Yes, you may. Mr. Cohen. Yes. Good morning, may I please the court? I'm Ronald Cohen, and I'm appointed counsel for Mr. Robertson's morning today. Last time I was here was seven years ago, so I'm glad that you finally invited me back. Hannah was before you, Judge Gregory, on that occasion. Let us start where this incident began, which was a radio report by an unknown individual that there were three black males wearing white t-shirts chasing a fourth individual and that there was a gun involved in the incident. Who has the gun is completely unclear, at least it's unclear to me. With that, a number of marked police vehicles come into the area. The area is McDonald Terrace. I'm sorry, ma'am, McDonald Terrace. From Durham, it is legal. I probably have it wrong all the way through, do I not? You do. Thank you. Well, we can agree, Judge Duncan, that this is the high crime area that's described by Officer Welch, that he finds is a constant scene of burglary, homicide, and drug activity. Indeed. Thank you, Judge. I apologize to the citizens of Durham. So we have this non-specific report of these individuals. I would submit that this description is completely worthless as a description, that it has no specificity at all, and that it could fit any black male individual who happened to be wearing a white t-shirt anywhere in the universe. So there is no way of distinguishing these people unless you are going to observe them in the act of chasing. Okay? Once we get to the locus and quote, there is no chase, take and place. There is nothing but quiet. The area is calm and quiet. There is no observable illegal activity going on. I believe that you can read the record as Officer Welch saying that there were a group of targets that were evaluated and found not to be the people who were involved in the report. And then you can read the record as saying that police activity started to center on a bus shelter, which was in the area, and there were a bunch of individuals in the bus shelter. You are not challenging the stop
. I mean, you are not challenging. I most certainly am challenging the stop. I did challenge. You are not challenging the issue in your brief revolved around weather, Mr. Robertson was free to leave at the time. And it was a little included me, but it didn't seem to me that you argued the initial stop. It has to be in your statement of issues. Well, whether it is in the statement of issues or not, I mention an analyzed Terry versus Ohio. It does have to be included in your statement of issues. And also, did you argue the stop for the district court? The stop was not, I believe, what was I believe argued to the district court? I think if you say that that is part of the record below, that there was no basis for approaching Mr. Robertson. Now, that being... When you sit down, if you could just find that in the record, I would really appreciate it. I will make a point of searching for it. But, you know, what we come up with is we have the police who have concentrated on the bus shelter. Mr. Welsh's testimony is that there are already several offices involved in confronting people in the bus shelter, who happen to wear white t-shirts. The disposition of that encounter is not clear to me from the record, but there is a police presence in the bus shelter or around the bus shelter. And Robertson is sitting in the bus shelter. He is not wearing a white t-shirt. He is wearing a dark t-shirt. He is observably doing absolutely nothing. It is at this point that the other officers engage with the other individuals. Well, let me backtrack a minute. Let us say that we are..
. I hesitate to do this. But we are a bunch of black people who live in the hood in Durham in an area which is under constant attack or constant presence of police officers. You are sitting in a bus shelter. You are surrounded by police, whether they are guns or drawn or not. They are in uniform. Would you naturally pick yourself up and make yourself a target of activity by leaving the bus shelter? I would say you would not. I would say that if you in that experience in that milieu, you would not make an example of yourself. You would not single yourself out by leaving the area, by just getting up and walking away. I do not think that is unusual. I submit without denigration that that is part of the black experience in this country. I offer for at least some validation, Judge Scheinland's recent ruling in the stop and frisk case in New York, where she talks about, among other things, the profiling that is inherent in such an activity. This arose in a context where three men were chasing another man and they approached the bus stop. You certainly do not find anything wrong with them approaching the bus stop. No sir. I am not saying that there is a policy in Durham and the stop and frisk. I am not talking about that. My question is, I mean, I do in fact Judge Wilson. I do. There is no body in distress. Well, they do not know that. It is open to their eyes, sir. There is nobody chasing anybody. There is no activity whatsoever. I say in my brief, having found no evidence of the activity that called them out, they did not simply go back to their duties. They did not simply go back to whatever they were doing before. They went and started an investigation. They had no cause to approach anybody. They had no reasonable, articulable cause to approach anybody. Well, the question said, did you all see anybody chasing anybody? Well, I do not know what they said
