[00:00:04] Speaker 00:
Good morning, everyone.

[00:00:07] Speaker 00:
We just have one case on the docket this morning.

[00:00:10] Speaker 00:
The remainder of the cases have previously been submitted on the briefs, so we'll take up U.S.

[00:00:19] Speaker 00:
v. Torres.

[00:00:27] Speaker 02:
Good morning.

[00:00:28] Speaker 02:
Kara Hartzler, Federal Defenders, on behalf of Mr. Torres.

[00:00:32] Speaker 02:
When Mr. Torres was walking away from his aunt's unlawfully parked car on Chicano Park Day, police did not have reasonable suspicion to stop or to frisk him.

[00:00:42] Speaker 02:
But at a minimum, the district court should have held an evidentiary hearing to resolve the disputed facts.

[00:00:48] Speaker 02:
So let's start with whether there was reasonable suspicion for the stop.

[00:00:52] Speaker 02:
When police stopped Mr. Torres, he was walking across the street.

[00:00:56] Speaker 02:
So he was not a passenger, he was a pedestrian.

[00:00:59] Speaker 03:
So you define the stop as starting several seconds into what's portrayed on the video.

[00:01:06] Speaker 03:
So isn't the stop when the officer stopped their vehicle and got out to investigate the car?

[00:01:13] Speaker 02:
Well, first of all, the officers didn't stop this vehicle.

[00:01:16] Speaker 02:
This was not a traffic stop where the officers pulled the vehicle over.

[00:01:19] Speaker 03:
Sure.

[00:01:20] Speaker 03:
I mean, we've all watched the video probably several times since it's only a few seconds long, but there is a car parked illegally.

[00:01:27] Speaker 03:
Correct.

[00:01:28] Speaker 03:
I can't tell from the audio whether the engine is running.

[00:01:30] Speaker 03:
It very well could be.

[00:01:31] Speaker 03:
It's several feet from the curb.

[00:01:33] Speaker 03:
It's basically in the lane of traffic at a red curb.

[00:01:35] Speaker 03:
The doors open, the lights on.

[00:01:38] Speaker 03:
You could call it a parking violation.

[00:01:40] Speaker 03:
You could call it a traffic violation.

[00:01:41] Speaker 03:
But either way, I think there's reasonable suspicion in those circumstances for an investigatory stop.

[00:01:47] Speaker 03:
Would you agree with that?

[00:01:48] Speaker 02:
Yes.

[00:01:49] Speaker 02:
We don't doubt that there was reasonable suspicion that the car was unlawfully parked, and they could issue a ticket for that.

[00:01:57] Speaker 03:
Well, they could stop.

[00:01:58] Speaker 03:
They could get out and say, hey, what's going on?

[00:02:00] Speaker 02:
They could stop the driver of the car.

[00:02:02] Speaker 03:
Well, there's three people standing next to the car and they get out and say exactly the first thing the officer said is, whose car is that?

[00:02:10] Speaker 03:
And then he says, is that yours or yours?

[00:02:13] Speaker 03:
And then he tells them, you guys aren't in a parking spot.

[00:02:16] Speaker 03:
It's a red zone.

[00:02:16] Speaker 03:
You're hanging out in the street, all kinds of stuff going on.

[00:02:20] Speaker 03:
Turns to Mr. Torres and says, no weapons on your partner.

[00:02:23] Speaker 03:
He says, no, sir.

[00:02:24] Speaker 03:
And then boom, Mr. Torres takes off running.

[00:02:26] Speaker 03:
That all elapsed in 18 seconds.

[00:02:28] Speaker 03:
So you're parsing it pretty finely to say,

[00:02:33] Speaker 03:
Well, I'm not really sure when you say the stop occurred.

[00:02:35] Speaker 03:
You agree they could have an investigatory stop because of the circumstances with the vehicle in the lane of traffic.

[00:02:41] Speaker 03:
But you're saying we have to parse this out and say they couldn't say to Mr. Torres, you have weapons or stop?

[00:02:51] Speaker 02:
Yes.

[00:02:51] Speaker 02:
First of all, Your Honor, I think there is a disputed fact as to whether Mr. Torres was standing by the car when police pulled up or whether he was crossing the street.

[00:02:59] Speaker 02:
The officers say he was standing by the car.

[00:03:01] Speaker 02:
His declaration says he was crossing the street.

[00:03:04] Speaker 02:
So at a minimum, we've got a disputed issue of fact that should be resolved.

[00:03:06] Speaker 03:
Can't we resolve?

[00:03:07] Speaker 03:
I mean, under Scott v. Harris, courts are entitled to review the video, right?

[00:03:11] Speaker 03:
And we can, and we all have.

[00:03:13] Speaker 03:
The district court did as well.

[00:03:14] Speaker 03:
So we can see him walking away from the car.

