honour's there's three primary reasons that it's evident that mr shrinivas in custody and those three primary reasons are the fact that the police made a tactical decision to move him to a police station before questioning him the fact that he was denied the right to counsel after he requested it and the fact that there was a prolonged interrogation in this case which ultimately wore the will of mr stream down and led him to confess and looking at the record the court has to make a determination under miranda whether or not i start with the last because the researchers about this he requested this meeting right that's correct any request of the meeting because he wanted to unburden himself with the fact that he was involved in this he requested the meeting i think there is some things in the record that say that he ultimately wanted to unburden himself but he also requested the meeting he indicated because he was hoping to get some benefit by cooperating with the police just going to do this either because he's going to feel good about himself or he's going to get some or both right but the point is i mean the the curious thing i think is you say that the prolonging nature of this custody which really wasn't that long in the bigger scheme of things over bore his will while his will was to go in and confess what he did so i don't understand in the facts of this case how you make that third prong argument by i think you have to look at the what has well actually what it says that the record is clear that there were several collect calls that were made from the jail to the police station the police didn't collect and didn't accept those calls a significant other man went in and told the police you need to accept this call and then the police decided after they actually communicated with mr shereen that they wanted to meet with him so they made the decision to move him from the hamilton county jail which is the first character i was referencing to the police station where they then questioned him and that was a tactical decision on their part be miranda miranda goes through great length of this gassing custodial interrogation of someone at a police station and why that actual environment is more inherently coercive it talks about you know the defendant being removed from his home turf from him being removed guess i do i won't say that in every case it would be ok at the prison but i certainly say that there are supreme court cases that say it can be ok in a prison environment because an individual in a prison environment can terminate the interview and return back to a cell i think the case on that that they're leading supreme court case on that is the how versus fields case which talks about the individual who was removed to a different room and could still go back and retired to his cell here he mr stream could not retire to his cell he was taken by the police to the police station and was forced to stay at that station until they finished questioning him and how you couldn't just get up and say i'm done with you guys and walk out and go back to another part of the prison if i remember right was and he was in the you know locker room and  guard there and he had to say i'm done talking take me back he wasn't free to walk around if i remember right i think the distinction that they made and how was the fact that the officers told him that he could terminate the interview at any time and he was free to leave there was no such claim you know shereen when he arrived at the police station here he made he actually did make one request he requested counsel that request was ignored by the police don't get counsel until he is in custody for miranda purpose now i agree it sort of odd to say that somebody is in custody isn't in custody but that's what house well how so he wasn't in custody because ultimately he was free to leave in this case mr was not free to leave free to leave and how did mean you could just say i'm out here get up walk and storm out and go to some other place in the prism you can't just walk around places yes but you actually have the option to call on someone else outside of the officers who brought him to be questioned he could have called on a guard said c e o i'm done i want to go and he could have ceased questioning at this time mr shereen didn't have anyone what what what establishes that he did or didn't have that same right here to say it's been fun i'm done talking you guys take me put me in the car  take me back to jail but i think the record establishes that it was the officers who made the decision to move him to the police station no his request he didn't request to go to the police station he requests to talk to the officers ok so they decide they want to do it at their place we got that so what stablish is in this case to distinguish it from that he couldn't exercise the same rights that the prisoner and how had to say i want to go back well i think it's  talks about and it's the fact that he's removed from anyone that he otherwise has access to so that the prison you have access to see you know as you have access to other individuals who can control your movement in this particular case his freedom of movement under miranda was restricted because the only people who could control that were the officers who were interrogating him they were the ones that removed him from the jail or from the jail they were the ones that brought him to the police station they were the ones that would have ultimately made the decision to take him back  questioning has to cease and that's what happened in this case mr shereen immediately upon finding out that that you know they told him when he came in they said we think the shooter is this bicycle bandit we don't think the shooter is you when he heard that when he was then an environment where there were three officers who brought him to a different location when he heard that he invoked the right to counsel