[00:00:59] Speaker 02:
is to focus largely on the question of arrest and probable cause.

[00:01:04] Speaker 02:
Of course, the court will ask me questions about whatever the court has questions about.

[00:01:08] Speaker 02:
There are one or two unusual issues that I'd like to flag right at the start about the arrest and the probable cause.

[00:01:16] Speaker 02:
Here, the court's ruling below was oral and quite spare.

[00:01:31] Speaker 02:
as Lambert most primarily.

[00:01:33] Speaker 02:
An otherwise constitutional stop with reasonable suspicion can become unconstitutional if it's conducted in a manner that causes it to be an arrest.

[00:01:42] Speaker 02:
And that's our primary argument here I would certainly represent.

[00:01:47] Speaker 02:
In addition to that, as to the arrest argument, the government didn't argue in its papers that probable cause existed here, simply that it wasn't an arrest.

[00:01:56] Speaker 02:
So in our view, that argument is waived.

[00:01:59] Speaker 02:
issue here as to whether there was an arrest, of course, depends on two factors under this Court's jurisprudence.

[00:02:06] Speaker 02:
It both looks at the perspective of the arrestee and whether a reasonably innocent person would feel free to leave after brief questioning, or alternatively, it would feel that continued detention was virtually inevitable.

[00:02:19] Speaker 02:
And it also looks at the perspective of

[00:02:28] Speaker 02:
for the circumstances of a detention, looking at all the factors.

[00:02:33] Speaker 02:
It's a – all the facts, excuse me.

[00:02:35] Speaker 02:
It's a fact-intensive inquiry.

[00:02:37] Speaker 02:
And again, Washington v. Lambert gives us a lot of factors to look at.

[00:02:41] Speaker 02:
And zeroing in on these, most of the Lambert factors are not met.

[00:02:46] Speaker 02:
So here there is no indication in the call or

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indication from observers.

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I wouldn't disagree with the court about that.

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The caller did call or was called back by dispatch, so the repeated call

[00:04:03] Speaker 02:
Goods Isle.

[00:04:05] Speaker 02:
But as to violence, we certainly would agree that if there's a question here under the Lambert factors, it's the question of whether what the officers are investigating closely follows a violent crime.

[00:04:22] Speaker 02:
And no question domestic assault is violent, but we have to look specifically at the nature of the violence that the officers are investigating.

[00:04:40] Speaker 02:
specifically at the violence, and that's where I would draw a sharp distinction between the cases upon which the government most primarily relies, at Heard's, Miles, and Edwards, both of these involve

[00:05:17] Speaker 02:
What I am arguing is that the level of force appropriate to investigating a domestic violent incident such as this one is different from the level of force appropriate where an individual has been discharging firearms at, as in one of the cases I referred to, passing vehicles or into or towards houses.

[00:05:52] Speaker 01:
no weapon had been seen at that point.

[00:05:55] Speaker 01:
Two points in that respect.

[00:05:56] Speaker 02:
One, Your Honor, the officers making the decision to use force here, the court is focusing on their perspective, and their detail about this was less rich.

[00:06:06] Speaker 02:
So what they had been told is that they were looking for a bald white male, approximately 24 years old, dark shirt and shorts, assaulting a, quote,

[00:06:18] Speaker 02:
There was an ongoing assault, but the more vivid details to which the court refers to my knowledge are not before the officers.

[00:06:26] Speaker 02:
The other question is how much force is needed even in the case of a very violent and troubling physical assault?

[00:06:48] Speaker 02:
And the question is, is it reasonable under those circumstances for the officers to do what they did, which was very rapidly and using a significant amount of physical force and

[00:07:18] Speaker 01:
has experienced who testified that in his experience, domestic violence calls can frequently, quickly get out of hand and harm either the victim or the officers.

[00:07:33] Speaker 01:
And so they formulate a plan before they approach that they are going to, if you will, take steps to ensure that this call does not become an aggravated assault

[00:08:01] Speaker 02:
What's wrong with that?

[00:08:32] Speaker 02:
testimony and declaration didn't include the statement that

[00:09:02] Speaker 00:
about domestics going bad.

[00:09:05] Speaker 02:
Certainly, Your Honor.

[00:09:06] Speaker 02:
The danger of a domestic report of a domestic doesn't warrant the application of this force simply because there is a suspected domestic.

[00:09:16] Speaker 02:
It requires further investigation.

[00:09:17] Speaker 00:
I would request to reserve the remainder of my time unless the Court has further questions.

[00:09:23] Speaker 00:
No, and we'll give you two minutes for your rebuttal.

[00:09:26] Speaker 00:
Thank you, Your Honors.

[00:09:34] Speaker 04:
Good morning and may it please the court.

[00:09:36] Speaker 04:
Elia Herrera on behalf of the United States.

