a strategy to avoid miranda well i think that the facts if it specially the videotape if you watch the video you know evidence free basis for your who clues it you're asking us to infer that by their behavior exactly by the who really was really interested in the shooting in a separate hearing and i asked them was this a strategy to avoid miranda but that's nowhere in the record that's true your honor it's also true that the the supreme court's affirmation o any reasonable person in that situation would have felt that they were under cover for the video to the videotape as it was in the file that was requested by this court if he doesn't have it i can certainly provide a copy to the court what you're saying is if i understand  the judge was clearly erroneous in making his finding that he was a reasonable person that he could was privy to go or that is a matter of law that a reasonable person would be free to go i think that  the the court has as i understand the standard after yarbrough what this court has to do is make an evaluation of what a reasonable person would have concluded under the circumstances and then determine whether the court of a california court of appeals in valuation sitting in a small room he's in a corner between a table in the corner the two officers with their guns on their sides which the officer starmer keeps playing with his gun during the whole thing is the focus of this is not whether you know what what we would courts also said that's ok my question is very focused why is this an unreasonable application clearly established law as articulated in madison because i think that no reasonable person in the situation that mr wilson found himself once he's in the interrogation room would have felt that he was free to go why is that conclusion dictated by  back and tell you exactly what page it's on but it's at the end of the i think it was in the testimony and that's in the hearing that they had on the suppression motion in the district in the superior court of california period where  have to i don't have it off the top of my head your honor i have to give it to you i don't know of anywhere that's shows his subjective belief so the question is would a reasonable person in his situation felt the same thing and they yell at him no you're not right well they also when he tells him that you know they taunt him about are you afraid he says ignores detective starmer ignores that question and asks detective mcguire are we getting anywhere the whole tone of the interview has been that the only way you can get anywhere is to confess so it seems to me that that clearly communicates the reasonable person unless he confesses he can't leave in which case he's under in custody so i just think that under the facts of this case that's what the reason the reasons are that he was arrested at the end of it and he said a couple of times that he was arrested right are you making an arrest or whatever right there's also the fact that he was his freedom was so restricted that when he asked to take a break to smoke a cigarette they wouldn't let him do that something made it sound like he said i've got to go to work in this if you're not going anywhere he said it's getting late i got to go to work in the morning right no that's what i meant he has is that i need to go home and rest because i have to go to work in the morning and then detective starmer ignores that i need to go reading it it's the e r pages one twenty one two one twenty two he says i'm trying you know i'm really trying but you don't carry it with me but i can't you know you're really trying my hand you really are we trying to help you so they keep going back to the whole tone of this whole and interrogation is that the only way he can help himself and get out of his jammies and get out of the custody that he confessing and so it seems to me that a reasonable person would not have felt free to leave under those circumstances especially in view of the fact that every time he tries to exert some will in the during the course of the interrogation they shut him down and i know you might have it please the court just in really on behalf of the respondent the strategy to avoid miranda in this case was actually the law enforcement officials operating control of taking a cigarette break in the form of leaving he was told four times four times that he could leave whenever he wanted to one of those times was more than halfway through the haranguing it was after request for a cigarette break w arrested at the moment i can't tell you what the moment was because i saw the videotape and i read the transcript and i didn't notice any arrest but i don't know how soon in time after that he was arrested i don't think he went home i i counsel just referred to in the end when detective mcguire says no you in the middle of his rank says no you've got to understand you're not under arrest that is the key point in terms of showing as just just trust that how hollow it is he's leaning forward into him in a very threatening way the whole time he's been pointing his finger at him and so it's clearly a ritualistic assurance that has no meaning at all and no reasonable person would have thought that that that he was free to go in that situation with