may please the court and counsel morning the defendant evan olson submits that deputy reaches in his case violated the fourth amendment and the fifth amendment abcl fall to the states through the fourteenth amendment a fourth amendment a seizure occurs when in view of all the surrounding circumstances a reasonable person would have believed he was not free to late taking the defendant from within his own home without a warrant is  under payton versus new york the initial presumption upon reasonableness was not overcome by the state's evidence in this case when police approach a person in a closed environment such as in their home rather than out in public the fourth amendment inquiry is whether a reasonable person would feel free to decline the officers request or otherwise terminate the encounter now if there was voluntary consent to leave the home the fourth amendment is not violated since nine hundred sixty eight in bunker versus north carolina the united states supreme court and other courts following have consistently held that it's the state's burden to prove voluntary consent and that can't be discharged by showing no more than acquiescence to a claim of lawful authority state argues that defendant act of leaving the safety of his own home was voluntary the state therefore had the burden to prove that defendant consented and that the consent was voluntary and that the consent was not a m acquiescence to show of lawful authority deputy reaches testified that defendant stated he did not want to go back to the scene of the accident both melissa the girlfriend and the defendant testified that he repeatedly said no no means no and writing deputy reaches acquiesce to the citizen in his own home when he said no i'd rather stay home the deputy had a hunch he had an agenda he didn't have probable cause for a dui he only had a hunch so he insisted on the unnecessary forward should we do about the fact that the testimony but he said well he probably didn't have very good of a memory because he was tired it was cold he had worked all day and perhaps had some alcohol to drink and those were the only bases of the credibility termination but if you read the transcript and they have hearing mr olson didn't say i don't recall i was too tired i'm not sure i had a blackout i don't know what happened he know what happened now the motion for suppression was under reconsideration in front of judge toss a different judge judge costs significantly made no determinations as to credibility on the record he did find in favor of the state and convicted but he didn't make independent credibility determinations rather he deferred to judge kennedy's determinations at the first suppression hearing significantly melissa gower did not testify at that hearing no court made determinations of it was it was unnecessary for the deputy to take mr olson back to the scene of the accident to investigate the accident the state what evidence of the state you have to prove now not to suggest but to prove following terry consent they didn't have any evidence to prove it they completely failed in their burden of proof to prove voluntary consent to leave the home all three agree to that both melissa and the defendant testified that he repeatedly said no now when the state had an opportunity for rebuttal of that evidence there wasn't the deputy didn't come back on the stand and say no he didn't repeat it lee saying oh we only said it once they had a chance to rebut that evidence and they failed to do that deputy didn't come up and testify his memory was different or better or that they were lying basically the state acquiesced to the defense testimony of several refusals to leave the home now looking at the circumstances what a person who has been up sixteen hours had worked a full day as a carpenter got in a rock heard a shoulder and then walked two miles in the cold voluntarily go out again arms warm and then you're on the leaves but you know even if your client had initially expressed a desire to stay home there's a no i will not go with you or no i stated that mr olson said no it's too cold i want to stay home and that the deputy then told him oh my car's warm under melissa's testimony and mr olson's testimony he stated another two times no i don't want to go with you after he was told that the car was warm he wanted to stay home melissa's testimony was not determined by any judge to be uncredible and the deputy didn't take the stand in rebuttal and say no they didn't say that he never took the stand  one of the circumstances that the court he asked to has to use to determine is the defendant himself why would he acquiesce to go back he testified that he didn't want more trouble like f perhaps a resisting or obstructing charge that shows acquiescence to show all authority there's also testimony about the defendant alerting the deputy during the field sobriety tests that he had a bad leg where he had been shot in the leg and twenty six defendant testified at trial then fact he was shot by a police officer when he didn't answer properly mr olson acquiesced under those circumstances he didn't want to be shot he didn't want to be arrested for resisting or obstructing he thought that he had to go and this well was overcome we're also alleging that the fifth amendment was violated a cuss whole deal interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise  freedom of action in any significant way and that's directly from miranda versus arizona now we have questioning initiated by deputy reaches where were you before the accident how many alcoholic custody or at deprivation of freedom of action in a significant way here the defendant was searched he was locked into the cage like backseat of a squad car and transported back to the accident s now the state argues that while all squad cars have a cage and then walk well that's true but this court has as mohnish police officers as far back as twenty zero eight and before that in people versus gorman if you don't want to run into problems with the fifth amendment