We will hear argument in the United States versus crumble. May I please the court? My name is Carolin Zadluski and I represent the United States. I'd like to reserve four minutes for a rebuttal. Grant. You don't appeal to district courts finding that the officers lack reasonable suspicion. Correct. No, Your Honor. I have a question. This appeal is based on the government's alternative argument which the court clearly understood that the, then in the court, legally aired in rejecting that the officers had consent and the court legally aired in finding that consent was irrelevant because their approach and inquiry were motivated by an anonymous tip. And essentially your argument is what consent wipes away all sins? Yes, but there are two different bases that you could stop someone. You can either have reasonable suspicion. Why don't you appeal? Just do you finish the thought and then I'll keep my mouth shut. Yes, which I always promise and I always lie. You're saying here that's okay. Join the club. Why wasn't there reasonable suspicion? What is it because you, the anonymous tip was uncorroborated or was because you're so, you're so convinced there was no seizure, you don't need that argument. We're absolutely convinced that there was no seizure. We have concerns about the tip, whether there was sufficient information about the tipster and whether it was corroborated. All right, and basically thank you. And so isn't it more accurate to say instead of consent covers all sins, that's a damn good word, that there was no sin because there's to be covered because the police can approach anybody they want with a simple question. Yes, Your Honor. Now, on that point, what are we to make of the district court's statement that it's father dashed that a reasonable person would have felt free to walk away under these circumstances? Is that a finding of fact about these specific circumstances? Or is that a statement of law about what an objectively reasonable person would feel about three officers of the law walking up to you generally? What, what, what are we to make of that statement? I think ultimately that's a legal conclusion that someone was seized in this context and that's a legal conclusion that the rate and the molder dashed and make it into the opinion. That was just a comment. It was, but it's an excellent word. But it was, it's a wonderful word
. I wanted to use this today. I didn't figure it out how. It was, it was an observation in the course of the proceeding. We never used that, we used another word, it was a little more profane, but that's exactly it. I think Dreyton makes it clear that the observations that follow the father dash are not grounds to find lack of consent. Well, what was the baller dash? That was as to the statement where, let's see if we can put this. They come up to Crandall on the street and they say, I received information that you might have a gun on you. I want to patch you down for our safety and you're free to go, right? I, really, in all my years, that, you've seen quite that in a case, but Judge Greenway did not make an adverse credibility determination. And I think it's only the free to go where he described that as baller dash. Now, did he do you think meant that they were, that Crandall was never told he was free to go? Or did he just find it kind of defied belief that any officer would say to Crandall, you are free to go? Or don't we know? Or that if he said it, they'd really feel free to go. I think it was that third, my understanding is that, although he may have said it, the officers may have said it, he didn't find that they didn't say it. He said that that does not, that is not a factor that supports consent and that ultimately someone would still feel constrained. So there was a show of authority and he was seized because he submitted to it. Because there were three uniformed officers and then, Drayton, the court explicitly found that three, that uniforms and holstered guns are not a factor that should mitigate in favor of a show of authority. So how should we go about analyzing this particular case? You have an anonymous tip, a three officers approaching the individual. I guess two of them said they know, they know him, as soon as they said the name, they knew him. And then you have a request, a statement to the officers say, you're not being held. Can we pat you down? Is that correct? Yes. Now how would you analyze that? We're pursuant to Drayton. But all the facts in this case indicate that as a matter of law. That's a conclusion. How would you go through the analysis? The judge here focused on the anonymous tip. Did he not? Yes, your honor. Is that where you start? No, your honor
. There's a separate analysis. The anonymous tip would be an analysis involving whether they had reasonable suspicion to approach him. But however, as we've already observed, they had an alternative ground to approach him, which is they wanted to ask him a question. You were worse off here with the anonymous tip than you would have been without him. That's the irony. That's the irony. Yes. Officers who aren't sure if they have a reasonable suspicion or doing the appropriate thing, and they're undertaking to investigate. Well, I'm going to ask. I think that's not the reason. When she gets up, I don't know. She has to be expecting the questions that will come, because I think it'll probably come from all of us, although I can't speak for my brothers. What are they supposed to do? There is something. I don't know where there's something in the recesses of my memory from the record where. He was seeing shooting the gun a couple of days earlier. I don't think the officers who stopped them knew that. But they did know that he had a gun. And what were they to do? I think following Judge Greenaway's reasoning, I don't know. They could do nothing. Correct? Yes, Your Honor. That's my reading of the reading. Because the tip uncorroborated as it was poisoned anything that followed. So they were worth all. Yes, Your Honor
