[00:00:00] Speaker 05:
Case number 21-3064, United States of America versus Antonio Malachi Bryant at balance.

[00:00:07] Speaker 05:
Ms.

[00:00:08] Speaker 05:
Rowland for the balance, Ms.

[00:00:09] Speaker 05:
Colu for the appellee.

[00:00:14] Speaker 01:
Good morning, Ms.

[00:00:15] Speaker 01:
Rowland.

[00:00:15] Speaker 01:
We'll hear from you.

[00:00:16] Speaker 05:
Good morning.

[00:00:17] Speaker 05:
Sanford Rowland on behalf of Antonio Bryant.

[00:00:22] Speaker 05:
When you know that you are the target

[00:00:24] Speaker 05:
of police action because they've made a brisk beeline to you and you alone, because they've questioned you and you alone about a gun, the additional knowledge that you have been deliberately surrounded, not by happenstance, not accidentally, but deliberately, makes it perfectly clear that you won't be allowed to walk away.

[00:00:48] Speaker 05:
There was no reason for Officer Smith

[00:00:53] Speaker 05:
to go around the back of the SUV except to surround Mr. Bryant and to communicate to him that he would not be allowed to leave.

[00:01:04] Speaker 05:
He testified that that was the very point of doing that, that it was a tactic and that it was a tactic that they use to prevent people or give people the impression that they are not allowed to leave.

[00:01:17] Speaker 01:
Did he say that or did he say he did it in case he ran to keep him from running?

[00:01:23] Speaker 01:
I thought that his testimony was and did it to keep him from running.

[00:01:28] Speaker 05:
He didn't testify that it was in case of running, but he testified that he did it.

[00:01:38] Speaker 05:
He said, I don't want him to run.

[00:01:45] Speaker 05:
So I don't want him to run is the equivalent of I don't want him to leave, whether it's running or walking away.

[00:01:53] Speaker 05:
You can't simply surround people, communicate to them that they can't run without also communicating to them that they can't walk away.

[00:02:04] Speaker 05:
So it's really, it's the same here.

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They didn't want him to run.

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They didn't want him to leave.

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And he didn't because he understood when they targeted him and then surrounded him.

[00:02:20] Speaker 04:
Well, so far,

[00:02:24] Speaker 04:
Where is the unconstitutional police conduct?

[00:02:34] Speaker 05:
The unconstitutional police conduct is in making a show of authority to which Mr. Bryant submitted without reasonable, particularized suspicion that he was going to- I understand that, counsel, but the fact that you were discussing both before and during the question,

[00:02:55] Speaker 04:
by Judge Wilkins, I'm looking for the unconstitutional conduct.

[00:03:01] Speaker 05:
The unconstitutional conduct is surrounding him on both sides, basically blocking his or partially blocking his two avenues of egress, thereby communicating.

[00:03:14] Speaker 04:
Let me just be clear.

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That's what I want to understand.

[00:03:16] Speaker 04:
Is it your position that under Terry, a police officer

[00:03:26] Speaker 04:
cannot approach me from the front and the back.

[00:03:35] Speaker 05:
It's not our position that a police officer cannot do that.

[00:03:39] Speaker 05:
But if they do do that, that is a show of authority.

[00:03:44] Speaker 05:
And that's OK if they have reasonable suspicion.

[00:03:47] Speaker 05:
But if they don't, it's a violation of the person's Fourth Amendment rights.

[00:03:53] Speaker 04:
No, I understand that.

[00:03:56] Speaker 04:
I'm sorry, I'm not getting what you.

[00:03:59] Speaker 04:
Well, I see a police officer coming in front of me and heading toward me, and I've just seen another officer behind me.

[00:04:14] Speaker 05:
Well, I think that any reasonable person who sees officers coming toward him at a brisk pace

[00:04:22] Speaker 05:
coming toward him alone, where one comes in front of him and the other one detours out of his way to come behind him and then asks him whether he has a gun, so letting him know he is targeted and he is targeted in a very serious matter.

[00:04:38] Speaker 05:
That no reasonable person would think they could just say excuse me officer and glide past.

[00:04:44] Speaker 01:
So so if I'm walking down the sidewalk or if a person is walking down the sidewalk and a police officer is walking towards them on the sidewalk.

[00:04:55] Speaker 01:
It would be they.

[00:04:58] Speaker 01:
Unreasonable for them to feel like they could just walk past the police officer on the sidewalk.

[00:05:04] Speaker 05:
Well, we don't have that circumstance because.

[00:05:07] Speaker 01:
And he was asking locked on this case.

[00:05:10] Speaker 01:
I'm just saying in general, in general, a citizen, they see a police officer walking towards them on the sidewalk should feel like they cannot walk past the police officer.

[00:05:22] Speaker 05:
No, that is not what we're arguing.

[00:05:25] Speaker 05:
And that would be the natural course of things.

[00:05:28] Speaker 04:
And that's what I'm trying to get at.

[00:05:31] Speaker 04:
What are you arguing if it's not what Judge Wilkins just asked you?

[00:05:40] Speaker 05:
It is not a violation of the Fourth Amendment for a police officer to approach any person.

[00:05:45] Speaker 05:
And if they happen to be coming toward that person, it's perfectly natural that they would direct their question to that person in front of them.

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But when you make a detour to go around so you can surround the person,

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So they can't go forward and they can't go backward without encountering you.

[00:06:13] Speaker 04:
Well, the district found that there was eight to 10 feet.

[00:06:17] Speaker 04:
I mean, I'm suggesting by my question, I think that you're arguing a more difficult case than you need to.

[00:06:33] Speaker 03:
But is it clear that you're indicating the seizure is when you have Officer, is it Benitez?

[00:06:40] Speaker 03:
Benitez, yes.

[00:06:41] Speaker 03:
Benitez, at least how it presents on the video body cam, that Mr. Bryant can see Officer Benitez on his right, then Officer Smith is going around the car, and then he's on Mr. Bryant's left.

[00:06:59] Speaker 03:
There's a vehicle, which is the YSUB in front of Mr. Bryant,

[00:07:03] Speaker 03:
the gate behind him, and then, yes, there's trash cans.

[00:07:07] Speaker 03:
But Mr. Bryant didn't, in effect, close himself in.

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If he walked either way, he would go to an officer.

[00:07:16] Speaker 03:
So the officer's intention, at least, looks or appears to be that he's surrounded.

[00:07:22] Speaker 03:
And then that's your seizure?

[00:07:24] Speaker 05:
Yes.

[00:07:26] Speaker 05:
Defense counsel below identified the seizure at the moment that he was surrounded.

[00:07:31] Speaker 05:
Right.

[00:07:33] Speaker 05:
but also later at the moment that he was surrounded and questioned.

[00:07:38] Speaker 05:
So at either of those points, and we've argued in our brief that it was at the moment that he's rounded the corner and questioned Mr. Bryant.

[00:07:50] Speaker 05:
We don't need it to be any earlier.

[00:07:52] Speaker 01:
So I think the challenge that I'm having with your position, just to be candid and cut the brass tacks here, because I want you to give me your best answer,

[00:08:02] Speaker 01:
is that I think that the district court found that Officer Smith rounded the SUV at 19 hours, 40 minutes, and zero seconds.

[00:08:16] Speaker 01:
And that's what the body camera footage appears to show, in that Officer Smith asked the question, what's that bulge?

[00:08:29] Speaker 01:
three seconds later, at 19 hours, 40 minutes, in three seconds, in that Officer Smith, before, in that three second interim, is also raising, I think it's his left hand, and pointing towards Brian's waistband, indicating that he sees something there,

[00:08:54] Speaker 01:
And obviously he would have seen something before he verbalizes the question.

[00:09:01] Speaker 01:
What is that bulge there?

[00:09:03] Speaker 01:
So the district court finds that somewhere between the zero second mark in the three second mark Smith sees a bulge.

[00:09:18] Speaker 01:
That's also basically

[00:09:23] Speaker 01:
pretty much concurrent when Smith is stepping up onto the sidewalk and when the seizure happens.

[00:09:32] Speaker 01:
So if we were to find that upon seeing the bulge, there's reasonable, articulable suspicion, then the government says you lose in the district court says that's why you lose your motion.

[00:09:48] Speaker 01:
So what's wrong with that way of looking at this case?

[00:09:52] Speaker 05:
If the court is identifying the short time period as problematic for my argument, I disagree with that.

[00:10:02] Speaker 05:
And human perception is lightning fast.

[00:10:06] Speaker 05:
And when he rounded the corner, or even when Mr. Bryant could see him coming around,

[00:10:15] Speaker 05:
He was seized then.

[00:10:18] Speaker 05:
He was seized the minute he came around the corner.

[00:10:21] Speaker 05:
And then he spoke.

[00:10:22] Speaker 05:
And he didn't say right away, what's that bulge?

[00:10:25] Speaker 05:
He didn't see a bulge.

[00:10:26] Speaker 05:
He asked a couple of questions before that.

[00:10:29] Speaker 05:
Do you have a gun?

[00:10:29] Speaker 05:
And did you step off?

[00:10:33] Speaker 05:
Did you walk away from the police?

[00:10:35] Speaker 05:
So at that moment, even if it's one second away from the moment when the officer thinks he sees a bulge,

[00:10:47] Speaker 05:
that isn't really relevant.

[00:10:49] Speaker 05:
These things happen very quickly.

[00:10:52] Speaker 05:
In the days before body-worn cameras, it all seemed like it took minutes.

[00:10:57] Speaker 05:
But now that we have body-worn camera, we know that it doesn't.

[00:11:01] Speaker 03:
But in your position, we need to find a seizure, right, when Officer Smith comes around and then the rest flows.

[00:11:08] Speaker 05:
And speaks the words.

[00:11:12] Speaker 05:
You don't have any guns, do you?

[00:11:14] Speaker 03:
So the movement of the officer and the question.

[00:11:18] Speaker 05:
Right.

[00:11:19] Speaker 05:
So that is the moment of seizure.

[00:11:21] Speaker 04:
And your argument is that looking at the totality of circumstances, you have two officers moving briskly toward one person, passing by others,

[00:11:44] Speaker 04:
And they're closing in on him.

