Legal Case Summary

. So Mr. White is actually seized at the moment the hand goes in the pocket. And everything after the seizures is obviously fruits of the unlawful seizure. My other response is factually to take issue with some of those facts. The officer, officer love in fact testified that when Mr. White shoved his hand in his pocket, that's when he notices a large unnatural bulge. He doesn't see the outline of anything and he actually doesn't see the weapon until after he's ordered Mr. White to take his hand out of his pocket. But the weapon is not, I understand in terms of when he saw the weapon, that's not a big problem, as the bulls that might give a reasonable officer cause to suspect there may be a weapon in the pocket. And you don't have to wait till he sees the gun. If he has reason to believe that there may well be a gun in the pocket, then he can show him two steps to. So the question is just putting your hand in your pocket give the officer reasonable suspicion to believe that it's a gun when the officer doesn't see the outline of a weapon and his testimony really was, I would contrast his testimony here. With Detective Galt's testimony, he was sent to Corbin

. With respect to Corbin, the officer is saying Mr. Corbin is looking around, you know, checking out his options. He's doing security checks of this pocket. He's touching that pocket and his hands not in his pocket. But he can tell that the pocket is hanging down to the degree that something heavy is in the pocket. The officers talk about most people if they're carrying an illegal weapon, keep it in their waistband. Some might keep it in their pocket, but most keep it in their waistband. So what we have here, yes, we have a high crime area known for gangs and drug violence, but for these specific gentlemen, there's no evidence in the record that Mr. White is known to be somebody engaged in gang activity, somebody engaged in... Let's assume for the moment that when the police got out of the car because they were in a car with tinted windows. And if you were Davis Corbin and White, you might think that was a rival gang as opposed to a police car because it was unmarked

. And the police tell them to... to halt. And let's assume that they are seized at that moment. They don't feel free to leave. The very next thing before anything else happens is that you see Mr. White moving his hand in a way and the bulge and one of the officers yells, gun, he's got a gun. What are you supposed to do if you're a police officer? Well, at that moment, the officer seized the gun. I mean, the government actually assumes that some of the facts you posited right now are true and they're not true. There was no evidence that they suspected this was a rival gang approaching or even that they were in a gang so it was a rival gang. That was actually would be helpful to you, right? I mean, it's an unmarked police car. But once the police are out, it's a surprising and a startling moment

. And let's assume that they were seized. That's in your favor. Yes. But then within a second or almost right at the very same time that this is happening, a police officer through his experience sees something that appears that one of the individuals and it turns out two of the individuals have a gun. What is that police officer supposed to do in that context? Again, factually, the officer saw the gun after he ordered Mr. White to take it out. And so you see the gun, of course, the officer can take steps to remove the gun from Mr. White. But in fact, the officers have reasonable suspicion to believe Davis is violating an open container ordinance. To say that because they have reasonable suspicion to stop Mr. Davis, that they can then detain Mr. White in some way to make sure that's his hair. I agree with you

. They shouldn't have seized. And my example, they should not have seized either White or Corbin, or Corbin, I guess started sort of moving. But I can see that. The police officer then sees something that could put this police officer and the others with that police officer in danger. What is that police officer supposed to do? He, I understand the idea that the officer needs to protect himself. But in Terry addresses that very question. And if you are going to approach and then determine, you know, maintain control of the scene, in order to do a pat down, you need to have articulable suspicion. Well, by this time he has articulable suspicion because the officer, he sees the ball, and he sees somebody reaching for what appears to be a gun, and turns out it is a gun. And under those facts, the officer can seize the gun. I guess the question is, if the defendant has been unlawfully seized, and here he has been unlawfully seized, can the officers use the gun against him? Or is it a proof? No, the problem is that the seizure here is not necessarily a fruit of the illegal stop. Let's assume that the officers got out of the car with the district court found that when they got out of the car, they had reasonable suspicion. They all feel them were violating the ordinance. But let's forget about that

. That's where that came from. So let's forget that. They only had reasonable suspicion to stop the person who was drinking from the bottle. But they clearly could approach him because he's breaking his state ordinance. And this is my first question to you. In the process of approaching the one who is drinking from the bottle, they noticed white, and this is the testimony just now, they noticed him taking a step back, reaching in toward his sweatshirt or, I guess what's the sweatshirt, pocket with a bulge. Did not know for sure what the bulge was, but not being a riverboat gambler. They didn't want to take a chance on what the bulge was. And they then assumed that it was reaching for a gun. At that point, why wouldn't they have every right under Terry and Postic and Roy and all the other cases to detain him, subject him to their control to find out what's in his pocket. And if it is a gun, take it out. It's different than the traditional Terry stop. Because Terry, on Terry stop, you're doing a protective pat down, which is limited to the outer clothing, because you don't have any reason to suspect these people are armed

