[00:00:00] Speaker 03:
Our final case for oral argument is 25-7037, United States versus Underwood.

[00:00:08] Speaker 03:
You may commence.

[00:00:15] Speaker 04:
May it please the court.

[00:00:16] Speaker 04:
Good morning.

[00:00:17] Speaker 04:
I'm Neil Van Dalsum.

[00:00:18] Speaker 04:
I represent the opponent, Bryant Underwood.

[00:00:24] Speaker 04:
I'd like to begin by addressing the application of 47 OS section 11-1001.

[00:00:32] Speaker 04:
That is the statute that the district court relied upon to find that Deputy Wiles witnessed a violation of a traffic law as the basis for the stop.

[00:00:47] Speaker 04:
The record does not support a finding the Deputy Wiles saw a violation of that statute occur because the record establishes that this stop happened in a residence district.

[00:01:03] Speaker 04:
And by its own terms, the statute does not apply in a residence district.

[00:01:08] Speaker 02:
And residence is not defined either, right?

[00:01:11] Speaker 04:
Residence is its common meaning, which would be a house.

[00:01:15] Speaker 02:
But in order to align whether or not the word residence corresponds to the property in question, isn't it best to look at pictures?

[00:01:30] Speaker 04:
That's one thing to look at.

[00:01:31] Speaker 02:
And in this case... So looking at those pictures, it doesn't look like you're

[00:01:42] Speaker 02:
Neighborhood or your residents where people are driving back and forth and houses immediately next to each other and Kids are being dropped off, and it doesn't look like that.

[00:01:52] Speaker 02:
It looks like it's pretty Rural Rural is not the standard

[00:02:00] Speaker 04:
The question of whether it's urban or rural or... Well, that's not nitpick with words, rural.

[00:02:08] Speaker 00:
It doesn't look like a residential... Unimproved land is what the district court said.

[00:02:12] Speaker 00:
Unimproved land.

[00:02:14] Speaker 00:
What I would ask the... Or I mean, the magistrate termed it, unimproved land, which is primarily not residential.

[00:02:21] Speaker 04:
What I would ask is that the court look at the definition itself.

[00:02:26] Speaker 04:
Yeah.

[00:02:26] Speaker 04:
And what the definition itself says is,

[00:02:30] Speaker 00:
Converted to plain English most of the property has been improved with a residence No, it uses it much more specific when the property on such highway for a distance of 300 feet or more is in the main Improved with residents or residences and buildings in use for business or buildings in use for business, so it's the property on that highway and presumably that means the section of the highway we're dealing with here not the entire highway

[00:02:58] Speaker 00:
has 300 feet or more in the main, meaning primarily, I presume, improved with residences.

[00:03:07] Speaker 00:
And the district court didn't seem to me that anybody testified about this.

[00:03:12] Speaker 00:
But the district court said the way to determine that is to look at these aerial views that the state

[00:03:21] Speaker 00:
the exhibits that they had with the aerial views and the officer specifically marked where he was on this aerial view on Chloe Lane.

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And the district court said specifically referred to the 300 feet or more not being mainly occupied with residences or residences.

[00:03:39] Speaker 00:
Quite to the contrary, that section of Chloe Lane Road is mainly unimproved land.

[00:03:44] Speaker 00:
She says there's a couple of residences, but they're very far apart.

[00:03:48] Speaker 00:
She's very specific about what that shows.

[00:03:52] Speaker 00:
I get that it doesn't seem that that's what the officer necessarily testified to, but the district court did make those very specific findings in conjunction with the definition, the 300 feet.

[00:04:08] Speaker 04:
First, Your Honor, the testimony at the hearing was that Deputy Wiles was watching and saw a vehicle leave from a house

[00:04:20] Speaker 04:
Followed that vehicle past 20 to 30 houses right, but that's we're talking about the 300 feet I think that's the important part of the statute the 300 feet would be the minimum amount of space right if you're looking at an area that is less than 300 feet And it's improved.

[00:04:41] Speaker 04:
We've got this tiny parcel that that standing alone is

[00:04:45] Speaker 04:
Not improved.

[00:04:46] Speaker 04:
It's not a district.

