and the testimony of the motion to suppress that seemed like there was a lot when he tried to leave there are two versions of what happened to your client mr taylor said that the officer grabbed him back inside let me see the keys and come back inside he testified at your forty six that he ordered mr that he agree that he that he had asked mr taylor come back inside and that mr taylor complied with his directive the second incident that your honour's referring to is something that happened almost immediately after that where each man doli is then talking to mr taylor about a key for the second bedroom and the testimony there is reasonable person in those circumstances would have felt in custody and i think it might help just to clarify the chronology because i know that i'm looking at the motion to suppress hearing transcript in the trial transcript it sometimes gets a little muddled here it's clear that at five o'clock five agents from homeland security investigations appeared at mr taylor's home there was a little bit of a discussion of color at the door and then they come in there initially there to interrogate him about this money order defense counsel and believe his asian raja question he did not tell him he did leave right answer no i did not tell him he could leave none of us told him he could leave he never asked to leave question other than when he walked outside and tried to leave answer exactly around sixty fifty five pm attempts to leave because he's found feeling nervous or doesn't like the situation is around to taps and says hey come back in let me see the keys so and the testimon that mr taylor comes back and gives mr antti his car keys even around his car keys and in his soon after that that there is a discussion about how do we open the second bedroom and mr taylor starts walking in his own apartment to go to his kitchen and that quite didn't happen here but i understand there were five officers here they have the touching and so the question was are sufficient restraint of his movement for him to have our objective belief that he didn't feel like he could were five officers they invited in someone from the l a port police they called l a p d but they were too busy they called so then they called early part lease so they invited someone else in to mr taylor's part asked what effect did it have that he was on probation there's some there's a lot of reference to or you know that are outside i don't know i mean we're going to call your probation officer he's on probation or you know some question whether you know this was going to be a probation search and you know when they threatened him with that he's kind of said ok go ahead and come on in but it sounds like they threatened him again later with the probation search what are we to do with that is adamant that this in one way or another you're i think that's important in terms of the officers went in there knowing that he had a prior felony is so at the time that they're going into the second bedroom and doing that search they come out with the ammunition that's clear on the record of the ammunition the asking about the ammunition they're asking him questions about increasing activity i don't think anyone's going to argue that that's not interrogation and they know that they've stopped him from leaving his own apartment they've taken away his car keys they've physically restrained him in the house in his own apartment i think in those situations we're looking at the totality the circumstances a reasonable person would have felt free to leave i think it's useful to look at crawford which is cited in craighead there the court this court put a lot of emphasis on the fact that the defendant was repeatedly told he was free to leave and in fact went home and i think that's one of the most significant factors here is that this sense of  person would have felt free to leave he was in fact arrested at the end of all of this that's not the case in craig i pray god was left alone and the officers departed he was not arrested that's not the case and kim in kim at the end of the interrogation she wasn't arrested interrogation starts at five o'clock they're interrogating him about the counterfeiting at six thirty five becomes much more aggressive and there's the restraints and he's stopped from leaving and he's ultimately arrested at seven fifty five pm well that's when they go ahead and say let's assume that in light of the fact that there's other evidence in the room sure your honor and i appreciate that we were just discussing that the chapman standard here here i think it's clear that it was not  harmless beyond a reasonable doubt i would point to the government's excerpts of record page sixteen they they characterize the it's over and mr taylor's own statements as direct admissions of the crime here it's important keep in mind was no forensic evidence there was no d n a evidence no fingerprint evidence there was no eyewitness testimony about mr taylor being seen with the gun what they had in the most powerful and this court has characterized the defendant's own words a would point the court to the government's opening during trial and closing the repeated statements about it's over and the testimonial act of dropping is had so that that was at the heart of the government's case mr restraint there is first question about the jackets that that's take another room and this is done in series first they come out with a jacket and they say is this yours this is your jacket next they come out with the ammunition they bring it out they presented to him they say is this yours and i think the most one of the most important points here is agent orania in his own declaration in his own report he states or ronte had confronted taylor with the rifle ok and that's that you are one ten that's the declaration that's attached to his declaration opposition to motion to suppress even around to a row that report is your right to have characterize it himself as confronting mr taylor with a rifle and i think that distinguishes this situation from a lot of the cases that the government sites i'm sure would how did you find me so quickly that's a statement at the initial outset of an interaction in the sequence of events when do you think he should have been marooned you are i think that as we argued below i think at a very minimum once they've prevented him from leaving they've taken away his car keys