[00:03:17] Speaker 03:
Next to the car, walking away from the car.

[00:03:19] Speaker 03:
But again, we're talking about a matter of seconds.

[00:03:22] Speaker 03:
This is not a 15-minute stop, even a one-minute stop.

[00:03:26] Speaker 03:
As this is unfolding so I guess they what I'm trying to get you to define is how you're parsing This stop that there's no reasonable suspicion that they had reasonable suspicion to initiate this investigatory Stop, but then you're saying they lost reasonable suspicion at like second three or four I'm saying they never had reasonable suspicion to stop mr. Torres.

[00:03:50] Speaker 02:
They had reasonable suspicion to issue Annabelle a parking ticket

[00:03:53] Speaker 02:
But I'll quote from Williams.

[00:03:55] Speaker 02:
And what Williams says is, in that case, the person was still in the car.

[00:04:00] Speaker 02:
So this court found that it was acceptable when the person had gotten out of the car after the stop to tell them to come back and get back in the car.

[00:04:08] Speaker 02:
But Williams says, when Williams attempted to exit the vehicle, the automobile had already been lawfully stopped with him inside.

[00:04:15] Speaker 02:
The officer's order to get back into the vehicle merely maintained the status quo

[00:04:20] Speaker 02:
by returning the passenger to his original position.

[00:04:23] Speaker 02:
Here, the time of the stop was when Mr. Torres was outside of the car.

[00:04:29] Speaker 02:
He was a pedestrian.

[00:04:29] Speaker 03:
So the officers said that they didn't know who was driving.

[00:04:32] Speaker 03:
There's three people standing outside of the car, the doors open, the lights are on.

[00:04:36] Speaker 03:
And when they were trailing the vehicle, they couldn't determine who was driving.

[00:04:39] Speaker 03:
That doesn't seem to be disputed.

[00:04:42] Speaker 03:
So they say,

[00:04:44] Speaker 03:
Whose car is that?

[00:04:45] Speaker 03:
Is that yours or yours?

[00:04:47] Speaker 03:
They're asking the three people standing outside the vehicle who's driving this.

[00:04:50] Speaker 03:
You're saying they could only detain the driver.

[00:04:53] Speaker 03:
They don't know who the driver was.

[00:04:56] Speaker 02:
Well, that's another issue that should have been resolved through an evidentiary hearing because it was not reasonable for the officers to think that anyone other than Annabel was the driver.

[00:05:03] Speaker 03:
Well, it was not reasonable for them to ask whose car is this?

[00:05:08] Speaker 02:
At the moment that we start seeing the video, we see clearly, and this is on ER96 of the record, basically we see Annabelle standing in the open car door.

[00:05:19] Speaker 02:
We see the other two gentlemen on either side.

[00:05:22] Speaker 02:
The officers at this point ask, whose car is this?

[00:05:25] Speaker 02:
Everyone says it's Annabelle's car.

[00:05:27] Speaker 02:
Then she says, I'll move it.

[00:05:29] Speaker 02:
And by this point, the officers had certainly already run the place.

[00:05:31] Speaker 02:
So they knew it was registered to her.

[00:05:33] Speaker 03:
So they're standing here talking to them.

[00:05:35] Speaker 03:
Whose car is this?

[00:05:36] Speaker 03:
Is it yours?

[00:05:37] Speaker 03:
Is it yours?

[00:05:37] Speaker 03:
She says it's mine.

[00:05:38] Speaker 03:
He says it's not in the parking spot.

[00:05:40] Speaker 03:
They're having this discussion.

[00:05:42] Speaker 03:
And I think the assumption is,

[00:05:44] Speaker 03:
Oh, they should have just written a ticket and left it.

[00:05:46] Speaker 03:
But isn't it reasonable for them to try to solve the situation and be like, hey, move the car?

[00:05:51] Speaker 03:
They also had information from the other officer about who they suspected these individuals were.

[00:05:57] Speaker 03:
So the officer asked, are you armed?

[00:05:59] Speaker 03:
Do you have weapons?

[00:06:00] Speaker 03:
Or I think he says exactly, no weapons on you, partner, question mark.

[00:06:07] Speaker 03:
And then the tourist says, no, sir.

[00:06:10] Speaker 03:
So you think it's unreasonable to ask if he had weapons?

[00:06:13] Speaker 02:
Yes, because at that point there was no reason to detain him.

[00:06:16] Speaker 03:
At this point, even assuming that the officers didn't know... Well, if they hadn't decided to arrest him or detain him, but they're still investigating, isn't it clear under our case law that they have a right to protect themselves and the public and to ask somebody, do you have weapons on you?

[00:06:32] Speaker 02:
To the extent that they were trying to frisk, this was a situation of the officers' own making.