[00:04:48] Speaker 00:
It's just a place with the house I think the district court read that to mean the 300 feet essentially where this event occurred I mean, I think you don't let's say the statute this particular road ran for five miles Or ten miles you don't look at the entire road to determine whether the entire road is a residential district you're looking at this particular area and

[00:05:11] Speaker 00:
here where the stop occurred.

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He put little x's on the map where the stop occurred.

[00:05:18] Speaker 00:
And there were only a couple of residences very far apart in that area.

[00:05:22] Speaker 04:
I would say that if you look at the exhibit that is referenced, the entirety of that road, on one side or the other, is improved with the residents.

[00:05:37] Speaker 04:
What about that living trust property?

[00:05:43] Speaker 02:
right in the area where the car was pulled over on one side?

[00:05:49] Speaker 04:
Yes.

[00:05:50] Speaker 02:
Look at the picture.

[00:05:52] Speaker 02:
What is there that's improved about that other than maybe they chopped down a few trees?

[00:05:59] Speaker 04:
Which trust property are you referring to?

[00:06:01] Speaker 02:
School property, living trust.

[00:06:05] Speaker 04:
Below the area where the, on the picture below where the stop happened?

[00:06:09] Speaker 00:
Right on the right.

[00:06:11] Speaker 00:
It's right on Chloe Road.

[00:06:13] Speaker 04:
It extends from Casey Lane over to... On Chloe Lane, on one side of all that property at that location is improved.

[00:06:27] Speaker 04:
And if you keep going down the road... Wait a minute.

[00:06:29] Speaker 02:
Let's not divert to that.

[00:06:31] Speaker 02:
The Stuart Bobby W. Living Trust is on the road right by where the car was pulled over.

[00:06:40] Speaker 04:
Which exhibit are you looking at your honor?

[00:06:44] Speaker 00:
I'm looking at one of the pictures It's the you can see the Stewart you can read Stewart Bobby living trust on the blown-up Aerial map that there's one that's blown up exhibit seven mm-hmm.

[00:06:58] Speaker 04:
Okay.

[00:06:59] Speaker 04:
May I grab exhibit seven?

[00:07:01] Speaker 02:
Yeah, you may

[00:07:21] Speaker 04:
Your Honor, I have a photo that does not, this one does not have that on there, but I can tell where you're talking about.

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So you can't tell me to confirm that the car was stopped on the road and one side of the road where it was stopped is the Stuart Bobby W. Living Trust land.

[00:07:42] Speaker 04:
I can confirm that the property below on the photos where the stop happened does not have a residence.

[00:07:50] Speaker 02:
Right.

[00:07:51] Speaker 02:
Okay.

[00:07:51] Speaker 02:
All right.

[00:07:52] Speaker 02:
Well, that's kind of a yes.

[00:07:53] Speaker 02:
Yes.

[00:07:54] Speaker 02:
All right.

[00:07:54] Speaker 02:
Thank you.

[00:07:56] Speaker 00:
And the property on the top, just as the district court said, there are two residences very far apart next to the road, far apart and behind, one's behind and one's right there, certainly a long distance apart.

[00:08:12] Speaker 00:
And as the district court said, the statute requires that 300 feet area to be in the main residential.

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And she said two houses in the main on either side of the street in this large area is not in the main residential.

[00:08:30] Speaker 00:
So is that was that clearly erroneous?

[00:08:33] Speaker 04:
I believe it is because the statute is referring to 300 feet or more and you don't have to stop and say we're going to look at this 300 feet.

[00:08:44] Speaker 00:
Oh, do you think it should be anywhere on miles and miles of road or should it be where the stop occurred?

[00:08:49] Speaker 04:
If you continue going down the road and there continues to be property.

[00:08:52] Speaker 00:
Well, why would it be?

[00:08:53] Speaker 00:
I mean, if it's allowing you to make, you know, if it's providing, that statute provides an offense that you, you know, in this case you can stop someone.

[00:09:03] Speaker 00:
For this offense for stopping in the middle of a road Why would you look anywhere, but where the stop occurred?

[00:09:10] Speaker 04:
Because that makes no sense at all the statute is designating for an area a district What rules are going to control if the entire area is?

[00:09:22] Speaker 04:
Residential there are different traffic rules different uses of the roadway different expectations for what activities will take place and

[00:09:32] Speaker 04:
And it does not say 300 feet.

[00:09:36] Speaker 04:
You just look at the 300 feet.

