judge batchelder is on the phone with us and she'll be listening to your arguments on the phone that is why i'm sitting here just about where can you hear us yes like y he's number sixteen six zero eight five united states of america i'm a sailor oral argument not to exceed fifteen minutes per side mr heft for the appellant the right of me i reserve three minutes for a bottle yes but i'm going to ask you to keep your voice may please the court the issue in this case is whether miss to say i was in custody when he was questioned by federal agents in the halfway house where he resided in u s b panic this quote identified several factors that aid in determining whether a custodial interrogation occur the factors include the location of the interview the length and manner of the questioning whether the individual is told how has unrestricted freedom of movement and whether the individual is told that he does not have to answer questions mr state was on state probation and residing in the halfway house before with with other offenders now that the district judge and the magistra judge both thought it was a close question of whether in the words of the district judge the halfway house was the functional equivalent of a custodial interrogation the district judge sort of summed it up this way he said although mr sailors residence was unconventional it was far less isolating and far more familiar than a station the police dominated atmosphere of the station house and that standing alone the fact that the residence was a typical did not cut in mr sailor's favor but halfway house is not just in a typical or unconventional residence it's part of the to kentucky department of corrections and the residents are subject to the rules and regulations not only of the individual residents but also of the kentucky department of corrections and a violation of those rules oh in regulations could result in a revocation so the residents of a halfway house don't have the same freedom of movement that a person would have in a privately owned army park privately or any specific evidence about the restrictions upon mr sale or personally that is as i understood it it may be the different residents of this halfway house were subject to different rules in terms of whether they could go out at times of their own choosing and maybe others could only go out for work i think as a general matter you want to hear your right they would be restrictions but in this case it was not developed what restrictions might have been the the conditions of probation were not introduce don't have any evidence affirmatively that he was not simply free to go out and go into the community but that that's that's correct and the other the other point to make is that just by thought that the interrogation that occurred at the halfway house may have created a coercive environment and there are a number of factors a here that here that show that the environment was indeed coercive of the courts aware that the halfway house was subject to a search warrant that was executed by ten armed federal agents mr they rounded up the residents they handcuffed them with the exception of mr mr saylor the agents indicated to us to say that they wanted to speak with him he was isolated from the other residents and singled out for questioning and reasonable to put him to a believe that he was not free to leave at that point because an agent or an officer was stationed outside the kitchen door with where the interrogation was going to occur so he had person who was stationed did he say anything know the words you know stay there i'm watching you set or i didn't think that he did but i might have missed it so that the record doesn't indicate that that that the thief officer who was stationed in the doorway said anything but agent riley said that the agent was there to keep an eye on mr saylor so that he wouldn't get a weapon to hurt himself or somebody else while he was in the end he did yes yes your honor that's that's right and the other the other point to make is that agent riley when she saw mr sailor and so they want me i just wanted to speak with him she never told him that he didn't have to speak t probably she said she probably didn't tell him that he was free to leave and so when you when you take all of those factors together they bear a strong similarity to a station house interrogation and they intensify and already coercive environment the next factor that could discuss this is the length and the manner of questioning and the interrogation here took somewhere between fifteen and thirty minutes and it was conducted by two agents and what the record shows to be a conversational tone now even though the interrogation was relatively short and conducted in that congress in a conversational before the interrogation started and i'm sorry when you said he reasonably believed he was not free to go is that based on anything that he said or simply your analysis of the factors it based on the circumstances around it wasn't he didn't say anything in particular but then again the agents none of the agents ever told him that he does but he didn't say even afterwards like an affidavit or something that says i believe i did not believe i was free to go but that about fifteen minutes before the questioning began but i think the most weighty factor in related to the the manner of interrogation is that the agents confronted mr say that with the evidence against a didn't facts out of them in panic court recognize that confronting a defendant with the evidence against him would would create could create a coercive atmosphere and it would allow the agents to gain some leverage with their authority over the defendant so the situation is that the defendant sees the evidence piling up against him and at that point a reasonable person would  doubt if they had they are free to leave and terminate the investigation because they're expecting to be arrested and the belief that they're not free to leave is reinforced by the fact that the agents never advised mr seder that he would not be arrested that he didn't have to answer their questions or talk to them that he could stop the questioning at any time or that he could leave at any time so that that fact that panic factor should weigh in his favor  so if you real to the extent you rely on that you would potentially be saying that he wasn't in custody when it started but as they