question a suspect in their home in a park or at a burger king don't put them in the squad car cases repeated the state of being locked into a squad car is custody the defendant was in his own home there is no reason why it deputy reaches wanted to conduct an accident investigation your license your car information your insurance information that could have been done right there in the kitchen it was warm in the kitchen but no he had an agenda he wanted to get the man in the car he wanted this to be your typical do you i arrest which is a terry stop and this was not a the scene to have to ask him about and indeed the deputy's own testimony was what was his accident investigation his license his car information and his insurance that said that all could have been done there and the analysis wouldn't change if the car had already been towed the place that the analysis changes is that this wasn't a terry stop mr olson wasn't pulled over he wasn't there at the scene he had the accident he left the scene that's what breaks the chain of events he was in his own home the analysis would change if the deputy waited out there on the road for him to come home he didn't he was within the home defendant was within the home and there payton steps in to protect a person who's in his home the defendant's answers while he was in custody in the squad car provided the probable cause to believe that a dui had been committed and implicated defendant in the criminal activity  amendment you have a right to counsel he asked no the deficit you can't call your lawyer until you agree to the field sobriety test or you're going to go directly to jail as i said this wasn't your typical terry stop typical dui stop case it never was however the deputy treated it like a your typical terry stop and that was his problem there he failed to understand or he ignored the significance of removing the defendant from his own home taking him back to the scene and they're acting like it was a terrorist stop it wasn't a terry stop the custodial interrogation in the squad car and i've got the cases are from this district where the suspect was in a squad car putting somebody in a squad car and they're questioning him them them without miranda is interrogation miranda is required miranda would not be required yes same questions in the kitchen now we talked a little by the credibility of witnesses at the beginning if tells i tell a citizen who i believe i understand this is the point of contention but he's actually asked to go back to the scene and i'm going to put him in i wouldn't if i was a police officer if i was giving a guy right i would put him in the front so they don't put him in the front seat i know they put him in the back they put him in the back was the one usual about that it's not unusual but it is custodial he was put in the back seat it's a case you're right in the backseat of a car a police car you're now in custody under the cases there correct is in the back seat of the squad car it's locked he's in a cage there the question is would a reasonable person feel free to get out and leave at the suppression hearing he testified he tried the door and was locked in couldn't so even if he felt free to get out and leave he couldn't leave he was locked in their cases consistently show and i've cited them in my brief that being locked in a store on car in the back seat is a significant deprivation of your freedom to go where you want to go so has your bus in terms of what justice and i was just asking you to to move the truck and transports him from his home back to the scene while he's i'm at the back seat of the car he's a he would be in the back seat he would be in custody if the officer insisted he come and he said he didn't want to come now they have to look at the facts as they exist it melissa was there she had driven him she had went to the accident scene was just a couple miles or so from their house went there picked them up and drove them she couldn't drove there and officer got there and another officer came there so there was a second officer at the scene in case there needed to be anyone directed around it which they did there was a second officer a and i want to talk a little bit about deputy reaches credibility deputy reach his testimony at trial really is loaded with extremely significant details of this are also in that are nowhere in his police report first of all melissa told me that he was drinking he agreed that was a significant fact that snow were in his report i smelled alcohol from him in the house he testified to that at trial not at suppression not in his report i use my computer run the plate he didn't use his computer to run the plate he admitted that on cross examination he followed the red entrapped that very polis all over in her driveway he said he first went to the accident site and nobody was there the state's attorney ask were there any people around no nobody was there that's not right he didn't first though the accident scene and when he didn't go there lucas rogers was there i explained to him he was not under arrest that's not in his report now and i asked him if he had anything to drink after the accident and he said no that's not in the report either if you read the deputy's reports four pages it's extremely detailed he devotes an entire paragraph to going back to the truck two times to try to find the insurance car dance how detailed it is he developed an entire paragraph to how they discussed getting a tow truck yet he doesn't have these very very significant details in his report i'm submitting to the court that he beefed up his testimony on cross examination he admitted that his testimony was wrong in several places he couldn't remember the facts he had to refresh unself deputy reaches is the person who had to saw the rig chrysler product and followed it but he got it he got information from lucas rogers the fallen chair fireman who reported to dispatch that the defendant had left the he located the read in traffic he knew where the area was and he followed