ok joining mark mack to sen and shane crowley thank you case number sixteen one seven eight five united states of america versus alvin wright arguments not to exceed fifteen minutes per side mr maggots and you interestingly the multi factor test that was adopted by this court guarded the admissibility of statements after midstream miranda warnings and what this court adopted in was  mentioned in secret was whether or not the admissibility of statements given after bitstream miranda warnings hinges on quote whether a reasonable person in the suspect shoes could have seen the stationhouse question as a new and distinct experience and whether miranda warnings it could have made sense as presenting a genuine choice to whether follow up on the earlier admission so in other words the standard is basically from mr ray's point of view and from his shoes how did he see the situation well in this case mr ray saw this as one continuous constrained him to admit in writing what he had just admitted sixty minutes earlier now as guidance to determine what a person mr raised issues to experience the court and adopting those for all type factors identified the following for the trial court to evaluate content of the two statements third the timing and setting of the first and second interrogations fourth to continue the continuity of the police personnel and with well i mean if there's guns in the house and you ask a question have you ever been to jail what's the purpose of that the purpose of that is spent to gain a tactical advantage which they did do and say you've been to jail before and he's admitted to being to prison at this point they now know that he's at the very minimum a felon in possession and so they can enhance it start giving him those credible threats  that you know have you ever been to jail before and he says yeah i have a drug whatever the case was a good to me that goes beyond that's an interrogation and  he was a felon that now the police had information that he was a felon in possession of these so these constructive possession of these weapons and and there it went so it had he been mirandized and had it been done properly because there's no question that he was under arrest there was no question that he was not free to leave and so what's the purpose of that of engaging in all this interrogation and it would and that's combined with the fact that what i was going to suggest is that you know in this situation mr raydon carlie's girlfriend you are together for or nearly twenty years longer than most people are married they had a teenage son together the home is owned by mr lee's mother they lived in that house our own remain and following they have an entry hearing found that your client was not credible in saying that he was interrogated at the house and  interrogation or made the threats and so forth later but later at the evidence you're hearing he identified i believe was officer y nick as the person who did it two different people but here were here's the situation and maybe it wasn't really brought out sufficiently for judge cohen to understand this judge officer hill died in an unrelated say incident prior to the trial so he did not testified always we didn't ask him any type of these questions we just talked about the weather and sports we didn't go there we didn't talk about the very reason we're there to do the search house for guns and drugs it's a hot day today and how about them tigers i doubt it so i think you know you can see between the lines here and i think that there there was a conversation there was an improper interrogation permissible views of the evidence the fact finders choice cannot be wrong and a finding of fact that anchored in a credibility assessment is not subject to reversal and here that's exactly what we have judge cohen found after hearing the testimony at trial where all the testimony in the evidentiary hearing after hearing from all of the officers with the exception of officer hill and this magazine alluded to that mr ray was simply not credible and that there were no threats implicit or explicit that prompted any sort of statement at the home in other words judge cohn credited the police officers testimony and if you look at the police officers they all were consistent that th ere was no threat implicit or explicit to arrest ms lee and moreover they all testified consistently that alvin ray made no statements whatsoever with respect to the guns or the drugs while in the house that credibility germination is the end of the analysis because as you mentioned there cannot be a seabird violation if there was not a statement made in violation of determinations because there were two people there as witnesses who were present at the interrogation at the home girlfriend that was there and she testified at the evidence for a hearing and her testimony to meaning to corroborate and mirroring the testimony and support the testimony of the defendant however when the district judge made his credibility to determination he did not come in upon the testimony of minutes believes a major was a major didn't play right he was either discounting that testimony or found her credible and non credible whether the defendant's testimony would be which ordinarily minds being not credible would about one man's feelings and i'm not quite following that argument well i'd be happy to explain further judge i if you can if you look at what was said judge karalee miss mr ray's girlfriend she contradicted herself and the testimony of mr ray and if you look at the testimony that transpired between the trial as well as at the evidence cherry hearing there were effectively four different versions of what transpired and the version that was credited by judge said is that no officer if we look specifically at page thirteen eighty two of his decision he said that race testimony was not credible and and that frankly is the credibility of germination he he credited the testimony of the officers and said no testimony by any police officer at trial or the evidentiary hearing supports raise account of a police officer making a remark about arresting lee and going back to judge clay's point  testify she contradicted her testimony from trial where she didn't raise any of this she just mentioned that the police had a conversation with ray and there's no question they did it's very standard that you would have a question answering about booking questions as well as small talk while whoever's monitoring someone that's in detention waits for the other officers to conclude their search but she did not say that there were any threats made she did not talk about wolverine or officer hill and then we turn to what happened at the evidentiary hearing there three years later she has somehow has a much more