[00:06:38] Speaker 02:
Go ahead finish And and in the land arrows this court said that basically when the officers prolong the stop there it's basically inversely proportionate to the would you recognize it was 18 seconds total right and and in on page 13 of our library if we talk about at least three cases where this court has said that 30 seconds or less can be a minute and can be an intrusion on persons

[00:07:04] Speaker 04:
Let me ask you this.

[00:07:05] Speaker 04:
When did the stop occur?

[00:07:09] Speaker 02:
The stop occurred when Officer Wilson twice told all three of them to stop and then say, hey, stop.

[00:07:16] Speaker 02:
And at that point, Mr. Torres was crossing the street.

[00:07:20] Speaker 04:
OK.

[00:07:21] Speaker 04:
I'm trying to understand what the sensible.

[00:07:24] Speaker 04:
Sure.

[00:07:25] Speaker 04:
resolution of this is.

[00:07:27] Speaker 04:
So the district court said that the court considers the totality of the circumstances surrounding the stop and the investigation that ensued.

[00:07:38] Speaker 04:
We don't disagree with that.

[00:07:40] Speaker 02:
No, we do think there should have been an evidentiary hearing.

[00:07:43] Speaker 04:
No, but this court is saying the standard.

[00:07:47] Speaker 04:
We evaluate the totality.

[00:07:49] Speaker 04:
And the court says the law enforcement officers here had probable cause to stop the apparent passengers of the vehicle.

[00:07:58] Speaker 04:
Now, do you disagree with that?

[00:08:00] Speaker 02:
I disagree because he was not a passenger at the time of the stop.

[00:08:04] Speaker 02:
He was a pedestrian.

[00:08:05] Speaker 04:
He was an apparent passenger, says the district court.

[00:08:09] Speaker 04:
He was an apparent passenger.

[00:08:12] Speaker 04:
If he were right next to the car and still closing the door after he'd gotten out,

[00:08:19] Speaker 03:
he would be an apparent passenger we might be in a different situation i'd i'd do want to save a couple minutes for rebuttal but yes i agree we we might be in it i'll give you time to answer okay thank you and we don't have any other people today as a practical matter at following up with the church order was asking there are four counts right and he pled guilty to all four and reserved the right to appeal in this particular account

[00:08:44] Speaker 03:
The other three were on different dates, and there's no issue with suppression of evidence with respect to the other three conditions.

[00:08:52] Speaker 03:
The sentencing options were the same for each count.

[00:08:55] Speaker 03:
They all involved an unlawful possessor with a firearm.

[00:09:01] Speaker 03:
And the sentences were concurrent, right?

[00:09:03] Speaker 03:
So what you're asking us to do is remand it for the district court to have an evidentiary hearing on one of the four counts.

[00:09:12] Speaker 02:
Right, because we wouldn't have pleaded guilty if we hadn't gotten this conditional plea, and things might have gone very different, all of those other counts, if we hadn't had the ability to argue this.

[00:09:24] Speaker 03:
Did you make any challenge to the other counts?

[00:09:27] Speaker 03:
Not below them.

[00:09:28] Speaker 03:
Or on this appeal?

[00:09:29] Speaker 03:
I didn't see anything challenging his convictions on the other three counts.

[00:09:32] Speaker 02:
No, but we would not have necessarily done the same thing if we hadn't been given this conditional plea and had the right to appeal it.

[00:09:42] Speaker 02:
So at a minimum, Your Honor, we would say that there should have been an evidentiary hearing because there were many disputed issues of fact, and the district court shouldn't have resolved those without holding an evidentiary hearing.

[00:09:54] Speaker 02:
And if the court has no further questions at this time, I'll reserve a little bit of my time.

[00:09:59] Speaker 02:
Okay.

[00:09:59] Speaker 02:
Thank you.

[00:10:09] Speaker 01:
May it please the court to sit our judge for the United States.

[00:10:12] Speaker 01:
This case involves the application of long-standing circuit precedent to an ongoing traffic violation and the factual findings that generates the reasonable suspicion are entitled to review on a clear error standard.

[00:10:27] Speaker 01:
The district court got it right.

[00:10:28] Speaker 01:
The district court bifurcated the stop.

[00:10:31] Speaker 04:
Well, why was the district court, why are we in a better, not in as good a position as the district court to evaluate this record?

[00:10:39] Speaker 01:
Well, Your Honor, one answer is that this is what district courts do, right?

[00:10:43] Speaker 01:
They get declarations, they can hold hearings, they can do all this stuff.

[00:10:46] Speaker 01:
And I think this goes to the question of whether an evidentiary hearing was necessary in this case.

[00:10:51] Speaker 01:
And to that point, you had two declarations that said that the driver of the vehicle is unknown.

[00:10:57] Speaker 01:
You had a video that supported that based on the first question that was asked was, you know, whose car is this?