. You're just conducting an investigation, but you want to protect yourself and the course of that investigation. So the law allows you to conduct a brief detention, and that detention can include an outer search of the clothing, a search of the outer clothing, and my pat down for weapons. This is beyond Terry, because you've got reason to believe the guys got a gun. Even if you're wrong, you've got reason to believe the guys got a gun. So you're not necessarily limited to the Terry reverend anymore. You can actually conduct this off as though this guy is armed. Mr. Jimbo-Saud said, the opposite even yelled gun. So even if the initial stop is bad as opposed to your client, how does that help you in terms of getting rid of that gun as a true to the poisonous street? The officer actually did what I think was reasonable. He said to, he sees the bulge. And really that's all we have. He sees the bulge in the hands in the pocket. Again, there's no outline, there's no suspicious behavior, there's no security check

. We can be jammed just hand into the pocket. Shubbed his hand in. Right. Yes. And what he said to him, which was reasonable, was take your hand out of your pocket. I mean, again, we're assuming backs here, says take your hand out of your pocket. That's what he's supposed to do. Say, take your hand out of your pocket or stop. You know, if he's not reasonable suspicion. Nobody in the world. He didn't have, I mean, I guess- You did do that, but you told the guy to take your hand out of the pocket. He only sees the gun. He didn't make them up with the gun in it

. Well, he sees the butt of the gun when Mr. White takes his hand out of the pocket. He never says Mr. White's about to pull the gun on him. That's not the testimony. In fact, he says, no, he wasn't about to pull the gun on me. But he didn't have to wait. That's the point. He doesn't have to wait for him to pull the gun. No, but the question is, does the hand in the pocket standing alone give you reasonable suspicion to believe that there's a weapon? And the strongest evidence that it doesn't in this case is contrasting what they saw with Mr. White, what they saw with Mr. Corbin. Mr. Corbin, we have the pocket hanging down significantly here, hanging down by virtue of the hand slightly as what the officer says. Mr. Corbin is making suspicious eye movements. Mr. Corbin is doing the security checks. They can tell by looking at the pocket of Mr. Corbin that it's a heavy enough object to be a weapon. And by that time, they had already tackled Mr. White. And so there was one gun on scene and they can reasonably assume a second gun is going to be on scene. When they approach Mr. White and they see the hand in the pocket, all they have is evidence that Davis is violating the open container. If we were here and we're talking about this same scenario in a high crime area known for guns and drugs, and they had some independent knowledge that Mr

. Corbin, we have the pocket hanging down significantly here, hanging down by virtue of the hand slightly as what the officer says. Mr. Corbin is making suspicious eye movements. Mr. Corbin is doing the security checks. They can tell by looking at the pocket of Mr. Corbin that it's a heavy enough object to be a weapon. And by that time, they had already tackled Mr. White. And so there was one gun on scene and they can reasonably assume a second gun is going to be on scene. When they approach Mr. White and they see the hand in the pocket, all they have is evidence that Davis is violating the open container. If we were here and we're talking about this same scenario in a high crime area known for guns and drugs, and they had some independent knowledge that Mr. White was a drug dealer, or if they had seen not Mr. Davis drinking from an open container, but perhaps a suspected hand-to-hand transaction, I suggest I'd be in a very different position. If you're talking about, or suspecting that the violation that we're approaching this guy to talk to him about, or stopping this guy for is drugs, maybe the court, maybe excuse me, the police officer would be reasonable to assume that what's in Mr. White's pocket at that moment is not one of the giant Samsung phones but a gun, because the officers always testify guns in New York's go together. But here all we have, I mean, if to take it to its logical conclusion what this means is any time a young black man is walking down the street of a high crime area, which happens to be his neighborhood, if he sees the police and puts his hand in his pocket, then he's subject to a seizure, a Terry stop, Terry frisk, and that can't be. You know, I'll tell you, I wish that couldn't be the state of the law, but I'm not sure it isn't the state of the law, not saying that. Well, I mean, not saying anything wrong about that. The government says this in the brief, let me know if they're mistating it, because they cite to the appendix. They say that the officer testified, love and guilt testified, they intended to talk only to Davis about the own container, but this is quoting from the brief, which is quoting from the partly the appendix of pages 124, 144, 5775, quote, right away, one of the other two men, which is white, drew attention to himself by taking a couple of steps back, and which, quoting from the officer, and then immediately jamming his hand into his front sweatshirt pocket right side as soon as he saw the plane close to the techiest approach, and that love testified, he looked at white and he realized this pocket had a large bulge, causing the right side of the structure, causing the right side of the sweatshirt to dip roar than the other side and became suspicious. Again, assuming the initial stop of the guy with the bottle is okay, and I think we're all agreeing in that, and what should the officer have done in that context? The approaches, sees the guy, immediately step back, he hasn't said anything to this guy yet to white, white immediately steps back, which is handed this pocket, the officer's attention is drawn to him, the officer sees a large bulge in his pocket, Mr. Jimbo said that would be consistent with the gun, the sweatshirt is dipping from the weight, which should the officer have done at that point? The first part of that question was, is the government's representation accurate? The record is not clear on all of the timing, we know that the district court found that the stop occurred and then the hand went in the pocket, and so again, our position is that it's fruit, the officers are where they are, and see what they see because of the unlawful stop that's already taking place, and so that's fruit of the unlawful stop. When you read officer detective loves testimony and the other officer's testimony, it can be read in a number of different ways, but when he puts his hand in his pocket, he does say that's when I notice the bulge. He doesn't say, I mean there's question, you know, it's fleshed out, well do you think the bulge is consistent with a weapon, but actually detective loves testimony is nowhere close to the level of explicit that detective golf gets when he's describing Mr