. They were worth having a bit of time. They need an anti-tip line. Don't talk to her. Let me ask you this. Who's got the burden to show consent? The government has the burden to show consent. By a preponderance of the evidence, right? Yes. Okay. And was there, and you're reading of the district court's decision, anything that indicates that consent was not given or did the district court not finally reached that? In other words, the district court decided it didn't need to reach that because consent was irrelevant. So that would you agree that if we were inclined to agree with you, we would have to send this back to the district court to decide whether there was consent. Is that right? No, Your Honor. We are asking for reversal of the suppression and remand for further proceedings because there were no disputes. Hold up. Yes. If you've just agreed with me that you have the burden to show consent. Yes. And if it's in fact true that the district court never reached the question of consent, then how do you escape having to make a case by a preponderance of the evidence to a fact finder that there was consent? Because the district court had a hearing, listen to the officers, heard the issues, and there are no facts on the record that would allow the court to find a finding of consent. And as a matter of law, there was no consent. No consent. You mean of no consent? I'm sorry, of no consent. Well, aren't we sort of obligated to let the district court say that in the first instance? If it's a finding of fact that you have to prove by preponderance of the evidence? My argument is that the government showed, met its burden to show that this was a consensual stop. All the facts were on the record and it argued all the facts showing that it was a consensual stop. Did Mr. Quayle do that? Even if it went back any finding to the contrary, I'm sorry. I just couldn't finish that
. Any finding to the contrary would be clearly erroneous. Really. Then the district court say on a couple occasions is emphasized by your opponents that this happens so fast that it was all a jumble. In other words, you say there's nothing on the record to indicate something to the contrary. I'm wondering if the other side isn't going to be arguing. And certainly Judge Greenway's opinion might not be read to say some things that are not quite as clearly in your favor as you're saying. The most important issue in terms of speed is whether the consent came before or after they touched him. There's no dispute that the consent came before they touched him. There's no requirement that officers are not allowed to be direct and ask immediately for consent. And if the defendant gives it and does not avail himself of the opportunity to think about it longer, or ask further questions, that consent is invalid. Well, isn't your best assertion that he did reach consent? Yes. That on this record, the district court said there was consent. It just was consent that was tainted by the lack of reasonable suspicion and the anonymous tip. I think the fairest reading of the district court's decision is that even assuming there is consent. Okay. Well, that's what the district court did. Yes. Even assuming this reading is here. That's right, no, no. I'm not talking about that. Yes, but not talking. But even if we take the best argument that this was a very fast stop that they told him in advance that they were suspicious of him. Underdraight and current law, it would be clearly erroneous to decide that this was not a consensual stop. How about if you take it the way they say it? It would be a bit difficult to find clearly erroneous if there hasn't been a factual determination
. All I'm saying is that it would be as a matter of law, but the determination of whether there's a seizure is a matter of law. Are we missing something? Does Mr. Crandall dispute that he gave consent? No, you're on it. He does not at all. No, you're on it. The public, he did not at the hearing it. On appeal, the public defender is arguing that this is not valid consent, that there was a show of authority that overwhelms his consent. Okay. Let me just pose this to you. You say it would be clearly erroneous to find otherwise. Is there a way that this record can be viewed without reaching into the realm of clearly erroneous where the interaction takes place so quickly? I think that the consent was overborn or not. No, you're on it. If you don't mind my amount of time, go right. There is no requirement under law that judges, that officers approaching an individual take more time rather than last time in questioning someone to make them comfortable before asking for the consent. In fact, the opposite is apparent from the case law finding that the longer officers spend asking seemingly innocuous questions, trying to gather reasonable suspicion, the more likely it is that they're effectuating a seizure. And that by being direct, the officers don't have control over the defendant's decision, defendant's clarity of mind in granting their consent. And it would put them in an impossible position if they were to have the second guess. Sort of a damn if you'd named it. So, if you really mean it, you'd defend it. So, if you were analyzing this case, somebody just gave it to you to look at in the office. What is the first issue you would look at in this scenario? I would ask first was there a consensual stop? And then? Isn't that put the cart before the horse when you asked first if there's a seizure? I consider them part in partial of the same question. There's no seizure if there was consent. And he was asked to stop. He was asked to stop
