trial he was arrested during the course of the police stop they were searching for a white female who was passing counterfeit checks and they pulled the vehicle over that he was driving officers approached the car weapons drawn ordered him out eventually arrested and handcuffed during the whole exchange he was never at one point mr daniels moved to suppress the statement made during the arrest a couple of those statements were suppressed however he is appealing the fact that there was a statement about a gun in the vehicle and his parole status just part of trial he also there was a couple of motions among many that were submitted mr daniels was trying to prohibit the government from introducing statements he made at a paro revoke hearing and the government was trying to prohibit mr daniels from introducing a prior conviction of another passenger in the car who is convicted of being a felon in possession of a far this is what mr the statement about the guy was after he'd already been arrested and was put in the squad car and he had stated that there was a go under the seat could you address wh you think that should be suppressed i think if you look at the totality of the circumstances he's being questioned you know there's questioning about the wife you know there's questioning if he had a gun on this person there's questioning if he had marijuana and at no point in there was even a twenty one year veteran of the force that interacting with him during this time nobody's reading him his rights so our belief is that if you look at the totality of the functional equivalent of an interrogation and that those should be suppressed the statement you describe is i'm not sure i've got the facts exactly right sure that sound but it looked to me like he motion towards an officer who is not even there not asking any questions in direction back at all of the circumstances where he's being arrested at that point our belief is that the officer should have mirandized him only allowed him to to speak further i think everyone will concede that it would have been a better police practice to have mirandized him once he's handcuffed or but the question really is and you know when did a better better police practice the question is if there's no question pending now there's no questioning going on and there's no interrogation taking place belief from mr daniels viewpoint because it's viewed from him whether it is reasonable or not as he's terrified guns are drawn his he maintains that he is the the gun until he's been pulled over is not his standard as regular ordinary for for be evidence it should be relevant to material issue similar in kind in not overly remote in time to the crime charged supported by sufficient evidence and such that its potential prejudice could tend to connect him to the gun offense there's at some point three other people in the vehicle with mr van asten and the third party could have put the gun there he was he maintains he wasn't aware of evidence of a lot more issues we're just looking at why there was like over twenty charges that they were trying to put into evidence and about all we're just seeking to introduce one single conviction so there's not going to be like a risk of confusion to the jury i'm sorry during the course of it we got to the third point that where this kind of evidence could come in and there's sufficient evidence because there's a judgment you know you could have just filed the judgment from his prior  and the fourth issue is the unfair prejudice prong is viewed in light of protecting a defendant so we feel like this should have come in and i'm going to reserve the rest of my time for repairing while you may vehicle including mr daniels when he was removed from the vehicle brought to the rear of the vehicle they questioned him about some marijuana because this notes of marijuana on him they questioned him about whether or not he was armed argued to judge he that that was there was a public safety reason that they did that she disagreed with me she excluded that but the statement made about the gun in the back of the car was a spontaneous utterance he did call the officer over to him he was trying to get his attention the officer that actually arrived was a sergeant he was a super visor he got there late mr coffee if he had a gun under his seat would you say that he was armed he denied it at the back at the rear of the patrol car but do you think a truthful answer when yes armed i have a gun under my  i would consider that armed all right so then why wasn't the statement to the second officer a further response to the unwarned questioning because there was a gap and it was a different officer that officer was asking him  questions again for officer safety reasons to try to establish it was going on then mr daniels was placed in handcuffs put in the back and i know palmer but he'd already been questioned by the police about whether he's armed and he'd as you just said not told the truth suppose he felt an obligation to give a truthful answer so he summoned the guy over and corrected his answer why wouldn't that be further well the eli appellant is arguing that the mere opening of the car door well that's not the best argument it's not that the car door opening wasn't a question it's that he'd already been asked the question what if it had been the first officer walking by and he said i would still argue there the gap in time would have ended that line of what the judge on that was excludable question in exclusively answer a gap of time occurred and then he's in the back of the car they're going about their investigation and then that point him and again the appellant there brief so that there were psychological ploys and coercive police practices and i cannot fathom that opening a cardboard check on somebody could of been having a medical condition or something surgeon palmer has a duty that check on why this guy is trying to get his attention that that no idea of never been in a situation but do you think we should infer that he was responding to the first question as opposed to absolutely not because he wasn't talking about the other things  that the initial officer the arresting officer mentioned the marijuana in the car and the