[00:00:01] Speaker 01:
Good morning.

[00:00:01] Speaker 01:
May it please the court and counsel?

[00:00:03] Speaker 01:
My name is Rafael Rodriguez.

[00:00:05] Speaker 01:
I represent Mr. Del Priore on his appeal from his conviction on drug and firearms charges in the District of Alaska, and more particularly, the denial of his motion to suppress below in the District Court.

[00:00:20] Speaker 01:
There is a thicket of case law on the issue of search and seizure, and very little else in criminal law is driven so much by the facts in a particular case.

[00:00:30] Speaker 01:
And here we have a specific fact pattern which clearly supports suppression of the evidence by the Anchorage Police Department, which formed the basis of the federal prosecution.

[00:00:41] Speaker 04:
Let me ask you this question.

[00:00:42] Speaker 04:
Is it a situation where we should be viewing this as a traffic stop that segued into a situation which gave rise to probable cause for the arrest, or should we view this as simply a probable cause to arrest for the initial attempted misdemeanor?

[00:00:59] Speaker 01:
Well, I think that

[00:01:00] Speaker 01:
The facts are that the officers arrived at the scene based on a complaint that had nothing to do with any type of motor vehicle violation.

[00:01:09] Speaker 04:
They came to the scene because there was a complaint about a... Well, but at this point in time, not necessarily focusing on the facts per se, but it's focusing on the approach.

[00:01:20] Speaker 01:
Right.

[00:01:21] Speaker 01:
And one of the officers, I think it was Officer Pregler, testified that as he was approaching the vehicle, he didn't see a front license plate on the defendant's car.

[00:01:32] Speaker 01:
But I think it's important for the court to see the certality of what's going on here.

[00:01:37] Speaker 01:
This is a six-minute event.

[00:01:40] Speaker 01:
From the moment the officers arrived,

[00:01:42] Speaker 01:
until Mr. Del Perrari is taken out of the vehicle.

[00:01:46] Speaker 01:
When they arrived on the scene, Officer Wallace, who was in his squad car, made mention of the fact that a truck was reported stolen and communicated that to Officer Pregler.

[00:01:59] Speaker 01:
Both officers, acting in concert, moved forward to arrest or to at least detain

[00:02:04] Speaker 01:
Mr. Del Pereri solely on vehicle theft.

[00:02:07] Speaker 04:
Intent doesn't make any difference for purposes of this analysis, does it?

[00:02:11] Speaker 04:
It's the objective knowledge of what is perceived at that point in time, which you've already conceded was the presence or the lack of the front license plate.

[00:02:21] Speaker 01:
Well, yes, but that's another issue altogether because there's an issue as to whether or not it was even a misdemeanor to begin with.

[00:02:28] Speaker 01:
Officer Prailer indicated it was not an arrestable offense.

[00:02:31] Speaker 04:
under on the ark and I take it your position is it doesn't make any difference whether or not we approach it as a traffic stop that goes on or whether or not review it as a an arrest at that point in time for the fact that he lacks the front license plate only to the extent that the officers actions have to be assessed

[00:02:49] Speaker 01:
under the reasonableness of what they did as a result of a minor traffic offense.

[00:02:55] Speaker 00:
But counsel, assuming for a minute that the failure to have the front license plate was a misdemeanor under Alaska law in 2018, how do you get around Virginia versus Moore in terms of the probable cause in this case or reasonable suspicion at the least?

[00:03:14] Speaker 01:
Well, first of all, we start off with the district court's finding that there was no reasonable suspicion in this case to detain Mr. DelPriori.

[00:03:22] Speaker 00:
There was no what?

[00:03:22] Speaker 01:
There was no reasonable suspicion to detain Mr. DelPriori.

[00:03:27] Speaker 01:
What the district court found was that there was

[00:03:29] Speaker 01:
probable cause as a result of the license plate.

[00:03:32] Speaker 01:
Well, that's what I'm saying.

[00:03:33] Speaker 01:
Right.

[00:03:33] Speaker 01:
But in Virginia v. Moore, the defendant in that case was actually arrested for a traffic offense.

[00:03:40] Speaker 01:
In this case, there was no such arrest.

[00:03:42] Speaker 01:
There was no such detention.

[00:03:44] Speaker 01:
There was no citation.

