may please the court counsel my name's tom patton and i represent the petitioner samuel do it mr de witt supported his ineffective assistance of counsel claim with specific detailed facts which i proven would have established that he received ineffective assistance of counsel and his counsel failed to file a motion crisis statements to law enforcement and when his counsel failed to investigate other people that may have been potentially responsible for downloading child pornography from ip address at the house and because he supported his petition with detailed specific backs that if proven would entitle him to relief the district court erred by dismissing the motion officer showed up with the warrant there were five officers who were armed once they showed him the warrant he asked to speak with a lawyer but the lead detective told them that that wasn't necessary they were just going to ask some routine question the police complete control over the situation the lead detective required an order of mr de witt to come out of the of the apartment down to mr what's your goal to open the vehicle because the search warrant also covered a search of the vehicle well they had to keep an eye that asked him do you want to come out and open your car so we can get in there if you does find they can tell him if you want to come back up sit down on the couch sit down somewhere where we can see you but once they tell him come direct him into his bedroom shut the door and start interrogating him about the specifics of the investigation and then when mr de witt says again i want to talk to a lawyer and the detective tells him you don't need a lawyer i've been doing this long enough to know you're the guy we're looking for and you should just make it easier for us and confess and then badgers him and this is our the alley ashleigh badgers him into giving a statement and that's the the door closed and i think that that's important because the reason you don't have to give warnings to somebody who's not in custody is they can sort of speak vote with their feet they can leave if they're not in custody in a void the constant and repetitive questioning by leaving but if you can't leave if you're the or pretty reasonable person an objective person would feel i can't leave given these circumstances that no longer becomes an option because you're sitting there you've asked for a lawyer they've told you we're not going to honor that request they keep asking you questions designed to incriminating you could he have left the room i don't know i don't think it reasonable person would have felt that he could leave the room because he has been directed around the apartment when he was asked to and i did my homework from my desk that i'm working on a paper you guys are disturbing it the police say no now that's reasonable on behalf of the  that because they're walking towards the door but still it indicates to a reasonable person i'm not in charge here i don't get to decide what happens the police do and so while part of this is why you would need to have an evidentiary hearing is the detective can testify and may say look i never said these things to mr de with or maybe says well yes i told him that i thought he was guilty because you know i've done these investigations for a long time and that's a common investigative tactic for with the police is to tell the person come on look we know you did it we have overwhelming evidence you might as well confess and that's the kind of pressure when you're in a room where the police are or in your house armed searching that miranda is designed to counter right that the nature of the questions doesn't mean that doesn't have anything to do with whether he was in custody  antecedent question is whether he was in custody i would not agree with that i mean it doesn't automatically mean you are in custody if you are getting asked questions pointed questions but there is case law on for example in the context of when you're in the airport or the bus stop of whether it's a voluntary consensual encounter or not the more pointed the questions at trying to ask you about criminal conduct the more that would lead a reasonable person to believe that custodial situation and you know the questions designed to elicit a confession are that that's a separate inquiry once custody is established and so you've got to argue that his declaration established that this was a the officers are executing a warrant and even though they tell you they may say the words you're not under arrest they then actually exert complete control over you so telling them you're not under arrest like well what does that accomplish because they're still directing you go here go there follow me go into this room i'm going to shut the door so that nobody else can see what's going on here and then spend an hour hour and a half and when you ask for a lawyer say to have the police officer say no i'm not getting you a lawyer you're not getting a lawyer i know you're guilty you might as well what happened when the the officer opened the door to the bedroom after they opened the door to the bedroom they were still conducting the search  that his dog was kind of going a bit crazy and he wanted to take the dog out to relieve itself but even there mr de witt had to ask permission can i leave will you let me go and at that point they before that excuse me did he leave the bedroom before that not according to the facts that are alleged in the affidavit your honor he was able to see before the bedroom door was closed the officers searching he claimed that while they were in there and one of the another officer came into the bedroom and pushed up the ceiling tiles look and the drop ceiling but i don't go to the loo after conducting their search couldn't yes i think they probably have probable cause but it's not clear from what's in the record if they did an on site quick review of what was on the computer to confirm that there was that's that's a kind of a normal thing they'll do a quick search and if they had done that clearly they would have probably cause once he gets the statement clearly they had probable cause to arrest him that day if they wanted to which they waited what nine months yes i had a long time in with the bill you're too well in their thing and asked if you look at the district court's order denying the motion to suppress issue on it's on  because i think it's important that his specific word choices are reviewed not i'm not going to go through each of the facts again it's it's there on the briefs but i his word choice has matter in what he didn't say i think matters and  i will just go through some of these were choices he said they were burying the site or they were what i'm saying bearing sidearms he doesn't say they're drawn he doesn't say they're brandishing or using i will i think we can assume that bearing sidearms means what he meant was they had the holster and i think as i look as a as i think of the cases and i think of what this court looks set for custody i want to look at real carefully just the words mr de witt chose take those as true certainly and then as i said the words he