[00:11:52] Speaker 04:
And the district court was focusing, as I read the record, on the fact that, among other things, the officers were in the time scenario that Judge Wilkins just arrayed with you.

[00:12:08] Speaker 04:
Things were moving quickly.

[00:12:12] Speaker 04:
And the Supreme Court has often emphasized the need for the police to move quickly.

[00:12:18] Speaker 04:
And the government, I assume, will focus on the fact, well, it was 8 to 10 feet between the two officers.

[00:12:40] Speaker 04:
And it's Judge Wilkins' focus on the fact that everything was moving so quickly that at the point, the officer asks, do you have any guns on you?

[00:12:55] Speaker 04:
And the defendant says, no.

[00:12:56] Speaker 04:
And at that point, he sees.

[00:13:05] Speaker 05:
Yes, at that point, he sees.

[00:13:07] Speaker 05:
Mr. Bryant did nothing to put any time pressure on this.

[00:13:12] Speaker 05:
That was all about the police conduct.

[00:13:15] Speaker 05:
It took them 23 seconds to get out of the car and get to him.

[00:13:19] Speaker 05:
The fact that they were moving that fast, the fact that they decided to surround him instead of do what's more natural, which is approach him from the front, is all police conduct.

[00:13:32] Speaker 05:
It has nothing to do with

[00:13:34] Speaker 05:
what Mr Bryant has done.

[00:13:36] Speaker 05:
And it creates the impression in any reasonable person, I think that they would not be permitted to just avoid all of this and leave.

[00:13:49] Speaker 01:
Um, I so that I'm clear.

[00:13:56] Speaker 01:
I think that the defense counsel below said the seizure occurred once Officer Smith

[00:14:04] Speaker 01:
blocked egress on the sidewalk.

[00:14:10] Speaker 05:
I'm sorry, when he what?

[00:14:11] Speaker 01:
When Officer Smith blocked arguably egress on the sidewalk, are you arguing now that seizure occurred prior to that moment?

[00:14:24] Speaker 05:
No, I'm arguing that as the defense counsel did below that when Officer Smith

[00:14:32] Speaker 05:
rounded that corner and said, you don't have any guns, do you?

[00:14:36] Speaker 05:
That was the moment of seizure.

[00:14:38] Speaker 05:
That was the moment that he knew he was targeted in a very serious investigation and that he was surrounded.

[00:14:47] Speaker 05:
The only way, well, I won't say that, the way that the district court avoided concluding

[00:14:55] Speaker 05:
that he had been seen, that there was a show of authority, was by finding that he didn't know he was surrounded, that he didn't know Officer Benides was in front of him.

[00:15:07] Speaker 05:
But the video evidence shows otherwise, particularly if you look at minute 39, 52 seconds, up through 59 seconds, you see that he did, his body, his feet, his face,

[00:15:23] Speaker 05:
We're looking straight at Officer Benitez.

[00:15:27] Speaker 04:
So based on your argument that the district court clearly erred in that regard, this court would owe no deference to the district court's legal conclusion?

[00:15:47] Speaker 05:
That is correct.

[00:15:48] Speaker 05:
The legal conclusion that there was no show of authority was based on

[00:15:53] Speaker 04:
Council, I may have misled you by my question.

[00:15:58] Speaker 04:
I know that the legal question is de novo before us, but that in resolving that, we owe no deference as we are told to the historical finding by the district court, because that was clearly erroneous.

[00:16:20] Speaker 05:
Yes, that is correct.

[00:16:22] Speaker 05:
That was a clearly erroneous finding.

[00:16:24] Speaker 05:
And that really is the basis for the district court's finding that there was no show of authority, because he didn't understand that he had been surrounded.

[00:16:37] Speaker 05:
But he did understand that.

[00:16:40] Speaker 04:
What I'm getting at is a hypothetical situation.

[00:16:43] Speaker 04:
And I know my colleagues will respond.

[00:16:49] Speaker 04:
The police have a problem in this city, high crime area, lots of guns.

[00:16:55] Speaker 04:
All the regulation of guns are being struck down as unconstitutional.

[00:17:00] Speaker 04:
So what's a community to do?

[00:17:04] Speaker 04:
So very much like the 60s, they have this basic jump out methodology.

[00:17:13] Speaker 04:
And it's been made more sophisticated by

[00:17:19] Speaker 04:
instructing the officers not to ask certain questions, not to do certain things, because then they will be violating the Constitution.

[00:17:30] Speaker 04:
And what I'm trying to understand in my own mind from your perspective, if you're not going to focus on that clear error of law, then the fact that I see exactly what Bryant saw

[00:17:50] Speaker 04:
means he was seized.

[00:17:56] Speaker 04:
I'm trying to think of a scenario where we're supposed to view the facts based on the evidence viewed most favorably to the government.

[00:18:11] Speaker 04:
And so hypothetically, you could see a scenario where the police do exactly what happened here

[00:18:20] Speaker 04:
And they get to Bryant and they say, do you have any guns?

[00:18:24] Speaker 04:
He says, no.

[00:18:25] Speaker 04:
He says, well, we're looking for this guy who had a gun.

[00:18:30] Speaker 04:
And he was wearing the same kind of pants you're wearing.

[00:18:32] Speaker 04:
Do you know where that guy is?

[00:18:35] Speaker 04:
And Bryant hypothetically might say, he ran down that way.

[00:18:40] Speaker 04:
And the officers go down that way.

[00:18:44] Speaker 04:
So we don't have those facts here.

[00:18:46] Speaker 04:
I understand that.

[00:18:48] Speaker 04:
But I'm just trying to understand at what point there was an illegal seizure.

[00:18:57] Speaker 04:
And you're saying the accusatory question, you don't have any guns, do you?

[00:19:04] Speaker 04:
And Brian says no.

[00:19:08] Speaker 04:
And it's a fast moving investigation.

[00:19:10] Speaker 04:
And you can see how this is going to be argued.

[00:19:18] Speaker 04:
That's why I'm trying to nail down clearly at what point the unconstitutional conduct occurs.

[00:19:27] Speaker 05:
OK.

[00:19:28] Speaker 05:
Well, the court, of course, is looking at the totality of the circumstances.

[00:19:33] Speaker 05:
The totality of the circumstances are that these officers double park their car in the driveway

[00:19:42] Speaker 05:
get out very quickly, very quickly make a beeline to one person, bypassing everyone else with friendly greetings, then instead of doing what's natural, which is both going to the person, one officer takes a detour for the purpose, for the obvious person, obvious to any reasonable person, of surrounding him.

[00:20:09] Speaker 05:
a tactic designed to prevent people from leaving and then says, communicates you are the target of a serious criminal investigation.

[00:20:25] Speaker 05:
That is the moment of seizure, given all of those circumstances.

[00:20:29] Speaker 05:
I think that this is a case where it's really helpful to try to do a little thought experiment.

[00:20:36] Speaker 05:
Imagine yourself in that circumstance.

[00:20:38] Speaker 05:
If you saw the police coming toward you very quickly, a beeline to you, ignoring everybody else except to wave hello,

[00:20:48] Speaker 05:
And then do something extraordinary to surround you, to corral you, and then ask you a question about a very serious matter, a gun possession.

[00:20:59] Speaker 05:
Would you think you could say, excuse me, and slide on past?

[00:21:03] Speaker 05:
I think any reasonable person would think that.

[00:21:06] Speaker 05:
And the only, I'm sorry.

[00:21:11] Speaker 01:
Did Officer Smith, at the moment that Officer Smith sees, observes a bulge, which the district court credits, do you agree that he had reasonable, articulable suspicion at that time?

[00:21:29] Speaker 05:
I think that the Officer Smith's testimony is quite shaky about what he saw and when he saw it.

[00:21:36] Speaker 05:
But yes, if he saw a bulge in his pants and it

[00:21:41] Speaker 05:
it looked like what Officer Smith has seen in the past to be a gun bulge, then yes, he has a reasonable article suspicion.

[00:21:50] Speaker 01:
So the district court finds this is at Joint Appendix 168.

[00:21:58] Speaker 01:
And Officer Smith steps onto the sidewalk at 1940 and zero seconds.

[00:22:08] Speaker 01:
and then set 19 minutes and basically in the three seconds, what happens are he says, you don't got any guns on you.

[00:22:21] Speaker 01:
Do you?

[00:22:22] Speaker 01:
Right.

[00:22:22] Speaker 01:
Says Nah.

[00:22:24] Speaker 01:
Officer Smith says stepped off.

[00:22:27] Speaker 01:
Doesn't really get a response to that.

[00:22:30] Speaker 01:
And then immediately says, What's that?

[00:22:32] Speaker 01:
What's that bulge right there, bro?

[00:22:36] Speaker 01:
and then that is happening at 14, I'm sorry, three seconds later.

[00:22:42] Speaker 01:
So in the three seconds, all of those things happen.

[00:22:46] Speaker 05:
Yes.

[00:22:48] Speaker 01:
So your argument is that he was seized at 1940, and it's unconstitutional because at that moment, he didn't have reasonable, articulable suspicion

[00:23:03] Speaker 01:
Um, he got it somewhere, maybe two or three seconds later.

[00:23:09] Speaker 01:
And so that violates the Fourth Amendment and we should suppress the gun.

[00:23:14] Speaker 05:
Exactly.

[00:23:15] Speaker 05:
And that really is not an extraordinary proposition to say that one second you don't have reasonable suspicion and the next second you do.

[00:23:23] Speaker 01:
I mean, that's how so because he was unconstitutionally for two seconds.

[00:23:31] Speaker 01:
Maybe three at the most.

[00:23:33] Speaker 01:
It could have only been one second because he could have seen the bulge at one second.

[00:23:40] Speaker 01:
So he was seized unconstitutionally for one second.

[00:23:44] Speaker 01:
So we suppressed the gun.

[00:23:46] Speaker 05:
Absolutely.

[00:23:48] Speaker 05:
If he had not been seized, he could have turned away and walked off and there would be no bulge to be seen.

