three robert lundberg versus the secretary of the florida department of corrections mr moss and mr moss before i sometimes forget to do this all do it now i know that your court appointed for m and fifty four petition alleging that the state courts of florida erred in finding that there was no ineffective assistance of counsel in his particular case as will be explained shortly now in this case as is typical in a two thousand two hundred and fifty four that gets to this level of appeal the three questions that must be addressed the st one the threshold question is whether counsel trial counsel was in fact deficient under strictly the washington nd did the state court in this particular case apply the strickland standard in an unreasonable manner given the facts you've got a number of ineffectiveness claims and you may not have time to get to all of them which ones do you want to concentrate on i'm going to concentrate on claim to your honor ok which is a failure to object to the trial court's giving of an it's our contention that the th dca th district court of appeals applied strickland in an unreasonable manner to the facts of this case for the following three reasons number one the case law that was cited by the defense which the th dca distinguished on his facts the court read the holdings in those cases too narrowly that's one issue the nd is that  there was no record evidence as to whether the failure of trial counsel to file this motion was strategically based after reasonable investigation and a rd issue is that the one case in on that kept running and then and then she said i want to leave you to europe to give you give us some privacy we're going to give you all some privacy give you some privacy that's a bat's kind of a factual question about what that what that meant and didn't the district judge address that and the state court judge address it as well and the state court came to the conclusion a state habeas court came to the conclusion that it was just i'm going to leave you alone and there was no  this was a interrogation room which normally is not there's no expectation of privacy but but that an expectation of privacy wasn't created under the circumstances and that those cases which have turned on on whether or not the person was getting around is miranda that the state was getting around the miranda warnings that have been given and the guy had refused basically to talk with the police presen that the th dca read those cases too narrowly is this well those cases certainly indicate that a determining factor is the forty she described it was whether the police actually was designed to circumvent some exercise  constitutional right none of the cases that the th the cia relied on make that point explicitly i want to especially draw the court to the attention to the language in allonby state which is the only state florida the obvious objective was to circumvent a constitutional right it did not say that that exception applied exclusively to a situation in which there was there had been an exercise of concept of constitutional right alan does not make that distinction calhoun and cox do not make that distinction will leave but just going back to judge walker's question are you arguing that that was an unreasonable determination of fact when the state court interpreted the statement by officer dennis boyer case which the court relied on almost exclusively in support of its proposition that there was that there was no right to privacy boyer involved a case that was similar to this one in one specific aspect and that is that in each and in that case as well as here the defendants had voluntarily waived their miranda rights in this lundberg case it was at the outset of the interrogation and mr boyers case it was midway through after he had initially were privacy he did say i'm going to go out i'm going to talk for a while but they express where privacy was never utter also unlike the lumber case there was no of action describe on the part of the police that would have furthered mr boyers expectation of privacy here there was the fact that that text of dennis had a audio recorder on the table during the interview certainly would disabuse m in notion that he had a right to privacy they are we agree with that but once he saw detective dennis turned off the tape recorder heard her say that she was going to turn it off and then made the express grant of privacy that is a significant difference from boyer what assuming assuming that the attorneys should have had enough to at least file a motion to suppress on the prejudice side of the strickland equation what is the best case you have to suggest that he might have had a shot at being successful had he filed the suppression motion ok well obviously we can never guarantee what the ruling would on i'm not asking for a guarantee and that's not the strickland standard anyways i'm just asking what what cases are the best ones for your position that suggest that that motion to suppress would have had a chance of succeeding because you have to show at least some indicia that that motion to suppress would have been a viable option would have had some chance of success right that's what the strickland in other words if every if every single case in the country you know from all fifty states and all courts of appeal had said in your particular factual situation the the fended loses that expectation of privacy doesn't give  suppression claim you'd lose on stricklin prejudice right because you couldn't show that there is any likelihood of a different outcome well here's what i would argue with regard to that have the motion be granted then the most substantial piece of