believe this is a mystery tell us your honor ok good morning and may please the court i'd like to discuss with the court the first issue and if i have sufficient time to touch at least upon the second the that is subject to do novo review on the issue of whether a reasonable person would believe they were in custody and whether miranda warnings were required to have been given before the questioning and the interrogation that took place in this case is that your best case craighead craighead i think is the leading case in the ninth circuit the best case is actually the case we also cited in brief i think which is called matel carry which is from the first circuit but craighead is more than sufficient i believe for our purposes craig had said of course the test of whether somebody is in custody a reasonable person would have believed they were in custody is the totality of the circumstances but craig had emphasized certain factors in its analysis one of which is the number of agents who were present in the home and whether they were armed the second was the person subject to restraint before or during the time of the questioning and then third it focused on the issue was the person isolated at the time of the question there's no question that this was a police dominated atmosphere because it's during execution of a warrant where the agent thought that there were firearms in the home so certain level of force is going to be  as a result of that effect them stance but aren't there also really significant factual differences between this case and craig can't for example in craighead the court talked about the fact that there were multiple agencies involved and there was testimony from the defendant and he was confused as to whether the admonishment you're free to leave was really it was really true or not because maybe one agent didn't have the authority to speak for the other agencies is there any indication in this record whether it was at the time of the interrogation or during the hearing on the motion to suppress that by mr mccain it was similarly confused the answer to your question judgment is is the following one your honor is correct that was one of the factors discussed in the craighead case second the record in this case is that the agent told mr mccain and i'm getting this from the transcript which have reviewed just last night we are part of a task force that's all he said about the identity of the agents in other words he did not say all fourteen of these agents are homeland security investigation agents he said we are part of a task force and that was it so there was now the district court judge found i believe contrary to the finger on the gist of my argument i have knowledge of course judge when that that is a phd a distinction a factual distinction that what i'm getting at because i want to make sure that i'm not missing anything from the record craig had to testify that he doubted whether the agent had the ability to speak for everyone because even though she told him that was voluntary he knew that there were agents from different agencies there i'm assuming that with a declaration in the record that your client was subject to cross examination that the motion suppressed we elected to rest on the state of the record after the government presented its evidence and the government didn't cross examine him esther's declaration  were no similar testimony as to confusion let me actually let me be accurate as the state of the record the declaration is submitted in our district in order to obtain a hearing in order to say here are the fa understand that we request a hearing but the evidence at the hearing the district court judge said is the evidence that will control for purposes of the record the evidence at the hearing included the transcript which is in the record here in which the agent merely said we're part of a task force we're all here as part of the task force and on that point that set so i don't believe the judge when that that is the that i think the gist of craighead is when in this case fourteen armed agents entered into the house eight to ten of them in the entry party the  with guns drawn they pulled mr mccain out of his room in his underwear put him up against a wall handcuffed him took him downstairs in the living room in front of all the other agents who were at this time doing the protective sweep and who had all of their guns out and according to the testimony pointed in front of them as they went through the house and then one of the agents came down and the agent had him held his pants for him to step in while he was still handcuffed he was then handcuffed for fifteen minutes and then at that point he was the handcuffs were off he was removed to his father's a bedroom where he was permitted to use the bathroom with the door open an agent keeping careful watch and at that point the questioning began the door shut very early in the questioning and he was alone with two agents those two agents both had what's the duration of time between the entry by the officers and the beginning of the interrogation the record shows that the entry occurred at six thirty the interrogation ended at seven forty eight and it lasted an hour in two minutes so i have the interrogation beginning approximately seventeen minutes after the entry of the old it was free to leave well yes yes he was he was told he was free to leave and that statement came after the statement impressive the supreme court will well the supreme court is changing of course judge preg well we're well but forgive me i don't live here across that that was a frivolous remark and i beg your pardon to no but the supreme court no no and actually when you say that statement to impress the supreme court that is one of the factors certainly if the agent said you are free to leave that is a factor now is one of the four factors under craig had the issue is whether the the sh whether the king's x statement of well you know you're free to leave counts for anything when immediately before that you have the entry of the agents the armed don't understand i can't conceive of it that the testimony here was that this is apparently at all was at the time i hope that it's changed the agents policy that is to say they would enter in armed force they would do these things and of course they have the right to do that under michigan versus mostly they have the right to handcuff somebody while they do the search and for safety reasons they have the right to do that but it's certainly to look at  determining as part of that tally the circumstances have let me ask you this and your time is running short assuming that we don't go your way on the remaining issues that might go away on this issue what is it that you're asking for you want to have the  and then the case would proceed pursuant to the conditional plea rule which is president rule eleven of federal rules of criminal procedure if i could just say one word the judge when and that is this from the agent's point of view they have the right to come in i suppose with their guns they have the right