal. [00:49:52] Speaker 03: The Fourth Amendment allows people to keep things private that they want to keep private. [00:49:57] Speaker 03: So if he adjusted his pants on, again, on the way. [00:50:01] Speaker 03: This isn't a case of like open defiance, flagrant defiance. [00:50:07] Speaker 03: It's not a case of code R&D where the officer says stop, come here, and the person turns and runs in the opposite direction. [00:50:14] Speaker 03: This is all within the course, in the course of complying with officer's command. [00:50:19] Speaker 03: So there may be cases where there is testimony that adjusting the waist was suspicious because there was something holding the pants down. [00:50:31] Speaker 03: Because there was, because in the officer's experience, every time that happens, [00:50:39] Speaker 03: I find a contraband. [00:50:41] Speaker 03: There is no testimony. [00:50:42] Speaker 03: There is no evidence of that here. [00:50:44] Speaker 03: In fact, in this case, the officer says, I hate being a dead host, but he provides the explanation that his pants were sagging, so he pulled them up. [00:50:54] Speaker 03: He provides the innocent explanation himself. [00:50:58] Speaker 03: Concealment doesn't mean anything. [00:51:00] Speaker 04: You could conceal to say no. [00:51:02] Speaker 04: The subject could say, you know what I'm doing? [00:51:04] Speaker 04: I'm concealing my waistband. [00:51:06] Speaker 04: And you know why I'm considering my waistband? [00:51:08] Speaker 04: Because I don't want to show you my waistband. [00:51:11] Speaker 03: And that's the decline that the client is in when the officer makes a demand without reasonable suspicion. [00:51:18] Speaker 03: And I think it's incumbent on the government to establish reasonable suspicion before that point. [00:51:25] Speaker 03: And to the extent that there's a question about that, the government didn't carry its burden. [00:51:30] Speaker 04: Are there not additional questions? [00:51:33] Speaker 04: Okay. [00:51:34] Speaker 04: Thank you, counsel. [00:51:35] Speaker 04: Thank you to both counsel. [00:51:36] Speaker 04: We'll take this case under submission.