[00:23:57] Speaker 01:
But if he has to walk around the car to that side so that he can see his waistband because

[00:24:04] Speaker 01:
for your own safety, you don't wanna be, you know, to the back of someone who might have a gun in their waistband who can reach and grab it and turn around and shoot you.

[00:24:16] Speaker 01:
So you have to, for tactical purposes, come around so that you can see the front of them.

[00:24:23] Speaker 01:
And then also, yeah, if they start running, you're in a position to grab them.

[00:24:28] Speaker 01:
Well, there was someone in business of catching people, not letting them run away from them, right?

[00:24:33] Speaker 05:
There was someone in front of them, Officer Benites, who apparently did not perceive a bulge.

[00:24:39] Speaker 05:
There's no testimony about that.

[00:24:41] Speaker 05:
And, you know, which direction Mr. Bryant might have gone in, forward, backward, we don't know because that didn't happen.

[00:24:50] Speaker 05:
But

[00:24:52] Speaker 01:
The testimony was that Bryant was walking away from their direction and was kind of blading his body, positioning his body in a way that also raised suspicions of the officers, right?

[00:25:08] Speaker 01:
So why wouldn't the officer want to walk around to the other side to get a better view?

[00:25:16] Speaker 01:
These are life and death.

[00:25:18] Speaker 01:
Officer wants to go home at the end of the shift, just like you and I do, right?

[00:25:26] Speaker 05:
Officer Smith testified that the reason he went around was to communicate that Mr. Bryant should not leave.

[00:25:39] Speaker 05:
He didn't go around there.

[00:25:41] Speaker 05:
He didn't explain any tactical reasons other than that, like for safety or anything.

[00:25:46] Speaker 05:
He absolutely had the opportunity.

[00:25:48] Speaker 01:
I mean, that's your loss.

[00:25:50] Speaker 01:
He says I didn't want him to run, right?

[00:25:53] Speaker 05:
That's not a gloss.

[00:25:53] Speaker 05:
That's his testimony.

[00:25:55] Speaker 01:
Yeah, I mean, I can say I don't want you to leave.

[00:25:58] Speaker 01:
That doesn't mean that I'm

[00:26:00] Speaker 01:
You know, I love having this interchange with you.

[00:26:04] Speaker 01:
That doesn't mean that I'm ordering you to stay or, you know, you could say that.

[00:26:09] Speaker 05:
You're not an armed and uniformed police officer.

[00:26:12] Speaker 05:
If an armed and uniformed police, two of them, surround a person and say, I don't want you to leave.

[00:26:21] Speaker 05:
I think the court would interpret that as a seizure.

[00:26:25] Speaker 01:
He didn't say any of that.

[00:26:27] Speaker 01:
He's just saying in his mind, I didn't want him to run.

[00:26:31] Speaker 04:
And he communicated that.

[00:26:33] Speaker 04:
At what point did he tell Bryant, halt?

[00:26:39] Speaker 05:
Well, he never said the words halt.

[00:26:43] Speaker 05:
He surrounded him.

[00:26:44] Speaker 05:
He asked questions.

[00:26:47] Speaker 05:
And then he allegedly saw a bulge and moved in to handcuff him.

[00:26:53] Speaker 05:
But certainly, the word halt is not required for a show of authority.

[00:26:58] Speaker 05:
And in this court's cases and Delaney and other cases, it was never required that the police say halt.

[00:27:06] Speaker 05:
What was required in Delaney was that they partially

[00:27:11] Speaker 05:
blocked his ability to leave, and they came around both sides of him.

[00:27:15] Speaker 05:
There were other factors.

[00:27:16] Speaker 05:
There's a top light.

[00:27:17] Speaker 05:
But basically, suppression is not only required when an officer says, you can't leave or halt.

[00:27:29] Speaker 03:
Let's talk about earlier, there was comments by the government in their brief.

[00:27:37] Speaker 03:
You're in the high crime area.

[00:27:39] Speaker 03:
You're passing people.

[00:27:41] Speaker 03:
It's night you're going from this particular street where you see, you know, some people and that they are indicating that Mr. Bryant looks around.

[00:27:54] Speaker 03:
Here's the word 12, which is supposedly, you know, alert, policed by, pulls up his waist, you know, just all of those observations.

[00:28:03] Speaker 03:
Before the government comes up, I just wanted to give you an opportunity to answer that because as I listen to Judge Wilkins' questions a little bit about what's wrong with an officer feeling safety and, you know, that line of questioning.

[00:28:18] Speaker 03:
What would you say to that part that occurs before Officer Smith walks around?

[00:28:24] Speaker 05:
Okay, thank you.

[00:28:25] Speaker 05:
I'd like to address both Mr. Bryant's conduct and the character of the neighborhood.

[00:28:30] Speaker 05:
So Officer Smith testified that he thought walking from one vehicle to the next, when the police came up the driveway in an unmarked car, looking over his shoulder in the direction of the officers in their unmarked car and touching his waist or his genital.

[00:28:51] Speaker 05:
to be a security check.

[00:28:53] Speaker 05:
He interpreted it as a security check, and he interpreted all of those things as suspicious because he had heard the word 12.

[00:29:05] Speaker 05:
And he says that directly at page 126.

[00:29:08] Speaker 05:
It was because someone had shouted 12, and he heard that, that he interpreted everything Mr. Bryant did, all of which were quite innocent,

[00:29:20] Speaker 05:
as in response to the police and therefore suspicious.

[00:29:26] Speaker 05:
There's absolutely no evidence that Mr. Bryant heard or understood the term 12.

[00:29:34] Speaker 05:
And I refer this court to Castle, where the court said there has to be some evidence, some direct evidence that the person knew of the police presence.

[00:29:46] Speaker 05:
And it's not enough to say, or it just sort of doesn't work to make a circular argument that, well, we know he knew it was a police presence because he did these things.

[00:29:57] Speaker 05:
And these things are suspicious because he knew the police presence.

[00:30:05] Speaker 05:
There has to be some evidence that he knew.

[00:30:07] Speaker 01:
Why isn't the fact that as somebody is saying 12 in the cars coming up, he turns and walks away.

[00:30:15] Speaker 01:
Why isn't that circumstantial evidence that he knew that there was police and he wanted to, you know, avoid the police by walking away.

[00:30:29] Speaker 01:
Well, Mr. B trying to Mr. Hide his presence behind the SUV.

[00:30:34] Speaker 05:
He didn't walk very far, did he?

[00:30:35] Speaker 05:
He walked very short distance from one car to another.

[00:30:38] Speaker 05:
And at that moment in that apartment complex, and you'll see in the videos, there are people moving around.

[00:30:45] Speaker 05:
And they aren't all moving around because the police, they're not frozen until the police come up.

[00:30:51] Speaker 05:
And the only way to conclude that those are suspicious actions is if he knew.

[00:30:58] Speaker 05:
And there's no evidence.

[00:31:01] Speaker 05:
He didn't shout police.

[00:31:02] Speaker 05:
They're in an unmarked car.

[00:31:04] Speaker 05:
No one directed.

[00:31:07] Speaker 05:
I mean, there's just no evidence that he knows that that unmarked car is the police and that his conduct follows is because of police.

[00:31:18] Speaker 05:
Pardon me?

[00:31:19] Speaker 05:
They're in police uniform.

[00:31:22] Speaker 05:
They are, but they're also seated in the car.

[00:31:24] Speaker 05:
And when you look at Officer Smith's testimony that his body worn camera that he's wearing on his chest doesn't capture things beyond the dashboard, well, it also goes both ways, looking into the car.

[00:31:40] Speaker 04:
So I want to be clear, because your own brief at page 12 quotes Officer Smith

[00:31:53] Speaker 04:
as saying, Ryan answered the question whether he had dunce on him saying, no.

[00:32:03] Speaker 04:
Two seconds later, Smith asked, stepped off.

[00:32:10] Speaker 04:
Then, what's that both right there, bro?

[00:32:14] Speaker 04:
Ho, ho, hold right there.

[00:32:19] Speaker 04:
That's in quotes in your own brief.

[00:32:22] Speaker 05:
Yes.

[00:32:23] Speaker 04:
All right, so I thought, and let's ignore for the moment the clear error about whether Bryant had seen Benitez.

[00:32:37] Speaker 04:
I thought the district court was with you on the first phase when the officer was coming around the white SUV, and then because

[00:32:54] Speaker 04:
She says, you know, the closer question is, what was the situation when Bryant started asking questions?

[00:33:07] Speaker 04:
And I thought that was maybe I misunderstood what Judge Wilkins was getting at earlier.

[00:33:14] Speaker 04:
That given the shortness of time here,

[00:33:20] Speaker 04:
All of this is almost simultaneous.

[00:33:23] Speaker 04:
He's coming around the car, say, do you have any guns?

[00:33:30] Speaker 04:
Step off.

[00:33:32] Speaker 04:
I didn't know what that meant at all.

[00:33:35] Speaker 05:
And then- Did you walk away?

[00:33:41] Speaker 04:
Well, I thought the testimony was Brian indicated he didn't know what it meant either.

[00:33:45] Speaker 04:
In any event, this is all very quick.

[00:33:48] Speaker 04:
This whole scenario is happening within seven seconds.

[00:33:54] Speaker 04:
All right?

[00:33:54] Speaker 04:
And just count seven seconds and how fast that is.

[00:33:59] Speaker 04:
So trying to slice and dice each thing to stretch it out isn't portraying what the transcript shows.

[00:34:11] Speaker 04:
And I thought that was the thrust of some of Judge Wilkins' questions.

[00:34:16] Speaker 04:
And you're resisting that.

[00:34:19] Speaker 04:
I'm not sure why, but at any rate.

[00:34:24] Speaker 05:
I guess my point is, however many seconds, and it was, I mean, there was time for Officer Smith to get around the corner to say, you know, how many guns do you, and then say, receive an answer, and then say stepped off.

[00:34:40] Speaker 05:
And those things do happen quickly, but they don't happen simultaneously.

[00:34:44] Speaker 05:
And the court is going to have to do this with these body-worn cameras in every case, or at least quite frequently.

[00:34:52] Speaker 05:
There is a moment between not perceiving and perceiving.