. He was asked to stop that he was asked if he would mind being patted down. And your argument would be he consented to both. So, he was not seized. Yes, Your Honor. But when the first question was he seized? Was he seized? Yes, Your Honor. You say no because he consented to the stop. Correct. Yes, Your Honor. I'll go for the questions. Thank you. Thank you. May it please the court, Lisa Mack, from the office of the Federal Public Defender. With me at council table is Lisa Kell. Also present in the gallery is Mr. Ronald Crandell. No one, including Judge Greenway, disputes the ability of officers where reasonable suspicion is lacking to approach an individual in a public area to pose questions and even request consent to search. That's not disputed. That's not disputed. But Judge Greenway concluded because there was an anonymous tip identifying your client as carrying a gun that the officers could not approach him and could not request consent to search without reasonable suspicion. Correct. On the facts of this case, yes, because while no one disputes that underdraight and police officers can approach someone with it without reasonable suspicion. On the facts of this case is found by Judge Greenway. They've been approached your client. Exactly
. All right. What were they going to do that? This is my concern. What were they supposed to do? Let's assume the anonymous tip was not corroborated but they had reaped. They were told there was a man with a gun. What are they supposed to do? Well, if your honor would permit me to tie this into the rest of my answer for your first question. The difference between Duret and what was found here was that the judge found there was immediately a stop based on what they did. What the case law directs officers to do when faced with a tip is to do what they're trained to do. That is make observations. Here, there was none made. For example, did they see... They saw him coming down the street. Right? Yes. They knew who they were looking for. From the outset. They were told that they might as well have been told his name because the man coming down the street with the dreadlocks, with the brown tips, with the pants and the shirt in the same colors. They knew who it was. You're on a weirdo. And they couldn't stop it. And they were told he had a gun but they can't stop it. That's your argument. That's Judge Greenway's argument. Well, they cannot stop him because there was not reasonable suspicion
. Well, one thing I would dispute in your honor's question at the outset was the tip. They didn't know from the tip it was him. The tip left out that he had groceries and a white towel on his head. No, but they knew it was him. The tip had no location. That's what for arguments like they knew it was him. Two of them said at the hearing expression during when the incident was wiki. Sure. And the towel didn't even cover his hair. They saw red-locks blonde tips and they all of them seemed to testify that that was a relative... That was a pretty uncommon look and so their mind went immediately to your client. There were even beyond that because somebody said that you see one police officer was asked did you see the blonde tips? He said, I didn't need to. I know the face. I mean, the guy. They immediately targeted my client. Yeah. So let's assume that they knew it was him. They cannot stop him. Yes? Is that your theory? My theory is that the Supreme Court has set out what officers are supposed to do when they receive a tip that is a scant is this one. And that is there to do with their train to do, which is make observations. Did they see him make any suspicious movements? Did they see a gun outline in the small of his back? Rather than go up and immediately first came block his path, swoop in and first came, go up to him and start asking questions. But doesn't that introduce the incongruity? If I walk out of here on the sixth and market, police officer doesn't know me from Adam
. That police officer, according to Supreme Court, has the right to come up to me and said, you know, I'm looking here. Would you mind if I frisked you because there's been an incident here and we're just trying to protect ourselves? And I could say yes or no, but if I say yes, he goes ahead and does it. He's allowed to ask that question. He's allowed to ask me for identification. But in this case, because there was this quote, anonymous tip, close quote, you're saying they can't do that. No, I'm not relying on the tip, Judge. What I'm saying is if they had gone up and done that, hello, Ricky. We're investigating parts of the tip. We'd like to talk to you about a gun. Can we have some identification? Can we pursue that? That would bring it within the ambit of drain. But that's not what happened here. That's not what the judge found happened based on the testimony of the officer. And they knew it. This is not where there were five guys all wearing the same color shirt in the street. I mean, who was it? This is your client. They knew it was your client and they were told he was carrying a gun. But because of the anonymous tip, they could do nothing, right? That's exactly what the court did. They were soft where there is a tip that someone is committing a crime than they would have been without it. They're not worse off unless they do what they did here, which is rather than investigate the tip, they immediately open and preske. How would they go in and investigate the tip? Let him go off. I apologize. You keep saying something, man, that is wrong me. You keep saying that's not what they did here. I thought that for purposes of district court's analysis, he assumed there was consent