[00:03:45] Speaker 01:
There was none of that thing, none of those things.

[00:03:48] Speaker 01:
What happened was it wasn't even mentioned in the rendition of facts in the search warrant that the officers later

[00:03:55] Speaker 01:
asked the court to sign off on.

[00:03:58] Speaker 04:
But isn't the fact that an officer observed the lack of the front license plate then itself is sufficient for the arrest, wasn't it?

[00:04:06] Speaker 01:
Well, yes.

[00:04:07] Speaker 01:
But I don't understand what you're talking about there.

[00:04:09] Speaker 01:
Because his testimony was, as he's approaching, he didn't see it.

[00:04:12] Speaker 01:
Not that it didn't exist, number one.

[00:04:14] Speaker 04:
No, he said he saw it.

[00:04:16] Speaker 04:
One of the officers said he didn't notice, but the other officer, Smalls said he didn't notice it, but the other officer, I forget his name now,

[00:04:22] Speaker 04:
Affirmative he said as he approached he saw that it was missing a front license plate also with the tinted windows etc.

[00:04:28] Speaker 01:
Right but there was no well as far as the tinted windows the district court found that there was no reasonable suspicion because the officer was not credible because the other two officers clearly saw the defendant inside his vehicle.

[00:04:42] Speaker 01:
So insofar as the license plate, he mentioned he had an observation of that.

[00:04:47] Speaker 01:
But that was not what this person was detained on nor arrested for at all.

[00:04:53] Speaker 01:
All of the cases cited by the government, including more, included actual detention or arrest for a traffic violation.

[00:05:01] Speaker 01:
That did not occur in this case.

[00:05:03] Speaker 01:
That did not occur.

[00:05:03] Speaker 04:
In other words, you're saying that if the officer observes a basis for the arrest, but ultimately the person's not arrested on that basis,

[00:05:12] Speaker 04:
That you ignore that?

[00:05:14] Speaker 01:
No, I'm suggesting that it's an after-the-fact justification for the detention.

[00:05:18] Speaker 04:
After-the-fact justification is fine according to the Supreme Court, as long as the original basis for the arrest is present.

[00:05:24] Speaker 01:
Right.

[00:05:24] Speaker 01:
And that goes back to whether or not it was, in fact, a misdemeanor or an infraction.

[00:05:29] Speaker 01:
And that was part of it.

[00:05:30] Speaker 04:
It was clearly a misdemeanor.

[00:05:31] Speaker 04:
Whether or not they enforce it is another matter.

[00:05:34] Speaker 01:
Well, that may be true, but the Alaska Supreme Court has issued

[00:05:39] Speaker 01:
the uniform motor vehicle booklet, which lists it as an infraction.

[00:05:44] Speaker 00:
But that was later, was it not?

[00:05:46] Speaker 01:
I'm sorry?

[00:05:46] Speaker 01:
Wasn't that after 2018?

[00:05:48] Speaker 01:
No, that particular

[00:05:52] Speaker 01:
I think it's called the UMOT has been around for several years, even before 2018.

[00:05:59] Speaker 00:
But that- So I thought you earlier agreed that the failure to have the front license plate was in fact an arrestable offense under Alaska law in 2018.

[00:06:09] Speaker 00:
Is that wrong?

[00:06:10] Speaker 00:
That's what the district court found.

[00:06:12] Speaker 01:
That it was okay?

[00:06:14] Speaker 01:
That it was an arrestable offense because of the statute has to be read in conjunction

[00:06:19] Speaker 01:
with another statute.

[00:06:21] Speaker 01:
But there's another statute which allows for ordinances by the cities that are not in conformity with that statute that can classify it as an infraction.

[00:06:31] Speaker 01:
And Officer Pregler testified to that.

[00:06:34] Speaker 01:
He says it's not an arrestable offense.

[00:06:36] Speaker 01:
He says he knew that because the Anchorage ordinance indicated there was an infraction.

[00:06:41] Speaker 01:
So I think it's an

[00:06:42] Speaker 01:
I think my other point is that if there is confusion as to the state of the law, the rule of lenity goes toward in favor of the defense.

[00:06:50] Speaker 01:
I don't think it's a question of confusion.

[00:06:53] Speaker 04:
I don't see what is confused.