[00:09:38] Speaker 04:
You look at 300 feet or more.

[00:09:40] Speaker 04:
The 300 feet requirement is merely indicating that if you've got one house out there by itself, that's not going to be good enough.

[00:09:49] Speaker 00:
So are you saying that you?

[00:09:52] Speaker 00:
I'm just not following, I guess.

[00:09:54] Speaker 00:
If the road is 10 miles long, which it might be, we can look

[00:10:00] Speaker 00:
for any 300 feet or more anywhere on the road, but it doesn't matter if it's the area where the stop occurred is not residential.

[00:10:09] Speaker 00:
We can look down the road a few miles and it's residential in that area for 300 feet.

[00:10:15] Speaker 04:
Not if there's a huge break or you have even a small break.

[00:10:18] Speaker 00:
It's not what the statute, how it reads to me, but I think I understand your argument.

[00:10:24] Speaker 03:
Okay.

[00:10:24] Speaker 03:
Okay.

[00:10:24] Speaker 03:
Let's assume that I agree with you that

[00:10:28] Speaker 03:
this is not a residential district and that the magistrate judge was wrong and that Officer Wiles was wrong.

[00:10:41] Speaker 03:
We have some cases that suggest an incorrect but reasonable mistake of fact can still justify reasonable suspicion to stop the vehicle.

[00:10:54] Speaker 03:
Why wouldn't

[00:10:56] Speaker 03:
this fact pattern be a reasonable mistake of fact that would at least permit the traffic stop even if it turns out the officer was wrong about that.

[00:11:08] Speaker 04:
The officer did not stop this vehicle because of a violation of the statute.

[00:11:14] Speaker 04:
The record does not support a finding that, oh, I was confused about whether or not this was in a residence district if

[00:11:24] Speaker 04:
If you listen to Defendant's Exhibit 2 at 2950 to a little after 30 minutes, this is 30 minutes into the investigation.

[00:11:35] Speaker 04:
And Deputy Wilde says, I don't have anything on the driver.

[00:11:39] Speaker 04:
Is she valid?

[00:11:42] Speaker 04:
30 minutes in, he's trying to figure out something that she's done wrong.

[00:11:46] Speaker 03:
They eventually landed on 1001.

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as the potential violation.

[00:11:56] Speaker 03:
And they can do that, can't they?

[00:11:59] Speaker 04:
I don't follow the 10-01.

[00:12:00] Speaker 03:
11-1001, that's your residential.

[00:12:06] Speaker 04:
They did not settle on that.

[00:12:08] Speaker 04:
They did not give her a ticket.

[00:12:09] Speaker 04:
They did not issue her a warning.

[00:12:11] Speaker 04:
What they took her to jail over was that she got into an argument with the officer, and he said, well, I'm taking you to jail and saying that the stuff in the car is yours.

[00:12:21] Speaker 00:
Well, that doesn't mean that he didn't have reasonable suspicion and can't cite this statute as a basis for reasonable suspicion.

[00:12:30] Speaker 00:
He didn't have to actually arrest her for it.

[00:12:33] Speaker 04:
He never did cite the statute.

[00:12:35] Speaker 00:
He didn't have to.

[00:12:36] Speaker 00:
I mean, you don't have to.

[00:12:38] Speaker 04:
If the issue is, did this officer have a mistake about the law, then I think it's reasonable to ask, did he identify this statute as the reason he stopped the car?

[00:12:51] Speaker 04:
And he didn't.

[00:12:53] Speaker 04:
There's no evidence that that was his thought process.

[00:12:57] Speaker 04:
And in fact, he's out there at the scene, 30 minutes after he stopped the car, trying to figure out what violation he has on her.

[00:13:05] Speaker 04:
And he doesn't have any.

[00:13:08] Speaker 04:
So he's asking, does she have a valid driver's license?

[00:13:11] Speaker 04:
Could we get her on that?

[00:13:14] Speaker 03:
But we don't look at his subjective motivations, right?

[00:13:18] Speaker 04:
I think you do if the question is, is this a reasonable mistake of law?

[00:13:23] Speaker 04:
Because I think you've got to have a mistake of law to trigger that.

[00:13:29] Speaker 04:
The mistake of law at that point becomes part of the fact pattern.