. I thought that the district court, you're implying that there was never any consent, but the district court's analysis seems to be founded on the assertion that there was consent, but it was tainted consent. So which is it? Was there no consent? Are you defending the district court's decision on the basis that his analysis was right? Or are you defending it on the basis that his factual finding or his factual assumption was erroneous and that there was no consent? I am defending it on two basis, that his factual findings were supported by the records and that he was correct. Consent if any was tainted because the judge found based on what happened. I'm having a hard time with you saying this, Mac, that's not what happened here. If we're going to argue on the basis of what the district court said, we have to assume that there was consent. Just as if it had happened the way Judge Ambro described it, that it was just walk up and say, how are you doing, Mr. Crandell? I don't know, like to give you a frisk and he says, okay, that's the baseline assumption for consent, right? So if we assume that and we were to follow the district court's logic, that consent is no good because the tip that led to the question was without reasonable suspicion. That's how I understand the district court's arc of logic to run. Where am I wrong about that? It's not that the consent is no good because of the tip. It's that the consent is no good because it came immediately on the heels of an illegal stop. The stop was illegal. It's illegal because of the lack of, you have to assume that the stop is a forceable stop executed by a officer's acting on an improper tip. I mean, you're putting the rabbit back in hand by saying illegal stop. What makes it illegal? It's the anonymous tip without reasonable suspicion, right? Because a reasonable person would not have felt free leave. And so in that respect, I apologize. It is that the consent is tainted, but the point that the district court made is you can't just at some point get some type of consent and sanitize any errors. It has to be a valid consent, which under Supreme Court precedent has to be attenuated from the illegality of stop. So the sanitizing the error, the error was the anonymous tip was the stop based on the not solely on the anonymous tip without any corroboration or indivisible investigation. The very point, which is the police are better off here and nothing than here and something. If they just walked up to put out the anti-tip line, don't call us because if you do, we can't stop people and talk to them. Well, they didn't just stop him to talk to him. They stopped him and frisked him at the space of two seconds. They blocked him at nothing and they started stopping him. So he saw him walking down the street. I understand this happened quickly, but he was coming down the street. This was not one of those things where all of a sudden boom, boom, it's over. It was fast. It was quick. But even Judge Green, there's a little inconsistency in his opinion whether it was all in one act or whether or but at the bottom line and with three discreet things that happened very close together. Two seconds is is an exaggeration, but it was quick. Well, respectfully, you're under the judge found based on the testimony of the officers before it before him that in fact everything was simultaneously and that any consent came immediately on heels of that stop. Immediately, all the agencies said, you're getting stopped after the officers said what they said, the bullets said what he said. And the district court found that no reasonable person faced in that situation with three officers swooping down blocking your passing. We think you have a gun and we'd like to pet you down for our protection. What if that reasonable? What if that's a separate issue, right? That's that's whether the consent was overborn. That's that's the draighten issue. That's not that's not the fundamental point that you start with, which is Judge Greenway's point with. And here's a footnote nine from the district courts analysis. Draighten is in a positive, we don't even get to the draighten overborn consent question in other words. Draighten is in a positive because the government asked the court to ignore the tip. This court does not dispute the ability of officers to approach individuals in public areas to pose questions and even request consent to search. However, without the anonymous tip, there is no approach. There is no request for consent. There is no path. And in other words, it seems unambiguous that the district court is saying had there been no tip. This would not have been a problem. This is a problem because there was a tip without reasonable suspicion. How do we read that differently than that? Now go ahead, Mary, can I answer that? Well, the way that I read that and I was at the hearing below and the way that I understood the court to be making that analysis was regardless of whether you get there on an anonymous tip or some other way, there was a stop
. I understand this happened quickly, but he was coming down the street. This was not one of those things where all of a sudden boom, boom, it's over. It was fast. It was quick. But even Judge Green, there's a little inconsistency in his opinion whether it was all in one act or whether or but at the bottom line and with three discreet things that happened very close together. Two seconds is is an exaggeration, but it was quick. Well, respectfully, you're under the judge found based on the testimony of the officers before it before him that in fact everything was simultaneously and that any consent came immediately on heels of that stop. Immediately, all the agencies said, you're getting stopped after the officers said what they said, the bullets said what he said. And the district court found that no reasonable person faced in that situation with three officers swooping down blocking your passing. We think you have a gun and we'd like to pet you down for our protection. What if that reasonable? What if that's a separate issue, right? That's that's whether the consent was overborn. That's that's the draighten issue. That's not that's not