detailed account of what happened and that account mirrors that of allison ray at the trial now of unrated changes his testimony for between the trial and the evidence here hearing the support of the defendant may be quite to the contrary but a big concern is that we don't know how the district judge evaluating their testimony because even though she was on central witness however i think that if you once you take into account that he credit the officers testimony and also when you compare when you look at the analysis and frankly that finding of fact would resolve the issue and even without that i think that the court can still resolve this and say that there was no there was no miranda violet there was no statement taken in violation of miranda at the home and therefore there is no need to conduct a full siebert analysis but even if we assume that a statement was made which is what judge cohn did going on for the rest of his decision he soon as you indicated he said at most if an officer said who's guns are these and have you been to jail and i disagree with mr magnificent contention that that would have a problem given that there were already forty nine bags of crack cocaine and thirty one bags of marijuana mr ray's felony part felony frankly was not needed in order to arrest him or or anything of that nature but even if you assume the statements were made  evaluation of the siebert factor shows that there was ample difference between the first into the first statement and what was given afterwards this is nowhere close to the deliberate continuous interrogation that siebert was designed to address and this is far more like the interrupt that there is this is far more likely like what happened in elf dad which you know siebert itself the court and siebert said that that all sat where you had a situation where a statement given a brief and hoped for a statement given at the home and then another statement at the precinct those are very distinct those are very distinct situations where a miranda given at the precinct the person there would have the opportunity decide do i want to give a statement or not those are distinct and that those statements are a fact that warning is effective especially when we look at the test saladin circumstances this was not mr ray's first exposure the criminal justice system we've already heard he was a felon and so he's well aware of the ramifications of making a statement on the record but he chose to waive his miranda rights and then proceeded to give a statement in which frankly he contradicts what he said he gave at the home i mean at the house he's claiming that he accept responsibility for the guns but when you go to the station he he did since i'm self from from the shotgun i recall he said what he said he knew about the cocaine which was he never alleged was discussed in the home he talks about the fact that he sold marijuana as well as the source of his marijuana and how much he was acquiring to resell so and in fact mr ray when he waived his miranda rights he affirmed that he had not been threatened or promised anything in any way and no he tried to take that back at trial but even if we look at the credibility finding the judge did make mr a is not a credible individual and so the fact that he is  trying to take back that waiving a miranda he knew full well the ramifications and if we applied to siebert factors there's no question that this is not a continuous midstream miranda designed to somehow trick him into  confession he's already given this is not the sort of situation siebert was designed to address the first interrogation which are limited to the extent one occurred and i'm not conceding that but if we look at the assumptions the judge cohen made interrogation was far limited and the statement moreover was extremely limited only about the guns not talking about the crack cocaine the men the marijuana package for sale and so on the overlap of the two statements is again very minimal  if we look at the location obviously the fact that it took place at the precinct that is a distinct setting very different he's had at least an hour and as much as two hours to think and reflect and then we have all officers that are not involved if we assume that his test even if we assume that his testimony was correct in the evidence you're hearing there he's saying it's officer weinstock and it's officer rhodes and until that interrogate him at the precinct and finally the officers are not treating this as that sort of continuous interview where this continuous interview where miranda breaks it up in order to essentially get an individual to admit to something they've already done you know i would submit that this is nothing like what siebert was designed to address frankly i don't think siebert the appropriate test given the credibility finding but i do understand that that may be a concern but i do agree i do think that if you apply the factors there is no question that mr ray did the right of warnings given mr ray were effective and if there is no further issue here thank you t she testified that a caucasian officer which happens to be mr weiner ask ray about whether he had been to jail and responded that he'd been to federal prison and the officer said quote well we're going to see if we can get you some good time this time you're selling drugs in my community you're destroying my community and so forth and she goes on and says and this you know mislead has no felony conviction she's employed she's got a good job she did it because she's a credible individual  a relates to whether or not the factors here ours point in a direction as to whether this is one continuous event we believe they do that the questions and interrogation at the but they got the core information the questions that this station overlapped he again admitted the gun was his that you know they only need one gun they don't need a dozen guns he admitted to selling marijuana that is the same thing  the mirandized a mole was somewhat more detailed but both were essentially the same at the core the continuity of the police the very same police that were there at the raid were there sixty minutes later interrogated him at the station the question is the second round were derivative of the vote of the first round the questions asked in the second round reflected the fact that the police already knew the answers that is which guns were found in the house belong to you or do you just sell weed were you aware  that you're a convicted felon they already knew the answer to that so that's how they they were putting it down so based on these factors it's clear that the first statement tainted the second statement and the second statement was not cleansed of th mr crawley mr maggots and you can hang up now