they've made clear to him and i think any reasonable person in that situation you're not going anywhere for they never tell him he's not under arrest they never tell him he's relieved in fact words actions speak louder than words here they stop him from leaving this is a fascination we don't see in these cases he tries to leave prevented from leaving by an armed officer there's no argument from the government that the other officers were not armed and if an armed officers tell you not to leave then takes away your key and then you're restrained by another officer i think that point he should have been mirandized if they're going to continue interrogating him there's some references in the government's papers that these were reasonable officer actions that they were taken for safety reasons that's fine and where that can entirely be true but is this court noted in craig head the fact that these precautions may be necessary to the success of a lawful search does not lessen their tendency to make a reasonable person believe he is in custody that is to say we don't quibble with each it meant only seizing were the original five officers were all armed correct that is our understand now the testimony my question is to you it appeared from the record that they did something with their arms did for the  for did they take out what happened far your honor from this record it does not appear that anyone on the holster or firearms and so i think that that's that's a relevant fact but i think it's relevant that you have is physically restrained and that he was arrested at the end this goes beyond i think the totality of circumstances and craig getting him were both defendants were found in custody and the length i think all of the factors here make that clear i think the statement is not spontaneous because it is a result of police said nothing about whether he was in custody or anything else because the only evidence in the record of both the suppression hearing and a trial was the testimony of the agents and mentally as pertains to the custodial question to take a step back and you through what happened and when the officers arrived around three pm and they surveilled the home at around five pm they see the defendant mr taylor arrive in his ford ranger truck and park at his home around five thirty once they've prepared they go to the door and they knock there's an exchange at that point about hi we're from h s i would like to speak with you he asked for they have a warrant they say they do not but they ask him whether he's on probation the reason for that is an independent fourth amendment issue under the granbury law about knowing that someone is on probation has nothing to do with this fifth amendment issue they don't ask him they tell him they acknowledge that they know he's  ask him are you on probation he says no i'm not and then they there's a second colloquy that's there are two exchanges on that he eventually says yes i'm on probation and he says i don't want my neighbors knowing this are hearing you guys so come on in and he invites them into the home at that point then now they're now in the home it is after five thirty the way it was written and just clarifying and i don't know that it really matters but like they seem to communicate do you want to stick all your probation office yes because there was he disputed about whether or not he was on probation with search and what do we make of this the fact that he was on probation and he could have done a probationary search and you know yes they are the doing this i'm not quite sure what to make of this the fact that he was on probation they sort of threaten him with doing a probationary search i'm not quite sure the why they didn't do a probationary search because he gave his consent i'm super probation so there are two aspects of consent and probation and that's really a separate issue again of the fourth amendment which was what the defendant actually raised in his suppression brief he made to be clear and we should speak about this he entirely forfeited the argument he now raises on appeal by never raising it in his opening brief the probation issue really is relevant to the fourth amendment question of whether it's reasonable to search people who are on probation with search conditions have been deemed for for the memphis is to have consented ex ante to such  searches the own the issue is whether officers have a probable cause to believe that the home they are visiting is in fact their home so that is a question really oriented toward the fourth amendment issue when he is told you know we do have the right to do a probation search he says we'll just come on in and that is consent are there not five officers right there at the door i mean i don't know maybe you tell me if that's how we're reading this scene like there were a number of officers at the door they knock he comes or says what's going on they kind of reference this would like to talk to you about this counterfeiting scheme is that right at that point did they tell him yes to develop him as a source and in fact they agree very quickly that the point is they'll do an initial interview and they tell him and he agrees that they'll continue to interview the following morning which in fact actually goes to one of the custodial factors in that yes he wasn't told you're free to leave which would be sort of an odd thing to say as they're speaking in his living room mr taylor you can leave the living room and it's i mean that's really a factor that highlights a bigger point here which is miranda and custody of all of them is most concerned with station house interrogation that's going in advance i mean because there was he really free to leave when he's trying to leave again and go kind of frustrated by what's going on here and they say no you can't be so absolutely and so the record here and this is to address what my colleague had originally said in response to the court's question there was no restraint on him from leaving and so that the asked him to come back inside and then he complied and then they said you did not tell him he could leave no i did not tell him and as my colleague pointed out none of us to him said he could leave none of but neither did he ask then later under the government's questioning if you are fifty one to fifty two he was asked did you secure him by his arm i did not secure him by his arm did anyone block his path