the fundamental point that you start with, which is Judge Greenway's point with. And here's a footnote nine from the district courts analysis. Draighten is in a positive, we don't even get to the draighten overborn consent question in other words. Draighten is in a positive because the government asked the court to ignore the tip. This court does not dispute the ability of officers to approach individuals in public areas to pose questions and even request consent to search. However, without the anonymous tip, there is no approach. There is no request for consent. There is no path. And in other words, it seems unambiguous that the district court is saying had there been no tip. This would not have been a problem. This is a problem because there was a tip without reasonable suspicion. How do we read that differently than that? Now go ahead, Mary, can I answer that? Well, the way that I read that and I was at the hearing below and the way that I understood the court to be making that analysis was regardless of whether you get there on an anonymous tip or some other way, there was a stop. And once you have a stop, you then have to determine if it was unlawful, which it was here for other reasons. If there was a stop, was the consent in any way attenuated from that stop? And here it wasn't because it was all part and parcel of the same simultaneous events. I think that the issue below and the reason it's a little confusing is that they can't be parsed out to evaluate one from the other. So I think the district court was saying with respect to Draighten, Draighten presented a different factual situation of a slowly unfolding more cooperative exchange. Because that's not what you have here. You can't separate out one from the other. I'm not so sure I would agree with that. Let me go back to the question that Judge Berry asked about seven minutes ago. What was the police officer to do? I think in this situation, the police officer should do what they were trying to do, which is make observations and speak to a suspect before rushing up to and blocking his path to start. They could speak to him. They could speak to him. They can walk up to him. They can say, hopefully we want to speak to you. Right? Yes. And then they can say to him, we want to pat you down. Why can't they say that then? They can. If they can walk up to him. What where's the. The problem here is the way they did it in Draighten. There were officers. Everyone could leave get on and off the bus. They did not block their path. Yes, they did. There was an officer standing at the entry to the bus
. And once you have a stop, you then have to determine if it was unlawful, which it was here for other reasons. If there was a stop, was the consent in any way attenuated from that stop? And here it wasn't because it was all part and parcel of the same simultaneous events. I think that the issue below and the reason it's a little confusing is that they can't be parsed out to evaluate one from the other. So I think the district court was saying with respect to Draighten, Draighten presented a different factual situation of a slowly unfolding more cooperative exchange. Because that's not what you have here. You can't separate out one from the other. I'm not so sure I would agree with that. Let me go back to the question that Judge Berry asked about seven minutes ago. What was the police officer to do? I think in this situation, the police officer should do what they were trying to do, which is make observations and speak to a suspect before rushing up to and blocking his path to start. They could speak to him. They could speak to him. They can walk up to him. They can say, hopefully we want to speak to you. Right? Yes. And then they can say to him, we want to pat you down. Why can't they say that then? They can. If they can walk up to him. What where's the. The problem here is the way they did it in Draighten. There were officers. Everyone could leave get on and off the bus. They did not block their path. Yes, they did. There was an officer standing at the entry to the bus. It was if anything, it was more of a show of authority than you have in this case. But in Draighten, there was somebody at the front and the back, but there was also testimony that people got off were so does and for cigarettes. The officer in the aisle, not block the aisle. You just have conceded that they could have stopped him. They could have stopped him. And we talk to you. They have to keep moving when they say that. They cannot effectuate a stop within the meaning of the fourth amendment. That's right. What's there? Look. Can we talk to you? He stops. We want to pat you down. He says, OK. So had that happened that would have been a case. How did it not happen? Because the judge found based on the testimony before him that everything happened so fast that show authority that we believe your armed we believe that done. So the argument really isn't isn't that the anonymous tip was the problem. The argument is that it happened so quickly. After they were they were conceitedly able to stop them. In other words, you're abandoning the argument that the anonymous tip tainted the consent. And now you're saying again that the anonymous tip was that the consent was overborn. And therefore it's not a valid consent. We are arguing it was not a valid consent. It was overborn. We're not abandoning an argument with respect to the reasonable suspicion