[00:13:34] Speaker 04:
Just like a reasonable mistake of fact, you couldn't say, well, I stopped that guy because I thought he was a suspect, but I didn't.

[00:13:44] Speaker 04:
But some other officer might have made that mistake.

[00:13:48] Speaker 02:
Do you have any authority that says in certain special circumstances, the subjective intent of the officer is pertinent at all?

[00:14:01] Speaker 04:
What I have is the reality that the Hein rule has only been applied to actual mistakes.

[00:14:12] Speaker 04:
And so if the court says, OK, after thinking about it, Van Dalsum's got a point, this is supposed to be a resident district, the statute wasn't violated, then if the question becomes, well, can we still justify the stop based upon an officer being confused about the law, I think it's incumbent that there be a mistake about the law.

[00:14:38] Speaker 02:
OK, but you address that.

[00:14:42] Speaker 04:
By means of the reasonable officer rather than the subjective view of the officer in question In my response to that is no reasonable officer could say that I drove past 20 houses through a residential area Stopped it because I was concerned about this activity in a residential area but

[00:15:04] Speaker 02:
Didn't think this was a residential area.

[00:15:06] Speaker 02:
Would you get back to my original question?

[00:15:08] Speaker 02:
Do you have any authority that indicates where we're looking at reasonable, articulable suspicion that the subjective intent or view of the arresting officer, is it all pertinent?

[00:15:24] Speaker 04:
Not outside of the context of mistakes.

[00:15:31] Speaker 02:
And in the mistake case?

[00:15:34] Speaker 02:
You're saying the specific intent of the arresting officer is pertinent, and you have authority for that.

[00:15:44] Speaker 04:
That is what the courts have done.

[00:15:46] Speaker 04:
That is what the Supreme Court did.

[00:15:49] Speaker 02:
Just give me a site.

[00:15:50] Speaker 02:
Give me a name.

[00:15:52] Speaker 04:
In Hine, all of those cases, the analysis of the reasonable mistake of law or fact is triggered by some evidence that there was a mistake.

[00:16:05] Speaker 03:
You're talking about Hein in the Supreme Court?

[00:16:08] Speaker 04:
Yes.

[00:16:09] Speaker 03:
And I am looking at it, and it says searches and seizures based on mistakes of fact can be reasonable.

[00:16:18] Speaker 03:
Correct.

[00:16:19] Speaker 03:
Is your distinction that it would be an objective test for that and a subjective test for a mistake of law?

[00:16:27] Speaker 04:
The objective test is to figure out whether this is a reasonable or unreasonable mistake.

[00:16:35] Speaker 04:
But you don't do that analysis unless there is an actual mistake.

[00:16:41] Speaker 04:
Otherwise, we have a standard of, well, what could somebody think but didn't think as the basis for a stop?

[00:16:52] Speaker 00:
Well, I think I understand the confusion here based on the officer's testimony, because he never seemed

[00:17:01] Speaker 00:
I don't think there were any questions asked of him whether he believed this to be a residential district or anything else, because the fact is this wasn't the basis for the stop, which doesn't matter.

[00:17:12] Speaker 00:
And what he did was just describe the road he drove along and the houses.

[00:17:20] Speaker 00:
And then he drew on the picture where it actually happened, so the area around it.

[00:17:27] Speaker 00:
And there's this aerial view.

[00:17:28] Speaker 00:
But my impression was they didn't ask him about whether he thought it was or wasn't a residential district.

[00:17:36] Speaker 00:
Because that wasn't the basis for the stop, frankly.

[00:17:38] Speaker 00:
It's the basis they're saying now offers a reasonable suspicion and a reasonable basis for the stop.

[00:17:44] Speaker 00:
And that's OK.

[00:17:46] Speaker 00:
I see what I'm saying.

[00:17:48] Speaker 00:
I see the reason for your confusion, but I don't think the officer ever said one way or the other whether he made a mistake or not because he really wasn't thinking about the statute at all.

[00:17:57] Speaker 00:
He merely described the area and then showed where it was and then it looked to me like the state used this aerial view to say, hey, you can look at this and you can see that it doesn't meet the requirements, at least under the statute.

[00:18:15] Speaker 00:
residential district.

[00:18:17] Speaker 00:
And that's what the district court said.