nobody blocked his path now what happened here they said to him and this is important to understand they had a ready scene into one room because the defendant kicked down his own son's room after sort of lying and saying it was his room in fact it was his son's so then they said thank you mr taylor we'll be seeing you tomorrow morning they prepare to leave and on their way veracity check really more than anything they say by the way so knowing he had just lied well so then what is the second room he says it's locked i don't have any keys at which point group supervisor mendeley and point out well how did you get here we saw you drive when you don't have keys his keys are not confiscated that's a really important point they were not confiscated as part of some you were not free to leave the building as they let it don't let him go get his own key they stopped him from getting it after they stopped after they said when he said he was going to leave they let him leave and i don't know how you're supposed to look at this from a jacked of point of view is that correct yes so let's talk about that so they say just to finish the narrative he says i don't have keys they say well how did you get here you don't have car keys he then takes out his own keys and he drops them on the ground and which point they're picked up and then the discussion says look you have keys he says ok i'll open this room at that point he likes to go to the kitchen that's when mentally the first time he's touched me goes is rough you don't need to go to the kitchen he's concerned about knives in the kitchen why don't you let us go get it he says ok the key to the bedroom is in the kitchen they get it he to the opening of the door so that's the sequence now why is that not custody is really the point here why is that i guess what's your best argument to someone who's been stopped or you know it's they can't go to get their truck and when those are going to their truck and then later told you can't go into your kitchen well why would that person feel like they're not free to leave well he well for a number of reasons first again he was not prevented from going to his truck he said why don't you come back in why are you lying and he took the keys but let's assume he said that's not what he said yes and so that's why we don't have any i don't think the district court made any specific findings on these facts that you're talking about right now because it seemed like they had two versions you know the defense defend its version and then the officers that there is no defendant's version there's argument he has no testimony and the only fact he put in the record is our own declaration usually our own report which would be hearsay as evidence so there's literally no version i'm there is a brief that he argued here after he forfeited in the district court but that's it so now let's talk about the case law and why this is not custody embarrassing fashion he's in there for considerably longer than he is in this case and confronted with extensive evidence against him and then sold and if you don't give us the keys to your car we're going to break into it and the court in boston and he said no custody now let's look at credit which by the way i should point out is only an exception to the general rule that being in your home is actually less custodial than being in the station house but why did the court in craighead find that there were whole there was custody in that case well as itself emphasized and as the second circuit emphasize info us it's all because in that case on a military base ten officers show up and on holster their weapons they draw their firearms they were in flak jacket they bring some into a storage shed in the back of the home and they block the exit that is far more marshall and far more custodial than the concern is in this case let's look at because our us in this this quarter because our is how the ten officer showing up at seven in the morning a guy up who had just gotten into bed from a double night shift took him out of bed and said you have two choices you can come with us the station house or we can drive you there no custody so that's why there's no custody if i could because i see i'm running out of time let me just cover two other really important points there is simply no question that the defendant never raised this argument whatsoever in his opening brief in the district court he then raise it only generally and did not identify the ammunition statement in his reply notwithstanding the in the middle of that when this is testimony there was initial motion for mistrial the court found with that argument was waived the court then double down and emphasize again waiver in its final motion denying mistrial there was never a limiting instruction requested so this is all under plainer review trying to figure out how do we treat the rifle when as mr choudhry pointed out the evidence is that he was confronted i'm not quite sure what that means and so i'm very glad you asked that question so the only evidence in the record it was crystal clear at both the hearing and at the trial through the testimony of iran and man billy is as follows and then you confront him and this is at your fifty six to forty six to fifty three start and you confront him with the firearm you presented to him they bring up the firearm from the bedroom so what does that mean iran dia and this is just crystal clear notwithstanding the repeated erroneous implication in the opening in reply briefs in this case is sitting with the defendant on the couch with the son who by the way had come home and was free to move around which why the way distinguishes this case from kim where the court emphasized the isolation of the woman who couldn't speak english very well from her husband who was forced to wait outside for three hours and she was also told to shut up when she was speaking with her son and other language it was done in this case you know he was in his late teens so he comes home he's free to move around and the three people in the living room are iran to the agent the son and the defendant and he says it's clear your forty six to fifty three and then it's clear again the court itself by the way inquired at this point if hearing and then again it's clear at trial at your three eighty three where iran says i was in the living room it's and then the defendant seeing other officers removing