. I do not have a record for that. But my point is, what would have been wrong with that? I mean, approaching them is not the issue. I mean, is it? In a certain context, it in fact may be. But I will leave the white t-shirt people beside. I will throw there together, perhaps. Well, they are all there sitting in a bus shelter. Just as in some random way, you Judge Wilson, Judge Gregory, Judge Duncan ended up in this panel. I assume that the assignments are randomized. These are just a bunch of random people sitting in a bus shelter. So what is wrong with approaching to try to find out if there is anybody in distress? Because there is observably nobody in distress. Doesn't the citizen have a privilege to be free of government intrusion? Well, you don't have to have an articulable reason, Judge Wilson. The Supreme Court has said that brief encounters between police and citizens require no objective. Well, you know, we do not have in Mr.... I'm not arguing about the other people on what happened to them. I'm saying that Mr. Jamal Antonio Robinson had no objective reason to leave the bus shelter. He had every reasonable reason to stay there that he wasn't wearing a white t-shirt that there was no reason to approach him. But let's go to the approach. According to the evidence... I'm losing my time. According to the evidence, he is 6 to 10 feet away. And his first inquiry is, do you have anything illegal on you? Well, you know, how loud was that? How loud was that question? Do you have anything illegal on you? Do you have anything illegal on you? Do you have anything illegal on you? And then he makes a come here gesture. That's a gesture of command. That's a gesture of seizure
. That's an exercise of authority. That's an exercise of authority. Could I ask? Because you are running out of time. It seemed to me that your focus was also on the reasonableness or unreasonableness of the search. The search is completely unreasonable. There's no predicate for making a search because there's no predicate for making a seizure. There is no articulables...articulable fact in the record that says that Mr. Robinson was doing anything other than sitting in the bus shelter. I'm not here to propose him as a post-child as a good citizen. But it doesn't make any difference. That is one of the vices of the district court's opinion as you will read the words reasonable innocent people. Innocent person should not have led. Well, you know, innocent is not part of the equation. It doesn't belong in reasonable person. You know, I'm an innocent person. I don't like the government harvesting my telephone calls. I don't like it. It's an intrusion. It's wrongful. I'm a guilty person. I like it even less. But it doesn't matter. That's not part of the equation. Now, if your honor would give me a minute, I would ask you to excuse my lapse in not citing to you earlier the Jones case, which is the March 2012 case, which was part of the 28 E or J letters that were sent to the court. I have to be for oral argument that 678 F third 293. If your honor would read Jones, I would think that your honor would see that Jones is very, very close
. Has a very, very close relationship to the fact that I had in this case. And that the conclusion in Jones is the conclusion that should be reached in this case. The stop here was improper. The seizure here took place immediately on Mr. Robertson's being confronted by officer Welsh. He admits that. Now, would a reasonable person believe that they were seized? Well, Mr. Robertson testified that he felt he was seized. That's in the record. He testified that he felt he was not free to leave. Although that's not. Go ahead. I'm sorry. Well, if there's a question, Judge, I'll be happy to try and answer it. Not at all. Thank you. Mr. Robertson certainly felt that he was not free to leave. And I would submit to you that under all the totality of circumstances, this case, he was not free to leave. He wasn't free to leave before he was accosted by officer Welsh. He was subject to whatever was going on in that bus shelter, which was confronted by a number of armed Durham police. I will reserve the balance of my time. And I will try and find what you ask for, Judge. Thank you. Thank you. Mr. Defranco. May I please, Court, my name is Mike Defranco and I represent the United States of America in this matter. The government does not contain that officer Welsh had reasonable, articulable suspicion to conduct a pad down of Mr
. Robertson. The officers responded to McDougal Terrace, which is a high crime area because they had gotten a call. And when they were right call, what was the call? The call was a disturbance with a weapon involving three African-American males in white t-shirts chasing an individual with a gun at McDougal Terrace. They also indicated a location near building five. So the officers went there and of course they need to go there. If they don't go, what happens? They have to go and investigate. They went to building five. They go to building five in that vicinity. They see individuals that roughly match the description of the call. They approach the bus stop officer Welsh testifying. How far is the bus stop from building five? Is it in the record? I don't recall if it's in the record. It's the officer originally pulled in about 100 yards from where the bus stop is. So I believe it's within the 100 yard range or so, but I don't recall specifically how far away it was. And there was much talk earlier about the wave. And the government points out that that's the reason for a wave. And I'm not saying this clearly, but when a district court hears the evidence and has the opportunity to observe witnesses testifying in the demeanor, the