[00:09:39] Speaker 04:
LAPD officers responded to a 911 call about an ongoing and serious assault happening in public involving a bald white man wearing a backpack hurting a Hispanic woman in a dress, so much so that she was possibly injured.

[00:09:55] Speaker 04:
And as your honors pointed out, a second witness confirmed the urgency of the situation when he saw the officers canvassing around

[00:10:12] Speaker 04:
every stage of the encounter, including the Terry Stop and Frisk that led to the discovery of the gun.

[00:10:19] Speaker 04:
And I'd like to focus on the issue of whether the stop became an arrest based on the safety measures that the officers took.

[00:10:26] Speaker 04:
I disagree with defense counsel as to the nature of the call in this case.

[00:10:32] Speaker 04:
The officers received information about a battery.

[00:10:35] Speaker 04:
They received information about a woman being assaulted that was possibly injured.

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And I find that the district court found that Officer Tellegen was credible.

[00:10:50] Speaker 04:
And as your honors pointed out, Officer Tellegen testified and included in his declaration information about how dangerous and volatile these incidents can be.

[00:11:02] Speaker 04:
The defense counsel faults the officers for coming up with a plan before they got to the scene.

[00:11:08] Speaker 04:
But regardless of whether there was an ongoing assault when they got there, they had information both about this specific incident and the violence that was happening and also the experience of Officer Tilligan and how dangerous these can be.

[00:11:23] Speaker 04:
And another thing that I would like to highlight about this incident is that it was happening in public.

[00:11:31] Speaker 04:
said earlier, a complete stranger is coming up to the officers and saying, they're in the food for less in the soda aisle.

[00:11:39] Speaker 04:
Go find them.

[00:11:40] Speaker 04:
This is something that is causing such a commotion that strangers are coming up to the police officers.

[00:11:47] Speaker 04:
And your honor, in reviewing the video, you see the officers walking into the store and you see children, you see people shopping around.

[00:11:55] Speaker 04:
I think the officers were more than justified in their plan to

[00:12:03] Speaker 04:
It turned violent.

[00:12:04] Speaker 04:
It turned bad.

[00:12:06] Speaker 04:
And I'd also like to focus on the actions that the officers took here.

[00:12:12] Speaker 04:
They went up to the defendant.

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They held on to him and they handcuffed him.

[00:12:20] Speaker 04:
They told him repeatedly, we'll let you go.

[00:12:24] Speaker 04:
We're just investigating.

[00:12:25] Speaker 04:
We're detaining you.

[00:12:31] Speaker 04:
would feel that they would be free to leave after brief questioning.

[00:12:36] Speaker 04:
Therefore, Your Honor, the safety measures that the officers took here, which was handcuffing defendant for less than a minute before they found a gun, telling him they were only detaining him, did not transform this into an arrest.

[00:12:51] Speaker 04:
Unless the court has questions about that issue, I'd like to move on to the reasonable suspicion to stop defendant.

[00:12:57] Speaker 04:
And as a district court found in this case,

[00:13:01] Speaker 04:
It was, this is an easy question.

[00:13:04] Speaker 04:
The officers had both physical descriptions of the victim and the suspect in this case, a white bald man with shorts and a backpack, a Hispanic woman in a dress, and information regarding their location.

[00:13:18] Speaker 04:
The 911 caller had talked about, they're in the food for less parking lot, they're walking to the food for less, and then you have, as I said, a second witness who goes up and says, they're in the food for less in the soda aisle.

[00:13:30] Speaker 04:
So they walk into the store and they have these descriptions in this location in mind, and they see a man and a woman together, different complexions.

[00:13:39] Speaker 04:
The man is bald, dark shorts, shirt, wearing a backpack, and a woman in a dress-like outfit.

[00:13:47] Speaker 04:
With that, the officers had reason almost suspicion to stop and investigate.

[00:13:52] Speaker 04:
And as to just briefly touching on the probation and parole question, whether that was appropriate.

[00:13:59] Speaker 04:
My first point is that the question did not actually prolong the investigation because as your honors saw in the video, the question was asked as they were handcuffing defendant.

[00:14:11] Speaker 04:
So it wasn't like they actually

[00:14:13] Speaker 04:
the investigation, if anything, for more than a second.

[00:14:18] Speaker 04:
And I don't think it was even a second.

[00:14:19] Speaker 04:
And the second thing I'd like to point out about this is that these officers are not engaged in a phishing expedition.

[00:14:26] Speaker 04:
They're responding to a call about a violent act.

[00:14:32] Speaker 04:
under under Rodriguez as well as other traffic stop cases, which is not what this was.

[00:14:38] Speaker 04:
This was a violent act investigation.

[00:14:40] Speaker 04:
Officers are asked are allowed to ask limited questions about someone's criminal history for their own safety.