a rifle from his mattress from inside his own mattress goes like this shakes his head and says it's all over and the testimony said that it was not in response to any question he was simply saying it as an aside to himself that the paradigmatic excited utterance it's all over why because officers found and assault rifle hidden in his mattress and he knew he was a felon in possession at that point so that is no so why under the law making clear that the facts show that this was a spontaneous statement not in response to any question my colleagues argument is primarily as follows given that he was in custody and that at prior points he had been ask question that it would be reasonable for the officers to understand that the minute they found the contraband that he would say something well first of all that's just not what the law is and so why is that because take for example well the law says it doesn't have to be a question it can be an action a police action and so the question i think for for you today is whether or not that was a sufficient police action to bring in the rifle and knowing that he's a felon yes that that would elicit a response right so if simply can't be that a police officer finding contraband is then tagged with asking a question under the case law for purposes of between being presented with something in other words hey look what i found in your room just now versus they just find the thing and he's looking nervously as officer stearns testified in this case the defendant is nervously looking into the room like this saying what are they doing in there he then sees the gun and says it's all over so that it wasn't a presentation as much as he has a sight line into the room and he makes the excited utterance but let's look at the case law so in this you have a person in the back seat of a cop car and the officers say to one another in the classic phony ruse frankly wouldn't it be a shame if some kids found the shotgun and and shot themselves and then the defendant in the backseat of the cop car says i'll tell you where the gun is let's our versus a still in this court the classic prisoner's dilemma the defendant is brought to the jail he's questioned intensely ok he refuses to make certain inculpatory statements then the officers say and they lie and this is clear from that case they lie and they say you know your other cronies they're ready ratted you out he then makes the inculpatory statement and this court holds that that statement was spontaneous we have hernandez against holland someone s while in the jail cell in court to the bailiff the bailiff testifies so in all of these cases there is much more custody and overwhelming of the defendant and the court found that they were all that they were all spontaneous statement in plain it wouldn't have affected or prejudice the defendant given all the other evidence which i think is where your honor wants to direct me but i mean is it really plainer if the district court went ahead and dealt with this and made a ruling i thought our case law said if the district court made a ruling on this do we really look at it plainer let's look at what judge clouser himself said which is nobody pointed out this ammunition statement to me defendant you didn't file it in your motion you didn't raise it when i made my ruling at the hearing you simply said thank you as the other statement  then you never objected timely or at all and then you never asked for a limiting instruction but he went ahead and took care of every scenario it seems like in terms of addressing the law and so i'm just trying to figure out i know you're focused on the plane arabic just help me and just but as to harm a star what is the evidence in this case it's overwhelming you have first of all they never objected to the statement about the clothing being his which is a the room they pull out ammunition which is a crime itself from a file cabinet where he has his old papers financial and medical as as the court noted then in his own mattress there is a slit with a hidden compartment and the firearm is removed there's simply no question that these items which are the crime the body of the crime are found in his home and he makes a statement which is clearly spontaneous it's all over you also have the testimony of officer stearns who shows who's testified that he had clear consciousness of guilt by getting very nervous and shifting around and peering as they began to look at the mattress so you have someone caught literally red handed in their home with ammunition among their personal effects which is a crime and a firearm hidden in their own mattress he makes two inculpatory statements so even if one is out the others then yeah i question that if the it's all over statement which by the way the government can see just testimonial but it's just spontaneous but if that statement doesn't come in then a new trial would be required because we emphasize that statement in our opening we emphasize that statement our closing it's incredibly probative it defeats the harmless error argument substantially but it but we need it has getting again we give you another chance isn't there other evidence like his picture in the room his medication that which show that that that anything in there was his of course so there is there's the picture there's the medicine there's the fact that it's his house  and among all of his things in his file cabinet and in the mattress so yes there's tremendous evidence of guilt it's just the government did an independent of all the statements yes ok thank you very much let me see if judge school has any other question waiver argument i would just direct the court to e r twenty nine hundred thirty where the district judge this court says he understands miranda as part of the argument on the motion to suppress it's fully argued by both sides and and the district makes a ruling on that e r sixty four to sixty five and as we see in our brief there's no ambiguity on the ruling its ruling as to when he was in custody just report says he's in custody at the time he said it three and palmer where it's very clear i think under this court's law that a clear motion clear ruling by the district court is sufficient to preserve the objection and so we do believe under kim and craig had this question of custody etc is the no over of presentations here today the case of united states of america versus ralph deon taylor