[00:34:57] Speaker 05:
And in that moment where Officer Smith came around the corner and started asking him questions, he had not perceived a bulge.

[00:35:12] Speaker 05:
But there was plenty of time for Mr. Bryant to perceive that he wasn't getting out of this.

[00:35:19] Speaker 05:
He wasn't going to be able to walk away from this.

[00:35:23] Speaker 05:
And in that split second, he could have said, excuse me, I'm leaving, but for the fact that he understood that that was not going to be allowed.

[00:35:41] Speaker 05:
I think there might've been a second part to your question, I'm not sure.

[00:35:44] Speaker 01:
But if I could get back to Judge Childs'- I'd like to bring this to a conclusion, unless one of my colleagues had another question.

[00:35:55] Speaker 05:
If I could answer the second part of Judge Childs' question about the character of the neighborhood.

[00:36:03] Speaker 05:
Of course, Officer Smith never said it was a high crime neighborhood.

[00:36:08] Speaker 05:
And if the police are going to diminish the constitutional rights of thousands, tens of thousands, maybe hundreds of thousands of people who live in this city in bad neighborhoods, this court should require that they at least nail it down.

[00:36:26] Speaker 05:
Smith testified about the area, which he defined as either Lincoln Road or PSA 708, I mean Livingston Road or PSA 708.

[00:36:37] Speaker 05:
He did not testify about this quite large apartment complex.

[00:36:44] Speaker 05:
He didn't particularize his testimony to where Mr. Brian was at all.

[00:36:50] Speaker 05:
He said that there was an open-air drug market in the gas station that was not part of the complex, was a distance away, and was separated from the apartment complex by commercial buildings and shops.

[00:37:07] Speaker 05:
where he didn't even give specific evidence about this shot spotter.

[00:37:13] Speaker 05:
He didn't say when shots were heard.

[00:37:16] Speaker 05:
He didn't say where they were heard.

[00:37:17] Speaker 05:
He didn't say if there was a shot spotter device in that apartment complex or was it over at the gas station?

[00:37:25] Speaker 05:
Was it somewhere else on Livingston Road or in PSA 708?

[00:37:31] Speaker 05:
This vague and insufficient evidence about the character of this apartment complex or the place that Mr. Bryant was really is insufficient to say that the character of the neighborhood contributes to a finding of reasonable suspicion.

[00:37:57] Speaker 05:
And especially so because we already know from this court's cases

[00:38:02] Speaker 05:
It's a contextual factor, but it's a pretty weak factor.

[00:38:06] Speaker 05:
And here was no particular evidence about this place.

[00:38:12] Speaker 05:
It's really worthless.

[00:38:15] Speaker 01:
Any other questions, Judge Childs, Judge Rogers?

[00:38:20] Speaker 05:
No, thank you.

[00:38:21] Speaker 01:
We'll give you time when we vote.

[00:38:22] Speaker 00:
Thank you.

[00:38:35] Speaker 01:
Good morning, miss blue.

[00:38:37] Speaker 02:
Good morning, and they please the court and council, Jim Nam so Cali on behalf of Apple of the United States.

[00:38:45] Speaker 02:
Your honors.

[00:38:46] Speaker 02:
We are asking that this court affirmed the district court's judgment in this case.

[00:38:52] Speaker 02:
The district court did not air and denying Mr. Brian's motion to suppress evidence.

[00:38:58] Speaker 02:
I think it's

[00:39:00] Speaker 02:
clear from the questions that have been asked so far this morning, that the ultimate issue is when exactly Mr. Bryant was seized in this short six to seven minute time frame that we have been focused on.

[00:39:15] Speaker 02:
And in the lead up to that time, those few seconds, we have focused on what happened.

[00:39:27] Speaker 02:
But I also would like to point to the court

[00:39:30] Speaker 02:
point out to the court what did not happen and what the district court noted in its findings in this case, which was that this horseshoe was a well populated area.

[00:39:44] Speaker 02:
This was not very late at night.

[00:39:46] Speaker 02:
This was a well lit area.

[00:39:48] Speaker 02:
The officers did not draw their weapons.

[00:39:50] Speaker 02:
Although the court found they were walking briskly, the officers did not run, which is

[00:39:56] Speaker 02:
factor that this court has pointed to in cases like Goddard and Castle.

[00:40:03] Speaker 02:
The officer did not physically separate Mr. Bryant from the other individuals in the area.

[00:40:08] Speaker 02:
They spoke to him in a conversational tone.

[00:40:11] Speaker 02:
They asked that that initial question was not, the court found that it was a firm tone, but it was a calmly asked question.

[00:40:22] Speaker 02:
The officers were approaching calmly.

[00:40:25] Speaker 02:
And they didn't ask, as we've seen in other cases, to frisk Mr. Bryant or to see his waistband.

[00:40:34] Speaker 02:
And so I think just from an atmospheric perspective, there are some other factors that the court might take into consideration, considering whether in the lead up to those six to seven seconds that we're concerned about.

[00:40:48] Speaker 02:
how much that contributes to whether there is.

[00:40:50] Speaker 03:
So what is your answer to the point of the specific seizure?

[00:40:55] Speaker 02:
Yes.

[00:40:57] Speaker 02:
We think the court is, the district court is correct that the seizure occurred at the point that Officer Smith asked whether, asked what's that there?

[00:41:09] Speaker 02:
What's that bulge?

[00:41:10] Speaker 02:
So at 4003.

[00:41:12] Speaker 03:
So you don't see that an officer being on both sides of Mr. Bryant, her in front of him, gate behind him, not leaving him any space to walk one way or the other without running into an officer or him believing he's confined when you got two officers around you.

[00:41:31] Speaker 02:
I'm glad that your honor asked that question.

[00:41:35] Speaker 02:
The district court's findings on that point

[00:41:39] Speaker 02:
which are at JA 168, that's page 111 of the May 21st transcript, are that Mr. Bryant can, I'm quoting, can be seen turning his head away from Officer Benitez, who was approaching at 1939-59 and looking toward the back of the white SUV where Officer Smith was beginning to round the corner.

[00:42:02] Speaker 02:
At that, and I think this is the key language from the court's finding.

[00:42:06] Speaker 02:
At that point, Bryant turned his head to look at Officer Smith, excuse me, at the point Officer, I apologize.

[00:42:15] Speaker 02:
At the point Bryant turned his head to look at Officer Smith, Officer Benitez was still walking along the road.

[00:42:22] Speaker 02:
And I think if the court looks at,

[00:42:25] Speaker 02:
The body camera, which the district court judge indicated she reviewed several times in conjunction with officers officer Smith's credited testimony.

[00:42:37] Speaker 02:
She made this finding that officer beneath has I would argue was still in the road.

[00:42:42] Speaker 02:
I think that's the point that she was making there.

[00:42:45] Speaker 02:
was that perhaps Mr. Bryant knew that the officers were coming in his general direction, as did anybody else on the sidewalk.

[00:42:53] Speaker 02:
But what the body-worn camera from both officers shows is that the officers were walking in the street.

[00:42:59] Speaker 02:
They were not walking on the sidewalk.

[00:43:01] Speaker 02:
It's not as though they were walking up the sidewalk together, and then Officer Smith, for example, stepped off the sidewalk

[00:43:07] Speaker 02:
and went around the back of the SUV.

[00:43:09] Speaker 02:
They both were coming up the street.

[00:43:11] Speaker 02:
And so the way that the district court viewed the bodyboard camera, at the moment that Officer Smith was coming around the back of the SUV, Officer Benitez, it appeared to the court, was still in the street.

[00:43:25] Speaker 02:
And that's what Mr. Bryant would have seen, that he was still in the street, not that he had come up onto the sidewalk.

[00:43:31] Speaker 03:
To to block but he's still to his left, you know, you still got two officers on either side I just wonder how much of a difference of a fact that makes if you still see an officer to your other side About if you walk that direction you're walking past an officer So you don't you know would he feel confined that he could not just walk away from that officer?

[00:43:52] Speaker 02:
Well, and I think that this court's case law and from the Supreme Court asked us to consider a reasonable, innocent person like anybody else who was on the sidewalk.

[00:44:05] Speaker 02:
The officers at that point, they had not spoken to Mr. Bryant.

[00:44:09] Speaker 02:
He didn't have reason to think until

[00:44:13] Speaker 02:
Officer Smith asked a question specific to him about what's that bulge there.

[00:44:18] Speaker 02:
He didn't have reason to think that the officers were coming to speak to him as opposed to there was another man standing at the front of the black, excuse me, the back, I believe, of the black car that was parked by the SUV.

[00:44:31] Speaker 02:
He wouldn't have known until they began speaking to him, asking him specifically about the bulge, whether they were coming to talk to him or to the woman who was standing in the open door of the SUV.

[00:44:43] Speaker 02:
And so I do think that while looking at the body worn camera and listening to, excuse me, reading transcripts, we do, or rather that this court should bear in mind it's the standard of review with respect to this factual finding that unless the,

[00:45:12] Speaker 02:
district court clearly aired.

[00:45:15] Speaker 03:
I feel like you're cabining in whether Benitez was in the street.

[00:45:25] Speaker 03:
Should we be looking at this from the perception of Mr. Bryant?

[00:45:30] Speaker 03:
Did he reasonably person believe he could leave?

[00:45:35] Speaker 03:
Because you're telling me from the officer's view of where things stood, but would a reasonable person in that circumstance believe they could just walk past both police officer?

[00:45:46] Speaker 02:
I think based on the factual findings, yes, because the finding is that at the crucial second when Officer Smith was coming around the back,

[00:45:56] Speaker 02:
And when Mr. Bryant had begun to turn his head and was still looking away from Officer Benitez, he wasn't on the sidewalk.

[00:46:02] Speaker 02:
So the sidewalk, in other words, was still open for him to walk by.

[00:46:07] Speaker 02:
Walk by, but there's a policeman there.

[00:46:08] Speaker 03:
That's my question is, do you think you could walk past this police officer if one is coming around surrounding you?

[00:46:14] Speaker 03:
Would the reasonable person think that they were zoning in on him?

