he when he discovered the item and then also a photocopy of that i know what appears to be a photocopy of the allegation was that he recovered a seven and a half inch metallic sharpened piece with a makeshift off handle as we've argued and say piers you can see to be considered a dangerous weapon under the statute it has to be capable of cutting there's no testimony from ramirez about the degree to which the item was sharpened whe there's a handle it has a closet handle it's the same it's the same photo that's been supplemented to the record and that exhibit you know shows that it appears to be three half inches above the handle is the part that may or may not have been you can't you can't tell you could kill somebody with that not even based on looking at it i can't make that determination one you're seeing a side profile of it you have no idea how thick that piece of metal is i can't tell that it's a jacket i did looks to me like there are some dark marks on languages putting in that state concedes and i'm just wondering i know that the statute talks about the describes certain items that would fit into contraband and then of any other dangerous weapon like whatever but i don't recall reading in any cases or really anywhere about this notion that cutting doesn't it have to be more like dangerous weapon i don't know where you're getting the cutting from well it the statute doesn't define it as it one way or another with a knife it's a whatever it is it is what any of the other examples are but it does indicate that it's a dangerous weapon you know previously courts have looked at with statute given item is in the process of becoming you know a operative shape it could be capable of cutting someone you know this dispatch it doesn't doesn't criminalize something that is in the process of becoming a dangerous weapon to criminalize the possession of a dangerous weapon yes was sharp and it appeared to be sharpened to him appeared to be sharpened to him and if you look at photograph the exhibit was introduced it does not move into the shape where the diameter is is wider at the bottom and then as you progress up to the with the tip of this shank it's much less isn't that correct what you think i mean it's it may be slightly more narrow at the top yeah but you cannot even the i mean fortunately there is a ruler that's included in the photo copy so the actual portion of a handle is only three and a half inches at most it's not the seven it happens plate so that portion is about for a half inches and when you look at the top you know the with the most through a surprise lineage ok that appears to me to be very close to what it inches so and that's completely rounded so it's not as if we start from hand we get to the point of attack or anything like that so there's there's no indication based on the photo itself that would lead someone to be able to find the only reason to doubt that this was capable of being used as a davis weapon at that time and so you'd like us to right that  united states i don't know any any post house cases that do but if we look at what house held which is a fairly recent case it held that one of the operative concerns is i mean it's based on the totality of the circumstances we have to look at it's not as if you know any one case is going to control another case but under the analysis and panels the first factor that they that they stressed was that in house the dependent was told in the beginning and then it was repeated during the interrogation if he was free to leave at any point so that's a key difference between our case are you going was never told if he was free to leave or to discontinue the conversation he was in handcuffs he was taken from his cell and he was told that he or his soulmate could be prosecuted than interrogations where you take somebody off the street and put them in a police station one of the differences being that typically we think of existence taken into you know into a police station and isolated we consider that to be fairly coercive that they don't have access to anybody else away from the sun they told him you can go back on your own accord to the cell they noted that that was the first factor that led him to believe that he was not actually custody for the purposes of the and also he was not threatened or physically restrained in our case he was physically restrained and he was also mr bond was threatened with prosecution those are three factors that the court explicitly relied upon in house versus fields and they suggest a different result in our case don't you have to kind of give us something more than physically restrained when you happen and maybe in jail already this is a restraining how was his custody status changed here well i mean he certainly he wasn't in handcuffs presumably when he was just sitting in his own cell or sleeping so he was as part of the search part of that part of that process he was handcuffed so that's it will be necessarily just what is what is normal what he's going to be expected in that condition all you know all day long so it certainly does change the authoritative structure of what's going on and again the that the officer elected to interrogate him right next to the only other suspect in this crime i mean that is a coercive fact where look at that one of the questions whether this is his interior is that something we're we're actually facing here correct but that is one of the factors that goes into whether or not you're in custody the degree to which you know the coercive environment helps to get helps to determine whether or not you are actually in custody so in that case those factors are separate from that a you know in this case when you've got the only other person who put it as best that shane that was you know hidden under plastic trays and that person right next to you as you're being questioned that's clearly the sort of coercion that the houses and house case was talking about when they said that in a prison institution and you're here interrogating somebody in front of others you have to recognize that that's a likely more courses that it is to take him in a one on one situation like they did in house neither neither side discusses the illinois supreme court case  some reason you think that that's just not relevant or the curial case that we should be looking at or what as it was brought up i'm not familiar with it but a case so i can there was a wonderful illinois prison case shane recovered the defendant was being questioned after the fact by a prison official to find out whether or not the reason for the shank absent that statement he did slightest survivals he's but it's not until i know the ins now a different state so that moving to the final point that's just the sentencing issue there were two improper aggravating factors that were relied nature of the work that he was looking at the you know the nature of the weapon however you know as we argue you know before i believe there's sufficient evidence that it was even a it capable of putting under the under the statute therefore not even a dangerous weapon so to say that this was somehow you know more regis than any other type of knife that would have been recovered you know this is a three a half inch blade at best there's no showing that this was you know it was real danger threatening manner or anything this is a straight possession case and this is you know would be precisely what the legislature with doing when it classified it as a class one offense you know there are other items that are contraband that are not classified as class one of fences that wouldn't require a sentencing range as severe as this one but this one has a range of four to fifteen years and in a penal institutions so that you know for the court for a linebacker while you were in jail at the time this happened again that's part of the offense and or if the if the judge was you know considering that to be you know that you were as he as he said that you were charges for murder that we don't know the half we don't know the way that's true but the legislature was intending to stash over a large range of options which could be used like a knife and if people institutions which would put the officers and the actually defines shank as well and under black's shank is a point it were a sharp edged weapon usually a dagger or knife that is usually either homemade or made by a prisoner so they don't use  we simply can't tell whether or not it would have been coercive to be questioned the front of the only other suspect in the crime you know and presuming that this is an object that's going to be intended to become a dangerous weapon at some point certainly i think we can assume and  think support this view where it says that you know inmates are not necessarily friends and if somebody if there's discovered a shake in your question you're said you're told you're in the other guy can both be prosecuted for this so don't come on somebody start talking yes obviously that is of course a factory under house and under common sense finally at the sentencing hearing i maintain that this was not close the balance is untenable based on the fact that the court specifically said i find this you know there's some good  there is some bad here and then expressly talked about to improper aggravating factors and said the second of which that he was in in custody at the time awaiting murder trial that that is that that meant that the court could not impose th