[00:06:56] Speaker 04:
Confusion as to whether it was a misdemeanor or an infraction.

[00:06:58] Speaker 04:
No, it's clearly a misdemeanor.

[00:07:00] Speaker 04:
It's defined as a misdemeanor.

[00:07:01] Speaker 04:
Now, I agree with you that the Alaska Supreme Court may have said, you know, you don't have to arrest for it.

[00:07:07] Speaker 04:
But it's still a misdemeanor.

[00:07:08] Speaker 04:
And under the Alaska statute, a misdemeanor is treated as a misdemeanor.

[00:07:14] Speaker 04:
It's a misdemeanor.

[00:07:14] Speaker 04:
Now, the way that the law enforcement and the Alaska Supreme Court treats it may be something else.

[00:07:21] Speaker 04:
But at least on the books, it's still a misdemeanor.

[00:07:24] Speaker 01:
I think the court should also take into consideration the Knowles v. Iowa decision.

[00:07:30] Speaker 01:
In that case, an officer cited the person for a citation, which

[00:07:35] Speaker 01:
He could have also arrested the person for the speeding violation.

[00:07:39] Speaker 01:
He didn't do so.

[00:07:41] Speaker 01:
And the Supreme Court says that you're not entitled to search by infraction, by the citation, only by an arrest.

[00:07:50] Speaker 01:
In this case, the fact that the officer could have arrested Mr. Del Perore for a misdemeanor and did not is something this Court should take into account because

[00:08:00] Speaker 01:
He was arrested within one minute of the officer's arrival for grand theft auto and the investigation of the theft.

[00:08:10] Speaker 04:
He wasn't arrested for grand theft auto.

[00:08:11] Speaker 01:
He was arrested for resisting the officer.

[00:08:13] Speaker 01:
Well, that was after he was refusing to get out of the car.

[00:08:17] Speaker 01:
That was before.

[00:08:18] Speaker 01:
Right.

[00:08:18] Speaker 03:
And that was my question.

[00:08:19] Speaker 03:
Why isn't there a reasonable suspicion for that theft?

[00:08:22] Speaker 03:
for the grand theft auto, and then you're allowed to stop, and then if you refuse to stop, then you're allowed to be arrested.

[00:08:27] Speaker 01:
Well, because all the basis for finding that he was somehow

[00:08:34] Speaker 01:
uh... there was reasonable basis to arrest him for theft to his proximity to the truck and the district court found that's not a basis to arrest anybody well why not i mean so there was a call saying suspicious activity in the parking lot like painting of some sort and noise and then they see

[00:08:52] Speaker 03:
a car that's been stolen, and your client is the only person in close proximity to that stolen vehicle.

[00:09:00] Speaker 03:
So why shouldn't, why isn't that enough suspicion to stop the officer, for the officer to stop and say, hey, what's going on here?

[00:09:07] Speaker 01:
Well, they couldn't ask a person anything they want.

[00:09:09] Speaker 03:
An officer, a person doesn't have a- But if you have reasonable suspicion, you could stop briefly to ask the question.

[00:09:15] Speaker 03:
And if they refuse, then that's against the law.

[00:09:18] Speaker 01:
I think that this report was actually correct on this when they said there was no reasonable suspicion that he was involved in a grand theft because he was simply parked near the car.

[00:09:28] Speaker 01:
That was the extent of it.

[00:09:30] Speaker 01:
There was nothing in the call.

[00:09:31] Speaker 03:
Well, coupled with the 911 call though.

[00:09:34] Speaker 01:
Yeah, but there was nothing in the call that identified the Mustang, that identified the defendant, that identified anything having to do between a shop shop and the defendant.

[00:09:44] Speaker 01:
So in other words, the tip was not corroborated in any way, shape or form, as to Mr. Del Piori.

[00:09:50] Speaker 01:
His, the only position that Mr. Del Piori had was he was parked

[00:09:54] Speaker 01:
perpendicular to the truck, as there were a lot of other cars parked around the truck.

[00:10:00] Speaker 03:
Was there any other individuals near the car?

[00:10:02] Speaker 01:
There were some persons, I think, were walking in the neighborhood.

[00:10:05] Speaker 01:
But the vehicle in question was Mr. Del Piori, who was actually bumped by Officer Wallace and trapped.