. It was if anything, it was more of a show of authority than you have in this case. But in Draighten, there was somebody at the front and the back, but there was also testimony that people got off were so does and for cigarettes. The officer in the aisle, not block the aisle. You just have conceded that they could have stopped him. They could have stopped him. And we talk to you. They have to keep moving when they say that. They cannot effectuate a stop within the meaning of the fourth amendment. That's right. What's there? Look. Can we talk to you? He stops. We want to pat you down. He says, OK. So had that happened that would have been a case. How did it not happen? Because the judge found based on the testimony before him that everything happened so fast that show authority that we believe your armed we believe that done. So the argument really isn't isn't that the anonymous tip was the problem. The argument is that it happened so quickly. After they were they were conceitedly able to stop them. In other words, you're abandoning the argument that the anonymous tip tainted the consent. And now you're saying again that the anonymous tip was that the consent was overborn. And therefore it's not a valid consent. We are arguing it was not a valid consent. It was overborn. We're not abandoning an argument with respect to the reasonable suspicion. We didn't present that argument because the government waived it. But you said there are. Stop it. You can see. Yes or no? You can see they could have stopped him. They could have. They said we want to talk to you. So it's not. It's not as if as I posited earlier. Undergrind judge greenways analysis that because of the anonymous tip they could do nothing. Their hands and mouths were tied. They could speak to him. And if they could speak to him. They could ask him. I assume. Can we patch you down? Right? They could approach him. Yes, Judge. But for purposes of appeal the issue was consent, which is why I am focusing on the finding of facts of the district court in that everything happened so fast. He assumed consent. He assumed consent. Even assuming consent. It would have been also assumed. He also assumed. They couldn't even have approached him because of the anonymous tip
. We didn't present that argument because the government waived it. But you said there are. Stop it. You can see. Yes or no? You can see they could have stopped him. They could have. They said we want to talk to you. So it's not. It's not as if as I posited earlier. Undergrind judge greenways analysis that because of the anonymous tip they could do nothing. Their hands and mouths were tied. They could speak to him. And if they could speak to him. They could ask him. I assume. Can we patch you down? Right? They could approach him. Yes, Judge. But for purposes of appeal the issue was consent, which is why I am focusing on the finding of facts of the district court in that everything happened so fast. He assumed consent. He assumed consent. Even assuming consent. It would have been also assumed. He also assumed. They couldn't even have approached him because of the anonymous tip. That's because the so it was just not. You're not. You're disagreeing with that portion of his. Of his analysis. I'm. No, I am not disagreeing with that portion. I am just saying for purposes of appeal. We're leaving the tip aside because the government is focusing on consent. But so this case according to Judge Greenway is all about this case is first sentence of his opinion. This case is about an anonymous tip. Well, that's because that was how it was presented below your honor. The focus of the argument and the motions and the evidence was on the reasonable suspicion of the tip. The consent was a scenario. You are saying there's put the anonymous tip aside. They could approach him. Anonymous tip aside. They could all we any police officer can always approach a suspect. That's not what happened here. And it's overborn. What is that? What are you saying is that the facts were found differently by the district. You're saying you're saying consent was overborn. So it's not a valid consent. Any consent that was given was overborn. Yes
. That's because the so it was just not. You're not. You're disagreeing with that portion of his. Of his analysis. I'm. No, I am not disagreeing with that portion. I am just saying for purposes of appeal. We're leaving the tip aside because the government is focusing on consent. But so this case according to Judge Greenway is all about this case is first sentence of his opinion. This case is about an anonymous tip. Well, that's because that was how it was presented below your honor. The focus of the argument and the motions and the evidence was on the reasonable suspicion of the tip. The consent was a scenario. You are saying there's put the anonymous tip aside. They could approach him. Anonymous tip aside. They could all we any police officer can always approach a suspect. That's not what happened here. And it's overborn. What is that? What are you saying is that the facts were found differently by the district. You're saying you're saying consent was overborn. So it's not a valid consent. Any consent that was given was overborn. Yes. Now answer me this. In Drayton. There is an armed officer at the back of a bus. There's an armed officer at the front of the bus. He went on the driver's seat right by the exit looking down the road. So obviously if there's a scuffle, you know, in other words, they got the exits covered. Right. And then there are some police officers walking down with this shown his badge. He's armed to ask him if he can search people. All right. And the Supreme Court says the only reason this is a question is because we're in such close quarters in a bus. And in fact, says quote, it is beyond question that had this encounter occurred on the street. It would be constitutional. Unquote three officers armed approaching people in saying I want to search you. Unquestionable. That it would be constitutional. So if we assume for the sake argument, I understand you're saying, hey, that's just not the facts. But if we assume for the sake of argument that this unfolded as the district, as the police officer said, which is the three of us were walking down the street. Mr. Kriana walked toward us. We said to him, hey, we'd like to we'd like to patch it down. And he says, OK, you can leave it any time. Yeah. What's this about? And it's only when they're reaching for the gun that he knocks him away runs away and the gun falls out