[00:46:22] Speaker 02:
I think that a person would think that they could walk away.

[00:46:26] Speaker 02:
If you have an officer on one side, eight to 10 feet was the district court's finding, coming around the one side.

[00:46:34] Speaker 02:
And the other officer, according to the finding, has not yet come onto the sidewalk.

[00:46:39] Speaker 02:
And what we have instead is the officer, Officer Benitez, has been walking up the road.

[00:46:45] Speaker 02:
That's what I understand the district court's finding to be.

[00:46:49] Speaker 02:
And at that point,

[00:46:51] Speaker 02:
Again, it wouldn't be clear.

[00:46:52] Speaker 02:
It would become clear some mere seconds later.

[00:46:56] Speaker 02:
But at that point, I don't think that it was clear that he, Mr. Bryant, was the focus of both officers' attention.

[00:47:04] Speaker 01:
So let's suppose the facts were this, that Mr. Bryant didn't stop at the white SUV.

[00:47:15] Speaker 01:
He kept walking slowly up the sidewalk.

[00:47:20] Speaker 01:
that when Officer Smith at the 19 hour 40 minute and zero second mark when Officer Smith stepping onto the sidewalk, Brian is a little bit past him on the sidewalk because continued walk.

[00:47:39] Speaker 01:
And at that very second, he says, you stop and turn around.

[00:47:46] Speaker 01:
and Bryant stops and turns around.

[00:47:49] Speaker 01:
At that moment, has Bryant ceased?

[00:47:52] Speaker 02:
I think in that scenario, the officer has given a command, you know, potentially to Mr. Bryant.

[00:48:03] Speaker 02:
He's specifically said that he'd just stop and that he wants to talk to him.

[00:48:08] Speaker 02:
And so it's

[00:48:11] Speaker 02:
I think that.

[00:48:12] Speaker 02:
So yes, he sees that right because of the words that have been used.

[00:48:18] Speaker 01:
So so at at zero seconds, 1940 and zero seconds in this hypo, he says stop and turn around.

[00:48:27] Speaker 01:
And Bryant does that so that at at three seconds later at 1940 and three seconds when Bryant turns around, he says.

[00:48:38] Speaker 01:
What's that bulge?

[00:48:41] Speaker 01:
and recovers a weapon.

[00:48:46] Speaker 01:
So he had reasonable suspicion when he sees the bulge.

[00:48:52] Speaker 01:
But let's say he didn't at the time he said stop and turn around.

[00:48:58] Speaker 01:
We would suppress that gun, wouldn't we?

[00:49:02] Speaker 01:
even though it was only a three second long unconstitutional detention.

[00:49:09] Speaker 01:
The fact of the matter is that he had been seized unconstitutionally.

[00:49:15] Speaker 01:
So we would suppress that gun under our precedent, wouldn't we?

[00:49:21] Speaker 02:
On this hypo,

[00:49:26] Speaker 02:
If the facts are otherwise the same, aside from the fact that Officer Smith is slightly behind Mr. Bryant, they're the same as this case.

[00:49:40] Speaker 02:
We've, of course, argued that we disagree with the district court's conclusion that the officers did not have reasonable, articulable suspicion

[00:49:50] Speaker 02:
as before the officer came around the back of the SUV.

[00:49:53] Speaker 02:
So if the facts are otherwise the same, I would agree with the court.

[00:49:58] Speaker 02:
There's been a seizure by way of command to stop and a submission to the show of authority, but would disagree that suppression is required.

[00:50:06] Speaker 02:
So in other words, Your Honor, I think that the timing is certainly important, but there is a significant difference

[00:50:16] Speaker 02:
in terms of the way that that can count.

[00:50:19] Speaker 02:
It was a fast encounter in the hypothetical.

[00:50:21] Speaker 02:
It is a fast encounter, but I think that it's substantially different.

[00:50:27] Speaker 03:
What's that reasonable articulation?

[00:50:30] Speaker 03:
The as a pin you down, you said because you said it's before Smith encounter, correct?

[00:50:37] Speaker 02:
Certainly.

[00:50:38] Speaker 02:
So again, if the facts in Judge Wilkins hypo are otherwise the same as the facts of this case, what we have is the officers coming into a high crime area.

[00:50:50] Speaker 02:
Which I would note, although that is being disputed on appeal, that they're at least in one place at the record, JA 51, which was at one of the pleadings in the district court.

[00:51:03] Speaker 02:
It seemed that Mr. Bryant conceded that this was a high crime area.

[00:51:06] Speaker 02:
But certainly we would argue that that alone does not putting that certainly certainly but would provide context.

[00:51:13] Speaker 02:
And certainly according to officer Smith's testimony is why the officers were patrolling in this particular area.

[00:51:20] Speaker 02:
So they're driving up into the horseshoe.

[00:51:25] Speaker 02:
They hear somebody call out 12 or someone or someone's call out 12.

[00:51:34] Speaker 03:
Knowledge whether or not.

[00:51:35] Speaker 02:
Mr. Brian actually heard that No, but the standard at this point is reasonable article suspicion So far less than preponderance of evidence, right?

[00:51:47] Speaker 02:
I'm less than probable cause and so Circumstantially officers could hear that from inside a vehicle that's moving presumably somebody standing on the sidewalk would have heard it as well So they have that and then

[00:51:59] Speaker 02:
Officer Smith testifies that Mr. Bryant looks over his shoulder.

[00:52:03] Speaker 02:
And that love doesn't give you... No, certainly.

[00:52:06] Speaker 03:
I'm just trying to think of myself walking down this street as well.

[00:52:10] Speaker 03:
Like if I turn my shoulder because I see an officer, I'm going to do that.

[00:52:15] Speaker 03:
But does that mean that we should assume I've committed a crime?

[00:52:20] Speaker 03:
If I pull up, straighten up my jacket or do whatever, does that mean that that's enough for the officers to come ask me anything?

[00:52:28] Speaker 02:
I think, I don't think the officers assumed that he had or committed a crime that they suspected that they had because in addition to the factors I've already noted.

[00:52:37] Speaker 03:
Okay, but you've given me high crime area.

[00:52:39] Speaker 03:
You've given me looking over my shoulder.

[00:52:41] Speaker 03:
I would do that if it wasn't an officer.

[00:52:43] Speaker 03:
There's somebody walking down the street and my back's turned to them.

[00:52:46] Speaker 03:
And if I just straighten up my clothes.

[00:52:48] Speaker 03:
I mean, those are your three facts so far.

[00:52:50] Speaker 03:
Is there anything else?

[00:52:51] Speaker 02:
Yes.

[00:52:52] Speaker 02:
And as Mr. Bryant begins to walk away, he makes a security adjustment in this officer.

[00:52:57] Speaker 03:
And that's what I'm calling the straightening up my clothes.

[00:52:59] Speaker 03:
Can I just do that?

[00:53:01] Speaker 02:
I would think, Your Honor, that it would depend.

[00:53:07] Speaker 02:
Certainly anybody could move their clothes around or move, you know, objects on their person around.

[00:53:13] Speaker 02:
But what makes... But there's no balls seen at that time, correct?

[00:53:17] Speaker 02:
At that time, correct.

[00:53:19] Speaker 02:
But what makes Mr. Bryant's conduct at this point notable to the officer is that in his training and experience, that particular movement, that particular adjustment is often associated with checking to make sure that a firearm is still there.

[00:53:37] Speaker 03:
I could be looking for my phone that I had in my pocket to make sure it didn't fall out.

[00:53:43] Speaker 02:
Certainly, but the court's precedent does not require that every innocent explanation be dispensed with before an officer have enough to develop reasonable, articulable suspicion, at least to walk up and ask a question, certainly without having seen the bulge.

[00:54:01] Speaker 02:
We're not necessarily in territory of putting hands on anybody.

[00:54:08] Speaker 03:
But I'm just saying, me walking down the street, I'm in that high crime area.

[00:54:12] Speaker 03:
going to the corner store.

[00:54:14] Speaker 03:
I turn around because I see somebody, whether it's officer or not, they could be in plain clothes.

[00:54:18] Speaker 03:
It could just be anybody.

[00:54:19] Speaker 03:
I'm just making sure I check where I am.

[00:54:21] Speaker 03:
I'm looking at my surroundings, and then I'm straightening up my clothes, because I think my cell phone's about to fall out.

[00:54:27] Speaker 03:
Those three things can let an officer approach me.

[00:54:31] Speaker 02:
I think that, as your honor has described it, our argument would be that

[00:54:40] Speaker 02:
It's a fair inference that Mr. Bryant knew that these were police officers, which is different from just hearing a random person make any sort of statement that would cause a person to turn their head.

[00:54:52] Speaker 03:
OK, but then you're adding the element that he knew they were police officers.

[00:54:56] Speaker 03:
Then wouldn't that institute that there was a show of authority, there was police presence, and so then he thinks that he's confined and he cannot move?

[00:55:05] Speaker 02:
No, not on its own.

[00:55:08] Speaker 02:
Otherwise, any time the police were just driving down the street or walking down a sidewalk, anybody who perceived the police to be in the area would be seized.

[00:55:17] Speaker 02:
And it's the combination of all of these factors that leads to, we would argue, reasonable suspicion that he was armed.

[00:55:30] Speaker 03:
But I'm describing that as to myself, and I'm just not seeing a distinction that carries over into why is Mr. Bryant different?

[00:55:41] Speaker 03:
If I just described that about myself, those same things, high crime area, looking over shoulder, me adjusting my clothes, why is Mr. Bryant different at this point in time?

[00:55:51] Speaker 02:
And there are the additional factors if somebody has alerted that the police

[00:55:55] Speaker 02:
to police presence.

[00:55:56] Speaker 02:
And he's making it specifically.

[00:55:59] Speaker 03:
They can alert me that the police is there, but it doesn't matter to me.

[00:56:01] Speaker 03:
I didn't do anything.

[00:56:03] Speaker 02:
And your honor, I would just point the court to, I want to say it's at JA 72 or 73, the first time that, let me double check that.

[00:56:16] Speaker 02:
I'm not telling the court the wrong citation.