district court is in the best position to determine exactly what that wave meant. Whether it was a wave of directive or a wave as in, hey, would you mind coming over here and talking to me? And the government submits that Judge Shroto was in the best position to observe the witnesses testifying. He specifically found that officer Welsh version was to be credited and that Mr. Robertson's version was not to be credited. The question is, you went to the bus stop because you saw black males there, right? There were six or seven individuals standing around the bus stop according to officer Welsh's testimony. There's nothing wrong with standing around a bus stop. Absolutely not. No further activity, no running, nothing like that. All right? No. So the only thing was, the good police work as I think Judge Wilson's question might suggest, hey fellow, did you see anything? Oh, what's up? Right? That's essentially what occurred. Oh, I know. Okay. Now was anybody searched there? Well, it was not clear what the other officers were doing. It wasn't clear
. I'm speaking of officer Welsh dealt with Mr. Robertson on a one-on-one case. Yeah, but you can't do that out of the context. He's seeing all of this, right? So the milieu is important here. What the other people being searched? Certainly, the number of officers present is a factor that the courts consider. And they were searched and they're other people, correct? It's unclear whether they were searching the other people. They were talking to the other people, but officer Welsh indicated that the other officers were dealing with the other individuals. It was unclear whether or not they were frisking them, just talking them, talking to them, or exactly what the other officers were doing. All right, so now, so then they approach Mr. Robertson. Not they, only officer Welsh approaches Mr. Robertson. And it says what to him. From about a distance of 10 feet. He says what? He says, do you have anything illegal on you? And then... It's the thing in legal on you. That's in the non-sequences to, hey, did y'all see anything? It's an open-ended question, which it could mean marijuana. It could mean a gun, presumably in this case. Why would you walk up to him and ask him that? Do police in Durham ask that question to other people? No, I would submit that the reason why the questions were open-ended like that was because the call was somewhat unspecific. And they really didn't know. In fact, the call didn't even specifically identify who was chasing whom with the gun. It would stand a reason that the individuals and the white t-shirts were the ones chasing with the gun. But the call was unclear exactly how, who had the gun? So the officer Welsh goes to investigate. He asks a question. Do you have anything illegal on you? And he's standing about 10 feet away. He gets no response. Mr
. Robertson... Why are you asking, are you on? That was the next question. Well, he didn't say that actually. What he said was, do you mind if I search you? He didn't. He went to, do you have contraband, which means basically good drugs, right? Not necessarily. And it could be a firearm, a concealed firearm. It's an open-ended question. Do you have anything illegal on you? Well, United States have guns on illegal, and that's the sort of thing we've got to... We've got to amend it into constitution that allows it. Not if the weapon is concealed in the state of North Carolina. If he's carrying a concealed weapon in which the officers can't see it, that would be a violation. Nonetheless, it's an open-ended question that the officers... There's no reason why an officer can't ask that question. Do you have anything illegal on you? He didn't ask what his name was. No, he did. This was a matter of... He didn't ask him where he lived. He did not ask any of those questions. So, all the questions that are normal as Judge Duncan talked about, you have a right to approach people. But to walk up to someone and say, you got to think illegal on you? It's pretty offensive, isn't it? It could be viewed as offensive. But in this particular situation, the officer was responding to a vicinity of a call of individuals with guns
. So, they were going to investigate. It's really... And it's... Oftentimes, this case, this type of issue occurs in the context of an airport. Individuals arrive, officers approach, and ask, hey, do you mind if I talk to you for a few minutes? I'm trying to stop the flow of drug traffic. Do you mind if I search you? That's the context in which it happens. Is that offensive? I'm sure it's offensive to many people. But the question is, is it unlawful? Yeah, but that's different. That's random, and you are using a form of transportation. And we have determined that you can enter Dick and ask questions. But these are a bus stop, a public bus stop. People who wait for the bus have to wait in the bus stop, don't they? Yes. And in fact, it appeared that he was waiting at the bus stop. So, why would you walk up to him just because he... I assume because he was black? No, because he was in the vicinity. So, everybody in the vicinity, you would have said, do you have anything illegal? Well, it may be offensive. The question is whether it's unlawful. And when I say offensive to the Constitution, I don't mean, obviously, it's offensive to a person as a human being. You know, humanity. I'm talking about the Constitution when I say offensive. Well, if someone is walking down the street and an officer walks up to that person and says, you have anything illegal on you, that may be offensive to that person, but I don't view that as offensive to the Constitution. What did we say in Jones? In Jones, and Jones was focused more on an officer who followed an individual. And the individual, I believe Mr
