base thirteen dash one five six six usa versus thomas wooden oral argument not to exceed fifteen minutes per side and mr mannering the officers arrived around six am he was questioned as the house was being searched it was a thumb drive found behind a dresser and as that room that contained incriminating evidence he was questioned about that how he came to download the images of child pornography that were found on the film drive and also on a computer inside the residence but let me just ask you counsel you're now  presenting his side of the dispute i gather yes the the f b i report doesn't indicate that he talked about how he downloaded and all of that tell he got to the f b i office and i write about that i believe there was discussion in the car at the scene when he was questioned about the contents of the disk and how he my recollection any way from the suppression hearing transcript is that those are the facts that he was questioned about the contents of the flash drive on the scene ok so essentially the confession that mr wooten gave at the station house post miranda essentially mirrors the confession that he gave to the officers without the benefits of miranda at the scene of his arrest we'll lose that argument if you're in correct on that on your earlier when i don't i don't think so i don't think so because he was questioned generally about the contents of the thumb drive and there was a more detailed statement given at the station house is my record i would if there were no questions were guarding the thumb drive at the earlier unwind interrogation would that alter your argument i don't think so because there was trace evidence found on the computer and i'm sorry as far as the timing of the finding of the evidence on the computer but i believe that there was an on scene forensic tool kit performed i'm not clear on that i so but i don't think so if you can if i'm wrong on that i don't think so because essentially if you just take that piece of information out of the statement at the scene and the statement at the station house are essentially sitting on he's already confessed to the police he admits to being in possession of child pornography and  that you know there really is no difference between the questioning at the station house versus the on scene questioning according to the testimony of deuced of the suppression here and that's what that's what we were stuck with far as the transcript the evidence that was received in court first factors the completeness of detail involved in the first round of questioning again there's very little that was substantively different on post miranda well let me just say that the siebert and i assume siebert is basically where you're coming from on this siebert talks about a confession being made during the first discussion it's held twenty officers in the defendant it seems to me it's strange that say that what happened in the car was a confession only to the extent that i mean again i need to become more familiar with the with what rebutted by the government oh well that's not the point i'm trying to make the point i'm trying to make is he had been he had been asked about some things while he was in that car and i gather unable to leave and  and he answered their questions and then the question that there are two questions really that i that i'm concerned about one is was is there any way to say that that was a confession in the same sense that that what happened in siebert was a confession number one and number two where is the evidence of deliberateness where is there any indication that the f b i sect this up so that he would be that his will to  resist their interrogation later on would be overcome there was no subterfuge on behalf of the agents there wasn't a deliberate process like in sleeper and it wasn't  nobody tried to subvert mr lopez's rights and i think that the facts in lopez are much less egregious than the facts of this case where they were i think two or three questions i asked when did you get here how did you get here and where did you come from well and lopez and did you have the contraband with you when you arrived ok and then it stops and then he's mirandized and then he and the the problem is here's the problem and maybe we're inching over into the whole question of harm was there they were going to prove pretty much that your client had possession of that pornography even if they never talked to him at all it was in the house the other person in the house did not having any responsibility for it it was the computer he was using etc etc etc that is sharply distinctive from the situation in lopez where they needed to prove that he really had some connection with that contraband and and his confession was key they are not just cumulative evidence but i don't know how easy a job the government would have had proving their i mean my recollection is the statement in the car in the stable at the station house were really similar there was more detail going into at the station house all right let me can accept what he did let's talk a minute about the deliberateness there's this there's this rule that we're supposed to take out of a constitutional opinion by the supreme court the most narrow rule that we can come out of which is justice kennedy and if you're conceding that there was no deliberate as here where does that leave us  there well when i when i read lopez it appeared to me as if this court didn't consider justice kennedy's concurring opinion and siebert as controlling there was discussion about how other courts have also grappled with whether it was the plurality opinion itself befor applies i think that that's what it comes down to my reading of lopez suggests that and so if you know you look at the facts of lopez and you look at the facts of this case there was much more evidence but information taken f car followed by an equally lengthy discussion at the station house the cats already out of the bag and with the quick score talk about lopez what does the defendant to think once they've already given a full confession and then all of a sudden you're presented with miranda it that this court suggested lopez that a defendant in that situation would be confused and wondering why am i now hearing this and there were no efforts made by the agents in this case as in lopez take from your above your about three minutes for a bottle ok so that would be two minutes i believe it would be two minutes can you put the river green light off for two minutes please of the completeness of the detail involved in the first round of questioning that's the first of the five prong test of lopez it was a pretty detailed confession overlapping content number two again it was almost entirely overlapping this timing in setting of the interrogation one is that his residence there's a brief twenty minute car drive from the residence the station the actors are the same the officers are the same the questioners are the same so that goes to factor