and whenever you're ready mr hudson will hear from good morning made please the court several issues were raised in the briefs but in a lot of the time i'd like to begin with the violation of mr bell's miranda rights and then explain why maryland robbery does not qualify as a violent felony under the arm career criminal act training for the miranda issue  the question before this panel is whether the government can in executing the warrant for drugs and firearms secure house with a swat team seat the married occupants handcuffed immediately next to each other to mirandize them ask without any spoken indication of the addressee whether there are firearms in the house and then claim after the fact that the question was directed at whomever did not respond the answer to this question has to be no miranda cannot be so easily circumvented on a rhode island versus in this age and all of us question whether there are firearms in the house is something that the police should have known is reasonably likely to elicit and neither reason is persuasive the government first argues that mr bell was not subject to a custodial interrogation and the government agrees that the relevant standard is that articulated in rhode island versus innes whether asian oliver should have known that it was reasonable but his question was reasonably likely to elicit an incriminating response and there are a couple items that i think make it very clear that his question was reasonably likely to elicit any terminating response and first asian oliver was executing a warrant for drugs and firearms against mr go to mr and mrs bell america couple were seated immediately adjacent to one another agent all over after the swat team has come through the house agent oliver walks in he says i'm executing our narcotics search warrant and then he asks are there any weapons in the house and it's impossible to say that that question in that context was not reasonably likely to elicit an incriminating indifference asian oliver let's presume he knew what he was doing so that i'm going to speak to the woman in the house because she's not she is not under our investigation we are searching with respect to and was looking directly at her a couple feet away and she was looking at him and said i was asking her and mr bell pov then the district court credit made that as an act her and he was asking her are there any guns now that's a factual finding and mr bell volunteers and to answer that question that is a bell possessed drugs and firearms what would be the that safety oh yes around age an oliver testified that the small team the emergency services team entered the house secured all of the occupants as per the normal protocol simply because mrs bell was an occupant of the house she was handcu and detained under normal procedures and it it's easy i think to imagine your honor that you have a married couple two spouses sitting next to each other and it without any verbal indication preference or statement about who the question was directed curious and because i think this is an interesting scenario you take a man's wife and put it right beside her and it just the inclination seem to me and i don't want to feel that you have to bail perspective too much but someone was  sitting there and that there's no testimony in the record that he was afraid of mrs bell or was or there was any particular reason why he asked her versus versus mr bell and anyone who's married understands that it's reasonably likely that if about it i guess i don't know and so absolutely around and this is a this is not a situation where the officer is coming in and then giving an explanation of what's going on and then somebody pops up this is a question directly asking about the object of the warrant firearms are there any weapons in the house and it asking that question in that context seated right next to his wife it's reasonably likely that that question is going to  this court doesn't need to conclude that it's simply sufficient to say that given the context given the fact that the warrant was being executed against mr bell the fact they were sitting immediately next to each other there was no preference or no prefatory statements asking other any weapons in the house it's reasonably likely the mr brown will respond with incriminate with an incriminating must on a different time period maybe this might be different but what if as a child i mean what if a ten yo yo chalo of the yes your honor i think the i mean this is a and this is i like to remind the court that in colona this court said that it is not going to provide law enforcement a complete and runaround miranda and if we accept the government's theory of the case here that the government can simply see two people next to one another ask a question that's not virtually addressing us people or does it matter that is why i that it's it is particularly important it's his wife that makes it that much more likely that asking a question is going to down of the plays into this because when when there are a married couple it's much more likely that a question directed to either of them could be answered by either of them and so if you even even if you can even if you accept aging olivers testimony that the question that that age oliver was looking at mrs delany i asking mrs bell a question it's reasonably likely that her husband is going to respond and the opposite would be true as well but again it's important to note that there's nothing in it in fact a oliver testified that he didn't introduce a statement with any preparatory material addressing it specifically to misspell all we have is a look and a look is simply insufficient to say that it was not reasonably likely to elicit incriminating response here if i could turn to the second argument that the government makes in response on the rumor and issue they've got the government argues that even putting aside the  that the public safety exception of orals applies here and this argument is squarely foreclosed