. Now answer me this. In Drayton. There is an armed officer at the back of a bus. There's an armed officer at the front of the bus. He went on the driver's seat right by the exit looking down the road. So obviously if there's a scuffle, you know, in other words, they got the exits covered. Right. And then there are some police officers walking down with this shown his badge. He's armed to ask him if he can search people. All right. And the Supreme Court says the only reason this is a question is because we're in such close quarters in a bus. And in fact, says quote, it is beyond question that had this encounter occurred on the street. It would be constitutional. Unquote three officers armed approaching people in saying I want to search you. Unquestionable. That it would be constitutional. So if we assume for the sake argument, I understand you're saying, hey, that's just not the facts. But if we assume for the sake of argument that this unfolded as the district, as the police officer said, which is the three of us were walking down the street. Mr. Kriana walked toward us. We said to him, hey, we'd like to we'd like to patch it down. And he says, OK, you can leave it any time. Yeah. What's this about? And it's only when they're reaching for the gun that he knocks him away runs away and the gun falls out. How how is that now I understand where I'm asking you to assume the facts that the police officers testify to. If it if that is the way it unfolds. How is that not precisely what the Supreme Court said is quote beyond question. I'm out of time. That answer. I believe there are two grounds for which that would not come with in great and one is because the officer's testimony was that not just we can we pat you down. We walk up to him. It's we stopped him officer less said that and they both said he stopped for us. And we said to him, we believe you have a gun. We need to take you down for our safety. Physical stop motion. I mean, if they had kept walking and had the conversation first, the mizzi walk that would have been well, they blocked his path. He couldn't go anywhere. And once they once three armed officers tell you we think you have a thought you don't mention a fact you don't mention. He was told by Velas. He was free to leave. And I believe that that is for funcury in this case as a judge found for funcury, but that's the evidence in the case. He was told he was free to leave after they told him we believe your armed. I don't think as a judge found that any reasonable person would believe that when three officers approach you and tell you we think you're on your free to leave. And then he is a little bit different on this one of the officers says he wasn't told he that they they fully had a gun until after he given consent. The other one said it was before. So those your under our facts that I think are a little bit different and great and also going back to your question about the rate and and taking the testimony as you presented. I think the facts and great and work. A little bit different because unlike here with the officer said they approached him and arms laying the way in a semicircle or in a line blocking his path with offense to the left
. How how is that now I understand where I'm asking you to assume the facts that the police officers testify to. If it if that is the way it unfolds. How is that not precisely what the Supreme Court said is quote beyond question. I'm out of time. That answer. I believe there are two grounds for which that would not come with in great and one is because the officer's testimony was that not just we can we pat you down. We walk up to him. It's we stopped him officer less said that and they both said he stopped for us. And we said to him, we believe you have a gun. We need to take you down for our safety. Physical stop motion. I mean, if they had kept walking and had the conversation first, the mizzi walk that would have been well, they blocked his path. He couldn't go anywhere. And once they once three armed officers tell you we think you have a thought you don't mention a fact you don't mention. He was told by Velas. He was free to leave. And I believe that that is for funcury in this case as a judge found for funcury, but that's the evidence in the case. He was told he was free to leave after they told him we believe your armed. I don't think as a judge found that any reasonable person would believe that when three officers approach you and tell you we think you're on your free to leave. And then he is a little bit different on this one of the officers says he wasn't told he that they they fully had a gun until after he given consent. The other one said it was before. So those your under our facts that I think are a little bit different and great and also going back to your question about the rate and and taking the testimony as you presented. I think the facts and great and work. A little bit different because unlike here with the officer said they approached him and arms laying the way in a semicircle or in a line blocking his path with offense to the left. In Drake and other officers were stationed there was testimony that people were getting up moving about that the officer kneeling in the I.O.A. took care not to block people's paths and that they were cooperative slow exchanges with the passengers explaining their purpose, explaining what they were doing and then asking for consent. So I think that even going with the officer's testimony the facts and great nurse sufficiently distinct that this case does not come with and even assuming the facts as presented by the court. I am at a time your