[00:11:04] Speaker 01:
This was actually never an issue raised in the papers, whether Detective Euler knew the driver of the vehicle.

[00:11:11] Speaker 01:
That was not a question.

[00:11:12] Speaker 01:
The argument was that the government was going to say that the driver was actually Mr. Torres.

[00:11:17] Speaker 01:
All the facts said Euler didn't know it, Detective Short didn't know it, and the video made clear that they didn't know it.

[00:11:23] Speaker 01:
So these sort of credibility determinations can be made based on the declaration.

[00:11:26] Speaker 00:
But she didn't make a credibility determination.

[00:11:29] Speaker 00:
She just had declarations.

[00:11:30] Speaker 00:
She never evaluated the credibility.

[00:11:34] Speaker 00:
for the record, she did not include anything that from Shorter's declaration in her basis for probable cause.

[00:11:44] Speaker 00:
So what we have to review is what she gave as probable cause.

[00:11:54] Speaker 00:
And I'm just wondering like where's the line?

[00:11:59] Speaker 00:
Like how far do you get away, have to get away from,

[00:12:04] Speaker 00:
the illegally parked vehicle before there's no more reasonable suspicion to stop somebody just because they're an apparent passenger.

[00:12:20] Speaker 01:
Your Honor, I think in this case, that line

[00:12:23] Speaker 01:
Whatever that line is, it's hard to draw here because you had an ongoing parking violation with the doors of the vehicle open, and they were pretty close to the vehicle.

[00:12:30] Speaker 00:
From the pictures, I've seen the door of the vehicle was open, but Annabel, is that her name?

[00:12:37] Speaker 01:
Annabel Vargas, yes.

[00:12:38] Speaker 00:
Annabel was in the driver's seat getting out when the door was open.

[00:12:44] Speaker 00:
She's like right there.

[00:12:47] Speaker 00:
The person who's responsible for illegally parking is standing right in front of you.

[00:12:52] Speaker 00:
Why are you asking other people to stop?

[00:12:57] Speaker 00:
What's the reasonable suspicion to ask the people who are crossing the street to stop?

[00:13:04] Speaker 01:
Well, the reason suspicion there is that you don't know who the driver is, right?

[00:13:07] Speaker 01:
You had two declarations that match that.

[00:13:09] Speaker 01:
Annabel is standing right next to the door, Your Honor, but the door is open.

[00:13:13] Speaker 01:
The car's parked illegally.

[00:13:15] Speaker 01:
Mr. Torres immediately begins walking away as Oz officer approached, which would add to the potential that he is a driver.

[00:13:22] Speaker 00:
But what's he suspected of?

[00:13:25] Speaker 01:
Illegally parking the vehicle.

[00:13:27] Speaker 00:
But he was clearly not in the driver's seat.

[00:13:31] Speaker 01:
Because the vehicles parked and Annabel was outside the car.

[00:13:34] Speaker 00:
She was getting out.

[00:13:36] Speaker 00:
She's like in the front in the front door It's still unknown who had parked the vehicle who is still unknown who the driver was that is not a fact that has been Contested in terms of detective maybe that's why there should have been an evidentiary hearing well in terms of an evidentiary hearing when you test the credibility of the officers because this district court judge did not use a

[00:14:00] Speaker 00:
the collective knowledge doctrine at all to incorporate shorter's knowledge into the analysis of reasonable suspicion.

[00:14:12] Speaker 00:
So we just have to go.

[00:14:15] Speaker 00:
Does that matter?

[00:14:15] Speaker 00:
Can I finish my question?

[00:14:17] Speaker 00:
Sure.

[00:14:18] Speaker 00:
I mean, yesterday you did this to me too.

[00:14:20] Speaker 00:
I don't understand it.

[00:14:22] Speaker 00:
So it seems like you have to go to shorter's

[00:14:28] Speaker 00:
declaration to fill in some of these facts, but the district court judge did not do that in her decision making.

[00:14:36] Speaker 01:
I think the government's position is that the district court didn't have to do that.

[00:14:40] Speaker 01:
Looking to Detective Short's declaration, if this court on de novo review of the initial stop or the reasonable suspicion in district court first wants to do that, you know, that's something the government has briefed as well.

[00:14:50] Speaker 01:
There's additional factors there.

[00:14:52] Speaker 01:
that would play into why an investigatory frisk was appropriate.

[00:14:56] Speaker 01:
But I think the initial stop is justified by that traffic violation.

[00:15:00] Speaker 01:
It's not a complete erroneous finding a fact that Mr. Torres couldn't have been the driver, especially considering that Detective Euler didn't know who the driver was.

[00:15:10] Speaker 01:
Detective Short didn't know who the driver was.