by this court's decision and mobley mostly has an almost identical scenario involving the execution of a warrant and a swat statement that that is that there was a firearm underneath the couch and his statements regarding the fact that it was it with that it was his it was given to him by neighbor after the house had been burned by the droves the drugs and the drugs would not be suppressed your honor suppressed and crucially his testimony is testimony regarding that gun would be would be suppressed and that's crucial and it's ownership with yes you're on it yes your honor and there are two crucial points one the government has not made any harmless error argument regarding the suppression of the firearm and they are the government consistently connected the firearm with the drug offenses that the government consistently argued that firearms  of the drug trade and therefore the fact that mr bell possessed a firearm needed more likely that he also possessed the guns in the basement so these these two pieces of evidence are intimately connected and cannot be separate not to mention the fact the government did make the force clause maryland robbery the crime of conviction in one thousand nine hundred five must of had as an element the use attempted use or threaten the use of physical force against the person of another there are two maryland cases that address the question whether maryland robbery can be committed with the threat or use of force against property both of those cases giles and douglas say that should in this court's analysis act analysis fundamentally interminable and insoluble and so the fact of the matter is there are two cases giles and douglas that address this question that have never been rejected by any subsequent maryland case peers there after he was sentenced to the mandatory minimum sentence possible under a law based upon the statues of conviction and his lengthy criminal history the defendant here has challenge this conviction and his sentence on several rounds none of the arguments have merit this jury's verdict must stand and that sentence which is in line with clear and in precedent ought to be upheld as well wife was the one who was being interrogated and that she was not subject of this investigation simply being detained because that was procedures i think your honor i'll say two things in terms of the underlying facts about where individuals were and what exactly was said to whom and how let's be clear that judge hazel credited every single statement made by agent oliver therefore all of his testimony constitutes the factual findings all subject to very differential clearly are different it is say than what i've just said to you so i think what they what his what he agreed to was that they were in close proximity we have two separate chairs and not on courts have recognized that situations involving juveniles may be different and i suppose it would be true if you had a mentally incompetent chow i think that a lot of grandmas just old and seem to be a little gullible i think if i wouldn't want to be  situation where it is not the right certainly feels like it's not a couple situation we are not too free and so it's not friendly conversation at all it's been directed right at wife of the bennett who sitting right next to well i think your honor it's important to know exactly what rob simmons you know exactly jennifer said he entered saw her introduced himself to her explained to her there was a search warrant for her home he knew she was the homeowner and he actually testified also now at their worst it wasn't a great detail that there was an agreement not to question mr bell which is why there was an agreement with foam that was not specified so i don't want to speak outside the record there was an agreement not to question mr poe you know you couldn't talk to  to talk because we have to give you more random so i'm asking your wife only or just said it to the wife right in front he introduced himself to the homeowner looked her in the eye i told her they were there to execute a warrant and asked her for officer safety whether there are any weapons in the house that could hurt an officer that's the testimony was over them handcuff outta going to hurt officers with weapons and i think your honor we don't know whether they're at that point we can't be completely certain whether there might not be other folks there why not ask reason people to do this you don't ask that there's someone in the in the in the house i think you're out of there was not the first if they were asking what should the first question be i haven't seen a single case where a court mentally disabled person or you got as white as that seems to be a pretty big deal but i think you're in the twenty first century aren't we don't look at women as being inherently weaker than men and after this particular woman got up and perjured herself at trial made up a scapegoat scenario i'm saying it took quite a bit of gumption to stand up on the stand or perjure herself and i think you said she was in fear when when the officer came in she also said that steve wise a heroin addict who conveniently died a few days befor the august search was the person who possessed all those items she said there was no gun ever pulled out from under the couch is that she said i was a year older than staffs the terminations that we look at all of the circumstances that surround us i think that you should and i think it's important to consider what happens if the court goes the other way and says if somebody a suspect over here is a question being asked of somebody else clearly of somebody else nearby and they decide to answer that's compel troy because the question is  clear was this and we have a limited set of facts and you know we don't look at the intent of the office where we look at the how that how the suspect in this case understood the question and whether or not it was reasonably foreseeable as opposed to being possible  and what is it about the set of