number four as well the continuity of police personnel during the interrogations and five the last factor there's not a lot of evidence in the record on this i make mention of it in my brief do really wasn't anything developed as far as how they treat the first round as continuous or the second noun is continuous to the first so anyway it's all briefed it's in there and i saw the court request of the timeline i glad they did i think that this helps with spoilers how long he was at the state how long  to the station house from the scene and then what transpired he was given coffee an opportunity use the bathroom and the right went right back into the statement from  good afternoon may please the court house a job on behalf of the united states i think if you look at the facts and if you go back and look at the transcript from the suppression hearing what counsel just indicated to you is quite different from what the record  reflects if you look specifically i know to start or you indicated you would go back and take a look at the record the agents testified and this is coming from the transcript of pages page id's two eighty two eighty four and one hundred eighteen to quote introductory questions including who was living at the house computer who had computer access who had laptops that was the same those are the same preliminary questions that they asked of the roomie so when the agents arrived at the scene but didn't i asking to identify the they did a different investigations one where there's an undercover agent that downloads photographs another from an e mail that comes from the same inner internet protocol address from the home that sends out in this e mail sends out pictures  and one of those that that they used was the picture of his of his daughter that they asked me to identify in the bathtub picture or a word of the other one come from do we know that one where she is completely dressed correct there are  when they appear at the at the home the defendants there as well as a roommate and a minor the minor daughter of the roommate and so they separate both adults they keep the female roommate in the home because her daughter was sleeping they point we were not contesting that my argument specifically though in terms of what counsel indicated if you look at well let me let me just stop you just a minute you know preliminary matters are fine is this your house  and how long have you lived here how many is it is this do you have a computer that you're using so far we haven't gotten to anything incriminating really but then when you pop up with a picture you've gotten off the internet and say is this your daughter and he says yes it is and it's somehow been attached to his something that apparently comes from his from his address  i'm concerned about is most of the f b i agents i've known or heard about have been highly trained i mean other than a deliberate effort to do what the defendant says they did what was the excuse for not giving him a miranda warning immediately well initially it at the scene he indicated he was just being detained now when they arrive at the scene they all they know is that an internet protocol address which is basically you know where you're getting internet from that home that from that address there have been picture sent that are of a top or a graphic nature they don't know who he sent them it could be anyone in the home it could be a visitor that you know that's at the home so it's not quite that inculpatory in the sense that they know just ideal or just identifying the individual doesn't mean and they didn't get that information all he did was identify her he didn't say i was the one the sen but it is my daughter is what he said right correct and that was part of what they were trying to figure out as well as to identify that individual and what's important to know counsel indicates that there are all these things that were not rebutted by the government at the suppression hearing when this motion was originally filed it was a motion to suppress based on a coercion argument and so we had a full hearing and it was at the end of that hearing that counsel trial counsel indicated will just there's i think another issue that i that i want to address that i want to brief for the court and that is this this miranda in the middle are at issue and so then after the hearing we had already briefed the initial issue after the hearing the court asked for additional supplemental briefing and so to say that it was an rebutted i think distorts the facts and i think there was obviously sufficient facts in the record allowed the district court to make a finding and specifically in terms of the findings that the district court made as to some of your questions she did find that they were the understood that she didn't make a finding on deliberateness she did say in terms of the taint that the taint doesn't carry over to the second statement that there was no taint and that was found at page from the record record thirty three page three forty four she indicates that she declines to characterize the two statements as one continuous statement that he made one statement at the scene and one statement at the f b i office that they were not miranda warnings given in the middle she indicates that the miranda warnings delivered at the mccomb county are a accomplish their objective the court finds notate carries over to the subsequent statement notably there was no coercion affiliated with the first statement and that's  on page three forty four and do you classify that as an actual finding on deliberateness of warning in the middle it seems to me to lack that determination and maybe it's my argument my argument is that based on everything in terms of what she did find i don't think the record you can find anything in the record that does indicate that there was any deliberate action in fact she specifically found that as it relates to the first statement in the back and at that point the first statement is not in the back of a patrol car it's in the back of the f b i agent's car that there's no coercion there was no coercion with either and that you know and that even if there was she indicated there was no there was no t irm what you found out without coercion just because you deliberately intended to do it and i would submit to you and to the court that these agents didn't do that and the facts you could not did not and if you look at the scenario at the scene the very short scenario where they're asking these questions and then the scenario later at the f b i offices they are very different so if you look at the seabird analysis in that fifth factor of how do the interrogators treat the first statement and the second statement the first statement is in the back of the patrol car at the same questions that they asked originally of the roommate the second statement after he's been arrested on an unrelated states state warrant they take him to the f b i office where he's allowed