[00:00:00] Speaker 02: 23-5007, United States versus Pierce. [00:00:06] Speaker 02: And do we have both council on that here? [00:00:09] Speaker 02: Okay. [00:00:23] Speaker 02: Exciting travel times. [00:00:26] Speaker 00: It is your honor to meet with the court. [00:00:28] Speaker 00: My name is Ryan Villa. [00:00:29] Speaker 00: I represent the appellate, Thomas Pearson. [00:00:31] Speaker 00: Thank you for readjusting the schedule today due to our travel difficulties. [00:00:39] Speaker 00: We're asking that the court reverse the district court's determination that the stop of Mr. Pearson's vehicle by Corporal Galladay was justified by reason of suspicion. [00:00:50] Speaker 00: It was not. [00:00:51] Speaker 00: The information that [00:00:53] Speaker 00: had at the time he executed the traffic stop was all innocent information, and even when you compile it together, it remains innocent and doesn't rise to the level of reason to suspicion. [00:01:06] Speaker 01: Counsel, can I direct you to one place where I'm stuck, and that is how we should be thinking about the flight. [00:01:14] Speaker 01: in the totality, and the district court seemed not to think that that was the most important part of this inquiry. [00:01:22] Speaker 01: Could you speak to how we should be thinking about flight here? [00:01:25] Speaker 00: Yes, and I think you should think about it nuanced. [00:01:28] Speaker 00: I mean, the court is reviewing to know about the district court's conclusions about how the flight impacted the reason of suspicion. [00:01:38] Speaker 00: And the case law is clear that it's this particular type of flight [00:01:43] Speaker 00: that gives rise to being suspicious. [00:01:46] Speaker 00: So it's not just the officer's hunch that someone's fleeing, but something where the court can look at objective facts and find flight, such as an officer turns on their overhead police lights and the person tries to drive around. [00:02:02] Speaker 02: So your position is he didn't flee? [00:02:05] Speaker 00: That's correct. [00:02:06] Speaker 00: We're not in the sense of, [00:02:09] Speaker 00: rises to real suspicion. [00:02:10] Speaker 02: And the reason is... I don't remember that being argued to the district court that there was no flight at all. [00:02:16] Speaker 00: Well, I think that what the trial attorney argued was that it didn't rise to the level of flight or speeding. [00:02:25] Speaker 00: The focus on speeding perhaps isn't the most artful use of the word. [00:02:30] Speaker 00: But I think for real suspicion, it's either he was speeding and I clocked him. [00:02:37] Speaker 00: I used my lidar, I used my radar, and he's speeding. [00:02:41] Speaker 00: And we don't have an argument. [00:02:42] Speaker 00: It's over. [00:02:43] Speaker 00: He's allowed to pull them over for speeding. [00:02:45] Speaker 00: But what came out of the district court was how the officer's perception of speeding or flight affected his reason of suspicion. [00:02:56] Speaker 00: And I think when the court looks at the objective facts available to the officer, the court will validate that he testified about it's not the type of flight where the court has found [00:03:07] Speaker 00: that it amounts to real suspicion. [00:03:09] Speaker 00: So what happens is we're on a dark, rural road where there's not a lot of lighting because there's new construction going on. [00:03:16] Speaker 00: The corporal sees the car parked lawfully facing the road, uses his alley light, not his overhead lights, you know, like, hey, stop, just the alley light to look, sees a person in the car, and then the corporal goes down and makes a U-turn. [00:03:31] Speaker 00: And when he does that, the car's out of [00:03:38] Speaker 00: out as he's running away like Dickens, you know, the headlong flight that we're talking about. [00:03:43] Speaker 00: What he sees is by the time he catches up, half a mile, a mile down the road, is that it appears to him that Mr. Pierce is going fast, just based on the eyeball test. [00:03:54] Speaker 01: But that he fled is a factual finding that the district court made, right? [00:03:57] Speaker 01: We review that for clear error. [00:04:00] Speaker 00: Well, I think