[00:18:19] Speaker 00:
She said, the evidence that I'm going to look to to see if there's support for their basis for reasonable suspicion statute, the evidence I'm going to look to is the aerial view and where the stop occurred according to the officer.

[00:18:35] Speaker 00:
So I get your confusion based on his testimony, but I don't think he really testified one way or the other about

[00:18:42] Speaker 00:
This statute or whether he thought one thing or another about it because apparently he didn't.

[00:18:48] Speaker 04:
He testified that there's 20 to 30 houses up and down.

[00:18:52] Speaker 04:
It's primarily residential.

[00:18:54] Speaker 00:
Well, he also said things like that to me would about the road right where it happened.

[00:19:00] Speaker 00:
It's a gravel road with potholes everywhere, no painted lines or shoulder, brush growing on either side.

[00:19:07] Speaker 00:
He also described it as sort of a country area.

[00:19:12] Speaker 00:
So to me, his testimony was just a description of the road and a description of the road as he drove along it.

[00:19:19] Speaker 00:
And yes, there are much further away

[00:19:22] Speaker 00:
There are some houses, but not in the area where he was.

[00:19:28] Speaker 00:
I can't tell how long.

[00:19:30] Speaker 00:
There's also no testimony about distances.

[00:19:34] Speaker 04:
The district court relied on Defendants Exhibit 9.

[00:19:39] Speaker 04:
And what I would point out is that what matters under the statute is, has a parcel of land been improved with a residence?

[00:19:49] Speaker 04:
Not what's the condition of the road.

[00:19:52] Speaker 04:
Not is it rural, not how far apart or how large are these parcels?

[00:19:58] Speaker 04:
And if you go down that road from where they started to where they ended, there's not a single point that you would not be next to property that has a residence on it.

[00:20:12] Speaker 04:
Its residence is somewhere to the left or the right and often on both sides the entire way.

[00:20:20] Speaker 04:
That's a more than 300 feet section that is in the main improved with residences.

[00:20:27] Speaker 04:
It's not a rural urban distinction.

[00:20:30] Speaker 04:
It's a land use requirement.

[00:20:33] Speaker 04:
It's a construction requirement.

[00:20:36] Speaker 04:
And that's why the district court was mistaken to look at a photo and say, well, this kind of looks rural.

[00:20:42] Speaker 04:
So it's not a residence district because that is not what is

[00:20:47] Speaker 04:
Relevant under the statutory definition.

[00:20:52] Speaker 03:
I think your time is expired.

[00:20:54] Speaker 03:
I appreciate the argument.

[00:20:55] Speaker 03:
Mr. Lehman, you're back.

[00:21:10] Speaker 01:
May it please the court, Jared Lehman on behalf of the United States.

[00:21:14] Speaker 01:
It was very difficult for me to kind of wrap my brain around what the standard of review is, what is the court's job, the appellate court's job in reviewing.

[00:21:23] Speaker 01:
reasonable suspicion.

[00:21:24] Speaker 01:
And I think what I've landed on is it is a purely objective analysis.

[00:21:30] Speaker 01:
The police officer on scene provides us with the facts.

[00:21:34] Speaker 01:
Here's what the defendant did.

[00:21:36] Speaker 01:
Here's what I observed.

[00:21:38] Speaker 01:
And then we have to take those facts under an objective standard and determine whether a stop was supported by reasonable suspicion.

[00:21:46] Speaker 01:
And I'll point the court to two different cases.

[00:21:49] Speaker 01:
First, we start with the Supreme Court case in Wren, which is a 1996 case.

[00:21:53] Speaker 01:
And in this court, in 1998, decided United States v. Galando, G-A-L-I-N-D-O, Gonzales, 142 F-3rd, 1217, 10th Circuit, 1998.

[00:22:06] Speaker 01:
And what this court held in that 1998 decision was the court's analysis of objective reasonableness is not limited by officers

[00:22:15] Speaker 01:
own account of his motivation.

[00:22:17] Speaker 01:
So what facts do we have?

[00:22:20] Speaker 01:
We have a car that's stopped in the middle of the road.

[00:22:24] Speaker 01:
Full stop.

[00:22:24] Speaker 01:
That's what we're dealing with here.

