client due process rights under the fifth and fourteenth amendments when he failed to suppress evidence of statements that rococo worst and in voluntarily given to canadian police officers we agree as parties that the seminal case that we're talking about is fulminant i'm going fulminant a the test for voluntariness is whether the defendants will was over born by such tactics that it shows that there was coerced what's interesting about that case and our case is that there eerily similar and the reason why is full of monte was a case where for want it was actually in jail for another matter and there was news and suspicion that he was actually guilty of brutally murdering his eleven year old daughter it was a it was a former police officer paid informant who confronted him posed as a mafia person which is interesting who said look we can actually offer protection so you won't get hurt in jail if you just come out and tell me what you did and then he confessed because you knew that the threat was real he could be injured inside jail and he was you know in the critical issue here whether burns confessed in order to save himself from some type of violent act i don't think that's the only test under full monty and what's interesting about that case it wasn't actually the threat of being killed by the person presenting the conversation but rather that you could be protected from being killed if you just confess and that in my estimation is what this case is all about what do we know about from an ant in the sense of how much danger he might have been absent the protection i mean there are certain sorts of crimes if you go and if you're convicted for example of child abuse and you go to prison you're in serious danger i mean what do we know if anything about the foreman on to crime that would bear on this question well what's interesting is yes it's possible that someone could be hurt or even killed in jail but not everybody is it's possible he could be not killed but injured as possible he might be just respected or spit on we have no record that any of those things were going to happen he was in fear that he could be hurt and just a fear of being that he was in fear that he could be hurt was enough so i think our case is very similar has that when he says in the operation that they've got the fake memo and it's that they're going to lock your ass up and he also s cross examination you know if that happens we can't let it happen because you might want to confess or talk to the police about your participation or just a patient with the mafia and that's going to actually hurt the mafia so we're not going to let that happen and  no that's not us we're just in the making money kind of constantly saying that over and over again he was especially at the beginning but yes but interesting about this demon plot and luckily america doesn't have it  very machiavellian it tries to get people through device and scheme to be in great heated in the mafia and then do small things for the mafia be known more information about the mafia finally lead up to meet mr big and then he has a lot on you and he's going to do this trick of you have to tell us a lot they're coming to lock you up this is something that has been used in three hundred fifty cases in canada and it's well tried and tested it's extremely honed and the very purpose of it is to coerce a confession that here's here's in a sense my problem with not only this case but with our own law it's very coming after him there wasn't an episode that was about to happen there was no eminent physical threat of anything it was just like this could happen and i can protect you from it because i'm the mafia boss and has a has the exact same thing you don't have to prove that there is an actual threat of violence on the phone than on tape that was in an actual threat of violence and the threat here that he's being protected against seems to me mostly the threat of being prosecuted successfully that  definitely something that is that's not the same as the threat of physical violence no but that's just a threat to justice may actually be pursued i agree your honor but there is definitely a record made that has that was trying to relay the information that he would not let him go to jail and i cited that in the reply brief but let me just say one why would that course a confession from whom i mean they might have tried to get all sorts of stuff from him but why of any kind of violence against him way say well in that case let me tell you you know let me confess to you about this crime why would that be the natural result of this i mean  actual physical harm all that was necessary is that it was a possibility and he perceived it as a real possibility so that is fulminant in its decision is you know there doesn't have to be actual harm there doesn't have to the record shows that mr burns was quite resilient it gets pressures to confess it did get to a point where the different inducements and different threats of possible harm if you went to jail and the fact that he thought bellevue police were about to come up and walk as us was enough for him to say well even though i don't want to confess to you has let i think i have to because these things are about to come and impact me very negatively that's all you need for from then on tape you do not need i'm going to kill you tomorrow or and has i made it clear that it wasn't only that he would be in jail where he would be able to kill them but his tentacles are tentacles were everywhere and he could actually kill him if you know before he's even going because the fear that the mafia could be hurt in any way was but did he actually say that to him or is this just a generalized fear of dealing with a criminal guilty or innocent about being convicted of the crime right sure i don't know how you feel but sure and whether he was guilty or innocent if you got nervous or afraid when he's sitting in jail he could use information about you to help himself right sure so at all costs he had to be kept out of jail both for your own protection as a crime boss and for his protection right and the answer is that is what i was relating to him yes so the record is quite clear that that's exactly what he's doing i mean this is this is not a situation where you have a simple police investigation interrogation this is a device planned to build up the camaraderie between the two and  support and loyalty and then to use this information to say you better come forth now all these i can give you a promise to be in the mafia i can give you everything you need to take care of please the court i'm paul wiser insistent tourney general representing the appellee in this matter we believe the district court's decision should be affirmed the district court correctly held that the washington court of appeals pinion in burns's case was neither contrary to nor an unreasonable application of the relevant united states supreme court precedent particularly fulminant