telling him he would appear before a magistrate court the next day and that he would be appointed an attorney at that time those warnings were ambiguous because they negate the inference that mr and i had that he had the right to have counsel who was appointed words he told them he agreed with the amount was at the border yes or no he did not i don't think he agreed with the agent at the border whatsoever when he came to the he told me if you're not to search the call now he did not object to the search of the car but otherwise everything else was fine the car did not smell of marijuana in fact mr nigh added that if occasion and car registration enhanced prepared to provide to the officer the car belonged to his mother he had all the proper instruction documents the car wasn't out of sorts with  foster san juan cruz particularly foster where this court went quite far saying that it was a harmless error to have made statements in a board a bus case where the car smelled the fabric softener which the court noted was commonly anything about the drugs that was in the tire well his mother didn't send him he went to mexico he indicated the primary he was going to mexico to visit a grandmother and then during interrogation he made statements that he got to mexico also to work a roofing job while he was down there the statements aren't necessarily inconsistent and the government in its closing argument in this case sees primarily it's not entirely on the inconsistency or what the government believed was inconsistent statements in this case are going out and the government specifically argued to the jury that people who are not smuggling contraband have no reason to be inconsistent so they shake these statements not into statements that were different but that were apparently inconsistent and i don't think they're inconsistent but i think what this court has to do in the terminal whether or not this harmless error is determining in the absence of those statements whether the other evidence would be sufficient for the jury to find the under reasonable doubt guilt and the government there's the burden in proving that i don't think they can sustain that burden absent the statements that were elicited by the agent there is no direct evidence even with those statements there's no direct evidence of knowledge in this case and that's the problem the statements that were admitted were prejudicial very prejudicial because it is runner's well aware after reviewing the transcripts this is what the government argued and according to the government the statements were quote an unexplained inconsistency that is suspicious and the government argued he must have known that the marijuana was in the car because of these inconsistent inconsistent statements skews there is not overwhelming evidence of guilt in this case and your honour's aren't precluded from reversing the conviction on this basis by any means the government cannot sustain it that he did so where's the problem well the question for your honour's isn't what that form only says the question is under case like san juan cruz in kind now it's whether the wording or combination of words whether on a preprinted form or in conjunction with the preprinted form and words uttered by the agent during a review of that form whether those as a whole clearly convey the right on the miranda to mr knight and they don't in this case the court has never said and i think cases like stand one cruiser kind of  read the form but nevertheless the ninth circuit still held in the end that there was a miranda violation in nearly reading the form where the defendant having read the form didn't vitiate any sort of error in relaying those right to the defendant in fact in addition to reading the form he told him that one one may be appointed and that was said to him is that similar to what occurred in this case while he may have been reading the form when the  a got to the part about having an attorney present and he specifically says that he in response to just last was in court he says that he advised him about going to the magistrate court the next day and getting an attorney at that time when when i read going through his miranda form and it says you know you could have an attorney present or appointed to you if you can afford one after page one hundred two and the inference that comes from that is what if you're mr and i and you're sitting there you're not sure whether or not you're going to get an appointed attorney until the next day and well he probably wasn't wasn't i mean it's unlikely going to show up with an attorney on the spot what happens you don't get question right but the issue in this case is whether or not those warnings reasonably conveyed  the belief that you can have an appointed attorney present before and during questioning with an agent never said anything about questioning i don't think there's anything in accurate in what the agent said and that's why i guess i don't understand why this fits under the case law where there is something potentially inaccurate that if somebody said you may be applying to suggest that maybe he won't be appointed here he just relating what practically happens you don't get internally sitting here there's no attorney ready to pop out of the closet to go to the next day when you show up in court so if even with the supreme court up and held the if in one language because the district the supreme court there held that as a whole the warnings properly advised the defendant as to his rights and after the explanation about when you would be given or appointed an attorney  dissipated the question about when you would get one and that there was no question of before advising the defendant in duckworth is that right he had previously been told that you can have the right to an attorney appointed to be present during any question but the to other observations made at primary starting with our two forty he had watery eyes a distinct strange stare gripping the steering wheel partly had his registration ready to go which was the inspector was unusual and at two forty five actually consistent between two stories that the government used in part with the nervousness and the commercial value of the quantity of marijuana that was found that vehicle there was a statement and response and the defendant's brief becomes i think it's that during the interview later the judge says did you tell him that during the miranda warnings or during the interview where they were talking about what happened and the witness said i said that during the interview cannot therefore after the fact will render that advise like big us that the court has pointed out the side an issue of each and every light that he said he understood before he initial and in fact more importantly after twenty minutes of an interview i don't know if the court has any more specific questions with regard to the miranda issue the government's position is that temporarily as it may clear by the record specifically two hundred the subsequent inquiries by the defendant happened after the advise all not d true but what they did know before hand she gave was that the tire was heavy and it found the practice that's correct those were that was observed in primary and secondary but i want to say for the court that the record does have indication  analysis of whether or not this tire was in fact part of the car it wasn't after the fact so the fact that it wouldn't that this car may operate differently on the two questions it may not add to the reasonable suspicion calculus because the inspector may have realized that enhanced can't claim that was part of what justified the the cutting and based on reasonable suspicion but it may yet speak to the issue of whether this is a part of the car that affects safety and so forth in terms of balancing the interests as discussed in court and i certainly could have been more clear in that aspect that is the point i was trying to get across with regard to the fourth member and also whether she had reasonable suspicion we don't concede that it's required but we do believe it was  a little much to hope under the circumstances is wrong to spend a day reading it while there is a sentencing issue here right and and you've argued that that there's there shouldn't be a sentencing issue here because the amount of marijuana is is to pilate or to you as a decision  have a decision from the supreme court today i don't know if you've had a chance to look at it do you have anything to say about this case under that decision  was i know i went over my time if i could just briefly address one minor point with regard to the miranda issue governing council argues that the testimony was clear about when t discussion occurred about going to the f c c and going to the court there are a couple problems with that one it was in the courtroom and i noted that in my arguments using the court when i made my arguments regarding the reason and the basis for the suppression and the judge's first two questions  the stand the argument that was being made and realized that maybe he did something wrong with regard to the fourth amendment issue and i didn't anticipate much argument on this given court has grown i would submit that for as months hano the supreme court decision does away was no testimony by the agent you pointed out correctly that that wasn't the reason that certainly wasn't the government's basis for arguing reasonable suspicion existed then it only appears now and i don't think it's accurate your point that the i don't think i grieve i don't think  money the agent did based on reasonable suspicion but in terms of whether the car is affected it may have been a factor in its non operative then the desire or the need to protect it may not be the same as if it were a