[00:15:12] Speaker 01:
And the first question that was asked was, whose vehicle is this?

[00:15:16] Speaker 01:
So it is clear from the record that that was an open question.

[00:15:20] Speaker 01:
And that's what the district court said,

[00:15:22] Speaker 01:
look, you could investigate this.

[00:15:24] Speaker 01:
In terms of the evidentiary hearing, I do want to point out in the moving papers, these had to be specifically identified, it was never contested whether Detective Euler knew who the driver was.

[00:15:34] Speaker 01:
This is an argument for the first time that's raised on appeal.

[00:15:37] Speaker 01:
And to reverse on abuse of discretion standard for that position, I think, goes against what the standard is.

[00:15:44] Speaker 01:
This is, you know.

[00:15:45] Speaker 00:
Wait.

[00:15:45] Speaker 00:
This is an abuse of discretion.

[00:15:47] Speaker 01:
For the evidentiary hearing, Your Honor.

[00:15:48] Speaker 01:
Apologies.

[00:15:49] Speaker 00:
Oh, OK.

[00:15:50] Speaker 01:
Yeah.

[00:15:50] Speaker 01:
And going to credibility, yes, there was no cross-examination, but, you know, you can imagine what that cross-examination would look like of Detective Euler.

[00:16:01] Speaker 01:
Did you know who the driver was?

[00:16:02] Speaker 01:
No, that was in my declaration.

[00:16:04] Speaker 01:
By the way, there's Detective Schwartz's declaration.

[00:16:06] Speaker 01:
By the way, my first question was, who owns this vehicle?

[00:16:09] Speaker 01:
So there's no competing factual dispute there, and it's only on appeal that that's been raised.

[00:16:16] Speaker 03:
Can I, I'm sorry, can I ask you?

[00:16:17] Speaker 01:
Sure.

[00:16:18] Speaker 03:
In the district court, you asserted collective knowledge, is that correct?

[00:16:22] Speaker 01:
That's correct, Your Honor.

[00:16:22] Speaker 03:
And you asserted it again here on appeal?

[00:16:24] Speaker 01:
That's right, Your Honor.

[00:16:25] Speaker 03:
And our long-standing circuit precedent is that we can affirm on any basis in the record?

[00:16:32] Speaker 01:
That's correct, Your Honor.

[00:16:33] Speaker 03:
And I reread the defendant's briefing again last night to see if I could discern their position on this issue.

[00:16:42] Speaker 03:
And what I understood them to argue is that the collective knowledge wasn't sufficient, but not that collective knowledge was not a doctrine that exists and that is applied in our case law.

[00:16:55] Speaker 01:
Yes, your honor.

[00:16:56] Speaker 01:
I think one of the arguments, maybe the lower court on appeal, was that there wasn't a particular order from Detective Short that justified the application of collective knowledge, but never that the collective knowledge doctrine is not a thing.

[00:17:10] Speaker 04:
Well, what is a red zone?

[00:17:12] Speaker 04:
What does that mean?

[00:17:13] Speaker 01:
It is, from my understanding, and I recently got a parking ticket in a red zone, is that it's a zone you just can't park in for whatever reason.

[00:17:21] Speaker 01:
Maybe an emergency loading zone.

[00:17:23] Speaker 01:
It could be a zone that at certain times of day, you know, law enforcement has to park in.

[00:17:28] Speaker 01:
It's just a zone you cannot park in.

[00:17:30] Speaker 01:
And I think the fact that that's like a bread and butter public safety thing.

[00:17:34] Speaker 01:
It's an ongoing traffic violation, and that's how I understand it.

[00:17:37] Speaker 04:
Yeah, that kind of makes a difference here, doesn't it?

[00:17:39] Speaker 04:
If this were just a parking meter,

[00:17:42] Speaker 04:
and they were leaving the car with an expired parking meter, we wouldn't be here, I guess.

[00:17:47] Speaker 01:
I think it's a huge difference.

[00:17:48] Speaker 01:
I think the goal of officers in that situation, as I myself experienced, is to get the car to move.

[00:17:54] Speaker 01:
It's in a zone it shouldn't be parked in.

[00:17:57] Speaker 00:
You're admitting you parked in a red zone, intentionally?

[00:18:02] Speaker 01:
By accident, because it became one later.

[00:18:04] Speaker 01:
Oh, it became one later.

[00:18:07] Speaker 04:
OK.

[00:18:07] Speaker 04:
Thank you.

[00:18:10] Speaker 04:
How would your argument differ

[00:18:12] Speaker 04:
if they were still in the car.

[00:18:15] Speaker 01:
I think it would be different.

[00:18:18] Speaker 01:
I think that the factual finding that Detective Euler didn't know who the driver was had the opportunity to investigate that makes this a different case.

[00:18:31] Speaker 01:
That is a strong circumstances justifies the initial stop.