[00:10:14] Speaker 03:
When you say perpendicular, they'll park like this, like a teeth?

[00:10:17] Speaker 01:
Yes.

[00:10:18] Speaker 01:
Isn't that odd in itself?

[00:10:19] Speaker 01:
Who parks like that?

[00:10:21] Speaker 01:
Well, because he was in the parking lot and the truck was on the street.

[00:10:24] Speaker 01:
And so he was moving back to get out.

[00:10:28] Speaker 01:
And that's when the officer went and moved up against him bumper to bumper, actually caused damage to the bumper and pushed and basically followed him back to a fence where he was not free to go at that point.

[00:10:39] Speaker 04:
And that's where the district was exaggerating the video.

[00:10:43] Speaker 04:
I'm sorry.

[00:10:43] Speaker 04:
I think you're exaggerating the video.

[00:10:44] Speaker 01:
That's what the district court found.

[00:10:46] Speaker 04:
Wow.

[00:10:46] Speaker 04:
But the video was presented as, as evidence.

[00:10:48] Speaker 01:
Right, but I think even Officer Wallace agreed in his testimony that that's what he did.

[00:10:54] Speaker 01:
He followed the car as it moved back and hit the fence.

[00:10:58] Speaker 01:
That was the testimony of Officer Wallace.

[00:11:02] Speaker 04:
Let me ask you, if our view of the video differs from Officer Wallace's testimony, how do you think we should treat it?

[00:11:08] Speaker 04:
I think the court should consider all the evidence presented.

[00:11:10] Speaker 04:
I understand it, but how we should treat it.

[00:11:12] Speaker 04:
In other words, should we rely on our own eyes what we see in the video?

[00:11:14] Speaker 01:
Well, the district court saw the same video, and the district court made a finding.

[00:11:18] Speaker 01:
So the court would have to make clear error.

[00:11:20] Speaker 01:
We're reviewing what the district court did, which was view the video.

[00:11:22] Speaker 01:
And so the court would have to make a decision that the district court committed clear error when it made a factual finding that the officer was pinning this citizen against a fence and not allowing that person to leave.

[00:11:38] Speaker 00:
Okay, counsel, you've used up your time.

[00:11:41] Speaker 00:
I'll see after we hear the government, whether my colleague has additional questions.

[00:11:45] Speaker 00:
All right.

[00:11:46] Speaker 00:
Thank you.

[00:11:47] Speaker 00:
Let's hear from the government, please.

[00:11:49] Speaker 00:
Uh, Mr. Is it Brickley?

[00:11:53] Speaker 00:
Is that correct?

[00:11:54] Speaker 02:
Bricky, your honor.

[00:11:55] Speaker 02:
Noel.

[00:11:56] Speaker 02:
Very well.

[00:11:57] Speaker 02:
May it please the court.

[00:11:58] Speaker 02:
Seth Bricky on behalf of the Apple, the United States.

[00:12:01] Speaker 02:
there are two inquiries central to the court's consideration of this case.

[00:12:04] Speaker 02:
First, whether the initial stop of Mr. DelPriori was supported by reasonable suspicion.

[00:12:09] Speaker 04:
You're saying originally it was just simply a traffic stop and then it segued into something that gave rise to probable cause for the arrest.

[00:12:15] Speaker 02:
I'm saying yes, Your Honor.

[00:12:17] Speaker 02:
The facts known to the officers at the time of the approach of

[00:12:20] Speaker 02:
Mr. DelPrior's vehicle justified a traffic stop.

[00:12:23] Speaker 04:
Could simply viewing the Mustang without the front license plate while the front license while the Mustang was attempting to drive off the private parking lot with that in itself been a basis for arresting?

[00:12:38] Speaker 02:
Yes.

[00:12:40] Speaker 02:
Yes.

[00:12:41] Speaker 04:
A definite answer.

[00:12:42] Speaker 02:
And that's because, as Your Honor pointed out, the Alaska State statute identifies failure to display that front license plate as a misdemeanor and also an attempt to drive on a public roadway without that front license plate is also classified as a misdemeanor.

[00:12:59] Speaker 00:
So from the government's perspective, there's just no question Alaska Supreme Court or other rules to the contrary.