to do these things in the interest of safety but that's not the issue that we have before us the issue before us is whether those things fourteen armed people with their guns out grab being grabbed out of your bed at six thirty am put against a wall parade in your underwear in handcuffs seated in your own living room permitted to use the bathroom only under the vigilance of an agent and then the question and told by the way you're free to go whether that would make a reasonable person feel they were in custody and there's a very simple and easy  can do whatever they want to do or need to do in searching the house all they have to do is give miranda all they have to do is to say now i realize we came in at six thirty in the morning i understand these things but you have the right to remain silent anything you say can be used against you you have a right to an eternity to understand the rights have given you that's all that would have been needed the reason the reason why they didn't get it was to trickle out a rifles pointed a one thing i wanted also to say is to remind the court of that quote from robert frost that judge by the put in the great head case home is the place where when you have to go there they have to take you in and we say that's the place where if they come out with their guns they have to give you miranda ok thank you  may please the court daniels up on behalf of united states your honors at that outset of the interview in this case agent wouldn't told mr mccain any you're not under arrest you're free to leave whenever you want this just after he had been your position is that a reasonable person in that position with think that they were free to leave there's no question that during those first fifteen minutes of a security sweep which agents had information that this defendant had multiple weapons at his house that during those fifteen minutes when he was handcuffed there multiple agents with guns drawn that was a police dominated atmosphere and certainly a defendant a reasonable person would feel that they were in custody but that three only or if he was he was in handcuffs during the first fifteen minutes and doesn't have as bad practice agent wouldn't wasn't part of the first search team he came in after the security sweep was done move mr mccain into a separate bedroom of the house honor in this case i think once he just wouldn't had taken mr mccain into that bedroom and told him that he was free to go told him that he was not under arrest there's a number of factors that separate that from what was present in craig ed in that case the defendant testified that he was confused as to which agencies were involved and whether that he was actually speaking for all of them that case was at air force housing and the agents involved were air force investigators  homeland security and the local sheriff and they are the defendant testified that he he didn't understand that when that first agent told him he's free to go to that he wouldn't be stopped or arrested by some of the other agents that were around outside in this case the district court made a factual involved i don't think that he actually said i am in charge i speak for all of the agents here but after hearing from the agent the district court made the finding that that this agent was in charge and that there was no confusion about who historically may can you didn't know th leave feel free to leave the only answer and if you don't have to answer any questions he did not say that he told him i am in charge specifically he showed him the warrant he when they found with their dogs after they came in with their guns and did their security sweep did he advise him look we when we enter we need to for security purposes and for safety purposes we need sawyer guns and to search the place and that's the only reason we have and he did not say that no yes that's what that's what the court found that they all of the agents put away their weapons took off their flak jackets and it wouldn't then came in from outside with a sort of in you know tactical gear in addition to the flak jacket i don't believe that's in the record  agents told him you're not under arrest you can leave whenever you want and then talk some more about the search warrant and circled back again and said you are not under arrest do you want to speak with us in addition to the other points about him being able to stop at any time do you have another case in the ninth circuit or the supreme court where there is this level of police dominance during the execution of a search warrant in somebody's home where a court has found it to be a non custodial interrogation testimony from from multiple witnesses balance those facts some of which the number of agents of the armed nature way against us and some of them specifically the fact that he was informed that he was free to go  guard right i think the most salient fact that would undercut a reasonable person understanding an agent telling you you're free to go and craig said he was in a closed room with an armed agent or of sheriff in a flak jacket standing behind him physically blocking the door and that that sheriff wasn't involved in the in the actual interview at all he was simply standing there silently throughout the entire time and again craig had took the stand and testify that not only was he confused about whether he would be stopped by air force or other agents outside he also said that he personally felt that he was restrained throughout the entirety of that interview which took place and the court described the dark recesses of a storage unit with one agent sitting on the floor and without about this case is factually distinguishable from craighead the fact that the agent the lead agent charge told mr mccann at the outset of the interview more than one time that you're free to leave he wasn't restrained by anyone months seventy two months a reasonable person in that situation would not feel that they were that they would be stopped if they tried to leave after agent wouldn't told them that technical violation under rule forty one and the court made specific findings that there was no prejudice to the defendant and that the agents did not act with deliberate or recklessness if we were to and i don't know what's going to happen here but if  just a couple of things if i could the only statement the agent made about multiple agencies or single agencies is on page three eighty five of the excerpt of record he says we hear from the internet crimes against children task force and so there was that's it he never said i'm speaking for everybody you know we're all from one agency etc in fact a task force is calmly composed of multiple agencies  he he went on his way his son during the course of the questioning asked is dad here is he at the store and although the transcript for some reason is unintelligible at this portion it's a reasonable that the agent said to him he went to the score he left for short while my time has expired thank you so much you very much we appreciate your arguments in this matter is submitted at this time