facts that warrants a distinction in your favor in this case i think you are had a journal ever come in and it began by addressing both folks mr and mrs bell i've got a warrant for your house and if  sure but but then you say that this white officer had already cleared the house they had they had gone through but the fact that that what i was telling sure sounds like to me i experience swat officers if they go through your house there's nobody in to me that the prune officer would simply separate these individuals and take the precautions necessary to make sure that he complied with the law we chose to go against your view of this case i think your are comes down to question of what when you're looking at this the next case doesn't come by someone who's going to say something bad on stand and say all those things and you've got a situation where grandma's in the house and you put her right beside her grandson  as i understand from a police officer perspective that's a good thing i don't have to go through the question was a voluntary do you do well most of the stuff i gave you want and and and and it sort of makes it nice and clear that makes the job easier well then again this mushy thing of that particular question asked of someone else the fact that this defendant decided on his own to come in that's not foreseeable was it possible course because it happened it's possible what was the first seal result of this agent's question the forseeable result was the person he was talking to the person who introduced himself to the homeowner the person is not a felon that person he believed reasonably so would be likely to respond i suppose that but for that little a otherwise think that it is common practice perhaps your arse have seen this during a search warrant to secure persons in one common place so that we don't have people divided around so being in the same learned us all areas of you have you not don't have that prohibition to not to him she said right here let me just stop her i think your honor he's speaking as he said with the homeowner because he knew she was the homeowner he's asking her for officer safety that's his testimony credited by the court that's why he's asking the question why is asking her is not there's no evidence reception that you mention i think modeling is certainly that's a strong case for the other side granted i think u s c young provide some distinguishing factors for example we have here in this case multiple persons we've got a situation where we have reason to believe there's a don't have any you don't need exception you always got to have a public safe if there's a threat of a good you don't need as it has a good it self prop i think you're on the other factors that have been not recognized by this circuit by others as we pointed out crime mathes a pretty make that abundantly clear elements of those things which must be found in order to sustain a conviction that's what an element is under matters and here robbery with a deadly weapon requires that a there and the answer is yes with all due respect to the judges who issued the concurring opinion middleton first on its substance the government's miss it was incorrect second as a matter of precedent it is not binding need not an followed here and i also know the two statutes we have to show that involuntary manslaughter statute and assault the deadly weapon are very different and it matters for two reasons one the elements are so and second middleton concern  big piece of its reasoning for why use means something different in aca does not exist in the guidelines context of robbery with a belly weapon be committed by right and proper absolutely not gals and douglas are picked up they have never use dicta to be able to form a basis for this and we've found search then would you take it that there can be use i think to can be used to form an opinion however in this case that struck me not in this specific situation there's been any case in this circuit which the court has look at cases similar to like you how's that or you had to call it big and used that inform the way we should decide this case if such a case exhibit if there's a case in which the court writing a property would be sufficient if that was the case would that inform as to whether well at least the way the case flows go if that were the case but it's not and if the court wants to look at more recent cases concerns pacific issuers actually on point twenty first the miranda issue even accepting all of a geologist testimony it's clear that when this question is asked are there any weapons in the house any any spouses instinct either a husband or a wife is to lead their spouse out of the situation mrs bell testified that she was afraid when the swat team comes in and it's reasonably foreseeable that her spouse would respond to the question which again was not firmly addressed the mrs well with he said he selected her because she was the homeowner and the warrant was issued home and he said they have a warrant to search the home and he said it's there and for officer safety is there are there any weapons and before she to may like that there was a concerted effort by officer all over to make sure he questioned her as a homeowner they did not intend to interrogate mr bell and he went talk to her and apparently i don't think their here violated miranda that's the question and the idea that there is a numerous possibilities is is irrelevant the question is he came into the room and he walked over to mr a to stacey winds of questions have brought out which could raise some problems the question is whether that's a problem here and apparently the district court found facts it doesn't allow that i find in this case but that's why was with that mr bell not the question and that is to respond to what the government said about traffic stops traffic stops are not usually custodial the supreme court has said that it said it in and purposes mccarthy and so that that situation is entirely irrelevant here