. White was a drug dealer, or if they had seen not Mr. Davis drinking from an open container, but perhaps a suspected hand-to-hand transaction, I suggest I'd be in a very different position. If you're talking about, or suspecting that the violation that we're approaching this guy to talk to him about, or stopping this guy for is drugs, maybe the court, maybe excuse me, the police officer would be reasonable to assume that what's in Mr. White's pocket at that moment is not one of the giant Samsung phones but a gun, because the officers always testify guns in New York's go together. But here all we have, I mean, if to take it to its logical conclusion what this means is any time a young black man is walking down the street of a high crime area, which happens to be his neighborhood, if he sees the police and puts his hand in his pocket, then he's subject to a seizure, a Terry stop, Terry frisk, and that can't be. You know, I'll tell you, I wish that couldn't be the state of the law, but I'm not sure it isn't the state of the law, not saying that. Well, I mean, not saying anything wrong about that. The government says this in the brief, let me know if they're mistating it, because they cite to the appendix. They say that the officer testified, love and guilt testified, they intended to talk only to Davis about the own container, but this is quoting from the brief, which is quoting from the partly the appendix of pages 124, 144, 5775, quote, right away, one of the other two men, which is white, drew attention to himself by taking a couple of steps back, and which, quoting from the officer, and then immediately jamming his hand into his front sweatshirt pocket right side as soon as he saw the plane close to the techiest approach, and that love testified, he looked at white and he realized this pocket had a large bulge, causing the right side of the structure, causing the right side of the sweatshirt to dip roar than the other side and became suspicious. Again, assuming the initial stop of the guy with the bottle is okay, and I think we're all agreeing in that, and what should the officer have done in that context? The approaches, sees the guy, immediately step back, he hasn't said anything to this guy yet to white, white immediately steps back, which is handed this pocket, the officer's attention is drawn to him, the officer sees a large bulge in his pocket, Mr. Jimbo said that would be consistent with the gun, the sweatshirt is dipping from the weight, which should the officer have done at that point? The first part of that question was, is the government's representation accurate? The record is not clear on all of the timing, we know that the district court found that the stop occurred and then the hand went in the pocket, and so again, our position is that it's fruit, the officers are where they are, and see what they see because of the unlawful stop that's already taking place, and so that's fruit of the unlawful stop. When you read officer detective loves testimony and the other officer's testimony, it can be read in a number of different ways, but when he puts his hand in his pocket, he does say that's when I notice the bulge. He doesn't say, I mean there's question, you know, it's fleshed out, well do you think the bulge is consistent with a weapon, but actually detective loves testimony is nowhere close to the level of explicit that detective golf gets when he's describing Mr. Corbin's pocket and what's in his pocket, and when he says pocket dip down, in fact if you look at the district court's finding in that regard, the district court actually got it wrong. Detective love testified that the pocket's dipping slightly, it's dipping a little bit, which again is consistent with a person just having their hand in their pocket. I mean to assume that it's a gun at that moment, there's not reasonable suspicion at that moment, does that develop as time goes on? Again, you know, we're talking about the stop. He should have done this a question. He sees the large bulge, what should he have done? Hands in pockets, he sees the bulge. He should have done what he did, which is to tell Mr. White to take your hand out of your pocket. And when the hand comes out, he sees the butt of a gun. And then he sees the gun. Now question is could he tell Mr. White at that moment, take the hand out of your pocket or is that a seizure? I mean so you know we're growing down the road of when the seizure occurred. But he has seriously suggesting that he couldn't tell White to take his hand out of your pocket. You know in the cases where this court has talked about the idea of you know maintaining super attendance of the scene, it's been in the context really of traffic stops, you know, you're stopping a car and the police under all the Supreme Court precedent can take the driver out of the car and can take the passenger out of the car