[00:13:05] Speaker 00:
that in 2018 failure to have that front license plate was a misdemeanor and you could arrest someone for that purpose, is that right?

[00:13:13] Speaker 00:
Yes, your honor.

[00:13:15] Speaker 02:
Now, of course, should the court find that there was a basis to stop Mr. Del Praio Abenicio, whether it be for an equipment violation such as the tinted windows?

[00:13:24] Speaker 02:
And I would note that the district court did not make the finding that there was no reasonable suspicion that the windows weren't tinted.

[00:13:30] Speaker 04:
I don't think it was.

[00:13:30] Speaker 04:
Well, but there was conflicting testimony by one of the arriving officers that you could see through the windows.

[00:13:36] Speaker 04:
And therefore, the question was a question of tinting.

[00:13:39] Speaker 04:
Although, I guess there was another officer who did an examination of the windows itself.

[00:13:43] Speaker 02:
Correct.

[00:13:43] Speaker 04:
He found it was sufficiently tinted.

[00:13:45] Speaker 02:
I would like to I don't think that testimony is directly contradictory because as officer Hughes that the officer arrived arrived later on scene and said that he could see Mr Del Pre or through the window.

[00:13:55] Speaker 02:
He testified that he was standing in front of the car.

[00:13:58] Speaker 02:
Officer Progler was approaching from the side.

[00:14:01] Speaker 04:
What about the defense argument that the amount of force that was used was outrageous.

[00:14:06] Speaker 02:
I think the amount of force that was used during the course of this stop

[00:14:09] Speaker 02:
was measured and only escalated as the defendant's refusals escalated.

[00:14:15] Speaker 02:
The initial use of force, which was the blocking in of Mr. DelPriori's vehicle, was justified because, again, operating a two-ton vehicle, trying to move to a roadway, requires some sort of intercession.

[00:14:29] Speaker 00:
And the defendant actually said he was moving forward, he wanted to get out.

[00:14:33] Speaker 00:
Isn't that correct?

[00:14:33] Speaker 00:
Yes, Your Honor.

[00:14:34] Speaker 02:
And then when the defendant moved back as if to maneuver around the officer, again, you had an exposed officer outside of a vehicle nearby.

[00:14:42] Speaker 04:
Let me ask you, when you viewed the vehicle, how many backwards and forward motions were there by the Mustang?

[00:14:49] Speaker 02:
There was the initial forward motion.

[00:14:51] Speaker 02:
Then the Officer Wallace posted his patrol vehicle in front of Mr. Del Priori, which then prompted him to move backwards.

[00:15:00] Speaker 02:
I think that's a good point.

[00:15:02] Speaker 02:
I think that's a good point.

[00:15:05] Speaker 02:
I think that's a good point.

[00:15:09] Speaker 02:
I think that's a good point.

[00:15:11] Speaker 00:
I think that's a good point.

[00:15:13] Speaker 00:
I think that's a good point.

[00:15:16] Speaker 00:
I think that's a good point.

[00:15:19] Speaker 00:
I think that's a good point.

[00:15:22] Speaker 00:
proportionate to what was happening at that time, is that right?

[00:15:25] Speaker 02:
Yes, your honor.

[00:15:25] Speaker 02:
Every move that the officers made was in response and a measured response to Mr. DiPiore's refusals and or furtive movements.

[00:15:38] Speaker 04:
Your honor.

[00:15:39] Speaker 04:
Sorry, nobody's relying on the amount that could be seen through the Mustang's window even prior to the

[00:15:48] Speaker 04:
arrest of the defendant.

[00:15:52] Speaker 04:
Is that correct?

[00:15:53] Speaker 04:
Nobody's relying on what you could see through the windows of the Mustang, right?

[00:15:56] Speaker 04:
Other than his sort of movements?

[00:15:58] Speaker 04:
Correct.

[00:15:59] Speaker 04:
Okay.

[00:15:59] Speaker 04:
So we don't have to deal with that?

[00:16:01] Speaker ?:
No.

[00:16:02] Speaker 00:
Okay.

[00:16:02] Speaker 00:
I want to follow up on what my colleague asked before.

[00:16:05] Speaker 00:
I've had other cases where this situation has come up, but I mentioned the government's perspective.