[00:22:27] Speaker 01:
Objectively, could a car stopping in the middle of the road

[00:22:31] Speaker 01:
support reasonable suspicion for that officer to stop that driver and investigate further to determine whether a criminal offense occurred or even whether a criminal offense didn't occur.

[00:22:43] Speaker 01:
And that's exactly what the officer had to do in this instance.

[00:22:46] Speaker 01:
The officer had to stop the driver of the vehicle to find out what's going on.

[00:22:51] Speaker 01:
Candidly, this statute is a mess.

[00:22:54] Speaker 01:
It is remarkably hard to follow.

[00:22:56] Speaker 01:
It is just absolutely a mess.

[00:22:58] Speaker 01:
It's going to take him eyeballing, OK,

[00:23:01] Speaker 01:
The motorist stopped here, and it's about a football field linked to the nearest house.

[00:23:07] Speaker 01:
So maybe I'm in a residence district.

[00:23:08] Speaker 01:
Maybe I'm not.

[00:23:09] Speaker 01:
I might need to get a tape measure out and walk.

[00:23:11] Speaker 01:
There's a lot of investigation that needs to go into this.

[00:23:14] Speaker 01:
But at a minimum, it's going to start with a stop, a seizure, if you will, because the car stopped in the middle of the road.

[00:23:21] Speaker 01:
Now, interestingly, this statute

[00:23:24] Speaker 01:
47 OS 11-1001, sub A, goes on.

[00:23:30] Speaker 01:
Unfortunately, throughout the district court level, we only talked about the first part of the sentence, but it continues.

[00:23:38] Speaker 01:
But in every event, an uninstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of such stopped vehicles shall be available.

[00:23:51] Speaker 01:
No matter what, residence district, business district, not residence district, not business district, we have to pull over as far as we possibly can to allow traffic to travel freely on the other side.

[00:24:03] Speaker 01:
It matters not whether we're in a residence district.

[00:24:06] Speaker 01:
Further, even if we aren't in a residence district and it mattered that we were in a residence district, is it reasonable for the officer to have thought that a crime might have occurred?

[00:24:14] Speaker 01:
And the answer is yes.

[00:24:16] Speaker 01:
And that's all that this case is about.

[00:24:19] Speaker 01:
Someone stopped in the middle of the road, and it's reasonable for that officer to have believed that a criminal offense was committed.

[00:24:28] Speaker 00:
Well, the confusing part of this case, though, is that the officer did testify at this press-in hearing, and he did talk about the fact that there were 20 or 30 houses on either side of it, which there probably were all along the road, but not according to this area map

[00:24:46] Speaker 00:
And so how was that presented to the trial court?

[00:24:51] Speaker 00:
I mean, to the magistrate judge who eventually doesn't even talk about the officer's testimony.

[00:24:56] Speaker 00:
She only talks about the aerial map.

[00:24:58] Speaker 00:
I would direct this court... It's kind of an unusual situation that we have here.

[00:25:02] Speaker 01:
It is.

[00:25:03] Speaker 01:
I would direct this court to a couple of things in the report and recommendation from the magistrate and then in the final order from the district court itself.

[00:25:10] Speaker 01:
And there, they talk about what really matters is the reasonable suspicion of the officer.

[00:25:15] Speaker 01:
And that's really the thing that we're here to decide, is did the officer have reasonable suspicion?

[00:25:20] Speaker 00:
Yeah, I get that.

[00:25:21] Speaker 00:
I saw that.

[00:25:23] Speaker 00:
But I see the confusion here.

[00:25:27] Speaker 00:
And it seems that maybe the state presented some inconsistent evidence in terms of the testimonial evidence versus the aerial evidence.

[00:25:36] Speaker 00:
And yet the magistrate

[00:25:38] Speaker 00:
didn't address that, and neither did the district court.

[00:25:41] Speaker 01:
I still don't know that it amounts to any sort of error for that to have happened.

[00:25:45] Speaker 00:
I don't know either.

[00:25:46] Speaker 00:
I'm trying to figure that out.

[00:25:49] Speaker 01:
It just simply doesn't matter that they were confused on that issue because they got the ultimate issue right, and that is there was reasonable suspicion based on the objective criteria that there was a stop.

[00:26:00] Speaker 00:
I presume that the prosecutor who handled the suppression hearing was arguing

[00:26:06] Speaker 00:
this particular statute and presumably was the same person examining this officer and yet it's like there's no cross between the aerial map and what the district court found and the magistrate found and what this cross examination was.