. Corbin's pocket and what's in his pocket, and when he says pocket dip down, in fact if you look at the district court's finding in that regard, the district court actually got it wrong. Detective love testified that the pocket's dipping slightly, it's dipping a little bit, which again is consistent with a person just having their hand in their pocket. I mean to assume that it's a gun at that moment, there's not reasonable suspicion at that moment, does that develop as time goes on? Again, you know, we're talking about the stop. He should have done this a question. He sees the large bulge, what should he have done? Hands in pockets, he sees the bulge. He should have done what he did, which is to tell Mr. White to take your hand out of your pocket. And when the hand comes out, he sees the butt of a gun. And then he sees the gun. Now question is could he tell Mr. White at that moment, take the hand out of your pocket or is that a seizure? I mean so you know we're growing down the road of when the seizure occurred. But he has seriously suggesting that he couldn't tell White to take his hand out of your pocket. You know in the cases where this court has talked about the idea of you know maintaining super attendance of the scene, it's been in the context really of traffic stops, you know, you're stopping a car and the police under all the Supreme Court precedent can take the driver out of the car and can take the passenger out of the car. And there's a recognition that there's been a seizure at that moment when the car is pulled over. So if something bad happens during the course of the stop, you know they see a gun in the car and someone's you know they get out of the car, they're taking the passenger out of the car and a gun falls out. Yeah they got to grab the gun, they have to grab the gun to maintain safety. But if the stop itself was improper, it was not based on reasonable suspicion, then the gun can't be used. Yes the police can grab it to protect themselves. The question here is whether they can use it or whether it has to be suppressed in a criminal prosecution under the Fourth Amendment. Okay. I can understand your argument. This was any other questions Mr. Eccocas. Good morning, ma'am. Please the Court, Donovan, Cocas, USA on behalf of the United States. Council in the previous case says the wise attorney never conceived an error

. And there's a recognition that there's been a seizure at that moment when the car is pulled over. So if something bad happens during the course of the stop, you know they see a gun in the car and someone's you know they get out of the car, they're taking the passenger out of the car and a gun falls out. Yeah they got to grab the gun, they have to grab the gun to maintain safety. But if the stop itself was improper, it was not based on reasonable suspicion, then the gun can't be used. Yes the police can grab it to protect themselves. The question here is whether they can use it or whether it has to be suppressed in a criminal prosecution under the Fourth Amendment. Okay. I can understand your argument. This was any other questions Mr. Eccocas. Good morning, ma'am. Please the Court, Donovan, Cocas, USA on behalf of the United States. Council in the previous case says the wise attorney never conceived an error. So I must not be that wise because in my brief I conceded that the district court aired when it held there was reasonable suspicion to seize Mr. White at the outset of the encounter. However that error doesn't make any difference if the district court also aired in finding that Mr. White was in fact, well as a matter of law seized in the first instance at the outset of the encounter. It's important to note in Mr. White's reply brief he assumes that when a seizure occurs an issue of fact but as the kin case in this court decided in 1994 indicates that's a question of law and this court affirms on any basis supported by the record. This is one of those cases where the standard review I guess is my best friend because the record in this case indicates not one but two distinct reasons why this court must affirm. One and this is the second one that I stated in my response brief but this is the more accessible familiar reason. Under Mendenhall the circumstances of this case would not have conveyed to a reasonable person Mr. White's position and he was being ordered to stop. And the second independent reason is that officers in this case did not intentionally direct the show of authority at White with the intention of stopping him. Taking that first. Well yeah the first one I mean how would it be? What time does this happen? About between nine and ten o'clock at night in on an October