[00:16:11] Speaker 00:
The district court saw the videos.

[00:16:14] Speaker 00:
and formed an opinion, which is recorded in the judgment.

[00:16:20] Speaker 00:
We can look at the same videos.

[00:16:24] Speaker 00:
If we view the videos and come to an entirely different conclusion than the district court did, is that part of our, basically our review for clear error?

[00:16:34] Speaker 00:
Is that the way it works from your perspective?

[00:16:36] Speaker 02:
I think so, Your Honor.

[00:16:37] Speaker 02:
The video is evidence that was before the district court.

[00:16:40] Speaker 02:
The district court made factual determinations based on that video, as well as other testimony.

[00:16:44] Speaker 02:
Those factual determinations are reviewed for clear error.

[00:16:46] Speaker 00:
So our reviewing of the video coming to a contract conclusion, arguendo, is our review for clear error.

[00:16:53] Speaker 00:
And if we disagree, then it's clear error on the part of the district court.

[00:16:56] Speaker 00:
Is that correct?

[00:16:57] Speaker 02:
I believe it is, Your Honor.

[00:17:02] Speaker 02:
Your honor, unless the court has further questions for the government.

[00:17:05] Speaker 02:
Other questions?

[00:17:06] Speaker 03:
Just a question.

[00:17:06] Speaker 03:
Do you stand by the initial magistrate's determination that there was a reasonable suspicion for the grand theft or the car theft?

[00:17:16] Speaker 02:
Sure.

[00:17:17] Speaker 02:
And the specific facts known to officers at that time, I think, justified that finding.

[00:17:22] Speaker 02:
They had that call from, it wasn't an anonymous source, it was an identified individual identifying herself as a neighbor describing activities.

[00:17:29] Speaker 02:
that were consistent.

[00:17:33] Speaker 04:
None of the details in the call were present at the time the officers arrived at the scene, so therefore it's just an totally unsubstantiated call.

[00:17:44] Speaker 02:
Excuse me, Your Honor.

[00:17:45] Speaker 04:
There was nothing that was said that gave rise to, as I suppose, the suspicion that there was a basis for the call was present at the time the officer arrived.

[00:17:53] Speaker 04:
There was no paint spraying.

[00:17:55] Speaker 04:
There was no dog running around.

[00:17:57] Speaker 04:
There was no people milling about, et cetera.

[00:17:59] Speaker 04:
None of that was there.

[00:18:00] Speaker 04:
So I don't understand how you could say that somehow the fact that there was a phone call about some sort of suspicious activity stemming from the painting of a car in a private parking lot

[00:18:13] Speaker 04:
I don't understand what the basis is that that gives rise to any sort of reason for stopping.

[00:18:20] Speaker 02:
And certainly the phone call alone, I don't think would have been enough.

[00:18:23] Speaker 04:
OK, then what was what was it?

[00:18:25] Speaker 02:
The facts that officers observed when they arrived on scene.

[00:18:27] Speaker 04:
I guess the context.

[00:18:28] Speaker 04:
What did they observe?

[00:18:29] Speaker 02:
They observed a stolen vehicle.

[00:18:32] Speaker 04:
Yeah, OK, but that was a truck, not the Mustang.

[00:18:34] Speaker 04:
there was a immediately next to the stolen vehicle was a vehicle with a missing license plate, which arguably is consistent with someone trying to- In other words, the stationary stolen vehicle of a car with a missing front license plate, which is not an arrestable offense per se, is sufficient to give rise to probable cause.

[00:18:54] Speaker 02:
No, I think the list goes on.

[00:18:55] Speaker 04:
Or even reasonable suspicion.

[00:18:56] Speaker 02:
The list goes on.

[00:18:57] Speaker 02:
It's not just the missing license plate.

[00:18:58] Speaker 02:
It's the tinted windows.

[00:18:59] Speaker 02:
And then it's the furtive behavior of the driver of that vehicle as uniformed officers approach.

[00:19:04] Speaker 02:
All of those facts, I think, give rise to reasonable suspicion that that vehicle itself, the Mustang, is a stolen vehicle or the operator of that vehicle is associated.

[00:19:14] Speaker 04:
I thought the officer ran the plates of all the vehicles that were observable, including, well, actually, obviously, right, because it couldn't have been the Mustang because the front license plate wasn't visible.