it he followed it directly to the defendant's residence where he lived with the girl followed the car right then he needs a visual sighting of the car that's right that's what he testified in history that's what he wrote in his report that he followed the car and melissa's testimony substantiates that because after she dropped the fine and off on the country they had an argument she dropped him off he said let me get please now i want to clarify real quick before i forget the defendant walked he apparently had a fight with his girlfriend and got out of the red intrepid before he got to his house that's why ok i don't i mean did he get out of the how did he get out of the car at the house so yes and this would have been the deputies testimony would have been he saw the i think it was sort of a simultaneous finally found the car when it pulled into the driveway or followed it up brief amount before it pulled into the driveway kind of thing but it's important do not lose track of the fact that the trial court is always in the superior position to evaluate the credibility of both the witnesses it's also worth pointing out that defense counsel is using both the motion to suppress testimony and the trial testimony and if we're going to do that then we have to also look at the inconsistency is in defendant's trial testimony or to his motion to suppress testimony at trial was the first time we heard of this story about him drinking more beers after the accident he he admitted that this he'd never told anybody about this before he didn't say it before he did the breathalyzer he didn't say a word to the field sobriety tests  told no one about this this these mystery beers that he drank after the after the accident that he had in his cooler in the back of his truck so clearly the credibility problems in defendant's testimony as compared to  in the mendenhall factors indicative of a seizure there the deputies testimony was it was a conversational he said he said it was conversational well according to his testimony yes he said would you go back to the accident scene with me then to finish response was i'd rather not because of cole and not just for clarification i don't mean to argue with you did he describe his tone of voice or did he just  indicate his words so much from the cold record there was nothing the described his tone of voice however i don't see just by his word selection how its tone of voice could have been escalated or anything just by his to again the only thing he said after that was a clarification and and another statement he said well it's warm in my squad car and you don't have to get out at the scene circumstances changed he did have to get out of the scene based on his observations of stumbling on the way to the car and then once in the confined space of the cars milling strong odor about all the beverage at that point he had the reasonable suspicion to have him get out and perform a field sobriety test but that that is not concerned with his statement to defendant that you it's warm in my car and you want to get out of the scene after that according to the deputy the defendant went with him voluntarily that's the testimony that the deputy had the trial court is under no obligation to believe defendant's testimony just because of course he's going to testify inconsistent with that he's going to say that the defendant's the deputy's tone was escalating and again that's in complete contention with the deputies actually test actual testimony which trial court found more credible again this court should give great deference to that credibility saw the demeanor of the of both witnesses saw their mannerisms and everything else as they testified just because they didn't mention the witnesses demeanor or mannerisms in their order as to why the deputy's testimony was more credible that doesn't mean that that wasn't taken into contention also it's important just as harris you noted if this was an accident circumstance there was a car off of the side of the road the idea that a deputy was under no obligation to just automatically believe defendant oh i'm fine i swerved to hit a deer that's great i still the police still has i would say the requirement to investigate further i mean there was at least the scene of an accident where nobody was that was involved in the accident there's multiple reasons there have been there's numerous scenarios of  circumstances here maybe the maybe the defendant swiped of pedestrians it was on the road a bicycle is maybe a one of the passengers in the truck was seriously injured he was trying to cover that up there's multiple reasons for not only defendant or the deputy to further investigate there's multiple reasons for defendant to also go back to the scene for any kind of beneficial visual cues he could give to the officer at that point basically the officer as soon as the defendant claims all i'm fine i don't need any help and nobody was hurt the officer can't do any more investigating well that that's just not the way it works and the officer had the authority and the duty to investigate further of course as a certain stance to change as he gets or more he noticed defendant stumble he got information they were drinking before the accident and then he smelled the strong odor of alcoholic beverage deputy it's undisputed that the deputy had been sent to be in the house the the girlfriend invited him in the defendant then showed up later so defendant was in his house when the deputy asked him if he would return to the accident scene with him as the trial court noted where are you more comfortable to refuse an invitation to go somewhere than your own home this it would be a different story definit was out  on his sidewalk or on the street asked to return to the scene now he's in his own home still he volunteered to go back to the scene after it was told him that it was going to be warm and he would have to get out back in the hol also important was the  defendant stated will i be arrested if i don't clearly not only would a reasonable