did the things he didn't allege so he says they're bearing sidearms he never says as he could have they stuck them in my face they waved him about when he asked for a lawyer at first he the detective parent told calmly stated that i didn't need to worry i wasn't under arrest so he doesn't say he shouted at me he doesn't say there were raised voices and that's that something that runs throughout his affidavit there's you mean or what do you think he meant when he said he wanted a lawyer that he has a moire he wanted to call or he wanted to be given a lawyer or i would i would infer from that that he wanted to call a lawyer that that's not mine so he knew lauren was right and in the in the affidavit i think he says i wasn't sure what this was about and that's not a quote somebody said something that effect so i thought i should talk to i want to talk to a lawyer and i but i think for our for our purposes regarding custody the answer that he says was given and will accept as true was given as he puts it it was calmly stated so we don't have a shouting situation in terms of his ask asking to use we're kind of computer and also when he was told to open up the car doors the word he used the verb mr du it used was i was informed i'm not exactly sure what he means by that but it but again he doesn't say they shouted at me you can't use your computer get the heck away or open that darn door i infer that informants i was told i was asked again nothing indicating it was anything other than calmly  stated he says he was a scared to his car and back to the residence so they don't warrant for the car they obviously could have just busted the locks open he doesn't say he was ordered to go to the car he doesn't say he was gra about you know he describes what he sees the what i'm sure looks like a melee where they're searching for things here nairn look and we're going to do everything but again he doesn't say he's restrained he doesn't say he goes around his apartment with somebody grabbing him by the arm he says i watched about bobby rush and maybe we can just cut to the chase here that the most difficult fact for you is that the bedroom issue right and he's taken into the bedroom by print out the door is closed and the questions began yes so why isn't that kind of tested again i think there there there is no allegation of restraint or physical force there's no handcuffs the door is  shut although an officer comes in at one point and does some searching in the there's a bathroom connected to apparently connected to the bedroom because he says he came in and officer went in the bed scuse me in the bathroom and did some searching so somebody did come and go clear is he said this was approximately one to one and a half hours it's not two three four five his words page eight of his memorandum not so sure he says it in his affidavit but that's neither here nor there in page eight of his memorandum he says i was in the room for approximately one to one and a half hours and i think that is the most custodial feeling situation there's no doubt about it the door is closed at least for part of it somebody does come in somebody does do some searching in there and he has these conversations but he doesn't allege again any any physical force and he raised tone except except for the b facts are what the facts are i would as and they were through he he was left the room yes went when they were through with this one or one and a half hours he leaves the room he does take the dog out for a walk he started to go and his friends exactly correct one of the officers goes hey wait a minute to detect the parent always run in the search it's quite apparent from this affidavit they turned to him and he said sure so he takes his dog out he's not arrested while that is doesn't say they told me i had to answer it was the it could really help us we know you're guilty i know a guilty person i see him those are all things that are alleged by mr de with him that we obvious except for the purpose of this argument but nothing along those lines judge i want to just briefly mention the argument on the failure to investigate because i want to put this in the context of the knowledgeable sit down there's no assertion by mr de witt in either his affidavit or in the motion in any of refers or very briefly page four of his motion that he told his trial attorney mr lieberman i didn't do it there's no allegation by him that i told me ramin you know i lied to the cops and i said all that stuff was mine there's he never says that he never alleges that he said to mr lieberman i told them my stepson mr cortez told them he used the computer but i should have told them that it was all his porn so mr lieberman has in front of him is a search on december fifteenth two thousand and eleven when they find all this stuff he has in front of him a full confession from his client and within that all he really is a statement by his client that says yes my stepson use the computer but never downloaded child porn and if your child porn he doesn't say anything about who put it on there who downloaded it although the inference becomes clear so what based and that's in front of mr lieberman and nothing apparently there's  disavowed it and all he said in his own statement is cordless use the computer which is true so it would lead sort of so so what i think now had he done the follow up and he got this letter which is really how the argument w use this computer the cops tell me if i don't say anything this stuff could be attached to me and i was going to let it be attached to me and i said it wasn't mine which is again not exculpating to mr de witt but simply clarifying  so we think the words he chose the words he didn't the facts he didn't allege lead would lead correctly lead to a conclusion that he wasn't in custody and all sort correctly conclude that mr lieberman wasn't ineffective for failing to  on the issue with cortez in that mr de witt did not put this in his affidavit but in the police report of the interview it has it states that mr de witt was current to told mr what well look it's either you or somebody else using it here in mr de witt misstatement well then if it's between me and my stepson i'm going to say that it's me and to the printers pretties like look i don't want you to say something because you think it's you know i need to know the truth but there so mr lieberman would have had that  your in custody or the police can exercise control over you because you are executing a warrant i get that that in another itself doesn't make a custodial but that changes the baseline it's different then the police then it what is  starts out as a consensual encounter and then you have to see if it's going up from there the baseline is the police are in control of the situation and are ordering you around him can order you around even if they're doing it in a calm voice and so when you have the extra about well now you're going to come into your bedroom and now we're going to shut the door that does lead would lead any reasonable person to believe i'm not in control of this situation i have to do what the police tell me or i could get