[00:56:19] Speaker 02:
But when Officer Smith describes

[00:56:32] Speaker 02:
That might be the wrong notation.

[00:56:34] Speaker 02:
I apologize.

[00:56:34] Speaker 02:
One moment, Your Honor.

[00:56:35] Speaker 02:
It's a JA75 where Officer Smith describes the security check, which again, it's not just adjusting clothes.

[00:56:45] Speaker 02:
It's a specific movement.

[00:56:47] Speaker 02:
And he was cross-examined on this.

[00:56:49] Speaker 02:
And he was very forthcoming in telling the district court judge it could have been an adjustment of Mr. Bryant's body.

[00:57:01] Speaker 02:
But again, the officers are not required to dispel every innocent explanation for conduct.

[00:57:10] Speaker 04:
I guess what's striking about this and Judge Child's question certainly highlighted and Judge Wilkins has written on this before.

[00:57:23] Speaker 04:
So I'm sure you're familiar with what the underlying concern is.

[00:57:30] Speaker 04:
I mean, the entire Washington metropolitan region is a high crime area.

[00:57:36] Speaker 04:
There are guns all over the place.

[00:57:39] Speaker 04:
And the city isn't able to regulate them.

[00:57:42] Speaker 04:
But what does the city do?

[00:57:45] Speaker 04:
And I was struck how the city is doing basically what it did in the 60s in the war on drugs.

[00:57:54] Speaker 04:
But it's trained its officers well.

[00:57:57] Speaker 04:
So they don't do some things.

[00:57:59] Speaker 04:
some of the things you mentioned that they didn't do.

[00:58:02] Speaker 04:
Well, those cases and the officers have been instructed.

[00:58:08] Speaker 04:
But the problem isn't it that, I mean, I know it was striking.

[00:58:13] Speaker 04:
The police knew nothing about this man.

[00:58:18] Speaker 04:
They hadn't seen him do anything illegal.

[00:58:24] Speaker 04:
It's not like in the war on drugs where they either saw an exchange of drugs

[00:58:29] Speaker 04:
exchange of money.

[00:58:32] Speaker 04:
He's just there with other people and their children there.

[00:58:41] Speaker 04:
And as Judge Child's hypothetical suggests, you know, you see an officer, you see them moving quickly, you look around.

[00:58:55] Speaker 04:
So the argument that

[00:58:57] Speaker 04:
government, I thought, was going to make in part was, look, all those circumstances I've just mentioned, high crime area, can't regulate, what do you do?

[00:59:08] Speaker 04:
The notion of when articular suspicion arises moves forward, if I can

[00:59:26] Speaker 04:
Put it that way.

[00:59:27] Speaker 04:
You know, in Terry, the men were under observation casing the store, right?

[00:59:37] Speaker 04:
You don't have anything like that here, other than Mr. Bryant is walking on the street at 730 in the evening.

[00:59:50] Speaker 04:
And the police jump out, and he looks around.

[00:59:57] Speaker 04:
So surely the government is going to emphasize high crime area, lots of shootings in the recent weeks.

[01:00:05] Speaker 04:
And Officer Smith testified about that.

[01:00:09] Speaker 04:
And so as Judge Wilkins questions to defense counsel, appellants counsel suggested, the police have to take care for their own safety.

[01:00:24] Speaker 04:
So they approach front and back.

[01:00:27] Speaker 04:
And they want to ask Brian some questions.

[01:00:33] Speaker 04:
And so that's just life in the big city.

[01:00:38] Speaker 04:
No unconstitutional seizure.

[01:00:43] Speaker 04:
I mean, doesn't the government want to use all these factors and the shortness of time and the inherent danger of the situation?

[01:00:54] Speaker 04:
to argue its case as opposed to joining the appellant in trying to separate out all these incidents?

[01:01:04] Speaker 04:
I mean, but you seem to be joining appellant's tactic.

[01:01:10] Speaker 02:
If I may, Judge Rogers, I certainly appreciate your question.

[01:01:17] Speaker 02:
I think in discussing

[01:01:22] Speaker 02:
that are the reasonable articulable suspicion factors that that was in response to what began as Judge Wilkins hypothetical about whether had Officer Smith been in on the other side or had it excuse me Mr. Bryant been on the other side of Officer Smith whether that would have required suppression of the gun.

[01:01:45] Speaker 02:
which is why I then turned to the government's reasonable, articulable, suspicion argument.

[01:01:51] Speaker 04:
But I would- I'm pushing you more on how is the court to view the legal standards in a changed environment, both legally and socially?

[01:02:09] Speaker 04:
Do we relax those standards?

[01:02:14] Speaker 04:
And that's what I hear being argued, not specifically, but implicitly.

[01:02:25] Speaker 02:
I don't think that the government is arguing.

[01:02:29] Speaker 02:
We're certainly not arguing that the court should relax the legal standards that it uses to evaluate Terry Stops or other

[01:02:39] Speaker 02:
other Fourth Amendment scenarios.

[01:02:42] Speaker 02:
What we're arguing in this case, a primary argument in this case, to come back to where I started, is that based on the district court's factual findings, based on this record, which we would argue are permissible findings, Mr. Bryant would have felt free to leave the encounter or to ignore the encounter with the officers at the moment where

[01:03:10] Speaker 02:
Appellants Council has fixed the point of seizure.

[01:03:14] Speaker 02:
And we are arguing further that the point of seizure was later, at 19-40-03, when Officer Smith asked Mr. Bryant, what's that?

[01:03:31] Speaker 02:
What's that bulge right there?

[01:03:33] Speaker 02:
With the understanding that when he asked that question, he had seen a bulge.

[01:03:39] Speaker 02:
that he, in his training and experience, believed was consistent with a firearm.

[01:03:44] Speaker 02:
And so we're saying that's the point of seizure.

[01:03:47] Speaker 04:
So to me, that is relaxing the standard because there's nothing specific.

[01:03:55] Speaker 04:
I thought that's what Judge Charles's questions were getting at.

[01:03:59] Speaker 04:
Nothing specific as to Brian.

[01:04:02] Speaker 04:
That's indicative of

[01:04:07] Speaker 04:
anything other than how a person innocent of any crime would react, sees officers stop, park their cars, get out of the car.

[01:04:18] Speaker 04:
They're not running, but they're also not walking slowly.

[01:04:22] Speaker 04:
And they're headed toward him.

[01:04:27] Speaker 04:
I'm just trying to understand, both from the police point of view

[01:04:34] Speaker 04:
that they're trying to provide for public safety, to protect their own safety, to protect citizens' safety, and this balance in this changed legal environment, given that communities can't regulate guns.

[01:04:55] Speaker 04:
And efforts to do so have been struck down repeatedly by the Supreme Court.

[01:05:02] Speaker 04:
So are we at a point where essentially, and the Supreme Court ultimately will tell us.

[01:05:11] Speaker 04:
But as a lower court, we're dealing with the standards that are out there.

[01:05:18] Speaker 04:
But I just wondered if the government had any view, and you reject that entirely.

[01:05:22] Speaker 04:
But you do move the point of seizure back.

[01:05:30] Speaker 04:
That's all.

[01:05:31] Speaker 04:
You require more.

[01:05:32] Speaker 04:
That's all I'm getting at.

[01:05:33] Speaker 04:
And the defendant wants far less.

[01:05:41] Speaker 02:
I suppose by require more, Your Honor, I take your point there to be that it's

[01:05:56] Speaker 02:
that the government's position is that a seizure requires more than what happened by 1939, 1950.

[01:06:03] Speaker 02:
I understand your argument.

[01:06:05] Speaker 04:
You're saying it wasn't until the officers said to Bryant, what's that, that he was seized?

[01:06:14] Speaker 04:
The appellant is arguing, oh no, he seized a lot earlier than that when these officers are coming around the car

[01:06:25] Speaker 04:
in front and back of him.

[01:06:28] Speaker 02:
Yes.

[01:06:29] Speaker 02:
And Your Honor, and the reason, I think there's sort of two.

[01:06:33] Speaker 04:
Not having observed him to do, him specifically, to do anything illegal.

[01:06:42] Speaker 04:
And I think.

[01:06:42] Speaker 04:
Depending on the officer's experience, yeah.

[01:06:45] Speaker 02:
I think that that's part of why I keep coming back to the district court's factual finding about what a reasonable person would have seen.

[01:06:56] Speaker 02:
and would have understood to be going on.

[01:06:58] Speaker 03:
But the district court also puts as a factual finding that Bryant put himself in that position of being there.

[01:07:06] Speaker 03:
So is that not error if you look at the video cam to see officers at both sides?

[01:07:12] Speaker 03:
I mean, again,

[01:07:14] Speaker 02:
Well, I think I'm sorry, I didn't mean to interrupt.

[01:07:17] Speaker 02:
No, no, no.

[01:07:18] Speaker 02:
I think that what the district court meant by that point is that, you know, Mr. Bryant moved away from the black car and walked up the sidewalk to behind the SUV where he's sort of out of sight of the officers at depth and then he stops.

[01:07:34] Speaker 02:
I don't think that the court was

[01:07:38] Speaker 02:
implying that he did anything other than he stood in a place where it was possible for police to come at him from different sides.

[01:07:47] Speaker 03:
And the other thing I want to ask you about is you all characterize this as a consensual encounter.

[01:07:53] Speaker 03:
What part of that is consensual by Mr. Bryant?

[01:07:59] Speaker 03:
Yeah, by citing two cases saying that when there's a consensual encounter.

[01:08:04] Speaker 03:
And I'm assuming that when an officer, hey, do you mind if I ask you a couple of questions?

[01:08:09] Speaker 03:
Then that can be consensual if they say yes.

[01:08:11] Speaker 03:
But what part of this here under these facts is consensual?

[01:08:14] Speaker 02:
Certainly.

[01:08:16] Speaker 02:
An officer can say, do you mind if I ask you a couple of questions?

[01:08:19] Speaker 02:
But this court has also said in United States versus Gross that the question even, can I see your waistband, does not rise to the level of,

[01:08:29] Speaker 02:
a seizure necessarily.

[01:08:31] Speaker 03:
But I'm asking you all these facts when you say, is that a gun?

