please the court sara varner for ricky clarke mr clarke statements in this case were warned and involuntary because of the failure in this case to properly and fully advise mr clarke of his rights and the officers conduct in this case to offer mr clarke some version of miranda but then to refuse to honor his attempts to invoke those rights are you arguing that just the fact that he told him he had the right to an lined up and that is a factor that tips the scale in his favor it is not merely that factor alone three say dad is one of the factors the courtship look at in the totality of the circumstance to determine if he was in custody yes  honor and i think that it's really important for the court look to look at that factor in the totality of the circumstances because you can't ignore that fact this court has already said that if you engage in some of the formalities of a custodial arrest without actually telling someone they're not under arrest that that could be a factor that weighs toward custody in those circumstances and but what we've had so under the totality of circumstances the court should look and see out of and all the facts and circumstances chances in this case but a reasonable person feel that they were in custody and in this case we have officers not fully mirandizing but giving some effort at the end but then refusing to honor that and there are very important reasons i think that this court should look carefully at that as the indiana court adopted intervene when they adopted this court's reasoning saying if we are we to think that offering miranda rights has import in the custody analysis that what is the purpose of miranda if you're going to offer someone miranda rights and then refuse to honor them if you're saying that they're look at the total facts and circumstances that the case he's told once at the beginning of the interview you don't have to talk and then after the interview goes along mr clarke starts to get nervous he says i think i need a lawyer what is missing from this case is if the officers in this case did not believe that mr clarke was in custody at that time there could have been statements that they could have made to rectify that at that point they could have said well let's take a step back here you understand that you're not in custody you know you don't have to talk to us you can ask us to leave you want to if you feel like you need a lawyer you can ask us to go up they didn't do that instead what they did was offer him a right they said you have the right to an attorney and i think that statement has special meaning when it comes from an officer who's foreigner for we took the whole issue of the right to counsel out of the picture if we have for the sake of argument that the right to counsel never came up you do a strong of a case in front of the court i think that there were factors that were ignored by the district court and the primary factor that i think tips the scales in our favor is offering miranda rights and refusing to accept this indication of those rights that's a substantial extension of the doctrine of current doctrine it would require officers engaged in a non custodial investigation questioning of a suspect a voluntary non custodial questioning of a suspect to ask clarifying questions give clarifying information give other prophylactic warnings at and that are not required by current doctrine so so this case represents if we were to rule for you a substantial extension of the doctrine i think this case is special i could not find a case that exactly mirrors the circumstances what you can find is a case where it's not custodial but they've offered full miranda rights they signed a waiver and then the issue in the case might become did they try to invoke their right or not or were they actually in custody but when an officer offers it and they're not in custody and then refuses to honor it and then doubles down again and says you do have the right to an attorney you do have the right to remain silent and then refuses to honor i think in those circumstances this court should draw a line and say we are not going to encourage officers to sort of make the defendant feel more comfortable in  pretending that we're going to offer them rights but then pulling the rug out from underneath them when they try to actually assert it right we're not going to let officers who are more concerned with gathering physical evidence at the end get a confession something from someone and under these coerc e tactics i think this case i could not find a case that was directly on point for that's because there are no constitutional limitations on non custodial questioning the only constitutional limitations that exist are for custodial quest that's right you know so that's why this case if we were to rule for you would be such a substantial extension that up by virtue of even mentioning the right to counsel a non custodial questioning session is transformed into a custodial setting that requires focus on constitutional writings i don't think it's just the mentioning of the right to counsel it's the totality of the circumstances here he's told once at the beginning of the interview you doesn't exist in this context wouldn't we also if we ruled with you be discouraging officers from telling defendants that they do have a right to a lawyer when they mention they may want sure that's what we want i think that we we want to encourage officers to get full miranda rights but if you i think we're under special circumstances that if you give full miranda rights and you continue to reiterate that person that that right exists and you don't stop the questioning and you don't ask them do you understand that you're not in custody let's step back a little bit doesn't apply to non custodial questioning situations correct your hon no constitutional right at issue but the fact that the district court completely ignored the fact or this court has said having these formalities of custody is important and fact that the district court completely ignored that factor is important and i think if the if the court when it wanted to instead as the government suggested in their brief three man the case and ask the district court look at everything else that you looked at in this case but also fold in the fact that he giving of a miranda warning either part or whole and a non custodial setting renders that non custodial setting a still here i think looking at the normal house factors are the factors that delineate custody generally they all point in favor of a non custodial situation mr clarke's argument is essentially that by giving a park part of a miranda or i guess all of the miranda difference that converts a non custodial situation to a custodia situation which is not correct under general federal law that's not what this court has said mr clarke cites spross the bits frosty said that it could be a factor when there's prolonged detention and persistent questioning which is not the case  there was a mention made of the fact you could never ha and i think there are there are two points here let me let me start with the findings and then i'll get to the home portion i think the findings are especially i think they're sufficient anyway but here there really isn't much of a factual dispute which i think is part of the reason  president say usually the home plans towards custody on the other hand the home intrusion into a home from circumstances could be very couper's yes in general when when the court has found that there's been something extra attained you know what time of day you show up and how insistent you are and stay yes i know if you know the couple cases example cited by mr clarke would be one where multiple officers come armstrong these the battering ram or another situation a person comes home and cuts are already in the home for these types of situations yeah i think there is we're not asking for a bright line rule about the home but in general home is going to be more likely to fall on the side and not in custody because the person is going to be more comfortable there because again sort of i want to circle back on that to the standard the standard is to prevent the inherently coercive atmosphere akin to a station house being possible but that factor here weighs in favor of non custody because the police officers gave mr clark the choice to discuss privately or with his mother present a joint is the use the district judges use and the parties  fight we didn't intend to say that there is necessarily a person i think most of the time it will fall on the line not in custody and we don't see anything unique about the facts here that would push it into not what you'd what is the duty of the district judge with respect to making to determine the whether to restore your situation but how would you like to think we ought to describe that i think that the judges as should apply the law as stated using the house factors using the factors this court has given apply the facts of the case to those i would disagree to  this and the district judge doesn't necessarily have to like put each one in a ledger on each side this isn't a sentencing mitigation argument where the dischord judge has a duty to specifically address every mitigation argument that a defendant raises this is an attempt to use all the facts to get to get to a broader conclusion under the totality of circumstances whether it was custody or not and that may sometimes require going a checklist on everything sometimes it doesn't i think no right to counsel on and on could start writing no so the fact that the police then said yeah you do have the right to counsel was actually going a step further than they even needed to they they could have under the law ignored that it's a misrepresentation he doesn't  phrasing you have the ability to stop the conversation and talk to the police would be technically accurate under the law and so i don't that is also a misrepresentation because it's just that the officers have a duty to stop the interview yes they don't even have  would be their duty if mr clarke said i'm done talking to you mostly my house that they have a duty to do that right yes that's right but they don't that's their have to ask clarifying questions about the invocation if it's ambiguous etc that applies only that  question and with the custody that's incorrect we're asking this court even if you believe that mr clarke was not in custody at this time to find that in these situations where an officer does say you have a right and refuses to then honor that right that you would find