showed him more evidence it became custom does does panic or any other case really say that no i think right right from the start once he was isolated in that that kitchen and under guard he's not free to leave that the custody starts at that point and if his there is and it just intense if you're right about that then you're right but if you're wrong about the beginning then how much does showing him evidence you know turn it into custody is there any case  that every every circumstance every factor matters in in assessing custody so custody can and can occur at any and any point along that continuum until that the interview the unrestrained freedom of movement and it's true he was not handcuffed he was not physically restrained during the interrogation but the fact remains he was still seated at the kitchen table and the guard waiting for the questioning and again the fact that the agents did not advise him that he would have to speak with them that he would be arrested and that he could stop the questioning militate against finding that he was aware that he unrestrained freedom to move because if he had been told those things and if he stayed and answered their questions it would have been a much stronger in indication that there was a noncustodial setting because it would affirmatively show that his freedom of movement was indeed unrestrained and the last panic factor is is whether or not he was told that he did not have to answer a question that fact clearly weighs in his favor because he wasn't told that and panic recognized that whether a suspect is told that he does not have to answer questions is a particularly important factor in assessing whether or not he's in custody and in a close case the that's that advice might affect the outcome we would submit that this is such a close case as i mentioned earlier the judge in the magistrate judge recognized that it was a close case at least in terms of whether the half way the halfway house was to that the fact that he was in this to say it was not told that he would not be arrested wouldn't have to talk didn't have to talk to the agents or answer their questions and start stop the questioning at any time to leave at any time the failure of the agency to do that has to be held against the government in assessing whether or not it was a custodial interrogation and under the circumstances we would submit that the panic factors as well as all the other factors in please the court terry cushion for the united states and i want to start with the last point since it was the last point that my colleague on the other side here made and that is that the agents did not advise mr saylor that he didn't have to answer questions the case law does not say that that is an important factor in every case what the case law says is if that factor is present it's important the cases stress that law enforcement is under no obligation to give that advice if somebody isn't in custody if somebody isn't in custody no case prescribes what kind of advice the suspect must be given so the fact that that is not here isn't really a factor because the other factors show that mr sailor was not in custody what the district court found on the location of this interview was that halfway house isn't a conventional home but it was his home it was his home turf as the judge put it and i believe he was echoing some of the case law when he made that finding and that is correct and even someone in their home can be placed in custody but what we have to look at here is he was on his home turf so now let's look at the other factors let's look what happened here in this case the police were coming into a halfway house that where convicted criminals are is at it so they did go in with force as the case law says is perfectly normal perfectly acceptable very legal they handcuffed everybody in the house except for sale or the case agent recognized sailor before anyone else took custody of him as they did the others so even though the original person who confronted him had his gun drawn agent raly who was the case agent did not have her gun drawn she approached mr saylor and she asked him if he would step into the kitchen she doesn't remember whether he said ok or if he just nodded and went in either way he went into the kitchen and yes during the time that the house was being secured there was someone at the door again perfectly fine the fact that he was not free to leave or that no one else in the house was free to leave while they were clearing the house is not important to the ultimate question of whether he was in custody when the interview occurred it's not a matter of whether the police conduct was reasonable in the context i mean the question is what a reasonable person would have thought from his standpoint so you're already living in a halfway house the police come in and they're looking for something of yours everybody is put in one place you're isolated in a different place and isolation is a factor they don't need to handcuff you because they have somebody at the door so you're in that room then they start talking to you and they start showing you the evidence that they have and i don't know why how would somebody in that position feel that they were free to leave but whether they were felt free to leave is not that isn't the test the test is whether they were arrested or their freedom of movement was restrained to the degree associated with formal arrest a person who is stopped in a traffic stop and is not free to leave but they are also not in custody for purposes of miranda because they're not arrested and they're a freedom of movement is restrained to the point of an arrest mr saylor here was allowed to sit in the kitchen he was allowed to move about as he as freely as he wanted to within the kitchen while they were clearing the house but the most important thing is that once the house was cleared the person who was at the door left the two agents came in to interview him they did not handcuff him they did not threaten him they did not draw their guns they sat down and talked to him in a conversational tone yes they had evidence against him but there's no evidence in this record that they used that evidence in some way to coerce him or to overcome his will and this this statement that mr saylor saw the evidence palang up against him doesn't stack up to the record mr saylor confessed almost immediately he was very