you can review it in the light of the evidence that was presented. [00:04:05] Speaker 00: I mean, we didn't argue [00:04:06] Speaker 00: in the opening brief that it was clearly erroneous. [00:04:09] Speaker 00: I think the way that we viewed it is the district court found that those same facts I just recited to you amounted to flight. [00:04:17] Speaker 00: You can look at those same facts and determine that it didn't amount to flight. [00:04:21] Speaker 00: That gives rise to reasoned suspicion in the de novo review. [00:04:26] Speaker 02: And I think- Well, unless we find that the district court was clearly erroneous in finding that he fled, then we [00:04:36] Speaker 02: take in our analysis of whether there is reasonable suspicion, one of the factors is flight. [00:04:44] Speaker 00: Certainly, you can take it into account. [00:04:47] Speaker 00: But I think this is maybe a murky area of the standard review, where I would respectfully disagree, Judge, that I think you can look at it through the de novo review and say, when we apply these facts, which the facts aren't disputed, to the law, [00:05:05] Speaker 00: It is not a flight that gives rise to reasons to suspicion. [00:05:08] Speaker 00: The officer perceived it as flight, just like he perceived what Mr. Pierce was doing there might have been illegal, but we take issue with that. [00:05:17] Speaker 02: Well, he also perceived he was speeding. [00:05:20] Speaker 00: Yes. [00:05:20] Speaker 02: And isn't that enough to pull him over? [00:05:24] Speaker 00: I don't think it is in these circumstances. [00:05:26] Speaker 02: You don't have to have a radar gun. [00:05:29] Speaker 00: Not necessarily, Your Honor. [00:05:32] Speaker 00: I think you could be standing on the street and see a car [00:05:35] Speaker 00: You know, driving by, passing traffic, you know, not consistent flow of traffic. [00:05:41] Speaker 02: Well, as I understand your brief, you concede that the stop, you're only challenging the initial stop. [00:05:48] Speaker 02: You're not challenging the extension of the stop to question the juvenile. [00:05:54] Speaker 00: That's correct. [00:05:55] Speaker 02: Okay. [00:05:55] Speaker 02: So if I think he could pull them up for speeding, we're done, right? [00:06:00] Speaker 02: I think that's right. [00:06:01] Speaker 02: Okay. [00:06:03] Speaker 02: And if we think [00:06:05] Speaker 02: Instead, that there was enough here for reasonable suspicion, then you agree that you lose. [00:06:14] Speaker 00: Yes. [00:06:15] Speaker 00: I mean, we're hanging our hat on the stop itself. [00:06:17] Speaker 00: It was raised below extending the stop. [00:06:21] Speaker 00: That was not a challenge on appeal. [00:06:23] Speaker 00: But the court has never held that simply because a police officer thinks someone is speeding, that's enough. [00:06:29] Speaker 00: The court has always been consistent that you look to the objective facts [00:06:34] Speaker 00: And these are very unique facts when we talk about speed in the sense of it's more officer hunch intuition, the types of things that the court has said is not crucial suspicion and not specific, articulable facts that we can point to and say, [00:06:54] Speaker 00: Any officer or any person or any judge could decide that this person is speeding. [00:06:58] Speaker 00: They're going too fast. [00:06:59] Speaker 01: But the speeding determination was what? [00:07:01] Speaker 01: It was made based on Corporal Gallade's testimony, based on his training experience in the district court, credited that, right? [00:07:09] Speaker 01: So it's subject to those standards. [00:07:12] Speaker 00: I mean, yes, the district court. [00:07:13] Speaker 01: Credibility findings and all of that, right? [00:07:15] Speaker 00: Sure. [00:07:16] Speaker 00: But I think any time a police officer says, based on my training experience, [00:07:24] Speaker 00: You know, look at Reed, the DEA case, you know. [00:07:29] Speaker 00: These DEA agents had a lot of training and experience about when somebody's coming from a source city, where there's cocaine, you know, the fact they're not having suitcases, that they're hiding, the fact that they're traveling with each other. [00:07:44] Speaker 