he asked for an attorney and the officers told him you don't need an attorney i think the record says they basically ignored that request but the fact that they told  he wasn't under investigation or consideration they actually thought it was somebody else that that points towards him him not being in custody for miranda purposes not not being in custody well i don't think that the standard is from what the officers actually say when they were talking to him they were trying to get out of him the information that he knew is my point if they thought that he was actually involved in this crime and brought him over to a different facility and question them against his will that be a different case here they didn't think he was a suspect and they simply respond to his suggestion that he has some information whatever that may be so when they tell them they think it's the bicycle bad it seems to me that's an addition he's not in custody for miranda purposes rather than the reverse that you're arguing well i think the clarification is they told him that they thought the shooter was the by school band it they did not indicate that they thought he wasn't necessarily involved in the offense and i think if you if you look at the record in and i would point that court to the trial court record which is record twenty one volume three when they when  lieutenant mathis goes through discussing what he was talking to my client about he said it very early on he realized that no it was not giving an account of someone who was told by a third party but rather he thought he was giving an account of someone who was there and he started to question them a way that would a list say the fact that he was actually there and that is interrogation and he is in custody at that point he's obviously a suspect and they did not mirandized and were almost discussing this up to this point like this is  review case this comes from state court so the difference applies right yes as you know we haven't been doing real well lately deference again just two days ago we get granted vacated remanded  connection with giving deference so how does that fact whether the state court decision here under was contrary to or an unreasonable application of well i mean i think if you if you look at the facts and you look at you look at miranda i mean miranda is the leading case that was the case that was controlling at the time that the state court decision came out its very obviously and reasonable application of the established law at the time because under miranda there is pages where they talk about the  inherent you know reason that a police station is is coercive and the reason that police choose a police station to question someone the fact that you remove from support the fact that you're removed from the outside community the fact that you're one of the last to miranda deals with somebody that's coming from the outside into a custodial setting this is this is a case of the add facts of somebody already in custody simply being removed moved from one custodial location to a different custody a location and houses that's not custody well houses that's not custody because he was still within his home institution there are cases that talk about you know even if you're in custody on a separate rooms you just keep talking about you're right i can certainly address the how case i would first know for the record i know that the district court relied on how and the factors outlined and how but i would highlight for the court that how wasn't actually decided at the time the state court issued its decisions under and it wouldn't actually be a controlling case and in this particular circumstance but if you look at the there's a difference where there's still apply thank you look at those factors your honor i would submit that all of those factors lean towards mr mr streams position that you talk about the length of the questioning in this particular case they record indicates that he's questioned for over four hours is questioned well past midnight before he is actually mirandized lot longer than four hours i mean you know all these loss of factors that are mixed up here well there's other factors than how that they also look at the statements made during the questioning whether he was restrained during questioning whether the suspect was released after questioning in terms of the statements made during questioning he obviously made several incriminating statements prior to them mirandizing him and those are outlined by the district and whether he was restrained during questioning i mean physical restraints that the record is silent as to whether or not he was actually wearing handcuffs logic would tell someone not to be removed from a jail to a police station he would have had to have been in handcuffs at some point in time whether or not those removed at the station you don't know but you do know that he was restrained in the sense that his movement was restrained he couldn't leave from that location without having these officers who brought him there take him and then the final factor in how scored is recognized was not in effect in the state court gaves decision the petitioner does not argue that it depor deference should not apply it does apply in this case the case that the state court did apply properly miranda versus arizona edward versus arizona  rhode island and is all support the state courts recognition that the petitioner was not under custodial interrogation at the time he spoke to police the facts in this case demonstrate that the petitioner initiated contact with the police this is courts previously recognized he was moved to the location where the detectives who were investigating the cold case were so that they could speak with him when they spoke with him he was not a suspect as the mathis testified to he was not an accused of anything is that mathis testified to there's nothing in the record demonstrating