[00:19:23] Speaker 03:
Correct.

[00:19:24] Speaker ?:
Okay.

[00:19:24] Speaker 03:
And then the question I have, it seems like between the time of the 911 call and before getting to the parking lot, the officers already had an impression that it would be a chop shop.

[00:19:34] Speaker 03:
Is that correct?

[00:19:36] Speaker 02:
That's what the officers testified.

[00:19:37] Speaker 02:
But what was the basis of that?

[00:19:39] Speaker 02:
I think the content of the call, the spray painting of vehicles, the drug activity, people accessing it all hours of the morning, I think officers formed that possibility of stolen vehicle activity based on their training and experience.

[00:19:53] Speaker 04:
But again, there was no evidence of that there.

[00:19:57] Speaker 02:
No, there wasn't an active spray painting situation.

[00:20:01] Speaker 02:
There were no dogs?

[00:20:02] Speaker 04:
There were no people?

[00:20:03] Speaker 02:
What was the time difference between the call and officers arriving?

[00:20:07] Speaker 02:
your honor, I don't recall off the top of my head.

[00:20:09] Speaker 02:
About an hour, wasn't it?

[00:20:10] Speaker 02:
I can't remember, your honor.

[00:20:12] Speaker 04:
So was there any evidence that this was an area of high crime?

[00:20:14] Speaker 04:
Was it a high crime area?

[00:20:15] Speaker 02:
There was no testimony from the officers that this was a high crime area.

[00:20:20] Speaker 00:
Other questions.

[00:20:21] Speaker 00:
Okay.

[00:20:23] Speaker 00:
Thank you very well.

[00:20:24] Speaker 00:
Now, Mr. Rodriguez didn't reserve any time, but let me ask my colleagues whether anybody has additional questions for Mr. Rodriguez.

[00:20:31] Speaker 04:
I should be one minute to see if he has anything else he wants to add.

[00:20:33] Speaker 00:
My colleague wants to give you an extra minute.

[00:20:35] Speaker 00:
So we're going to, we're going to defer to our district board colleague.

[00:20:43] Speaker 00:
Please.

[00:20:44] Speaker 00:
You got a minute.

[00:20:44] Speaker 01:
Very well.

[00:20:45] Speaker 01:
I just want to address the outrageous conduct.

[00:20:48] Speaker 01:
If we accept the government's position that this was a minor traffic offense, think of what happened.

[00:20:55] Speaker 01:
He was surrounded by six officers whose guns were drawn on the Mustang, according to Officer Hughes.

[00:21:01] Speaker 01:
He was yelled at and told to come out of the car.

[00:21:04] Speaker 01:
He was threatened with a baton to break the window of the vehicle if he didn't get out.

[00:21:10] Speaker 01:
All within a space of six minutes.

[00:21:12] Speaker 01:
This was not a standoff as the

[00:21:16] Speaker 01:
The government seems to have implicated and intimated in the brief.

[00:21:20] Speaker 04:
But the government is arguing that it was sequential.

[00:21:22] Speaker 04:
In other words, he refused to get out.

[00:21:24] Speaker 04:
He refused to comply.

[00:21:25] Speaker 04:
There were furtive movements of the defendant in the vehicle.

[00:21:29] Speaker 04:
That's what the government was talking about.

[00:21:30] Speaker 01:
Yes, right.

[00:21:31] Speaker 01:
And he testified.

[00:21:32] Speaker 01:
The furtive movement was because when he was hit by the vehicle, his phone fell down, and he was trying to reach for it.

[00:21:38] Speaker 01:
That was the furtive movement.

[00:21:39] Speaker 04:
Well, the officers didn't see that.

[00:21:41] Speaker 01:
And he kept moving his window up and down and having conversations with the officers.

[00:21:45] Speaker 01:
So our position is that the outrageousness allows for unreasonable finding by this court.

[00:21:51] Speaker 00:
Very well.

[00:21:51] Speaker 00:
Thank you.

[00:21:51] Speaker 00:
Thank you, Mr. Rodriguez.

[00:21:53] Speaker 00:
Thanks to both counsel for your argument.

[00:21:55] Speaker 00:
The case of United States versus Del Friore is submitted.