. Jones, knew that he was being followed. And when the officer followed him, Mr. Jones pulled into a private property, and the officer pulled him behind Mr. Jones and blocked his ability to get out. I believe that that was the court's primary focus, was the blocking of the vehicle. Although there is some language in there that's helpful to you, that we don't, by merely approaching individuals in public places, and putting questions to them, offend the Constitution. Right. It's a total... I was on this Jones panel. Yes, Your Honor. And... You can touch... You can refer to Judge Craig Reef, Judge Craig Reef. Yeah, I was on the Jones panel, and the matter was, the man was Karen Apizza, and just because it was a call to a... A court court... A high drug place, a high crime place. They said, who are you sure to? Yeah. That's the same thing you're saying. Well, do you have something illegal that had no connection at all with the investigation? It's the same thing. He said, please, your man was holding a pizza. He said, please, Your Honor, let me show you a stomach. No, I believe... Was that not the case where he had New York plates? Right. New York... The officer started following him because he had New York plates. That's right. And the... Mr. Jones knew that the officer was following him. He pulled into private property, and the officer blocked him in. No, he put up alongside him. He put up alongside him. And of course, the officer said he wasn't blocking. He was near him. They... And it didn't make any difference about the blocking that case because they got out of the car. There was no indication that they were still trying to drive it. Two got out and went toward the apartment. This is the last guy. He has a pizza in his hand
. He said, please, your man was holding a pizza. He said, please, Your Honor, let me show you a stomach. No, I believe... Was that not the case where he had New York plates? Right. New York... The officer started following him because he had New York plates. That's right. And the... Mr. Jones knew that the officer was following him. He pulled into private property, and the officer blocked him in. No, he put up alongside him. He put up alongside him. And of course, the officer said he wasn't blocking. He was near him. They... And it didn't make any difference about the blocking that case because they got out of the car. There was no indication that they were still trying to drive it. Two got out and went toward the apartment. This is the last guy. He has a pizza in his hand. And he walks into him and said, hey, pull your shirt up. He... Because he had New York license, because he drove into the parking lot. And he said, yeah, pull your shirt up. I believe he said, hey, do me a favor, pull your shirt up. That's more directed. Officer Welsh asked a question. He said, do you have anything illegal on you? There's nothing on constitution. And then you said, I want to search you. No, then... Then coupled with a hand wave, he said, I believe... I believe you come to me, right? Do you mind if I... If I search you? What's the difference? Well, the difference is that... And as Judge Schroeder analyzed it, do you mind if I search you? Certainly, the hand wave is a factor to consider in the totality of the search. That's a directive. Well, they can be viewed as a directive. But the officer certainly couldn't search him from where he was standing ten feet away. There had to be either he had to approach Mr. Robertson or say, would you mind
. And he walks into him and said, hey, pull your shirt up. He... Because he had New York license, because he drove into the parking lot. And he said, yeah, pull your shirt up. I believe he said, hey, do me a favor, pull your shirt up. That's more directed. Officer Welsh asked a question. He said, do you have anything illegal on you? There's nothing on constitution. And then you said, I want to search you. No, then... Then coupled with a hand wave, he said, I believe... I believe you come to me, right? Do you mind if I... If I search you? What's the difference? Well, the difference is that... And as Judge Schroeder analyzed it, do you mind if I search you? Certainly, the hand wave is a factor to consider in the totality of the search. That's a directive. Well, they can be viewed as a directive. But the officer certainly couldn't search him from where he was standing ten feet away. There had to be either he had to approach Mr. Robertson or say, would you mind... It's essentially, would you mind coming over here so I can search you? What a police officer directs me, he says, how... He's telling me, he comes to him. And a reasonable person... And the question is, whether a reasonable person would feel free to decline that request. After you see all these other people being served, that's the whole context of it. That's what says, you have something legal, no connection at all, they're not running, you're not chasing anybody. How do you get away from jail? That's not in the record that the other people were being searched. That did not come out at the hearing. The exact words, I believe, from officer Welsh were that the other officer who were dealing with the other individual. They were being held. They were dealing with them. It's unclear as to what exactly that meant. But the question is, under the totality of circumstances, the number of officers present, whether they pulled any weapons, the court found that they didn't pull any weapons. The courts specifically found that there... No threats were made, no loud commands were made. And the district court was in the best position to make those determinations when hearing the witness testimony. No threats were made, officer Welsh was a foot... Foot shorter than Mr. Robertson