a versus arizona the state trial court thoroughly considered all of the evidence bearing on burns's confession and the court of appeals in reviewing that decision by the trial court properly applied the the fifth and fourteenth amendment standard from fulminant day and if there were any doubt about the voluntariness of mr burns his confession i think a review of the video confessions on july eighteenth and nineteenth one thousand nine hundred five will lay to rest any concerns about voluntar a false story is considerable so depends how you define fortune it's correct your honor in the abstract i understand that all of those pressures could have been on could have over borne someone's will but i think in this case we have a unique opportunity of seeing virtually seeing or hearing virtually every interaction that mr burns had with the law enforcement officers here i believe there were thousands of hours of audio that the r  p took both from electronic intercepts at burns his home his telephone and in his car as well as the the audio of the the other interactions that they had  canada in addition to the the two videos or the three videos that were were taken we have that evidence and i think based upon a review of that evidence a reasonable court and i believe the states a period court judge was a reasonable court could conclude that this was a voluntary confession that mr burns may that he was despite the the overtones of all these or these suggestions of all of the impending violence to him or spirit court's findings because that's what the court of appeals was reviewing and itself deferring to so if i if i do refer to the state court ordinarily i'm referring to the the court of appeals but here since so much of the record was developed in the superior court that was my my reference to what was happening in the in the state court but because fulminant day is the governing standard for this proceeding i think it is important to look at what the facts were that the u s supreme court fought were suspicion that he had molested the victim prior to killing or and he was under threat of what the court called rough treatment i think the arizona supreme court termed it that he believed reasonably or not he believed that he was in jeopardy that is life was in jeopardy if he didn't get the protection from this this other inmate ceremony well in his kind is common knowledge that someone charged or convicted of that fear was that the rumor had reached the ears of all of the other inmates and that he would be subject to rough treatment whatever that consisted of but even with those facts don't use this both suppose that mr burns might have feared the same thing given what would be publicized about the murder and he killed three people with a baseball bat husband and wife and daughter without apparently any provocation other than his friend wanting to inherit some money do you think that might cause prison violence i don't believe that that's the case your honor i don't believe that there's any particular stigma attached to it and i hate to call it an ordinary murder but a  that the or or described the determination as being a close question and i believe that in mr burns this case the the state court was entitle to conclude  the facts were in stark contrast and they were not in fact as counsel stated eerily similar burns wasn't in prison and he wasn't in any kind of custody at all unlike mr fulminant day these meetings all took place in  relatively comfortable environment either at the four seasons hotel in vancouver or a couple of different hotels i believe was the ocean point in the royal scot up in victoria nice places and it took some effort for burns to get to these places particularly the victoria locations that would have involved a couple hour ferry ride to the hotel so it was this was not what he was  was not being tailed or followed by by any of the r c m p he had to go to them and these meetings took place over the course of about three months and in fact some of them were separated by a few weeks of inactivity or no contact between the r c m p and the the defendant's and it's interesting throughout these discussions that officer ha was having with mr burns he encouraged mr burns to continue to talk to his lawyer the attorney who was representing him up in vancouver he did not state that he needed to be incommunicado he did tell them don't talk to the cops kind of ironic don't talk to the police but he did encourage him to talk to his lawyer so this was not a pressure cooker environment and i think the video again of the july eighteenth the one nine hundred meetings show a very relaxed atmosphere there's byrne's sitting on the couch counting money at some point cracking jokes and drinking beer and then when he gets around to the description of the actual murder he's almost giddy at a couple of points in his description he's not he's not shying away from any of the details of the crime he he described them very bluntly but he was never threatened that he had to confess to ha he was never placed in a position where he was subject to imminent physical harm or thought he would be subject to imminent physical harm and has like never demanded that he confessed he just told burns you need to let me know what happened so that i can better destroy evidence and that way for to any possible prosecution of you and burns we know had successfully dealt with with intense questioning earlier he had been questioned by the bellevue police detectives and then later told the bellevue police detectives after he had gone to vancouver that he would not be talking them any further but burns could have just walked away from hazlitt at any time it was his choice to stay in touch with hazlitt because he wanted to go to work for him the voluntariness issue may have been a close question in the fulminant a case but it was clearly not a close  differ fundamentally from burns's case and went on at some length to discuss what those differences were we believe the court of appeals decision is entitled to deference under twenty eight u s code section twenty two fifty four d the court of appeals clearly interrogation room sure he could not leave the jail and drive away but he was able to leave and wasn't being forced to sit with him at all also form an entree does not stand for the position that you need eminent harm there was no eminent it was the potential of some kind of harm and it wasn't even imminent it's just the possibility not everybody who goes to prison for life or not take gets attacked in is threatened to be killed  and i also want to just point out that i think this case is especially important because prominent tate does describe the law our case fits in it but if president is comes out that says police can use these tactics these are highly manipulative and coercive tactics that the canadian supreme court hasn't said are presenting fully inadmissible and by ruled in favor of the government this case you would be