00: And then the United States Supreme Court said, that's just not enough. [00:07:47] Speaker 00: So while a DEA agent can tell us, [00:07:52] Speaker 00: Probably pretty accurately, just like Corporal Dalladay, in the end, his hunch paid off. [00:07:58] Speaker 00: You still have to test the objective facts that these law enforcement officers are relying on to tell you, I think someone is speeding. [00:08:06] Speaker 00: I think someone is coming from the blockade. [00:08:08] Speaker 01: So you're saying that there was not a sufficient factual basis to support the testimony, even, of speeding? [00:08:14] Speaker 00: That's right. [00:08:15] Speaker 00: Not enough to create any suspicion. [00:08:18] Speaker 00: Take the officer's word, in my training and experience, the person was speeding. [00:08:22] Speaker 00: But that doesn't mean that it ends there. [00:08:26] Speaker 00: When you ask when the officer was questioned why was the person speeding, what were the facts that you relied upon? [00:08:32] Speaker 00: Those are the facts, then, that the district court has to decide. [00:08:36] Speaker 00: Does that amount to any suspicion? [00:08:37] Speaker 02: My training and experience in pursuing cars that are going in excess of the speed limit [00:08:46] Speaker 02: And I observed, I mean, this is, we have cases that say that a layman can testify that someone was speeding. [00:08:56] Speaker 00: And I think we still test what the layman said, right? [00:09:01] Speaker 00: So the officer here didn't say, you know, I traveled a certain speed and the vehicle was pulling away from me. [00:09:08] Speaker 00: I was traveling at, I had to travel one mile to catch up to Mr. Pearson, it took me [00:09:14] Speaker 00: X amount of time traveling and Y amount of speed so that we can, you know, those are the types of things that officers who are trained and with their experience learn to do. [00:09:24] Speaker 00: They rely on those types of factors to be able to articulate why they thought someone was speeding. [00:09:31] Speaker 00: And that's where Corporal Ballade and the District Court failed to do was give us the articulable facts about why you think he's speeding. [00:09:41] Speaker 00: Not just simply, I turned around and [00:09:44] Speaker 00: caught up to him, and it looked like he was speeding. [00:09:48] Speaker 00: So if the court then looks at the rest of the facts, and I think it was clear, there's an exchange in the briefing, but I just want to make it clear. [00:09:58] Speaker 00: We all, the appellant agrees that the district court made its determination based on the totality of the circumstances. [00:10:05] Speaker 02: And that included, it's 2 AM. [00:10:09] Speaker 00: Yes. [00:10:10] Speaker 02: He's parked on a partial slab at a [00:10:14] Speaker 02: residential construction site, which is private property. [00:10:19] Speaker 02: Correct. [00:10:20] Speaker 02: In a neighborhood that's been targeted for burglaries and on a street where there's been vehicle break-ins. [00:10:27] Speaker 00: At least there have been reports, yes. [00:10:29] Speaker 02: Yes, okay. [00:10:30] Speaker 02: And he saw a person sitting in the Ram with the lights turned off and no truck lights on. [00:10:38] Speaker 00: Once he shined his light, alley light, yes, he saw a, what do you believe to be a person? [00:10:43] Speaker 02: I mean, you don't think that at that point there was a reasonable reason, there was a reason for the officer to want to approach him to find out what are you doing here? [00:10:54] Speaker 02: The officer testified he thought he was trespassing. [00:10:58] Speaker 00: And the district court made the same finding that that was enough to approach him. [00:11:04] Speaker 00: But my question is, is that enough to stop him, right? [00:11:09] Speaker 02: And then you add to that, [00:11:10] Speaker 02: When the officer turns around to come and question him, he fled. [00:11:16] Speaker 02: And the Supreme Court has said that we can consider flight. [00:11:22] Speaker 00: It's described as fleeing, but we still have to test. [00:11:25] Speaker 02: It's a factual finding of fleeing. [00:11:28] Speaker 00: And I understand that the district