... It's essentially, would you mind coming over here so I can search you? What a police officer directs me, he says, how... He's telling me, he comes to him. And a reasonable person... And the question is, whether a reasonable person would feel free to decline that request. After you see all these other people being served, that's the whole context of it. That's what says, you have something legal, no connection at all, they're not running, you're not chasing anybody. How do you get away from jail? That's not in the record that the other people were being searched. That did not come out at the hearing. The exact words, I believe, from officer Welsh were that the other officer who were dealing with the other individual. They were being held. They were dealing with them. It's unclear as to what exactly that meant. But the question is, under the totality of circumstances, the number of officers present, whether they pulled any weapons, the court found that they didn't pull any weapons. The courts specifically found that there... No threats were made, no loud commands were made. And the district court was in the best position to make those determinations when hearing the witness testimony. No threats were made, officer Welsh was a foot... Foot shorter than Mr. Robertson. He said it in a non-threatening manner. And while it may offend some people that an officer comes up to them and says, Do you mind if I search you? It's not unconstitutional. I use an analogy that if you're in your house, an officer comes and knocks on your door. And when you open the door, he points in the house and says, Do you mind if I search your house? I'd submit a reasonable person would say, No, you can't search my house. You have a warrant? Now, this is slightly different context, but you could argue that it's a less intimidating context, because it's out in public where other people can see what's going on. The Constitution, I'm sorry. I have some questions about it. Because I had a little trouble following the argument, I was unclear about what arguments were made to the district court. And what arguments are made on appeal. Because it did seem... It wasn't clear to me from the district court's opinion about the focus on that. And the activities prior to the wave, prior to the interaction. So the initial approach, for instance, are all these pressively before us on appeal? The issue in the district court was whether Mr. Robertson consented to being searched, as I recall. And then on appeal, it has become twofold, whether he was seized, and then whether he voluntarily consented. So it was framed more in the vein of that he consented to being searched by standing up, walking six or seven feet, putting his arms in the air, and then turning around. But based upon the testimony that came out of the suppression hearing, the appeal became more of... Well, first of all, was he seized unlawfully when the officer approached him and asked him those two questions coupled with a hand wave. In addition to, was this a consensual encounter? Thank you. The problem has come. What is the option realistically for saying no to that? Realistically, the options are to say nothing. And admittedly, Officer Welch did testify that had Mr. Robertson declined, that he was not free to leave. Unfortunately, not unfortunate, but that is not the standard. The standard is, what would a reasonable person do in Mr
. He said it in a non-threatening manner. And while it may offend some people that an officer comes up to them and says, Do you mind if I search you? It's not unconstitutional. I use an analogy that if you're in your house, an officer comes and knocks on your door. And when you open the door, he points in the house and says, Do you mind if I search your house? I'd submit a reasonable person would say, No, you can't search my house. You have a warrant? Now, this is slightly different context, but you could argue that it's a less intimidating context, because it's out in public where other people can see what's going on. The Constitution, I'm sorry. I have some questions about it. Because I had a little trouble following the argument, I was unclear about what arguments were made to the district court. And what arguments are made on appeal. Because it did seem... It wasn't clear to me from the district court's opinion about the focus on that. And the activities prior to the wave, prior to the interaction. So the initial approach, for instance, are all these pressively before us on appeal? The issue in the district court was whether Mr. Robertson consented to being searched, as I recall. And then on appeal, it has become twofold, whether he was seized, and then whether he voluntarily consented. So it was framed more in the vein of that he consented to being searched by standing up, walking six or seven feet, putting his arms in the air, and then turning around. But based upon the testimony that came out of the suppression hearing, the appeal became more of... Well, first of all, was he seized unlawfully when the officer approached him and asked him those two questions coupled with a hand wave. In addition to, was this a consensual encounter? Thank you. The problem has come. What is the option realistically for saying no to that? Realistically, the options