thank you honors good afternoon and may have please the court my name is nancy else and i represent the united states in this case mister maher alcatraz agreed to shield his son from a sensitive conversation and when he did  sort of a department policy and procedure reason that he's saying this is standard police department policy and i'm kind of just doing my job but secondly we're looking more about what a reasonable person in this situation would feel and so that goes to what the defense asked well you retained it throughout didn't you something to that effect and the testimony was i don't recall so it would be speculating to say that he ever took the id because all he remembered doing was looking at it so i don't think the record provides a basis either way on that but certainly just looking at an idea is not enough to provide pressure in the situation but he's just confirming that this person is who he thinks and speaking to him and then judgment does if i can go back to the st question you asked the other point i wanted to make regarding the separation from the child you say you had said it out of i say but the record makes clear that for nearly the entire duration of this conversation they were with and i say and that's at two places in the record i would  direct you to page ninety eight and also page one cordie six so there's two different officers there's the one talking to mister morrow graz and then there's the that are standing in the breezeway of the little boy and they both independently of each other describe the situation it's double doors and when they open and close automatically so people can go in and instead of just having those double doors open and then you're in the store the st set opens and there's sort of a little foyer breezeway and then there's a nd set of doors actually leading into the mall into the store and so the way the officers described it the ones who were standing with the little boy talked about being in the breezeway but not in the store and then there was some information that at the end when their aka's had gone over to his truck that there might have been a brief moment at the end when they were right inside of the dick's sporting goods because the wife did testify that she saw them in front of the cash registers mostly in front of the door but it appears to be that that was the case at the very end of the encounter her oh are know i would direct the car today because arias case it's and then countersue for example if he's just talking an officer in there by his truck and he wants to go back over by dick's sporting goods there is a separate question of whether let's say child protective services had co can't leave the mom the question for custody is the circumstances surrounding the conversation with officer does he feel free to end the conversation and walk away no one is that it's a separate question whether for a different reason for example child protective services or the mom comes for some other reason whether he would leave the mom with or without his son but that's a separate question of whether he feels like he can tell the officer ok i'm done talking to you i'm going to walk away and go back over to my son he could have said i would i want to take my son and i don't think that's it i'm suggesting he could decide he wanted to end the conversation and go back over to where his son is and it is a separate question of whether he could have left because of the other rick domestic reasons but your honor your judge tried to write about the other cases that for example take a look at cam where in that case the woman walked up to the store they unlocked the door let her in shut the door right behind her locked  shoved her husband out and physically separated them that way i think the difference here is he was not taken away little boy wasn't in custody they were standing by with him because going back to where we started this argument or your argument babysat during this private conversation and the problem with focusing on whether or not something that was going to happen later the mom coming or a child protective services coming that's subjective to this case you have to look at the objective circumstances around the conversation with the i see my time's up but i'll just answer the question if i mean we'll see him and i don't think it's whether he don't use the counterfactual subjectively here it's whether he thought he was free to leave objective legal so i think it still focusing on that encounter and whether he and remember all of the circumstances that the district court discussed in this case when coming to its ultimate custodial determination here so of course i was the court today has been discussing it was crucial fact that mister moore had been separated from his son and i think it's also important to remember here we had the initial separation but that degree of separation gradually increases as the encounter goes on so st it's out of  considered whether it was a police dominated atmosphere and went through some of the some of the more relevant crowd have factors here so the district court considered st of all the number of officers that were at the scene not days that was four officers to one mister moore was the district court just previously octon this is perhaps one of the most important factors in determining what a reasonable person would have done in this situation and on that point your honor is that i think i think that's really the crux of this of this case here is what a reasonable and how believed himself able to do that to a ship and quite simply at bottom isolated from his young son in a police dominated atmosphere unaware of his rights in this situation the government simply can't demonstrate on this record and didn't before the district court and can't on review now that mister moore alcatraz was anything other than in custody in this situation  yes your honor so on this record so we have custody and we have miranda assuming those going forward we also know on this record in the government agrees that mister moore i was never informed of his right to decline consent so those three factors that for this court's consideration and the other two remaining factors on this record are simply i don't know so we don't know whether all officers refrain from manipulating their weapons we do know that they were all armed we don't know whether they all refrain so on appeal under clear air standard i'm looking whether to affirm a finding of voluntary consent this court has stated that it won't do so without having at least several of the factors present in order to affirm here of course the government an even harder road to travel because we affirm it if we have at least three factors finding in favor of the district courts involved in firstly supporting the district court's involuntary consent finding  even if the government were to introduce evidence on the remaining two factors it simply wouldn't tip the balance in this case but i would also note for the court on this point that the district court came to this decision after eight after an evidentiary hearing that spanned two day so both parties had a full and fair opportunity to present the evidence that they thought was relevant to this question and on this record this record is more than ample for this quarter from and again we're under wonder clearer review so in order for this court to send a background on clear error it wouldn't just be a substitution of this court sitting in the st instance saying that it may or may not disagree with the district court judge this court must have a firm and definite conviction  full understanding of the various of his various rights or or abilities within the circumstances the court that the government simply can't discharge as burden especially under a clear air review to demonstrate my firm and definite conviction that any error has been made with regard to the voluntary concern finding i said that i'm i'm the separate standard i think it's clear here on this record that that's what the district court was applying for this record went through a very thorough analysis here on custody and miranda and various other rights that that m outcries wasn't provided during this encounter and i would lastly note for the court if i may just briefly we would mister moore al gore has is actually the threshold issue requesting dismissal in this case and the government has yet it is all just briefly address the voluntary consent issue the district court did make a factual finding that this consent was very voluntary to search the truck however it is judged present is pointing out there was a legal error that followed that the court found the lack of miranda dispositive and said because if that were done here so there was no separate bond terri consent analysis but even if the court and ops mister maher on prez position that the other analysis and findings by the court were sufficient then we would ask this court to uphold that very voluntariness finding which was at page one thousand dollars as that of the record as discussed because it is a separate issue and even if the court finds that he was in custody and should have received  miranda warnings this court has also found as we discussed in our brief that a person in custody has the ability to voluntarily consent to the search and so looking at the totalit that's right that the standard of review for voluntariness to consent is clear air standard of review for voluntariness about statements is to nova so when we're talking about the truck and retrieving the gun that's clear air and the part on that that was very voluntary however and kind of went on that page nineteen dollars oh oh yes that's where the car because that was very voluntary about because of the lack of miranda we would never know that that's a legal er voluntariness finding on its whole analysis this court could affirm and say it's not clearly erroneous because as counsel pointed out the court heard from many witnesses it was a long evidentiary hearing and could affirm on that basis but if the court wanted factor court said it was fine and kept the rule in place and remember this is after the statute was amended to say i'm really and so even if the court has a question on it under supreme court doctrine this is something that the supreme court would need to reverse itself on based an effect on a particular appeal the reason why the government is unique in the situation is because there's a statute when the government gets to take certain interlocutory appeals which is not the case for example always in civil cases where as you mentioned there is that clear rule