corroborating evidence in support of the victim's accusations would have been off the table were never agreed yes right sure so at that point the defen corroborating evidence apart from the victim apart from the victim's accusations and the statements by the statements that are listed by her parents because and that's because the statements that mr lund or himself made were thrown out a statement saying he did the admission that he made to the detective after she made that death penalty remark those were suppressed right so that so the quantum of evidence that the jury considered didn't include those those were out of the picture correct but without what had that issue been litigated and had the motion been granted then the state's case would have been that much we can to the point where there is a reasonable chance right it was all pretty powerful corroboration i know it was allowed in there was a strategy that that the defendants the defense counsel argues in connection with those that because there were the parents had some if a police officer in this sort of situation tells the defendant and his or her relative spouse friend dick cetera i'm going to turn off the tape recorder and i am going to disable the video recorder in the room so that whatever you say is private between the two of you and we can't hear it is there an expectation of privacy that would be we have no no i know i know it's a different case i just want to know what the state's position is with regards to that sort of a fact pattern would that create an expectation of privacy that could be i have a question and that is who knew about the video recording i'm assuming dennis did officer dennis knew about it but i also assume in that the individuals who were left in the room the defendant and the defendant's girlfriend did not were not were unaware of the of that of that video recorder is that correct the defendant had the fact that he did not know about th she waked up the fact that he had a string of of course up until this point has found that there was no strickland violation in and of itself does not automatically mean that that the state courts decisions  entitled difference is certainly a persuasive argument but i think you're right because if that were the case then a federal court of appeals could never granted a b s relief in in a case where relief had been denied below because by definition the state courts would have denied relief and the district court would have denied relief so it's a factor but it's at least in my opinion certainly not dispositive of the ed by issue correct and in in her observations in response to your hypothetical judge to order the state as i understand it concedes that under the fact pattern that you described where there were additional privacy provided by the police to your hypothetical suspect that that their reasonable expectation of privacy would would arguably arise does it matter in our in our case in mr lumbergh case that he was under arrest and had been given his miranda rights at the time that he spoke to the girlfriend does that matter in any way shape or form take away from or is neutral with regards to the privacy interests at issue make sure i understand in other words he he could have been a person who was brought into the police station for questioning had not yet voluntarily voluntary or not voluntarily but at that point he was not under formal arrest that was to the facts of this case yes no he was on he had been arrested i thought you meant when he st came to the stage no no no i mean well think of a person who at the time of the talk with the girlfriend or spouse or friend is not under arrest hasn't been given miranda rights it seems to me that those two things matter at least some in the privacy calculus and i'm wondering whether the contrary facts in mr create a problem in other words a person who's under arrest generally loses some expectations of privacy especially when he or she has been given miranda rights r and had this and had this case been more similar to born here where the detective did not utter the expressed words of privacy then this case what i view this claim would obviously be in a much different posture it again is a matter of a matter of factual degree actually the the extent to which the police's act the actions of the police give rise to that subjective expectation in the mind of in the mind of the defendant now the state has as never contested and in this case that he had a subjective expectation of privacy under the st prong of cats the only issue is whether under the nd prong there was a there was a reasonable expectation of privacy as trial counsel acknowledged during the evidence or hearing the general rule is that there is no such right of privacy officer had not used the magic word privacy and i just said i'd like to leave the two of you alone so that you not just the issue of the utterance of the word but also her utterance that i'm going to turn off the tape recorder which for a lay person and mr lundberg position would not necessarily mean that i'm going to give your privacy kind of situation as you would find stated in the lobby of a jail where the visitors are placed on notice to that effect that there was nothing that that was visible to that effect here so given mr lundberg relative lack of of prior history made there's nothing in the record indicated he had ever gone through an interrogation of this type previously so considering that statement from the standpoint of the listener that is where the expectation of reasonable expectation result especially coming from a sworn law enforcement officer all right thank you very much mr harris thank you happy holidays to