are to say nothing. And admittedly, Officer Welch did testify that had Mr. Robertson declined, that he was not free to leave. Unfortunately, not unfortunate, but that is not the standard. The standard is, what would a reasonable person do in Mr. Robertson should not subject to... Mr. Robertson, do you... Well, let me ask you this, if the officer understood the circumstances to be such that he was not free to leave, or we to say, well, the officer who's subjected to belief is unreasonable. I mean, that asks... What that does, it seems to me, is asking us to say, well, the officers believe is... Not unreasonable, irrelevant. Well, but the thing is, it's not irrelevant because he's looking at the circumstances himself, he's participating in these circumstances. And he's reading the body English, and he knows what he said, or what he hadn't said, and whatever else has happened. And he's made a determination that fellow is not free to leave, and determination he's made, the other fellow has picked up all on May. That certainly could be the case, but again, the district court who hears the evidence and observes the witnesses testify. And in fact, Officer Wells demonstrated what occurred. So, reading something on paper doesn't do justice to the way that actually occurred. So, to the choir on that one, I agree with you. And so, I understand, well, the government understands that if it's in Officer Wells's mind that he's not free to leave, that maybe that there's some kind of vibe coming off him that Mr. Robertson picked up on. But the fact of the matter is the way the evidence came out was that Wells choose a small man and was not intimidating as the court found, was not raising his voice, was non-threatening, and was the only one dealing with Mr. Robertson. The other officers were dealing with the other individuals. Ask two questions in a matter of seconds. You have anything illegal on you, and then when he got no response, which clearly indicates that Mr
. Robertson should not subject to... Mr. Robertson, do you... Well, let me ask you this, if the officer understood the circumstances to be such that he was not free to leave, or we to say, well, the officer who's subjected to belief is unreasonable. I mean, that asks... What that does, it seems to me, is asking us to say, well, the officers believe is... Not unreasonable, irrelevant. Well, but the thing is, it's not irrelevant because he's looking at the circumstances himself, he's participating in these circumstances. And he's reading the body English, and he knows what he said, or what he hadn't said, and whatever else has happened. And he's made a determination that fellow is not free to leave, and determination he's made, the other fellow has picked up all on May. That certainly could be the case, but again, the district court who hears the evidence and observes the witnesses testify. And in fact, Officer Wells demonstrated what occurred. So, reading something on paper doesn't do justice to the way that actually occurred. So, to the choir on that one, I agree with you. And so, I understand, well, the government understands that if it's in Officer Wells's mind that he's not free to leave, that maybe that there's some kind of vibe coming off him that Mr. Robertson picked up on. But the fact of the matter is the way the evidence came out was that Wells choose a small man and was not intimidating as the court found, was not raising his voice, was non-threatening, and was the only one dealing with Mr. Robertson. The other officers were dealing with the other individuals. Ask two questions in a matter of seconds. You have anything illegal on you, and then when he got no response, which clearly indicates that Mr. Robertson knew that he didn't have to answer, and they said, you mind if I search you with the handway? I see that my time is up. I would ask, just finish that the real issue is what effect did that handway have? And the district court found that under the totality of the circumstances, it did not make it a seizure. Well, it was clear that the police officer was not going to take silence as an answer, which he had ever right not to do. Because he didn't ask you. If it's different, he had said, what's your name? And he's silent. Because that's some case, you know, you have a duty to identify yourself. That wasn't a question. The question was, he has every right not to answer that question. And the police officer demonstrated clearly your silence, which is a constitutionally protected right, is not going to be enough. Because what he did was, in response to the silence, come here, waving his hand. And it absolutely was conveyed. It was conveyed not just by some ambience, but a clear gesture physically. And it's corroborated by the police officers, just Wilson was questioning you about his conclusion that, listen, he was not going to be free to leave. So that corroborates the circumstances, what was going around in his conditions. And he said, because this will be a totally different case if he has it. What's your name? He said nothing. What do you live? But instead it was a question of incrimination clearly. Do you have anything illegal on you? That is the premium of constitutional rights. Said nothing. Please, no, come here. You're going to be searched. So what he did was to provide for his own safety. You have to read in the paper how many times people may be shocked. But doing something that is considered to be further coming toward me. So, okay, you don't search me anyway. He turns around and said, that's consensual. That's the case. That's those are the facts of this case. In light of Jones, in light of black
