at that point i think the basis for the stuff is now as important as the fact that he was in custody because they were paid he's going to walk away and they didn't want to go away there he waits in the back of that patrol car over the past twenty four hours while he stood next to patrol car under close supervision he was told that his name come up in an investigation and then a witness was on his way to come by a witness one on one identification now  him you say that doesn't make any difference but it seems to me that makes all the difference they can arrest him on the basis of probable cause a reasonable person would have done exactly what she did which is still feel compelled to stay there into the police stopped their questioning and that's exactly what's going on here she is a criminal to aspect and he is not you know a person i police officers have given him his miranda rights they could've given him when they sat him in the car they could have given it to him when they started interrogating him after they got him out of the car and i asked him they immediately started interrogating him about his whereabouts over the past twenty four hours and that particular situation he was still stuck pretty from his girlfriend he was close to the patrol car by the officers meaning you know they're sort of enclosed around him  the past twenty four hours to see if they can put together a map of where he's been and how it matches her what you think so that was interrogation and then the real punch comes after she had been there for two hours at least around six pm he was stopped work when they asked him is there anything of interest in your apartment you know that you has some personal use amounts of methamphetamine we're not interested in that do you have any guns in your apartment now that there's the government argue that there's three consent the first two are verbal one right after the gun statement the second one right after he makes a really incriminating statement about the guns are in the apartment those are both verbal at none during one of those was he actually informed that his right to refuse consent which is an important factor in that only comes later when he signed it when it's on the consent form by that time it's sort of late i mean the cat's already out of the bag he's already at the apartment sitting in now the butler opinion from two thousand and one in which this court noted that the case books are full of scenarios in which a person is detained by law enforcement officers but is not in custody for miranda purposes i would submit that that is the case here again today also in the campaign and there's another quote just actually a quote of a supreme court opinion but the chemical in from two thousand and two from this court in which this court said quote a situation is not horse of simply by virtue of the fact that the police officer is part of the law enforcement system which may ultimately cause a suspect  ultimately put into a holding cell and then interrogated here there was no interrogation that was the border search right that's correct the begins there's also a big difference between being interrogated while you're in class and being asked the question he had been stopped for having unregistered or expired license plate so it was a traffic stop in which they were doing a record check in the meantime i what you're saying is that at the time i don't care if they were saying well because you are using i think what i understood you to say was that when he's taken after the car if he had been in custody he was clearly not in custody at that point when they released him  the statements that issue before the court were made while he was in custody is that first of all those statements were made not while he was in when he was not in custody and secondly that they were not made in response to any interrogation like my wrong so orth and fifth amendment right but i read the transcript trying to figure out i did too and just your wealth and with i'm quite sure it's only like this is my understanding was that yes and from what i read it appeared to be something like what you give it to us in writing and you don't have to but i honestly don't know i will try to be brief it's picking up on that last point the government actually conceded in its answering brief before this court that he was told and usually by gesture that he had the right to refuse  consent and then only later told in writing you know when he that the when he actually is tiny in the content form so that testimony is very unclear from the time from the evidence you hearing it appears that it was only a gesture in the apartment and that's one reason why you know sort of putting the ten circuits approach in patting aside i think it's so essential to view this five hour detention as one sort of one big thing and two and a half hours into that is when he's asked about guns and three hours finding the consent form after he's already been questioned admitted that he has guns in his apartment and  asks you know sort of this little dance about we've got to go search so by the time i think it's in that written consent form i mean it's too far down the line they've already got him exactly where he wants where they want him to me and with respect to the miranda violation and it's really critical i think that this that the tag that sort of tag approach with the interrogation and then the content along with all of the other factors in the totality of this they go together so it's not just the statement i asked why he free to go after you told him that he was not under arrest she has hesitated and dead and that this she wouldn't have run after him because there was traffic they still would have they would have felt that they were not free to go that they were in custody but more importantly that miranda now says he'd get into the whole picture where the initial story of course comes in it's definitely a factor and it doesn't matter if there's interruptions because it's that