[00:14:47] Speaker 04:
And in this case, I think that question

[00:14:50] Speaker 04:
about whether he was on probation or parole went to both the investigation, whether he has a conviction for similar acts, and also the safety of the officers.

[00:15:01] Speaker 04:
Officer Tilligan, I believe, testified that he does ask this question to see whether there's any history of violence, like for example, assaulting police officers.

[00:15:12] Speaker 04:
And then my last point is,

[00:15:14] Speaker 04:
Again, one that the district court found to be quite easy, whether there was reasonable suspicion to frisk him.

[00:15:22] Speaker 04:
And here, the district court found that officers frisked the defendant after he admitted that he had a gun.

[00:15:29] Speaker 04:
And so there was certainly reasonable suspicion to frisk him after that admission.

[00:15:36] Speaker 04:
And unless the court has any questions, I'd like to submit them.

[00:15:48] Speaker 00:
as appreciated.

[00:15:51] Speaker 02:
I'd like to focus on the second half of the arrest inquiry, which looks at what a reasonable innocent person in the position of the suspect would think about whether they would surely be permitted to leave and the government's position is that we should parse the

[00:16:17] Speaker 02:
The court has to look at the totality of these circumstances, and here, if the court watches the video, it's extremely rapid.

[00:16:26] Speaker 02:
One officer approaches from Mr. Beltran's left, and this is the trainee officer, and he says something about a domestic, but it's very difficult, would be very difficult for a person, innocent person, shopping.

[00:16:50] Speaker 02:
his responses, but when he's not immediately goes limp and becomes compliant, Officer Tulogan gives him this very long explanation, which consists in great part of threats, things that will happen to the suspect if he doesn't comply.

[00:17:07] Speaker 02:
And the question for the Court is a reasonable

[00:17:15] Speaker 02:
cited by the government traveling near the border, subject to a border inspection, but going about their business who is suddenly physically restrained and attempted to be placed in handcuffs by officers.

[00:17:28] Speaker 02:
What impression is that going to leave on a reasonable person?

[00:17:31] Speaker 02:
And here it's our position that as

[00:17:49] Speaker 03:
He may have not really meant it because they had other evidence to support the felony assault or the domestic violence.

[00:18:00] Speaker 03:
And even if she had said nothing happened, nothing happened, which she kind of did, they wouldn't drop it at that point.

[00:18:08] Speaker 03:
But was this a Terry stop?

[00:18:11] Speaker 03:
Was it a legitimate Terry stop?

[00:18:13] Speaker 03:
Don't you agree that there was much, much more here than there ever was?

[00:18:19] Speaker 03:
your honor, our position is that it wasn't.

[00:18:21] Speaker 03:
It certainly was a seizure.

[00:18:23] Speaker 03:
But tell me then, what did the police officer know about the suspects who he grabbed and frisked in Terry?

[00:18:31] Speaker 03:
Did you look at the case?

[00:18:32] Speaker 03:
I mean, this is like the textbook case.

[00:18:34] Speaker 02:
So in Terry, your honor, I believe it's the suspect who's pacing back and forth out in front of the store thinking about casing it, or casing it, excuse me.

[00:18:42] Speaker 03:
Why would you say he was casing

[00:18:52] Speaker 03:
nothing there.

[00:18:54] Speaker 03:
There were no weapons.

[00:18:55] Speaker 03:
There was no person saying, hey, somebody's looking suspicious outside the store.

[00:19:00] Speaker 03:
It's in the afternoon when people might be walking up and down and talking to each other.

[00:19:06] Speaker 03:
And if the U.S.

[00:19:06] Speaker 03:
Supreme Court said what happened in Terry was sufficient, they're giving great leeway to police officers to use their experience to determine when they need for their own personal safety to make a stop and frisk.

[00:19:19] Speaker 02:
Terry from this largely on the basis of the officer's observations.

[00:19:23] Speaker 02:
Terry, we're discussing an officer's observations of a suspect that give rise to reasonable suspicion.

[00:19:29] Speaker 02:
Here, concededly, on the government's behalf, the officer's observations on the scene didn't give rise to reasonable suspicion.

[00:19:36] Speaker 02:
Our argument that there wasn't reasonable suspicion is based on the poorness of fit, or not poorness of fit, but inadequacy of fit, between the description the officers had and the couple they saw.

[00:20:04] Speaker 02:
arrest, and it's our position that both because a person in Mr. Beltran's position would not have felt free to leave after brief questioning based on the totality of the circumstances, the way he was seized, and because of the level of force the officers used, which was – I certainly don't mean to imply that officers don't have a difficult job, but here, based on all the circumstances, the court has to exercise its independent authority to review and determine whether the level of force was reasonable in its argument.