. Robertson knew that he didn't have to answer, and they said, you mind if I search you with the handway? I see that my time is up. I would ask, just finish that the real issue is what effect did that handway have? And the district court found that under the totality of the circumstances, it did not make it a seizure. Well, it was clear that the police officer was not going to take silence as an answer, which he had ever right not to do. Because he didn't ask you. If it's different, he had said, what's your name? And he's silent. Because that's some case, you know, you have a duty to identify yourself. That wasn't a question. The question was, he has every right not to answer that question. And the police officer demonstrated clearly your silence, which is a constitutionally protected right, is not going to be enough. Because what he did was, in response to the silence, come here, waving his hand. And it absolutely was conveyed. It was conveyed not just by some ambience, but a clear gesture physically. And it's corroborated by the police officers, just Wilson was questioning you about his conclusion that, listen, he was not going to be free to leave. So that corroborates the circumstances, what was going around in his conditions. And he said, because this will be a totally different case if he has it. What's your name? He said nothing. What do you live? But instead it was a question of incrimination clearly. Do you have anything illegal on you? That is the premium of constitutional rights. Said nothing. Please, no, come here. You're going to be searched. So what he did was to provide for his own safety. You have to read in the paper how many times people may be shocked. But doing something that is considered to be further coming toward me. So, okay, you don't search me anyway. He turns around and said, that's consensual. That's the case. That's those are the facts of this case. In light of Jones, in light of black. Which I don't think you cited black. It was a wonderfully written opinion. Oh, I'm sorry. Again, it was a question that Mr. Robertson did or did not have to answer. The next question, there were only two questions asked. You mind if I search it? It was also a question that Mr. Robertson did or did not have to answer. And he chose to answer those and the court analyzed it under the totality of circumstances that it wasn't unnecessarily coercive. It raises voice. It was nonconfrontational. Now, it may have, and I understand the courts distinguish between offensive to the Constitution and offensive. It may have been offensive to Mr. Robertson or anyone else. But the question is, is it unlawful? And the government's position is that it was a consensual encounter and that it was not unlawful for what the officer did. Thank you. Thank you. Mr. President, it's going to have a few minutes reserved. Thank you, sir. Judge Duck, and I have to say I looked at the motion. The notice of motion to suppress and notice of motion does not talk about Terry. I talk about Terry because Terry is one of the pivotal factors on which this case turns. You're on a may disagree that that's properly before you. Now, I was just trying to, it was not your argument evolved or it took some different turns that I was trying to make sure what your focus was. I understood it to be on events after the initial approach, but it doesn't matter. The my argument is twofold. My argument and I extend a judge Gregory's point, Mr. Robertson and those people in the bus shelter in my opinion was seized when police approached them
. Which I don't think you cited black. It was a wonderfully written opinion. Oh, I'm sorry. Again, it was a question that Mr. Robertson did or did not have to answer. The next question, there were only two questions asked. You mind if I search it? It was also a question that Mr. Robertson did or did not have to answer. And he chose to answer those and the court analyzed it under the totality of circumstances that it wasn't unnecessarily coercive. It raises voice. It was nonconfrontational. Now, it may have, and I understand the courts distinguish between offensive to the Constitution and offensive. It may have been offensive to Mr. Robertson or anyone else. But the question is, is it unlawful? And the government's position is that it was a consensual encounter and that it was not unlawful for what the officer did. Thank you. Thank you. Mr. President, it's going to have a few minutes reserved. Thank you, sir. Judge Duck, and I have to say I looked at the motion. The notice of motion to suppress and notice of motion does not talk about Terry. I talk about Terry because Terry is one of the pivotal factors on which this case turns. You're on a may disagree that that's properly before you. Now, I was just trying to, it was not your argument evolved or it took some different turns that I was trying to make sure what your focus was. I understood it to be on events after the initial approach, but it doesn't matter. The my argument is twofold. My argument and I extend a judge Gregory's point, Mr. Robertson and those people in the bus shelter in my opinion was seized when police approached them. They were not going to be allowed to leave and they knew that. They knew that from common every day experience. Mr. Robertson's common every day experience knew, told him, taught him, his life experience taught him that when you are confronted by authority, you do not diss that authority. Of course, he's not going to admit that he has contraband on him because that would be the height of