person not think they're seized at that point defendant himself didn't even exist at that point this court just two days ago people versus late justice dept and concurred on it gave a couple good guidelines for just the totality of the circumstances of the seizure a seizure does not occur simply because a law enforcement officer roach is an individual and puts questions to that person if he is willing to listen so long as a reasonable person would feel free to disregard the police and go about his business the encounters consensual here it's clear the defendant voluntarily agreed to go back to the accident scene with the officer there was nothing in the record that suggested what size defendant's incredible testimony the deputies testimony which there was nothing to suggest that his tone was demanding or commanding at all or that it escalated at all it was simply a question followed by a brother not it's too cold followed by a clarification for my car then defended agreed so clearly under the mendenhall factors and the totality of  circumstances which people first place later talks about there was no illegal see here as far as the fifth amendment the defendant being in custody in the back  the tone of the officer was a bit more commanding in that case defendant the officer said we need to go back to the car it wasn't even a question to the defendant it was could be perceived as a command still this court found that def it wasn't in custody in the back of a police car here of course as i explained defendant the deputy asked in that and then claire then clarified that it was warm in his car so here the tone was less demanding the right and clearly  hen it wasn't in custody also deputy specifically informed defendant in the car that he was not under arrest and clearly like i said earlier the defendant didn't even think he was going to be under arrest until his refusal to do the field sobriety test later so clearly pursuit of people versus right defendant wasn't in custody and while riding in the back of the squad car and i would also state that there it's not a per se rule that a defendant in the back of a squad car automatically means here and that's the as i stated people versus right clearly shows that's not the case so the totality of the circumstances show that there was no illegal seizure and if it wasn't the question about defendant having more beers after the accident knapp brought up at the suppression hearing is because it wasn't relevant to the question of suppression at all the only thing it was relevant to is the finding of the  a c and why didn't you tell anybody about these fears he drank he's not a lawyer i mean if i was arrested i'd certainly if i had drank beers after the driving i'd say that but this guy isn't a lawyer he's a carpenter he didn't want to get  self and further troubling if you notice from the report he doesn't make a lot of statements now the deputy did not ever testify about its tone of voice at all and in the tone of voice was brought up suppression hearing so he was aware of what the defendant was testifying about his tone of voice he had a trial a trial was in conjunction with a motion for reconsideration of the suppressi hearing at trial he didn't testify about his tone of voice and more significantly he never got up to rebut the testimony or denied a loud louder and more coming ending tone of voice that you use in order to the my carnes will harm you don't have you wouldn't have to get out of the scene would be spoken in a loud commanding tone of voice would you agree i would agree that that necessarily wouldn't be allowed in commanding tone of him to come with me he said i had him accompany me and that's what he wrote on the date of the arrest december twelfth i had him so  the state says of course that you know mr olson is going to say that the deputy had a loud tone of voice as if you know he was being untruthful and it you know if the defendant really wanted to be untruthful he could have beef found to be an incredible by any court now the deputy that the deputy didn't first go and investigate this accident to find out who was there anybody and why is that because he was reported by dispatch or he might in talk to rogers he might have talked to dispatch but his report says i got dispatched to an accident without injuries that's why i didn't go there first so this this idea that he first test of own investigate all these things he didn't and he didn't do that there's no testimony of pro bowl consent ok he didn't mr olson didn't volunteer to go he didn't there not even in the deputy's report does he say mr also and say yes sol volunteered to go he said i had him come with me and there was no testimony at all anywhere of any the idea of approaching a person and asking questions that was that came from this court just a few days ago is a terry stop analysis of course you can approach any person on the street and ask questions but that's not what happened as explained earlier this came out of here terry analysis when the defendant when home and he was taken from his home the whole analysis would be different if he had sent his frock in the officer came up to him or if the officer as in people versus right had observed him driving had observed him do this accident in people versus right the defendant voluntarily came out of the neighbor's house the police officer didn't even talk to depend and he said to the neighbor would you have him come out and he came out voluntary the defendant in right made unsolicited statements implicating himself right up there on the street before he got in the swag and he agreed to get in the squad car and called this is not like people versus right the the erast and custody aren't are not synonymous either and we have to recognize that distinction between when somebody else sees or in custody and when somebody is arrested and please recognize that your ordinary carpenter on the street doesn't necessarily know the difference between season and in custody and arrest but he knows when he doesn't feel free