to use the restroom he does i think twice he's he's offered food coffee he's given coffee to the two times he's given miranda instructions he goes through and actually reads and waves all those signs off on that he sits down for and that in the totality of the interview was it about an hour in twenty i'm sorry an hour and twenty now actually an hour and a half where he gave a detailed confession where he gave specifics about different things producing top or not redistributing possessing all of those things where he actually wrote out a written or i'm sorry the agents were out a statement that he reviewed that he initialed every single paragraph all of that for an hour and a half completely different from the pulmonary questions for a few minutes in the back of a police vehicle so i think if you were to make that analysis and go through the factors even the factors as they list out and compare that with the facts that the agents did treat that differently the he wasn't in their minds under arrest at the scene well i i do think a reasonable person who's in the back of a patrol car or is i think skating on some things but i mean there's no way he could have thought he was free to go i'm assuming those doors were locked so that he couldn't get out and he's ha in terms of when they go out to execute a search warrant it's pretty routine obviously to detain someone and for their safety maybe to handcuff them but that doesn't necessarily mean that their safety or their safety or for you know i mean initially when he's in the back of  so right correct ok one of the things that i want to touch on that that council talked about was this thumb drive there was actually no testimony that indicated that the agents knew that that thumb drive was there when they were at the scene in fact both agents testified that they didn't find that out until they question him in the end in terms of his confession when the that he made at the f b i offices and i believe that the records indicates that they then called because they're at the i offices and called the ages that are still left at the scene executing the search warrant and told them based on what the defendant told them where it was hidden behind a dresser on the floor in a particular bedroom so the ten that the district court did credit the agents testimony on that indicated that she believed the agent's testimony and not the defendant's testimony at the hearing that he indicated this was the r thumb drive that he told them about right right at the beginning in fact he didn't make any sort of confessions really at the at at the scene he tells them about an e mail he had an e mail address and computer access and identifies his daughter compared to what he tells them later on at the f b i offices in terms of everything thumb drive that contains hundreds if not thousands of images of child pornography that he downloaded from the internet that he stored on this junk thumb drive that he had hidden including taking pictures of his own daughter that he then sent out over the internet in the hopes of trading in receiving other images for himself so he admitted to the production the distribution the receipt the possession all of these things none of which he admitting to at the scene he also tells them about the thumb drive and tells them where it is he gives is the is the court found or as the lower court found these were two separate and distinct statements one at the scene and one at the f b i offices weren't there more discussions at the initial interrogation or guarding the mother of his child and his relationship with the mother of his child i think yes i believe there were yes but now we're getting you know you're not just asking do you live here do you have an address do you have access to the internet now it's do you have a child and tell me about the child's mother oh you're fighting with your oh you got custody and this is a pretty extensive tell us about your personal life all of which relates to the child who was the subject of the photographs doesn't it and isn't that what they were following up on how frequently do you see this child you have court ordered visitation how do those not really particularly in light of the twenty minute time delay how does that not make it continuous well i think there's first of all that those questions in themselves are not a confession if there are questions about who has custody of the child where is this child and what about the mother and those kinds of things and certainly none of those things contributed to any of the the confession that there was a teen later on i don't think questioning questioning him regarding those things really relate to ultimately who was producing child pornography who was distributing it who you know all the things that related to the eventual charges so they were they might have been somewhat relevant in terms of the child and maybe identifying the child but where was going on why didn't the government raise the possibility of harmless error your honor i think we submitted our reply basically based on that we don't feel that the argument that the defendant m is fulfilled here and based on the record and based on never hurts to say but even if it is the errors harmless i mean what are we supposed to do about the fact that you didn't raise it well you know and i think if you look at th cat was out the bad i want to point the court to the part of the record upon which i relied in my arguments and those become an issue its record item number thirty two page id's number one fifty four through three thirty five and page i d to go to line seventeen through twenty that is what happened at the scene of the where he was taken into custody and at the station house of course the statement at the station house takes a lot longer to get there's two agents and all questions are being asked clarifications are being made and it's being written down they're being very careful in meticulous to make sure they can  information that they can get from mr wood in that state so they've already got a preview of everything at the scene and that preview sets the stage for what they're going to go after when they get to the station house and we're not arguing that the agents were deliberate in trying to subterfuge miranda we're not making that argument which it was a mistake but the question is once the mistake was discovered did the administration of the miranda warnings operate effectively to protect the safeguards and would you say under the facts of this case we submit that it does not it that the first statement was merely a prelude to the second the cat's out of the bag all of the information that he gave in the first statement incorporated into the second statement and a lot more detail is gone into  if you look at lopez and you look at the questions that were asked of mr lopez and you look at look at the questions that were asked of mr wood they're much more involved with in mr wooten circumstance for questions