[00:18:34] Speaker 01:
I think you'd really have to lean on that collective knowledge doctrine To justify stopping the vehicle, but then it gets a little fuzzier.

[00:18:42] Speaker 01:
You know just because of gang affiliation Just because of that fact leaving the party.

[00:18:47] Speaker 00:
I'm not sure you would have the same basis So what was the knowledge that shorter had that you're incorporating?

[00:18:55] Speaker 00:
by via the collective knowledge doctrine and

[00:18:58] Speaker 01:
Detective Shorts knowledge which again I think this could be a firm without the collective knowledge doctrine, but Detective Shorts knowledge was knowledge of Mr. Torres' background.

[00:19:07] Speaker 01:
He knew that Mr. Torres was a member of the Logan Heights gang.

[00:19:10] Speaker 01:
He knew about Mr. Torres' criminal history from arrests.

[00:19:13] Speaker 00:
And how did he know it was Torres in the car?

[00:19:17] Speaker 01:
He made an inference based on the direction that Torres was walking in his build that the individual that got in the car was actually Torres.

[00:19:27] Speaker 01:
He did not know whether Torres was driving either.

[00:19:29] Speaker 01:
But that's the inference that he made.

[00:19:33] Speaker 04:
So they were all out of the car and the car was in a red zone.

[00:19:39] Speaker 04:
And they were apparently leaving the car.

[00:19:42] Speaker 01:
They were all out of the car.

[00:19:43] Speaker 01:
The cars parked in the red zone.

[00:19:44] Speaker 01:
Yes.

[00:19:45] Speaker 00:
So this is why I think this is important, is what I really have to go back to.

[00:19:51] Speaker 00:
What's the limiting principle?

[00:19:53] Speaker 00:
Is it because, and where do you draw the line on people who are out of the car?

[00:20:01] Speaker 01:
I would draw the line if Mr. Torres was across the street, had not moved away instantly, had not had an association,

[00:20:08] Speaker 01:
with Mr. Jaime Diaz based on the gang identification that Detective Euler had experience and training to recognize.

[00:20:15] Speaker 01:
I think you could draw so many lines there.

[00:20:17] Speaker 00:
It's just hard to- What's the line?

[00:20:20] Speaker 00:
If we go your way on this case, what's the limiting principle?

[00:20:25] Speaker 01:
The limiting principles, if you don't have the robust factors here, kind of like the Navarro case, there's another case that Judge Schroeder, you were on, Luckett, that had similar overlapping factors.

[00:20:37] Speaker 01:
If you don't have these

[00:20:39] Speaker 01:
robust factors, you can draw the line.

[00:20:42] Speaker 01:
If they pull up and, you know, Mr. Torres is across the street, right, is not moving, has no association with the passengers who are, or the individuals who could be drivers, but outside the vehicle, then you can draw that line.

[00:20:55] Speaker 01:
That line here is pretty obvious.

[00:20:57] Speaker 04:
It's the association with the car.

[00:20:58] Speaker 01:
The association with the car, yeah.

[00:20:59] Speaker 04:
It's unlawfully parked in a zone that it's not, where they're not supposed to park.

[00:21:04] Speaker 01:
And if it's immediately moving away from that, that's... Leaving the car.

[00:21:07] Speaker 04:
So in a sense, it would be

[00:21:09] Speaker 04:
It would be a weaker case for you if they tried to frisk somebody who was still in the car.

[00:21:16] Speaker 01:
I think so.

[00:21:17] Speaker 01:
I think based on some of these factors, yes.

[00:21:23] Speaker 01:
OK.

[00:21:23] Speaker 01:
Court has any further questions?

[00:21:27] Speaker 00:
I don't think so.

[00:21:28] Speaker 00:
Thank you.

[00:21:35] Speaker 02:
I'd like to go to this idea of what's the limiting principle because that seems to be at the heart of this case.

[00:21:40] Speaker 02:
And I'd like to go back to both the Supreme Court's decision in Willis and this court's case law which says that drivers have a liberty interest and you have to weigh that against the public safety or the public interest.

[00:21:52] Speaker 02:
Then it says that passengers have a greater liberty interest than the driver because they're all not generally going to be associated with whatever the driver did wrong.

[00:22:01] Speaker 02:
I think that this court should hold that passengers who are not in the car have an even greater liberty interest.

[00:22:08] Speaker 02:
I'm sorry, pedestrians who have already left the car have an even greater liberty interest than the passenger because here, for instance, they're already on their way to their destination.

[00:22:18] Speaker 02:
So there should be an even greater weighing of the personal liberty interest at stake for a person who is not in the car at the time that the stop occurred.

[00:22:29] Speaker 02:
So if they were still in the car?