the other things that he was i think he asked about marijuana the car was this white girl the one that was passing and they refer to as white girl because the other three occupants reprimands whereas this white girl who was passing the bed checks were says marijuana are you are you mean he only answered one of the three questions and he had the facts and evidence are that he was sitting in the back of the car in a position where he could observe the officer searching the car and solve them on route around the car so i think it's more responsive to the fact that shoot they're going to find this thing because it's just sitting on the floorboard of the car i don't think the court can infer that it was in response to a question that was asked and i don't know the exact moving on to the prior conviction of the backseat passenger this has nothing to do with the defendant proving his case the appellant i think the battle case is very much on point this is absolutely propensity evidence to try to show that ok he has a defensive purposes if it did to if it tends to negate the defendant's guilt the court read kept that evidence out so i don't think that's the strongest case and it's out of the seven circus you know i had to do this but i'm looking at  the the suppression hearing testimony here and it looks to me like the officer testified well here's what he said quote i'm trying to remember i know him i asked him mainly about the white female and then we got through with that and then before i patted him down i asked him if he had a gun or any weed on him and question and what was response to that question he said no all and i asked isn't in the car i knew he said the car and so this is an odd thing right i mean because the testimony is sort of all over the place in comparison the work with the briefing is and so we suppress the part where he says it's in the car right in response to the questioning and then they go up there's a volunteered statement later that's exactly the same statement and somehow it's unrelated to the first statement well i believe and it's a little unclear on the record  believe what he was referring to was the marijuana because his girlfriend the lady the actual owner of the vehicle who was in the front seat had some marijuana on her shoes are good you know there was some question about rolling a blunt and all that i get that sold the it's in the car you think was referencing only the marijuana and testimony yes your honor i do testimony came out at trial that he actually because at one point the officer said he was looking down and we were trying to infer that he was looking down at the gun to try to see if he could see it and he know i'm sorry he says it in his interview when he is mirandized and at the police station he says that he's looking down rolling blood and so he freely admitted to being in possession of a misdemeanor amount of marijuana and engage in that and that's how we took that if you've already answered about the marijuana that sort of undercuts your argument that the statement about the gunman was not an answer to the question because he didn't answer the other questions there was no need to answer the marijuana question or already answered i mean for that way too but again s palmer was not even on scene when those statements were made and he's the one that mr daniels was trying to get the attention of you know the surgeon and he was the guy who was around just walking around sort of yeah i mean that's there for use the officer available to to get the attention yes well then you have the fifth statement where the officer that did arrest him that he did make those initial statements to he opens the car door mr daniels just spontaneously says yeah i'm on parole that was never asked that had nothing to do with anything so i think that tends to show evidence that he's just left in this comes at this point he's just talking to these officers and he's nervous and scared and wants to try to help himself out or at this point truck cooperate what cites that they rely on ramos is completely different than this issue but it's just good before we go into how it's different remind me what exactly did he say in this case at the state he admitted that he did commit the crime of being a that should come in it's distinguishable from ramos and ramos we were trying to get in just a parole basically a piece of paper that said that he was his right to a parole hearing didn't want to contest it there's all kinds of reasons why a defendant or accused would do that try to help themselves out get less time it's a lower standard of proof in this case so mr daniels took it upon himself to waive right to counsel to testify even though he was advised he did not have to testify and to make statements that were admissions that he did commit this very crime that he was eventually charged with federally the appellant tries to argue that well he didn't know that he was going to this would be used against him in federal court at this point he had been indicted in federal court but he was that his statements could be used against him in a criminal proceeding for this matter so to argue the nuance of well he thought he was facing state court but in reality ended up facing federal court i don't think holds enough water to say that he didn't know what who feels that the testimony that was given there was definitely under a lower standard of proof while he was out if he wanted attorney if he had a trial this matter there via ferrata analysis of it to determine if he was qualified to once that officer starts testifying about it and so we just feel like that mostly because of the standard of proof the fact that he you know there's things that go on in our revocation hearing that you can't have it a trial this matter he's kind of decidedly guilty before he's able to prove otherwise but he was told that he didn't have to make any statements right and he was told he did not have to testify and he was told he had the right to a boiler and then he elected to make these particular statements and your reason why that is not enough that waiver doesn't doesn't matter is because they didn't do a fred a hearing to determine whether it was competent to make those waivers right