court made that finding. [00:11:31] Speaker 00: I guess the position that we take is that it must be based on objectively reasonable facts. [00:11:37] Speaker 01: I just want to clarify that because that's an important thing for me to get straight about your argument. [00:11:41] Speaker 01: You did not challenge as clearly erroneous the district court's factual finding that this was flight. [00:11:46] Speaker 01: Is that correct? [00:11:48] Speaker 01: You're making a different argument, not a different argument, but you're sort of making an extension of the argument about how we factor that in. [00:11:53] Speaker 01: to the totality under our standard of review. [00:11:54] Speaker 01: But as to that specific question, did you challenge the factual finding? [00:11:58] Speaker 00: That's not specifically challenged in the open. [00:12:02] Speaker 00: And I think, going back to our earlier discussion, I think that's where the standard of review, you know, is murky or there's a crossover between, you know, when do we say there's articulable facts that give rise to resubmission. [00:12:16] Speaker 00: You know, flight essentially always gives rise to resubmission. [00:12:20] Speaker 00: So when a trial court says, [00:12:27] Speaker 00: Is the flight or is it not? [00:12:29] Speaker 01: I don't think, I don't read the district court's decision as hanging its hat on the flight actually at all. [00:12:33] Speaker 00: No, I think the district court was very clear that it was the totality of the circumstances, which included the flight. [00:12:39] Speaker 00: But I disagree with, you know, an officer always has time to, or always has a right to approach a people, right? [00:12:47] Speaker 00: So he sees those situations, he wants to investigate further. [00:12:50] Speaker 00: He can do that. [00:12:52] Speaker 00: He doesn't have to have any basis to approach somebody and ask them questions if they're in public. [00:12:57] Speaker 00: You know, the question is what happens after they do that. [00:13:00] Speaker 00: But the real question I think we need to ask is did he have the right to seize Mr. Pierce at that moment before the driving away or flight or speeding? [00:13:10] Speaker 00: Did he have the right to seize him at that moment? [00:13:12] Speaker 00: I think the case law is clear he didn't have that right to seize him at that moment. [00:13:17] Speaker 02: So then you add... So you're telling us we should ignore the flight? [00:13:21] Speaker 02: I think... Don't include it in the totality. [00:13:24] Speaker 00: No, it is included. [00:13:30] Speaker 00: under the case law. [00:13:31] Speaker 00: And the types of flight in the cases where there is resuspicion is much different than what was presented to the district court. [00:13:41] Speaker 01: You rely on Hernandez, right? [00:13:43] Speaker 00: Yes. [00:13:43] Speaker 01: And so could you just speak to how that case seems different to me? [00:13:47] Speaker 01: But maybe I'm missing something. [00:13:49] Speaker 00: Sure. [00:13:49] Speaker 00: Hernandez is not a flight case, if you will. [00:13:53] Speaker 00: There was some evasion, I guess, that the court talked about where when the officer [00:13:58] Speaker 00: did approach him and hadn't seized him yet, but was asking questions about where he was coming from. [00:14:03] Speaker 00: He couldn't give an answer to his grandma's address when he said he was coming from his grandma. [00:14:08] Speaker 00: So evasion, I think, comes into play in some of these cases when there is a flight. [00:14:13] Speaker 00: But here you're talking about a construction site where the defendant was walking on or next to. [00:14:21] Speaker 02: Well, he's outside the fence. [00:14:23] Speaker 02: In Hernandez, he's not on the construction site. [00:14:26] Speaker 02: He's in downtown Denver, and he's walking past a fenced construction site. [00:14:32] Speaker 02: So he's not trespassing. [00:14:35] Speaker 00: That's right. [00:14:36] Speaker 00: And importantly, there's no evidence here that Mr. Pierce was trespassed, right? [00:14:40] Speaker 00: I mean, just because someone's on private property doesn't make them trespassers, right? [00:14:45] Speaker 00: And that's