[00:22:32] Speaker 02:
If they were still in the car, I think we would be in a weaker position.

[00:22:35] Speaker 02:
Williams would probably apply because that's where this court said that if someone is in the car at the time it stopped and then they get out, you can order them to get back in the car.

[00:22:45] Speaker 02:
But here, we don't have that.

[00:22:46] Speaker 02:
We have a situation where the stop did not occur.

[00:22:49] Speaker 02:
until after Mr. Torres was halfway across the street.

[00:22:52] Speaker 02:
And unless there is a limiting principle, you're going to have a situation where how far away can they get when cops stop them?

[00:23:00] Speaker 02:
Can they be down the block?

[00:23:01] Speaker 02:
Can they be mile away?

[00:23:02] Speaker 02:
Those are the types of situations that this court should use to hold that the passenger has to still be in the car.

[00:23:10] Speaker 03:
Does it matter that they, it appears from this video, they were in the car?

[00:23:16] Speaker 03:
Do you agree it appears they were at least passengers in the car?

[00:23:19] Speaker 02:
I agree there were passengers in the car, not at the time of the stop.

[00:23:22] Speaker 03:
So what we see from the body cam is what the officers are seeing as they approach.

[00:23:27] Speaker 03:
The doors open, the young woman and another gentleman are standing right there, and Mr. Torres is walking a few feet away.

[00:23:37] Speaker 03:
So they say, whose car is this?

[00:23:39] Speaker 03:
Is it yours?

[00:23:40] Speaker 03:
Is it yours?

[00:23:41] Speaker 03:
And you're saying from that they're too far away, they can't ask whose car is this?

[00:23:48] Speaker 02:
I think that he is too far away, but let's say that there was even reasonable suspicion to ask whose car it was.

[00:23:57] Speaker 02:
At the moment that the cops see she is standing right in the doorway, they ask, whose car is this?

[00:24:04] Speaker 02:
Everyone says, it's hers.

[00:24:05] Speaker 02:
She says, I'm going to move it.

[00:24:07] Speaker 02:
There was no basis to pursue the stop asking Mrs. Torres.

[00:24:10] Speaker 03:
So they have to, in your view, accept her statement.

[00:24:14] Speaker 03:
They have to accept what the people are saying.

[00:24:16] Speaker 03:
They can't investigate.

[00:24:17] Speaker 02:
I think that's another question that is subject to an evidentiary hearing.

[00:24:23] Speaker 02:
Did the cops reasonably believe that anyone else was the driver besides her?

[00:24:27] Speaker 02:
And that's the kind of thing that should be subject to a credibility determination and cross-examination.

[00:24:32] Speaker 02:
So I think the government is asking or basically saying, well, nobody contested.

[00:24:38] Speaker 02:
It's never been contested that Officer Euler didn't know.

[00:24:41] Speaker 02:
But Officer Euler is a witness like any others.

[00:24:44] Speaker 02:
And that witness, before their declarations and their statements should just be accepted wholeheartedly, they need to be subject to cross-examination.

[00:24:52] Speaker 02:
they should be subject to credibility determinations, and we can't just take it at will.

[00:24:57] Speaker 03:
What do we do with the video?

[00:24:59] Speaker 03:
Because aside from declarations, there's video from two angles, and there's audio on it as well.

[00:25:07] Speaker 03:
So the district court seemed to conclude that based on the video, there were no disputed facts that would require a hearing for her to suss out, you know, who do I believe in this?

[00:25:19] Speaker 02:
At a minimum, there were disputed facts as to not only did he reasonably believe that the driver was Annabelle versus one of the other two.

[00:25:28] Speaker 02:
there were disputed facts as to the nature of Chicano Park Day, whether it was a gang holiday, whether his clothes were baggy, whether they could see his hands.

[00:25:36] Speaker 03:
So clothes, baggy, you can see his hands.

[00:25:39] Speaker 03:
That's all in video.

[00:25:41] Speaker 03:
And the nature of Chicano Park Day, the district court didn't rely on that.

[00:25:45] Speaker 03:
But what does it matter in those moments when they're trying to do an investigatory stop?

[00:25:50] Speaker 02:
The district court did rely on it.

[00:25:51] Speaker 02:
So I'm looking at ER 7, and the very first

[00:25:54] Speaker 02:
Factor that the district court cites is it says on that day you thought detective Euler was assigned to the gang suppression Suppression team he had worked on this day for the last ten years and has witnessed large gang Gatherings where many gang members are armed with weapons on that day, right?

[00:26:09] Speaker 03:
So she's relying on his

[00:26:13] Speaker 03:
experience in his affidavit, his declaration about this is what he's experienced, which is not to say this is a gang holiday.

[00:26:18] Speaker 03:
He's saying, I've worked at this on this occasion for a number of years, and this is what I've encountered.