[00:26:26] Speaker 01:
As I recall the record,

[00:26:28] Speaker 01:
The government examined the witness as to what were your reasons for the stop, and the witness said, I saw him stop in the middle of the road, plus I was doing surveillance on possible drug trafficking, et cetera.

[00:26:37] Speaker 00:
Yeah.

[00:26:37] Speaker 00:
I'm talking about his description of the road, which is what we have to look to in terms of, was it a residential district?

[00:26:45] Speaker 00:
And that part seems possibly, possibly inconsistent with

[00:26:54] Speaker 00:
the aerial map.

[00:26:55] Speaker 01:
I don't know that the witness, in fact, I do know that the witness was not put to the ultimate question of is this a residence district within the legal meaning of Title 47 of the Oakland Statutes.

[00:27:04] Speaker 00:
Right, I don't think there was anything like that.

[00:27:05] Speaker 01:
So is it a residential area?

[00:27:07] Speaker 01:
I believe was the term of art that they used in the suppression hearing.

[00:27:13] Speaker 01:
And that's that's just an unfortunate term of art that got used in that hearing and instead of the legal terminology from within title 47 But again, what's the 300?

[00:27:22] Speaker 00:
Can you explain the 300 feet to me?

[00:27:24] Speaker 01:
I'm kind of confused by that your honor regrettably unequally is confused again this statute could not I hate to be critical of the state legislature, but the statute is just terribly constructed I If you read it strictly

[00:27:38] Speaker 01:
You could have an area of 300 continuous feet where you have a residence district, and then you have a small cow pasture.

[00:27:46] Speaker 01:
And that's not a residence district for 101 feet.

[00:27:50] Speaker 01:
And then you could have another residence district for another 100 feet, because there's two houses there.

[00:27:55] Speaker 01:
And they're just large acreage houses.

[00:27:57] Speaker 01:
It's just impossible to put all of this together as to what it means.

[00:28:01] Speaker 01:
And so interestingly enough, I think that feeds right into Hind v. North Carolina, the Supreme Court case that says, listen,

[00:28:09] Speaker 01:
Even if the officer was mistaken, given the convoluted nature of how these statutes all work together and how it's extremely hard to even get a determination on what these mean, I think that if the officer was factually mistaken, Hines supports the finding that that was reasonable.

[00:28:26] Speaker 00:
Well, that doesn't really apply here because we don't even have an officer that even knew about this statute or is suggesting that, I mean,

[00:28:32] Speaker 00:
It doesn't make much sense here when we're basically concocting a basis for reasonable suspicion after the fact.

[00:28:42] Speaker 00:
Right, Your Honor.

[00:28:43] Speaker 00:
The mistake doesn't work.

[00:28:45] Speaker 01:
Even if it doesn't work, we still go back to factually a car stopped in the middle of the road.

[00:28:51] Speaker 01:
Was it reasonable to believe that a crime occurred?

[00:28:53] Speaker 01:
The answer is yes, Your Honor.

[00:28:58] Speaker 03:
Well, your problem is we're backing into...

[00:29:02] Speaker 03:
It seems like it was stopped first and justified later.

[00:29:07] Speaker 03:
And the case law, to some extent, permits that.

[00:29:11] Speaker 03:
So you're back, you're scurrying through the code.

[00:29:17] Speaker 03:
What do we have that might work?

[00:29:18] Speaker 03:
And then, OK, there's this statute.

[00:29:23] Speaker 03:
This one does work.

[00:29:24] Speaker 03:
But you've got to get the witness to give us

[00:29:30] Speaker 01:
Factual background to make it work even under a traditional reasonable suspicion stop outside of a Verifiable traffic violation the facts and the records of work the following it's after 11 p.m.. At night, so you're saying even without?

[00:29:45] Speaker 01:
Yes, your honor yeah when you look at the totality of the circumstances the building blocks to reasonable suspicion the

[00:29:54] Speaker 01:
the late hour, the fact that the police have suspected drug activity in the area, they're doing surveillance actively on that drug activity.

[00:30:02] Speaker 01:
This officer just isn't on routine patrol.

[00:30:04] Speaker 01:
He's surveilling what he believes to be true.