[01:08:33] Speaker 03:
Is that consensual?

[01:08:35] Speaker 02:
By that point, when Officer Smith has asked, what's that?

[01:08:39] Speaker 02:
What's that bulge right there?

[01:08:41] Speaker 02:
I mean, that's part of why we're saying that's a seizure.

[01:08:44] Speaker 02:
Before that, the question that was asked.

[01:08:48] Speaker 01:
You don't have any guns on you?

[01:08:50] Speaker 01:
You're saying that that's consensual?

[01:08:52] Speaker 02:
That that's closer to the questioning in cases where this court has said

[01:08:58] Speaker 02:
based on the question, that it's not a seizure.

[01:09:01] Speaker 03:
OK.

[01:09:01] Speaker 03:
But I have a different question.

[01:09:03] Speaker 03:
I didn't say seizure.

[01:09:04] Speaker 03:
I said, is that a consensual?

[01:09:05] Speaker 02:
Oh, a consensual.

[01:09:06] Speaker 03:
Because that's how it's being characterized.

[01:09:10] Speaker 02:
Yes.

[01:09:10] Speaker 02:
And I mean, this is, as we've been discussing all morning, it's a very fast moving situation.

[01:09:18] Speaker 02:
So it's possible, certainly, that

[01:09:25] Speaker 03:
I just want to know in your scope of what you perceive as consensual encounter by the police.

[01:09:30] Speaker 03:
I think that asking permission to ask a question is consensual, if you say yes.

[01:09:36] Speaker 03:
Asking the hard question, is that consensual?

[01:09:40] Speaker 02:
Under this court's case law, yes, I think that it is.

[01:09:43] Speaker 03:
OK, fair enough.

[01:09:44] Speaker 03:
And then you all indicated it was a citizen encounter.

[01:09:47] Speaker 03:
What do you mean by that?

[01:09:49] Speaker 02:
I just think the police are speaking with a person on you know out in the community I think is the way that I would police sort of person is not a police encounter.

[01:10:03] Speaker 02:
I think that that's that's just

[01:10:06] Speaker 02:
the phraseology that we've used in our briefs and that the, yes, it's from the perspective of the police, certainly from the perspective of the citizen.

[01:10:14] Speaker 02:
If a citizen, it would be a police encounter, but the fact that it's a police encounter does not in and of itself make it a non-consensual encounter.

[01:10:24] Speaker 02:
And just to go back what I was trying to respond to the court, it's possible that the,

[01:10:32] Speaker 02:
Officers could have asked, Officer Smith could have asked, do you have any guns on you?

[01:10:37] Speaker 02:
Mr. Bryant could have said no.

[01:10:39] Speaker 02:
And then the officer never saw a bulge.

[01:10:40] Speaker 02:
And then everyone would have gone about their day or their evening in this case.

[01:10:45] Speaker 02:
And I think it's that crucial second or two seconds in between where it morphs from a consensual encounter to a seizure.

[01:10:59] Speaker 02:
Because at the same time that

[01:11:02] Speaker 02:
Mr. Smith is, excuse me, Mr. Bryant is sort of being, he's aware now that there are officers on both sides of him.

[01:11:08] Speaker 02:
That's the same time that Officer Smith sees the bulge.

[01:11:11] Speaker 03:
Okay, and one last question for you.

[01:11:13] Speaker 03:
Obviously, lower courts can opine on credibility, but you have here at least that investigation with respect to Officer Smith.

[01:11:21] Speaker 03:
Do you know what was before the district court in terms of him having this approach?

[01:11:27] Speaker 03:
And him being on your investigation, do you know what the district court knew?

[01:11:31] Speaker 03:
Or is that something that's kind of after the fact?

[01:11:34] Speaker 02:
My understanding is that it's after the fact, just based on.

[01:11:40] Speaker 02:
But I can't speak to that definitively.

[01:11:42] Speaker 02:
I was not the district court AUSA on this case.

[01:11:46] Speaker 02:
And I don't have the dates of when all of this was happening to mind.

[01:11:51] Speaker 02:
Certainly, I would expect that.

[01:11:56] Speaker 04:
What was the date of the article in the Washington?

[01:12:02] Speaker 04:
In the record, we can look it up.

[01:12:04] Speaker 02:
I believe, and I think it might even be in, if the court will just, brief indulgence.

[01:12:13] Speaker 02:
At least, I don't know about in the record, per se, but I can point the court just now.

[01:12:21] Speaker 02:
I'm happy to follow up with a letter to the court if that would be useful.

[01:12:25] Speaker 02:
would note that in appellate's counsel's brief, they cite 2023 as the date of the article that raises this issue for the court.

[01:12:35] Speaker 02:
So that's certainly well-acted.

[01:12:37] Speaker 04:
Well, the article was at least available publicly published July 14, 2023.

[01:12:44] Speaker 02:
And yes, Your Honor.

[01:12:47] Speaker 02:
And the suppression hearing in this case took place on May 5, 2021.

[01:12:54] Speaker 02:
I believe it did relate to alleged conduct that happened within the time frame that this case was presented.

[01:13:01] Speaker 02:
But that's not something that the district court took into account, because it was not before the court, is my understanding.

[01:13:12] Speaker 04:
What was not before the court?

[01:13:14] Speaker 02:
The fact of the investigation that is reported in that article that we were just discussing.

[01:13:22] Speaker 02:
And I'm not sure that the investigation had even begun.

[01:13:24] Speaker 02:
But again, I'm speaking based on my post-hoc, sort of off-the-cuff understanding.

[01:13:30] Speaker 02:
Because it's my understanding that was not before the court at the time of this hearing.

[01:13:38] Speaker 02:
But the government knew.

[01:13:41] Speaker 02:
I'm not sure the answer to that.

[01:13:44] Speaker 02:
I wouldn't imagine that.

[01:13:48] Speaker 02:
I mean, certainly the government has obligations with respect to disclosures under various rules and case law.

[01:13:55] Speaker 02:
I really cannot speak to anything outside of the record of this case in terms of what was disclosed or what was known by the government.

[01:14:05] Speaker 02:
I honestly just do not know.

[01:14:08] Speaker 02:
But again, happy to follow up with the court in a letter if that would be useful.

[01:14:20] Speaker 01:
Just to get down to what I would consider to be brass tacks here.

[01:14:26] Speaker 01:
The propellant's argument seems to be that at 1940 and zero seconds when Officer Smith is stepping onto the sidewalk, that the seizure occurs.

[01:14:44] Speaker 01:
In that there's no reasonable, articulable suspicion at that moment.

[01:14:51] Speaker 01:
Let's suppose the court agrees that there's no reasonable, articulable suspicion at 1940 and zero seconds, and that the reasonable, articulable suspicion doesn't arise until three seconds later, 1940 and three seconds, when the officer seems to have clearly observed bulge because he asks a question about it.

[01:15:21] Speaker 01:
if we believe that the seizure as appellant would have us argued them occurred at the zero second mark at 1940.

[01:15:34] Speaker 01:
Um, why isn't this case exactly like my hypothetical

[01:15:44] Speaker 01:
where the alternative facts or alternative scenario where Bryant didn't stop at the white SUV, he kept walking.

[01:15:56] Speaker 01:
And so at 19.40 and zero seconds, Officer Smith says to Bryant, who's walking away from him, stop and turn around.

[01:16:07] Speaker 01:
And he turns around and at the three second mark,

[01:16:14] Speaker 01:
he sees the bulge and then grabs him.

[01:16:21] Speaker 01:
If we believe that there's no reasonable articulable suspicion at 1940 in my hypothetical where Bryant kept walking instead of stopping at the SUV, we would suppress that weapon under our case law because

[01:16:43] Speaker 01:
there would have been submission to a show of authority.

[01:16:45] Speaker 01:
So there would have been a seizure before there was reasonable, articulable suspicion.

[01:16:51] Speaker 01:
And it wouldn't matter to us that he obtained reasonable, articulable suspicion.

[01:16:58] Speaker 01:
Just three seconds late wouldn't matter.

[01:17:03] Speaker 01:
So on our facts here,

[01:17:07] Speaker 01:
If indeed he was, if, if, if the district court found or should have found that he was seized at 1940 and zero seconds.

[01:17:21] Speaker 01:
And if we agree that there's no reasonable, articulable suspicion at that point, because all he has said is, do you, you don't have any guns on you and he hasn't seen the bolt yet, then

[01:17:37] Speaker 01:
Why should there be a different result here?

[01:17:41] Speaker 01:
Why wouldn't we suppress that weapon?

[01:17:52] Speaker 02:
I mean, there needs to be reasonable, articulable suspicion to support a seizure.

[01:17:56] Speaker 02:
The only thing I can think of in both scenarios, Your Honor,

[01:18:07] Speaker 02:
is that splicing what happened second by second in these encounters where they're fast moving and there are safety concerns for the officers and for the people around would, for lack of a better word, hamstring law enforcement.

[01:18:33] Speaker 02:
But aside from that practical consideration,

[01:18:37] Speaker 02:
It can end without a reason to not exclude evidence that's obtained.

[01:18:48] Speaker 02:
Certainly, we don't have an intervening circumstance in this case under the hypothetical that the court has given.

[01:18:57] Speaker 02:
Without reasonable articulable suspicion, I think the cases are

[01:19:08] Speaker 02:
This case would be harder than the hypothetical that the court gave about where there's very clearly somebody who said that the officer has said stop, and there's been a submission to that command to stop.

[01:19:22] Speaker 02:
But they are much closer than what we have here.

[01:19:27] Speaker 01:
Any other questions, Judge Childs or Judge Rogers?

[01:19:31] Speaker 01:
No.

[01:19:32] Speaker 01:
Thank you.

[01:19:32] Speaker 01:
Thank you.

[01:19:33] Speaker 01:
Miss Roland, I believe you were out of time.

[01:19:36] Speaker 01:
We'll give you two minutes.

[01:19:41] Speaker 01:
Thank you.

[01:19:49] Speaker 05:
Thank you.

[01:19:50] Speaker 05:
I just want to address a few points.