. So I must not be that wise because in my brief I conceded that the district court aired when it held there was reasonable suspicion to seize Mr. White at the outset of the encounter. However that error doesn't make any difference if the district court also aired in finding that Mr. White was in fact, well as a matter of law seized in the first instance at the outset of the encounter. It's important to note in Mr. White's reply brief he assumes that when a seizure occurs an issue of fact but as the kin case in this court decided in 1994 indicates that's a question of law and this court affirms on any basis supported by the record. This is one of those cases where the standard review I guess is my best friend because the record in this case indicates not one but two distinct reasons why this court must affirm. One and this is the second one that I stated in my response brief but this is the more accessible familiar reason. Under Mendenhall the circumstances of this case would not have conveyed to a reasonable person Mr. White's position and he was being ordered to stop. And the second independent reason is that officers in this case did not intentionally direct the show of authority at White with the intention of stopping him. Taking that first. Well yeah the first one I mean how would it be? What time does this happen? About between nine and ten o'clock at night in on an October. And so it's dark and the there is an unmarked police car. People jump out and how would you not think that you're seeing if you if you if you start moving probably you could get shot. Well Judge Posner said in the brewer case I cited my brief that as a practical matter people often will stop when they see police officers are approaching but it doesn't tell you why they stop whether they've done. It could be it could be that it could be I mean I've yet to find a case that says the mere approach of police officers even if you recognize their police is enough to have. I mean to speak only for myself I work at that situation and if the test is do I feel free to leave I would not feel free to leave. Well luckily for me here under the test is whether an objective person in the circumstances would feel free to leave under men in hall. And Mr. White and his replacement what I'm saying is I think my position my subjective statement to you probably is what most people would believe objectively. The mere approach of police officers. They jump out. I mean they come out of the car for four of them. Okay and do you think an objective person would think that you she is not free to leave. I think an objective person might hesitate to see what was wanted of them but look at what Mr

. And so it's dark and the there is an unmarked police car. People jump out and how would you not think that you're seeing if you if you if you start moving probably you could get shot. Well Judge Posner said in the brewer case I cited my brief that as a practical matter people often will stop when they see police officers are approaching but it doesn't tell you why they stop whether they've done. It could be it could be that it could be I mean I've yet to find a case that says the mere approach of police officers even if you recognize their police is enough to have. I mean to speak only for myself I work at that situation and if the test is do I feel free to leave I would not feel free to leave. Well luckily for me here under the test is whether an objective person in the circumstances would feel free to leave under men in hall. And Mr. White and his replacement what I'm saying is I think my position my subjective statement to you probably is what most people would believe objectively. The mere approach of police officers. They jump out. I mean they come out of the car for four of them. Okay and do you think an objective person would think that you she is not free to leave. I think an objective person might hesitate to see what was wanted of them but look at what Mr. Corbin did in this case. He paused for a second and once he realized the officers weren't interested in him that time he started to walk away. Even Mr. White concedes that paid up very far did he? No he didn't because he started behaving you know as though he had a gun which he did. Even Mr. White concedes that when officers first got out he didn't stop. He said he took a couple more steps. That's page 160 and 61 of the record. So in this case you have to look at all of the circumstances and here's what they are. You have unmarked car no lights or sirens keening three and then four plain clothes detectives get out badges are passively displayed on landards around their necks and one of them announces Pittsburgh police but nobody tells anybody to stop. Nobody touches their guns. Nobody blocks their. Today is a good other car please

. Corbin did in this case. He paused for a second and once he realized the officers weren't interested in him that time he started to walk away. Even Mr. White concedes that paid up very far did he? No he didn't because he started behaving you know as though he had a gun which he did. Even Mr. White concedes that when officers first got out he didn't stop. He said he took a couple more steps. That's page 160 and 61 of the record. So in this case you have to look at all of the circumstances and here's what they are. You have unmarked car no lights or sirens keening three and then four plain clothes detectives get out badges are passively displayed on landards around their necks and one of them announces Pittsburgh police but nobody tells anybody to stop. Nobody touches their guns. Nobody blocks their. Today is a good other car please. Pittsburgh police. No one touches their guns. No one blocks egress and if you assume for the moment. But actually what they were doing they were stationing themselves in a way that they're trained. So that mean why isn't that a blocking of egress. Well it's as detective Gault I believe in his testimony later on made clear. It wasn't blocking their egress he said you know these guys could have walked across the street. They could have continued down one of the streets. It's the position themselves in a way so that the the the men can't get behind them or that they can't you know they have sort of a tactical advantage of something goes bad as as started to happen in this case. But you know what it's to me when I look through this it seemed like this was a case in search of a reason that persons were stopped two persons who were not allowed to carry weapons actually had weapons and the judges sitting there going okay what do I do I could say they were stopped because it's logical that all three of them were drinking from the from the liquor in the in the paper bag which isn't logical. And you know what do you do because these persons clearly have done something that they should not be doing they are felons in possession of a weapon and there are significant penalties for doing that. And what I was asking Miss Pitchapolo was okay as soon for the moment you said for example there was no reasonable suspicion to stop you can see that. At the very outset that's right