honor as I would simply ask to sum up by saying that the district court had the testimony of the officers before him was able to observe their credibility observe their demeanor based on the testimony made findings of fact from which he concluded. This was an unjustified stop and consent if any was tainted. We would ask that this court not disturb those findings and affirm the ruling of the lower court. Thank you. Thank you. We're bottle. Yes. Yes. First I would just like to take issue with the assertion of the defendant that the court made a finding a factual finding that there was an illegal stop. The court made a finding that there was an illegal stop based on the anonymous tip any finding that the subsequent events were tainted was a finding about the search but it never actually made any other finding that there was a lack of consent. I would also like to speak a little bit more about Drayton. In Drayton the officers had just arrested the partner of the person that Drayton was traveling with and that was a person with whom Drayton shared his bag. Drayton was clearly focused on the fact that these officers had a lot of authority and I think that that is more significant showing that he was in jeopardy than any understanding by Krandel that the officers had. The cuffed his seatmate in front of him, right? Yes, Your Honor. Moreover, they didn't surround him. They approached him in a line on the street. He had a means of leaving the encounter. He was free. He was told he was free to go
. In Drake and other officers were stationed there was testimony that people were getting up moving about that the officer kneeling in the I.O.A. took care not to block people's paths and that they were cooperative slow exchanges with the passengers explaining their purpose, explaining what they were doing and then asking for consent. So I think that even going with the officer's testimony the facts and great nurse sufficiently distinct that this case does not come with and even assuming the facts as presented by the court. I am at a time your honor as I would simply ask to sum up by saying that the district court had the testimony of the officers before him was able to observe their credibility observe their demeanor based on the testimony made findings of fact from which he concluded. This was an unjustified stop and consent if any was tainted. We would ask that this court not disturb those findings and affirm the ruling of the lower court. Thank you. Thank you. We're bottle. Yes. Yes. First I would just like to take issue with the assertion of the defendant that the court made a finding a factual finding that there was an illegal stop. The court made a finding that there was an illegal stop based on the anonymous tip any finding that the subsequent events were tainted was a finding about the search but it never actually made any other finding that there was a lack of consent. I would also like to speak a little bit more about Drayton. In Drayton the officers had just arrested the partner of the person that Drayton was traveling with and that was a person with whom Drayton shared his bag. Drayton was clearly focused on the fact that these officers had a lot of authority and I think that that is more significant showing that he was in jeopardy than any understanding by Krandel that the officers had. The cuffed his seatmate in front of him, right? Yes, Your Honor. Moreover, they didn't surround him. They approached him in a line on the street. He had a means of leaving the encounter. He was free. He was told he was free to go. Therefore and the officers indication to him that he was that that he stopped him was as if you know I'm stopping you to ask you for the time. I'm stopping you to talk to you. It wasn't a legal conclusion that I seized him. What about the, obviously I don't think any of us believe it was quote a couple of seconds close quote which is actually what was used in the hearing. But how does the contemporaneous aspect of what occurred here affect your thinking? If things really happened so quickly, how could there not have been a seizure of this person? Your Honor, because the office has been sent overborn, there's well overborn. Yes, Your Honor. The officers having asked and having asked the question, may we talk to you and having informed the defendant that he's free to leave, which is actually more than was done in Drayton, have done all that we would ask of them. That they would know to do in this context. After that, it falls to the defendant if he has further questions or no clarity of mind to seek further clarification about what their intent is or why they're there or whether he should leave. But that's as much I think as we can reasonably ask officers to do. They don't need to wait any longer. They know that there's a gun there. If we have not found that they have reasonable suspicion, they have to ask if they don't know there was a gun. They don't want to delay. They don't know there's a gun yet. No, but they have reasons to believe that there's a gun and they don't want to delay any longer having gone through. You say we can't use the reason of believe indeed. No, I'm not saying that that's I'm not suggesting that that's a reason to stop him. That's the reason that I'm not suggesting that there was reasonable suspicion to stop him. I'm just saying that in terms of the pace, what would be a reasonable pace to an encounter that the officer is having asked him a question, may we talk to you and having told him that he's free to leave, have then given him all the information that he needs in order to assess this judgment, pursuant to Drayton, as the court has found. We will take the case under advisement. It was well argued and I think good speaking only for myself. Judge Greedaway's opinion on the none of us tip was very good. The question is what do we do with it? Thank you