the problem with corporate holidays hunch. [00:14:47] Speaker 00: I mean, he might suspect it, and he might have every right to go up and ask the person, [00:14:53] Speaker 00: have a right to be here, but he didn't know that Mr. Pierce was a trespasser. [00:14:56] Speaker 01: He also suggested in his testimony, didn't he, that he was doing a welfare check. [00:15:01] Speaker 00: He thought one potential was that the person needed aid, but he didn't provide any facts to help the court gather that. [00:15:10] Speaker 00: It was the engine smoking that the person looked [00:15:24] Speaker 00: whether he was there to commit vandalism or theft, whether he was actually speeding away or just driving away. [00:15:32] Speaker 00: And I see that my time is up. [00:15:36] Speaker 02: Thank you. [00:15:44] Speaker 03: May it please the court, Thomas Duncombe for the United States. [00:15:48] Speaker 03: The government wins this appeal for three reasons. [00:15:51] Speaker 03: The first is that there is reasonable suspicion for an officer to make a stop. [00:15:55] Speaker 03: An officer need not articulate a specific crime that he has in mind. [00:16:00] Speaker 03: It's enough that an officer has reasonable, articulable suspicion that criminal activity may be afoot. [00:16:05] Speaker 03: That's from this court's Briggs case. [00:16:08] Speaker 03: And the Dennison case describes it as reasonable suspicion that a person may be engaged in criminal activity. [00:16:14] Speaker 03: The officer had that here. [00:16:16] Speaker 03: The second reason is that reasonable suspicion is a low bar, that even though factors individually may be consistent with innocent conduct when viewed in their totality, they can give rise to reasonable suspicion, and they did so here. [00:16:31] Speaker 03: And the third is that finding reasonable suspicion here comports with common sense. [00:16:36] Speaker 03: both because of the quality of the factors, the corrobality articulated, and because of the quantity of factors that he articulated. [00:16:43] Speaker 01: How do we reconcile your first point with an argument that seems floated in your brief that you don't even need to get to reasonable suspicion? [00:16:50] Speaker 01: This was consensual. [00:16:50] Speaker 01: This was a welfare check. [00:16:52] Speaker 03: So the part that was consensual, that the officer was intending to be consensual, was before the flight. [00:17:04] Speaker 03: when the officer saw all the things that the district court found, even without the flight, gave rise to reasonable suspicion. [00:17:11] Speaker 03: It would have given rise to reasonable suspicion. [00:17:14] Speaker 03: The key is, that's what the officer was subjectively intending to do. [00:17:18] Speaker 03: And what matters here is objective reasonable suspicion, not the officer's subjective intentions. [00:17:24] Speaker 03: But it is true that at that moment, and the officer expressed this at the hearing, his subjective intention was, I'm going to go over there and see if that's someone that needs help. [00:17:33] Speaker 03: One specific way he articulated that was maybe that's a person who had too much to drink and realized they shouldn't be driving and they pulled off to the side of the road. [00:17:43] Speaker 03: But the point is it was a person in a truck in the dark on a construction site in a residential area [00:17:50] Speaker 03: The officer was entitled to rely on both his experience, his common sense, and his detailed knowledge of this city and its recent criminal complaints. [00:18:00] Speaker 01: Is it the government's position that we can affirm without reaching flight as part of the totality inquiry, like the district court seemed not to emphasize that? [00:18:10] Speaker 03: The court certainly could affirm on all the factors excluding flight. [00:18:14] Speaker 03: The court need not do that, but the court certainly could do that because the district court articulated that that was possible. [00:18:21] Speaker 01: So this is where I'm really stuck. [00:18:22] Speaker 01: How can that be? [00:18:23] Speaker 01: How can that be that before the flight, the totality supports reasonable suspicion? [00:18:30] Speaker 01: It seems