. Pittsburgh police. No one touches their guns. No one blocks egress and if you assume for the moment. But actually what they were doing they were stationing themselves in a way that they're trained. So that mean why isn't that a blocking of egress. Well it's as detective Gault I believe in his testimony later on made clear. It wasn't blocking their egress he said you know these guys could have walked across the street. They could have continued down one of the streets. It's the position themselves in a way so that the the the men can't get behind them or that they can't you know they have sort of a tactical advantage of something goes bad as as started to happen in this case. But you know what it's to me when I look through this it seemed like this was a case in search of a reason that persons were stopped two persons who were not allowed to carry weapons actually had weapons and the judges sitting there going okay what do I do I could say they were stopped because it's logical that all three of them were drinking from the from the liquor in the in the paper bag which isn't logical. And you know what do you do because these persons clearly have done something that they should not be doing they are felons in possession of a weapon and there are significant penalties for doing that. And what I was asking Miss Pitchapolo was okay as soon for the moment you said for example there was no reasonable suspicion to stop you can see that. At the very outset that's right. When they get out of the corridor approach and and I'm suggesting the next step was also covered that there actually was a seizure that a reasonable person would not feel free to leave but almost instantaneously the officer observes and that's that that's the finding effect something that appears to that officer based on this officer's training and the officer has been trained appears to be a gun so much so that he yells gun then they go into another mode and then they they take away the gun. Technically if there's a seizure you need probable cause but the real probable cause didn't come until just a second or so after the perhaps in my view seizure. But and I would you do that? Well I would just amend that to say one thing I mean if there's a seizure they need reasonable suspicion to stop Mr. White and I the record shows and there's really no dispute about this I don't think you know what officer loves observations were the bulge hanging lower in the pocket Mr. White's behaviors I mean unless they could show any of that is clearly erroneous and I'm not sure how they can then that's what we're stuck with. But even if that occurs after a soon for the moment again back to the prior argument you're not conceiving this assume that when they got out there was a seizure and then they see the gun and my question is what are they supposed to do? Well they're supposed to do exactly what they did and I have a long footnote in my brief about this where I cite pencil of universe as memes and other cases which say I'm sorry you're on vehicular cases yeah they're vehicular cases but the broad principles that for officer safety when they're effectuating a stop of other people if something happens to give them reasonable suspicion that their safety is in danger then they can act upon that but a card to your face very different because they can even take the passengers out as I mentioned to you probably spread you go them on the ground right all four passengers even if the only interested in the driver and that's really just the nettle think that if four people walking down the street the arrested one please come up and spread you go everybody and pat down the one guy the arrest no no not not unless I mean they if they see something it gives them reasonable suspicion to believe these other pedestrians are armed as happen and this is different and your colleagues point is that if the seizure if the seized illegally and then they see the gun they see the gun only as a result of the initial foot movement violation and the gun should be suppressed the thing is what she's arguing that but if the seizure occurred without well here would be a ticketable suspicion assuming that's a Terry type of seizure and they didn't have a ticketable suspicion these would be missed a white they see them anyhow or they detain them anyhow because the seizure is not really a Terry stop not be a seizure under the foot movement that if that detention is improper or it doesn't rise to the level of cherry and then they see the gun as a result of that she's saying that still through the poisonous tree the gun should still be suppressed guns off the street these are under job but they can't use to prosecute the defendant right right I understand that that's her point and that's why we're saying that there was no seizure the record shows there wasn't a seizure in the first place that's why it's kind of important to you know go back to the very beginning of the encounter and ask you know what what were the where the defendants told at the outset what was the show of authority in this case which as I've spelled out was pretty I mean I cite a bunch of unpublished cases to the court from the court which are even more overt shows of authority than this when still no seizures were coming from us have to do that anymore I've cited them published cases I won't mention their name here your honor but he's not decided we're just just ignore them right right we have the same problem that I don't ignore this one just the others do yeah but in this case I mean you know Mr. White and his reply brief and this is important he says well detective love testified that as soon as we got out of the car and approached and announced ourselves that's why they stopped even puts those four words in bold quotes and but when you look at page 140 of the record which he's citing it doesn't say that it says that's when they stopped telling us when somebody stopped doesn't tell us why they subjectively did and it doesn't even answer the only question they relevant by mended hall which is whether an objective person would feel compelled to stop we don't have any evidence that that that what an objective person not feel compelled to stop I mean you're scared out your wits I mean you've got four people and they're coming at you and they say Pittsburgh police I don't care if you're a judge or you're a fell in the possession you're gonna stop well I think you might stop because you're curious about who they want to talk to but in this case remember we stop because you want to get shot or get bored or but in this case we have testimony that that from all three defendants pages 162 187 and 200 and 201 all three say at the outset that detective love addressed himself either said holy Davis or otherwise addressed himself clearly to mr. Davis now they're arguing that the district court found all their credibility to be their credibility to be absent on on every issue but if you look at 271 the court only found that their general testimony that officers got out and just started tackling and frisking them that that was incredible if you look at detective loves testimony it's consistent with this because he says at page 119 I we got out of the car and we directed our show of authority at Davis now he doesn't say what he meant means by that then but later on at page 137 he says when I would see Davis after having arrested him six months earlier if I saw him and I wanted to talk to him I would call out his name in this case I submit it's a reasonable inference at least maybe the only reasonable inference that in this case as soon as he got out he said holy Davis therefore learning these other two guys that they weren't the problem all you can just go on it's fine I mean all you can see your honor is that I get I even agree with you let me put it like this if I saw several police officers approaching me I might stop as a fact as a practical matter to see what it was they want and now that that doesn't mean it's a for me the way that you could have in theory the police officers could have got out of the car and said excuse me can we holy Davis can we talk to you for a second and that might have been a reasonable suspicion that he had a liquor open liquor on a public street and but they didn't and that's why you have the problem that you have and that's why you made the concession