[01:19:52] Speaker 05:
What is it regarding this timing?

[01:19:56] Speaker 05:
What a reasonable person would have perceived when Smith came around the corner and questioned him really isn't linked to when Officer Smith gained reasonable suspicion.

[01:20:10] Speaker 05:
So I mean, those are two different questions for the court.

[01:20:17] Speaker 05:
When was he seized?

[01:20:18] Speaker 05:
When was there reasonable suspicion?

[01:20:20] Speaker 05:
And the fact that there was very little time between them or a lot of time between them

[01:20:26] Speaker 05:
really isn't relevant.

[01:20:27] Speaker 01:
Well, I don't see how you've got an argument that he sees before the 1940 and zero second mark.

[01:20:35] Speaker 05:
Oh, no, no, no.

[01:20:35] Speaker 01:
Both because you didn't make that argument below.

[01:20:38] Speaker 05:
Agreed.

[01:20:39] Speaker 01:
And I don't think that.

[01:20:40] Speaker 05:
Right.

[01:20:41] Speaker 05:
What I'm saying is at that moment, 1940, zero, zero,

[01:20:49] Speaker 05:
That's the moment that Mr. Bryant or a reasonable person in his circumstance would have perceived a show of authority.

[01:21:01] Speaker 05:
The fact that Officer Smith gained his reasonable suspicion three seconds later, 10 seconds later, two minutes later, it just isn't, the two things are not linked.

[01:21:16] Speaker 01:
Well, they're linked if Smith observes because he steps onto the sidewalk and that enables him to observe Brian.

[01:21:27] Speaker 01:
And so I'm gonna ask you the brass tacks question.

[01:21:31] Speaker 01:
Okay.

[01:21:35] Speaker 01:
You know, I look at page 18 of your brief, I think it is, got a picture

[01:21:46] Speaker 01:
Well, it's page 10 of your brief.

[01:21:55] Speaker 01:
You've got a screenshot of the second screenshot.

[01:22:01] Speaker 01:
It's 1939 and 59 seconds.

[01:22:06] Speaker 01:
Smith isn't on the sidewalk yet.

[01:22:09] Speaker 01:
It looks like he's a couple steps away from the sidewalk.

[01:22:17] Speaker 01:
at best he gets to the sidewalk at zero seconds.

[01:22:21] Speaker 00:
Yes.

[01:22:24] Speaker 01:
It's going to take him another second or so to get up onto the sidewalk to quote unquote block Mr. Bryant's egress.

[01:22:41] Speaker 01:
So so

[01:22:45] Speaker 01:
Here's my brass tacks question.

[01:22:47] Speaker 01:
If I believe that he's not really blocking him until at least the 1940, 01 or 02 point.

[01:23:03] Speaker 01:
And at that point, he's seen the bulge.

[01:23:09] Speaker 01:
Don't you lose because essentially the seizure is simultaneous with him obtaining reasonable or takeable suspicion because you can see that when he sees the page, he has reasonable or takeable suspicion.

[01:23:26] Speaker 05:
Yes, he does.

[01:23:29] Speaker 05:
But they aren't simultaneous.

[01:23:31] Speaker 05:
There's enough time for Officer Smith to ask two questions and to get at least one answer.

[01:23:39] Speaker 01:
Well, we know when the questions were asked because we can see that on the camera.

[01:23:45] Speaker 01:
And the third question is at 1403.

[01:23:47] Speaker 01:
And the district court finds that he's raising his hand between the 1401 mark and the 1403 mark.

[01:23:57] Speaker 01:
And you can see that in the camera.

[01:24:01] Speaker 01:
So he's raising his left hand as if to point towards the waistband.

[01:24:09] Speaker 01:
want to communicate hold on here well maybe maybe not but the district court we have to under more needless from the supreme court we have to give due weight to the inferences from the factual findings of the district court i'm not sure what that means it's not clear error you know it's not abuse of discretion it's due weight

[01:24:38] Speaker 01:
But her inference from the fact of him raising his left hand is that he's fixated on his waistband.

[01:24:52] Speaker 01:
And that's what these officers are trained to do, the gun interdiction.

[01:24:55] Speaker 01:
Where do people hide the guns?

[01:24:57] Speaker 01:
In their waistband.

[01:24:59] Speaker 01:
So that would be the first place he would look when he had an opportunity to.

[01:25:04] Speaker 01:
When he clears the SUV, he looks right at the waistband, raises his hand, and that's at like the one second mark.

[01:25:14] Speaker 01:
So he sees it then right as he is blocking the sidewalk.

[01:25:19] Speaker 01:
So the two things happen at the same time, counsel.

[01:25:23] Speaker 05:
Judge, don't happen at the same time.

[01:25:25] Speaker 05:
His second question would not have been, did you step off?

[01:25:31] Speaker 05:
if he had seen a bulge.

[01:25:33] Speaker 05:
It was only after that question that he saw a bulge and then said, what's that?

[01:25:39] Speaker 05:
If he had seen a bulge, why would he go from, you don't have any guns, do you two like just step off?

[01:25:45] Speaker 05:
No, he would zero right in on that, what's that bulge?

[01:25:49] Speaker 05:
Let me see that bulge.

[01:25:51] Speaker 05:
So there was time between when Mr. Bryant was seized and when the officer believed that he saw a bulge, which gave him reasonable suspicion.

[01:26:05] Speaker 05:
And the fact that the time is so short, I don't think really makes any difference.

[01:26:23] Speaker 05:
finds that one or two seconds or three or a short amount of time, five seconds, 10 seconds between seizure and reasonable suspicion doesn't matter because they're all very sure, even five seconds is short, then- That's not what I'm saying.

[01:26:44] Speaker 01:
My hypothetical or what my question to you is, isn't it a fair inference from the facts

[01:26:52] Speaker 01:
that the officer sees the bulge.

[01:26:57] Speaker 05:
It was simultaneous.

[01:26:58] Speaker 01:
At the moment that the officer essentially completes stepping up onto the sidewalk.

[01:27:05] Speaker 05:
That is not a reasonable inference from the evidence.

[01:27:09] Speaker 05:
And for one, the reason that I just gave that he wouldn't have continued to question, he wouldn't have asked, oh, are you trying to evade the police if he had seen a bulge?

[01:27:20] Speaker 05:
That doesn't matter anymore.

[01:27:22] Speaker 05:
Now we've got reasonable suspicion because I see it.

[01:27:24] Speaker 01:
You're asking as if like a long period of time took place.

[01:27:30] Speaker 01:
Well, it's three seconds.

[01:27:33] Speaker 01:
It's don't have any guns on you stepped off.

[01:27:36] Speaker 01:
What's that?

[01:27:37] Speaker 05:
If he had perceived literally literally about that quick.

[01:27:42] Speaker 05:
But if he had seen the bulge, he wouldn't have asked stepped out.

[01:27:45] Speaker 05:
Why would he ask that question?

[01:27:47] Speaker 01:
He would have just gone straight to.

[01:27:49] Speaker 01:
At the moment he says stepped off, let's say he didn't.

[01:27:52] Speaker 01:
He still doesn't.

[01:27:53] Speaker 01:
He didn't see it.

[01:27:54] Speaker 01:
That's 1940 in one second.

[01:27:58] Speaker 05:
And there's a seizure.

[01:28:00] Speaker 05:
There's a seizure.

[01:28:02] Speaker 05:
And then at three seconds, 40 in three seconds, he gains reasonable suspicion.

[01:28:10] Speaker 05:
I mean the fact that those are so close that these are.

[01:28:14] Speaker 01:
So we're going to just we're going to, you know, scrutinize this like, you know, NFL instant replay or something by looking at the cameras, the different angles and taking a frame by frame.

[01:28:28] Speaker 01:
Well, when you're saying, ah, this frame he sees.

[01:28:33] Speaker 01:
And so he doesn't get reasonable suspicion to, you know, the frame.

[01:28:38] Speaker 01:
Exactly.

[01:28:39] Speaker 05:
I mean, the reason that we have body worn camera, one reason is so that we can see exactly the timeline, exactly when things are happening.

[01:28:49] Speaker 05:
And it's not

[01:28:51] Speaker 05:
outlandish at all for the court to, you know, look at that.

[01:28:56] Speaker 01:
Here you can see us in here.

[01:28:57] Speaker 01:
The district court makes a finding.

[01:28:59] Speaker 01:
I guess what I'm getting at here is that if we were to give due weight to the inferences from the district court's factual findings, we review the factual findings for clear error.

[01:29:13] Speaker 01:
We give due weight to the inferences that the district court makes from the factual findings.

[01:29:19] Speaker 01:
Now we review de novo

[01:29:23] Speaker 01:
whether there was a seizure and whether there was reasonable suspicion.

[01:29:29] Speaker 01:
But if the district court makes the finding based on the testimony, which we didn't see in reviewing the body worn camera, et cetera, that really the blocking doesn't happen until the 1940 and three second mark.

[01:29:50] Speaker 01:
How do we overturn that?

[01:29:52] Speaker 05:
Um, because the court can look at the video camera, the footage themselves itself and see what happened at 40 and zero seconds.

[01:30:06] Speaker 01:
How is that giving to the district court's findings?

[01:30:13] Speaker 05:
The district court

[01:30:16] Speaker 05:
Well, to the extent the district court found that he wasn't seized at 40 and 0 seconds, we're arguing that that's clear error.

[01:30:27] Speaker 05:
And whenever the bulge, Smith saw the bulge, it was after that.

[01:30:33] Speaker 05:
Whether it was 01, 02, 03, it was after that.

[01:30:37] Speaker 05:
And something happened in between that, which is he asked a completely unrelated question.

[01:30:44] Speaker ?:
OK.

[01:30:47] Speaker 01:
Um, Judge Rogers.

[01:30:50] Speaker 01:
Anything else?

[01:30:52] Speaker 01:
That's child.

[01:30:54] Speaker 03:
Thank you.

[01:30:55] Speaker 01:
All right.

[01:30:55] Speaker 01:
We have your argument.

[01:30:56] Speaker 01:
Take the case under revised.

[01:30:58] Speaker 03:
Thank you.