[00:26:24] Speaker 03:
Which is not disputed.

[00:26:26] Speaker 03:
I mean, who is going to, are you going to present testimony to dispute or cross-examine him as to whether he's actually worked on this for 10 years and had this experience?

[00:26:36] Speaker 02:
Well, I think the district court relied on his characterizations of Chicano Park Day.

[00:26:41] Speaker 02:
And I think it was just as credible for us to say, here's an expert that says that actually Chicano Park Day is a gang truce day, and so there's not violent things that happen there.

[00:26:51] Speaker 02:
In fact, in the last three years, there haven't been any arrests in Chicano Park Day.

[00:26:56] Speaker 02:
We can't just have the district court accept his experience without being able to counter it with our own evidence.

[00:27:03] Speaker 02:
That's exactly what the district court did, and it was not the correct thing to do.

[00:27:07] Speaker 03:
Can I ask you about the collective knowledge doctrine?

[00:27:10] Speaker 03:
So the government raised it before the district court.

[00:27:15] Speaker 03:
The district court didn't rely on it.

[00:27:17] Speaker 03:
They raised it here on appeal.

[00:27:18] Speaker 03:
Your brief touches on it, it seemed to me you were arguing that even if you considered collective knowledge, it wasn't sufficient, but that you were not disputing that it is in fact a doctrine of law that applies in our circuit.

[00:27:30] Speaker 02:
We don't dispute it's a doctrine of law, but it doesn't matter here for two reasons.

[00:27:34] Speaker 02:
First of all,

[00:27:36] Speaker 02:
Detective Short lost sight of Mr. Torres.

[00:27:40] Speaker 02:
All he said was that he saw someone with a similar height and build get into a car on a day when there's tens of thousands of people milling around the streets.

[00:27:48] Speaker 02:
And then even if you assume that it was Mr. Torres and Detective Short did have that knowledge, all that knowledge went to was his prior criminal history and his alleged gang membership, which didn't have anything to do with the stop.

[00:28:01] Speaker 02:
It only had anything to do with the frisk.

[00:28:03] Speaker 02:
So at most,

[00:28:04] Speaker 02:
It said, well, he was a dangerous person you could frisk, but that wouldn't go towards whether there was reasonable suspicion.

[00:28:13] Speaker 04:
I would totally agree with you if they stopped the car while it was driving along on the basis of some kind of apparent gang activity with a hat and everything.

[00:28:25] Speaker 04:
But that isn't what happened.

[00:28:26] Speaker 04:
He wasn't stopped until he was leaving a car that was parked in a red zone.

[00:28:32] Speaker 04:
And that's what the district court

[00:28:34] Speaker 04:
I thought was relying on.

[00:28:37] Speaker 02:
I agree.

[00:28:39] Speaker 02:
I think the district court did rely on the unlawful parking.

[00:28:42] Speaker 02:
But there was no question.

[00:28:44] Speaker 04:
Because that's what was being investigated.

[00:28:46] Speaker 02:
Right.

[00:28:47] Speaker 02:
There was no question that Annabel was the driver and the owner.

[00:28:50] Speaker 02:
Even if there was a question, it was quickly dispelled.

[00:28:54] Speaker 02:
And for either reason, there was no basis to either stop Mr. Torres initially or to continue to detain him once it became clear that he was not the driver.

[00:29:04] Speaker 00:
I have one question for you.

[00:29:06] Speaker 00:
What is the practical consequence of if this fourth conviction, the evidence were suppressed and this fourth conviction didn't stand to your client?

[00:29:18] Speaker 02:
So essentially, I think what would happen is if this were suppressed, this would go back.

[00:29:26] Speaker 02:
The government could charge Mr. Torres again for the previous charges against him.

[00:29:32] Speaker 02:
I think a lot of the evidence in those cases is probably stale.

[00:29:36] Speaker 02:
I don't know whether they would be able to pursue it or not.

[00:29:39] Speaker 02:
But that's a question that we would deal with on remand.

[00:29:42] Speaker 02:
I don't necessarily think it's something that should control the outcome of the suppression.

[00:29:46] Speaker 00:
Oh, no.

[00:29:46] Speaker 00:
I'm just curious.

[00:29:47] Speaker 02:
Yeah, I think we'd go back and we'd try to figure out whether it's something that they can go forward with on the other charges.

[00:29:56] Speaker 00:
Okay.

[00:29:58] Speaker 00:
Any other questions?

[00:30:00] Speaker 00:
Okay.

[00:30:01] Speaker 00:
All right.

[00:30:01] Speaker 00:
Thank you, Your Honor.

[00:30:02] Speaker 00:
Okay.

[00:30:03] Speaker 00:
U.S.

[00:30:03] Speaker 00:
v. Torres is submitted and the session of the court is adjourned for today.