that you did which I I appreciate so do I really do and it's market of a good lawyer and a professional amen but that's not what they did they did something different they made they they had a show of authority they said Pittsburgh police and they got in various positions very quickly and then one of them says I saw this bulge in his pocket I saw him moving his hand with his his footed sweatshirt in a way that indicated he might have a gun I saw it sagging to one side Corbin then tried to walk away and Corbin they said oh yeah we saw something with him as well so I guess we see the one you saw the butt of the gunner was the was no this is Mr. White right and so I mean again it seems like it's it's a case in the interstices of what our law is and there's a search for a reason and as I said some of the reasons given by the the judge here to me didn't make sense that it's logical at all three would be good well and that's why I said at the outset you're on it that the standard of reviews my best friend we looked at the whole record and and we do that in the light most favorable to the government I think that was from the United States versus Myers a 2002 case I think that was yours Judge McKee where we'd you're off all reasonable inferences in favor of the government and I propose that it's reasonable to him for based on detective loves testimony even put aside what the what the plaintiffs are the defendants all said which is detective love indicates that he addressed himself in some way to coley Davis at the outset now that changes things for me because if I'm on the street with two other guys and police show up and they say one of the other guys names I might hang around because I'm curious what's going to happen to him maybe I'll experience some shouting for it or something when I see what happens to him but the bottom line is do I feel compelled to stop within the meaning of the fourth amendment and I don't think that I do I mean I don't think our log gets us there yet so in this case I think the the first the arguably the first time that mr. White is seized is when detective love says take your hand at your pocket now Corey whether that's a seizure because under Hogue R.E. we know there has to be a submission to the show of authority and his submission is by taking his hand plus starting to take a gun out of his pocket I think it'd be very dangerous to say that that was a submission to show of authority and even if you say at the outset these officers intended to seize all of these guys which is contrary to detective golf's testimony and contrary to any testimony of the district but you know that's what he's supposed to say I didn't again I guess saying for the third or fourth time it's a case in search of a reason these two persons besides Davis had guns and they shouldn't they're big penalties for it and they're giving testimony that indicates that they they saw something that indicated to them that these persons had weapons on them and they were very specific about that testimony and none of it has been shown to be clearly erroneous I mean remember the record itself we review for clear error even though the legal issue is dangerous so so and with the same question I asked before if there was a seizure when they got out of the car if there was and you're not conceding uh you said in response to my question earlier they should have done exactly what they did earlier but then the question is does that get suppressed because they shouldn't have been seized to begin with I know I don't think it does because and I don't think you have a submission to the show of authority even at the moment officers get out of the car remember when detective that that gets around the question the question is assume there was assume there was a seizure then what happens I candidly I don't know I mean I briefed this case this way because the evidence clearly shows to me there wasn't a seizure at the outset if the court's going to go it kind of find there was a seizure I honestly don't know or or or we may not define to get further fact finding as to whether there was a seizure well in this case we don't need any more fact finding because you had both the officers testify what happens start to finish all of the defendants testify start to finish I mean at this point what I think we have is we have a pretty complete factual factual record where this court you know can examine that question they know will remember and affirm on any basis supported by the record thank you thank you just briefly to address judge Ambrose question first the Supreme Court has made clear that a citizen can't be detained even momentarily without reasonable objective grounds for doing so so even if the initial seizure was momentarily and then things started to happen it's still a seizure and my earlier position stands that it's fruit that's theoretical I mean just but practically speaking I mean that's why I ask you what should police officers practically do okay so maybe they sees them a little too quickly but then it turns out that they find almost immediately that there's a real problem this guy one of them has a gun and within a few seconds they find the other one has a gun and so what are they supposed to you're supposed to suppress that yes I stand by my earlier answer on that you know I didn't hit me so just now because I didn't see this as a a big groundbreaking case but given the way our controlling authority has been going lately if they were to get a case where there's a momentary seizure just in the kind of momentary seizure that the court has said the fourth amendment allows under the encounter rubric but the that initial encounter didn't rise to the level of the fourth amendment it was illegal let's say but during the course of that split seek a second illegal detention the police saw something which then justified them going forward and traditionally you're right that that would be through the poison street I know Mr. Cokis doesn't appear with that but you get a case where there's an initial illegal seizure under these circumstances during which the police immediately see a gun it's very easy to then reason that the seizure did not lead to the kind of the procedure was independent the site yeah the seizure of the gun was independent the seizure of the people because they're the scene what they saw once they get out of the car which they could do the guy was a bottle really seen that they can't it's there where they're where they are because they've illegally unlawfully stopped the way they are because they they wanted to stop together with the bottle and they didn't go through the decorum of saying we're not arrested in you quarry is that his name with the bottle you have a guy asking for the davis of the bottle if it had happened that way and they said you with the bottle stays still you to beat it but they don't have to say that you agree that they don't have to do this according to the rules of whelk what happened here was a seizure of all three in the court found that is fact and which is not a fact that's the conclusion well right well the court found that the officers had a show of authority that all three submitted to the show and that they stopped walking at this moment and ornelas which is the case it talks about standards of review for problem causes reasonable suspicion cases says even if we're talking historical facts of course are entitled to difference we're talking about inferences drawn from those facts those two are entitled to great difference and the reason is the judge who's drawing the inference that they are submitting to the show of authority is he's in the community he knows the community and so his even though what he's thinking this is the kind of community it's been paying out an expression just let me say it's on the record it's on the record however that he knows that you know just a couple of months before this stop there's the beating in the Jordan Miles case of a young black man on the street by police officers and in this very north of the New York through Heights project just recently officer left has defies there was a police shooting and killing of a black man who they thought was running away so these are it's not just the actions of the action just the actions of the officers it's also the setting in which the stop takes place