foolishness. He is sitting there in that bus shelter hoping against hope to be completely ignored to enjoy the right of a citizen to be left alone. He doesn't get the right of a citizen to be left alone. He gets to be confronted. And when he is confronted by Officer Welsh, whether Officer Welsh is three feet tall or nine feet tall, Officer Welsh is an authority figure. He is an authority figure. He has issued a command when he waves forward. Well, we're going to... That's why we're here before Uranus. That's a factual determination. Well, it's clearly erroneous. It's clearly erroneous. It doesn't take into account the totality of the circumstances and Mr. Robertson's life experience. It is an ivory tower view of what goes on down in the street. Now, the government wants you to defer to the district court. I don't want you to defer to the district court because that's why I'm here because I think the district court is wrong and that's why you're here to ride herd on the district court to make sure that they get it right. A reasonable innocent person would not feel. Well, you know, Robertson, that in itself is clearly erroneous. That the standard is a reasonable innocent person. That's clearly erroneous in my opinion. But as Jones says, the context of the situation at McDougal Terrace needs to be judged not only on a clearly erroneous standard, but the NOVO. The legal issues are the NOVO
. They were not going to be allowed to leave and they knew that. They knew that from common every day experience. Mr. Robertson's common every day experience knew, told him, taught him, his life experience taught him that when you are confronted by authority, you do not diss that authority. Of course, he's not going to admit that he has contraband on him because that would be the height of foolishness. He is sitting there in that bus shelter hoping against hope to be completely ignored to enjoy the right of a citizen to be left alone. He doesn't get the right of a citizen to be left alone. He gets to be confronted. And when he is confronted by Officer Welsh, whether Officer Welsh is three feet tall or nine feet tall, Officer Welsh is an authority figure. He is an authority figure. He has issued a command when he waves forward. Well, we're going to... That's why we're here before Uranus. That's a factual determination. Well, it's clearly erroneous. It's clearly erroneous. It doesn't take into account the totality of the circumstances and Mr. Robertson's life experience. It is an ivory tower view of what goes on down in the street. Now, the government wants you to defer to the district court. I don't want you to defer to the district court because that's why I'm here because I think the district court is wrong and that's why you're here to ride herd on the district court to make sure that they get it right. A reasonable innocent person would not feel. Well, you know, Robertson, that in itself is clearly erroneous. That the standard is a reasonable innocent person. That's clearly erroneous in my opinion. But as Jones says, the context of the situation at McDougal Terrace needs to be judged not only on a clearly erroneous standard, but the NOVO. The legal issues are the NOVO. Is the court going to view Jamal Antonio Robinson in some sort of theoretical context or the way it really is at McDougal Terrace 24-7 during Mr. Robertson's life? The legal issue is the way you just raised it. That's a factual question. Well, you know, we know who Mr. Robertson is. He's a convicted felon. He's had experience with law enforcement. Does that come into the context? A reasonable person who's had experience with law enforcement faced by authority knows what the consequences are. You don't have to really get into his mind very much. I submit that that's true. Mr. Robertson. Well, you're proposing those really favors those that have had these various serious convictions, the way you're posing it. Well, I'm talking about what you know, I didn't want to get into really into the debate of what a reasonable person is, but I've never met one. I really think that if we're going to look at Mr. Robertson in some sort of condition, where what would a reasonable person have done? Then we have to decide who a reasonable person is. Then we have to give flesh to that reasonable person. Then we have to say that a reasonable person who is completely generic. What was the title of that book? Who's the color of water? A reasonable person who's the color of water. Confronted by a police officer in a uniform carrying a gun, who's asked, do you have anything illegal on him? Would not then say, gee, I'm the subject of a criminal investigation. I've been targeted in a criminal investigation. No matter what I do, I'm not walking away from this. Not until somebody has satisfied that I'm even not committing a crime or that I am committing a crime. I'm seized. I don't think you have to use a crystal ball to figure out that Jamal and Tonya Robertson were seized from the point that Officer Welsh addressed that question to him. That's what I have to say to your honours this afternoon, and I appreciate the indulgence of your hearing-making. Thank you. Thank you Mr. Cohen
. I also likewise note that you were court appointed. Yes, I want to especially thank you very much for accepting the appointment because we couldn't do our job without your help. And also note Mr. DeFranco, thank you for Abily representing the United States. Your job will accept every appointment that this court sends me without regard. We'll come down and greet Councilor Vempersci to our final case for the term. Thank you