that he was under miranda custodial interrogation at that time after talking to him the time period that the court alludes to the four hours is explained by the fact mathis he wasn't even there when the petitioner first the rot he was out eating with his wife it took him time to finish dinner to go home and change to come back to the police station when he got there he testified that the petitioner had a number of differing facts when it came to what he understood about the cold case it took some time for them to go through those facts to understand who the petitioner was what he what he knew and fishers argument that they didn't need to transfer him or talk with him after he initiated conversation saying i have information about this cold case as a state court pointed out the police would have been derelict in their duty to not reach out to this witness to find out what they knew this was an eight year old case they had no suspects they had no idea what was going on with the robbery with the murder when someone calls up and says and this detective mathis testified as makes an extreme effort to contact the police they have a duty to reach out to that person and find out what they he initiated contact with the police so when he initiated contact he was not a suspect he was not an accuser as a point recognized the police had a small basis for understanding that possibly the bicycle band it was that was involved in murder but they didn't know who the bicycle ben it was they didn't suspect that the petitioner was a bicycle bandit he was he was asked whether he'd ever been questioned about this in the ears he said no so when he reached out and said i have information about this versus arizona which a state court relied on it was not that time at that time that he was subject to miranda warnings when the police were able to determine that his involvement included more than just being a witness which he first told police that he was someone else had told him what happened at the murder then through further questioning it came to light that he was a witness he said and then upon further questioning he said oh i may have been involved it was at that point that they did mirandized that they did take his taped confession because that's that's another important point to remember about this the claim is not that his confession should have been excluded because he wasn't mirandized the claim is that he shouldn't have been these confessions should have been excluded because he wasn't mirandi soon enough but as we can see from the facts in the case to which the petitioner has has no adverse facts he was not an accused who was subject to when the police first interviewed him curiosity when are you saying that he the police were required to give him the miranda warnings when they when he first showed up at the new location or somewhere between when he showed up and when they he that they thought he was a suspect and the record makes very clear that that was almost immediate if you look at the trial transcript and i'm going to read this quote because of what opposing counsel says lieutenant mathis says and this is record twenty a dent in one volume three page eighty five immediately in this case he was talking things that we knew someone involved would be only one of the people to know it was things that we knew about that scene that were very critical but not well known outside of the investigation and then he goes on  page eighty six this goes on for hours ultimately he began to acknowledge that these things weren't things that he was just told these were things that he actually saw or was a part of or in several instances so consistent with what your fellow coun s he he says he knows things but he starts out saying that he had been told things by somebody else presumably that somebody else having been involved right now does that make him a suspect at that point when he says when he describes the source of his information is coming from somebody else now i think he became a suspect when the police realized as he was talking that there was no way that he would have known this information from someone else not in the beginning that it's someone with some more along the process but i don't think that the rule of law is whether or not he was in custody so whether or not he would have reasonably a person in his position would have reasonably thought they were free to leave but you just started out answering my question by saying he was in custody when he became a suspect that's what you said a minute ago well then i misspoke because because the rule of law is that he is in custody at the point that he does not feel he is free to leave and he was not free to leave when he was removed from the hamilton county jail and taken to the police station for questioning now the police and lieutenant mathis makes this big you know bright line about we mirandized him as soon as we knew he was a suspect that's not what the status of the law is the rule of law is that he has to be in custody at the time but in terms of talking about you know you asked the question of when he should have been mirandized no matter where you put it it should have been well before they actually did mirandize him whether it's initially arrival at the police station or as soon as they knew he was a suspect lieutenant mathis says immediately upon talking to we realized that he knew things that he should not have known unless he was there but you're saying that he knew things that he that he wouldn't have known so that piques their interest but then you say so therefore he's a suspect in that but on the other hand you say he that he's saying you got the information from somebody else if and if in fact he got it from somebody else and it's not a software now but i think that you look at whether or not the and again i don't believe that the rule of law is whether or not i so we're trying to parse this this is the point