. I suggest when you might win the battle and lose the war because this is the perfect case as we can't reach our decision based fund it's a perfect case to create a collective law which says that even where they may have to be there even where the initial seizure is illegal where the seizure is only momentary and the initial the seizure the person is momentary and leads to an observation which would end of itself justify subsequence seizure of contraband the seizure of the contraband is not so derived from the initial seizure of the person that's a justify suppression I mean could see that kind of a holding coming out of this case. I would hope that if we come given that it hasn't been briefed in any way shape or form the government's position really all along has been one that's based on some statements of the fact about officer law actually testified but he did not call out to Cooley Davis he specifically asked that question and he denied speaking with Mr. Davis this is at appendix 143 but the the government's position all along has been there's no seizure because the officers didn't intend to target Mr. White they intended to target Mr. Love and although I talk about factually why that's not a supportable theory I did also want to point out to this court that the United States Supreme Court in Bremlin versus California expressly considered and rejected that target theory that repeatedly saying you know it's not the subjective intent of the officers that controls and that the government's position is really based on a misreading a misconstruction of some of the Supreme Court precedent that cited in the government's brief. Do I understand your argument with them that although it was okay for them to stop Davis because he had an open container that they should somehow it was incumbent upon them to to sort of purge their intent by telling the others they can lead. My position is you know it's always in that period of that time period you we want Davis the rest of you guys can go. It's always been the reasonable person standard and the totality of the circumstances and given the approach sort of the aggressive use of the car pulling within steps of these three gentlemen the fanning out by four police officers to approach the tactical positioning of detective galt to cut off any avenue to provide cover he said and to pursue someone if they start to run that's what makes this a seizure and not just a stop. Detective one of the detectives I forget which actually talked about sometimes they'll just approach or yell out from the car you know and I'm not suggesting they need to do that in this case I'm suggesting they chose to conduct the seizure in a way they knew and this is detective galt's testimony we know when we pursue when we initiate a stop like this multiple officers displaying our badges we know that most people stop that's the choice they made in engaging in the show of course and it resulted in a seizure here of all three gentlemen and that was the finding by the district court and it is entitled to deference thank you thank you very much you're well I get by both of you did a very fine job with this case take the matter in th