like entirely innocent conduct here, no? [00:18:33] Speaker 03: So each of the facts in isolation could be consistent with innocent conduct. [00:18:39] Speaker 03: But the court views those factors not in isolation, but in their totality. [00:18:45] Speaker 03: And here, we have not just that it was a construction site, and it was private property, and it was 2 AM, but that the officer knew that construction site theft is common, that construction site theft had been reported recently in Jenks. [00:19:03] Speaker 03: that there have been vehicle burglaries from this street recently, and that there was a person sitting there in the dark at 2 a.m. [00:19:10] Speaker 03: in this residential area where the officer had never seen a car parked before. [00:19:14] Speaker 03: Those facts were enough to allow an officer to commit the limited intrusion that would have been conducting the reasonable suspicion stop. [00:19:23] Speaker 03: However, I do want to clarify, the court [00:19:25] Speaker 03: did not highlight the flight, at least in the first part of her order. [00:19:30] Speaker 03: But that does not mean that the court did not view flight as significant. [00:19:35] Speaker 03: I think what the court was doing was almost a rhetorical device of emphasizing how strong the reasonable suspicion was here. [00:19:44] Speaker 03: Basically, if you take all these factors, even without the obviously suspicious fleeing from police, that's how the district court articulated it, obviously suspicious. [00:19:54] Speaker 03: you'd have reasonable suspicion. [00:19:56] Speaker 03: But wait, there's more. [00:19:58] Speaker 03: We've got this flight which is unprovoked and which meets the definition of headlong flight from Illinois v. Wardlow because it's... How is that so? [00:20:10] Speaker 01: This meets the definition of headlong? [00:20:12] Speaker 03: Yes. [00:20:12] Speaker 03: How? [00:20:13] Speaker 03: Because this is ungoverned and evasive behavior. [00:20:19] Speaker 03: Illinois v. Wardlow talked about unprovoked flight upon noticing the police. [00:20:25] Speaker 03: And that's what the district court found this was. [00:20:27] Speaker 03: This was four to six seconds after the officer had shined his light on the ram. [00:20:35] Speaker 03: The officer was just turning around to approach the vehicle, and the vehicle was already driving off at great speeds and using excessive self-acceleration. [00:20:45] Speaker 03: The officer was entitled to use his experience and common sense [00:20:48] Speaker 03: when the officer determined, subjectively, but when the officer determined, this seems suspicious to me. [00:20:54] Speaker 03: This seems like a person who feels like he's in trouble and doesn't want to encounter the police. [00:20:59] Speaker 03: And the district court made a factual finding as my colleague has conceded that there was flight in this case. [00:21:08] Speaker 03: And that factual finding is, there's nothing murky about the standard with regard to findings of fact by the district court. [00:21:16] Speaker 03: They're entitled to deference by this court. [00:21:17] Speaker 03: This court only overturns them if they're clearly erroneous. [00:21:21] Speaker 03: And just going back to the first point, it's the facts that have to be specific and articulable, not the crime that has to be specific and articulable. [00:21:34] Speaker 03: That was a point that Council made in his reply brief that seemed to suggest that for reasonable suspicion to exist, there has to be a specific crime articulated. [00:21:44] Speaker 03: Unless there are any further questions, the government would cede the rest of his time. [00:21:49] Speaker 01: Just one more question for you. [00:21:52] Speaker 01: The appellant doesn't challenge the scope of detention, right? [00:21:57] Speaker 03: That's correct. [00:21:57] Speaker 01: So it's just a stop. [00:21:58] Speaker 01: So what happened during that time, the details of Mr. Pierce's offense have absolutely nothing to do with this appeal. [00:22:05] Speaker 01: Would you agree? [00:22:06] Speaker 03: I would. [00:22:11] Speaker 03: Thank you. [00:22:12] Speaker 02: We'll take it under advisement. [00:22:14] Speaker 02: Thank you.