[00:30:06] Speaker 00:
I don't think you used that in your briefing as a basis for reasonable suspicion.

[00:30:09] Speaker 00:
I think you used it was high crime area, and it was late at night.

[00:30:15] Speaker 00:
I mean, I don't think you said that, you know, because you're surveilling this person for... Correct.

[00:30:22] Speaker 01:
Which would make it... That'd push it.

[00:30:24] Speaker 01:
But the surveillance in and of itself, just because an officer is doing surveillance somewhere, doesn't mean that that's reasonable suspicion.

[00:30:30] Speaker 01:
I saw you when I was doing surveillance.

[00:30:33] Speaker 01:
But the fact that it was surveillance in a suspected drug trafficking area, I saw this stop happen at 11 o'clock at night in a suspected drug trafficking area.

[00:30:43] Speaker 00:
That doesn't really fit with this whole idea of it being

[00:30:51] Speaker 00:
not a residential district and being not a business district, but being undeveloped land, it just doesn't sound like your normal high crime area.

[00:30:59] Speaker 01:
Well, Oklahoma, especially... Undeveloped land.

[00:31:02] Speaker 01:
High crime area, country road.

[00:31:05] Speaker 01:
Your Honor, the Eastern District of Oklahoma is a remarkably rural area.

[00:31:07] Speaker 00:
Well, I don't know about that.

[00:31:10] Speaker 01:
I'll represent to the court that it is.

[00:31:12] Speaker 01:
We do not have a commercial airport, for example.

[00:31:15] Speaker 01:
All that being said, Your Honor, there's more to the traditional

[00:31:21] Speaker 01:
reasonable suspicion argument.

[00:31:24] Speaker 01:
We have the drug trafficking area.

[00:31:26] Speaker 01:
We have the stop at dark.

[00:31:28] Speaker 01:
This isn't a place where pedestrians would be.

[00:31:31] Speaker 01:
There's not really a reason to be stopping in the middle of the road and letting pedestrians in and out.

[00:31:36] Speaker 00:
Well, there was a driveway there.

[00:31:39] Speaker 00:
There was a residence.

[00:31:40] Speaker 01:
Correct.

[00:31:41] Speaker 01:
So if you were going to drop pedestrian... I don't know why that would be that unusual.

[00:31:44] Speaker 01:
Well, if you're going to drop pedestrians off, you would use the driveway.

[00:31:47] Speaker 00:
This is a very dark... Well, the officer wasn't even consistent.

[00:31:49] Speaker 00:
He said it was either two people getting out or one person getting in.

[00:31:53] Speaker 01:
I think ultimately he lands on the fact that two people got out.

[00:31:56] Speaker 00:
I think the magistrate landed on that, but I didn't see that in the testimony.

[00:31:59] Speaker 01:
With respect, Your Honor, I would refer the court to the officer's written report.

[00:32:04] Speaker 00:
Yeah, well, it's inconsistent with his at-the-time report.

[00:32:07] Speaker 01:
Sure.

[00:32:07] Speaker 01:
He does make an excited utterance on scene in his body camp.

[00:32:11] Speaker 01:
But later on, when he writes his report and then testifies at the suppression hearing, he's very clear.

[00:32:16] Speaker 01:
Two people... I don't want to misspeak.

[00:32:20] Speaker 01:
I can't even remember now if it's got out or not.

[00:32:21] Speaker 00:
It says two people get out, but he's in a driveway.

[00:32:23] Speaker 00:
I'm not sure why that's so suspicious.

[00:32:27] Speaker 01:
Well, regardless, when you put all of those things together, Your Honor, I think that the reasonable suspicious analysis survives any sort of scrutiny that we could give.

[00:32:38] Speaker 01:
We have a stop in the middle of the road late at night.

[00:32:42] Speaker 01:
Pedestrians were, pedestrians probably shouldn't be.

[00:32:45] Speaker 01:
There's reported drug trafficking in the area.

[00:32:48] Speaker 01:
So this is honestly, I think a very justifiable stop by the police officer.

[00:32:58] Speaker 01:
If there's no more questions, I would ask the court to affirm the defendant's conviction in the sentence.

[00:33:05] Speaker 03:
Thank you, counsel.

[00:33:05] Speaker 03:
Counsel is excused.