cooperative again the tone was conversational he wasn't hesitant to talk to the agents and he there was nothing to show that he was restrained in his freedom of movement once the agents came in to talk to him during the interview which is the crucial time he was not arrested and he was not his freedom of movement was not restrained to the point associated with a formal arrest so all the factors cut in favor of that he was not under arrest if back to the securing of the house or the people in the house when you're serving a search warrant as i recall there's a case i think that summers the michigan that says you can secure people in a house without any other cause if you're serving a search warrant at least enough to ensure your safety do you recall are those are those court cases but i think you're correct on some sort of michigan as well but in swanson they were securing people to actually they had an arrest warrant and then consent to search a place and the  suspect was actually he was going to be identified before they were going to let him leave so he was in a basically a terry stop situation where he was not free to leave initially but once he was identified the agent talked to him and he was again cooperative and conversational he was not in custody so there are no factors here that show that  sailor was in custody given that he was in a halfway house to begin with which again we have to look at this from the standpoint of a reasonable innocent person which also goes to answer to your initial question judge wh e it has to be approached from the standpoint of a reasonable innocent person not someone who is guilty and knows that there's going to be evidence against them and would they feel free to leave so here of course crime and they come in interview them on a different crime and a person who is even in jail isn't in custody for miranda purposes unless some other factors  become present so we're not talking about can apart can the police restrain somebody for other purposes besides interviewing them before they actually interview them so long as at the interview the person's freedom of movement isn't restrained to the point of arrest so the only factor that would favor the defendant here would be that they he was not advised he didn't have to speak but again if we read the cases closely that's really non factor it's only a factor if other factors indicate custody and the police do in fact give that advice that you are free to leave you don't have to answer questions and then that would nullify some other factors and officer was there i'm sorry i did that or that his probation officer was there not in this situation i suppose there would be there could be a scenario where it would matter but here there's no evidence that he was even aware his probation officer was there his probation officer testified that he didn't even see mr saylor until after the agents let him know that he confessed to these crimes and then he called his supervisor and a supervisor told him to arrest him and only at that point in the interview was over at that point did the probation officer even see mr saliers there's no evidence that he needs a new is there do you think this case is comparable to penn in in some ways it certainly is and other ways it isn't obviously because i believe in panic they did advise the defendant he didn't have to speak but we have some of the same factors in terms of other things going on before the evidence that it was the woman's how they were investigating someone else people feel free to eject people from that from their homes they feel more secure they're not isolated from other people how does any of that apply here i agree your out of those are the distinctive  on his home turf is is obviously something someone comment that he could need jacked to tell the police to leave probably is would be a distinguishing factor but he was at least on his home turf  and the fact that we decided panic is more that for the factors than for the similarities of the of the facts so so no we don't believe that it's on all fours of panic in any way murder again would have some similarities in that there was a stop for another reason i'm sorry i'm not coming up with a search or a case that are there any cases with respect to a halfway house that you know of i mean you did cite a case about an even an actual prison if you're investigating a different crime that would sort of go your way but are there any that talk about you know a non prison but non private health no judge we did not find anything in our research about a halfway house and i don't believe my colleague on the other side cited anything this so this may be a case of first impression  of the station house and of course there are cases that even taken someone to the station house isn't an absolute as far as custody goes but here he was on his own home turf and the way he was treated would leave a reasonable person  with the impression that they didn't have to answer questions so they wouldn't felt like they had been arrested so based on all the factors in this case with the court just having the questions  asked the court to take a close look at the measure judges did you findings of fact excuse me take a close look at the magic judge's findings of fact and conclusions of law and the district court's order on this case they're both very well and that's that can be found of pages four sixty seven four sixty eight of the parent decision with respect to the government's argue about the swanson case on page five thirty of that decision the court notes that it's most important that the defend it was told by the police or the officers whatever that he was not under arrest and did not have to speak to them again that's i think that's a huge factual distinction between this case and swanson  the government also argued that the test is what a reasonable innocent person how reasonable innocent person would view the situation and i respectfully submit that that is not the test i understand the court this court in galloway said it was supposed to be it is from the perspective of the innocent reasonable person but that rule is grounded in the supreme court decisions in burqa and stansberry california and they talk about it in terms of a reasonable person in the in the defendant's situation of the defendant shoes it doesn't say anything about that weasel person's guilt or innocence so so i think that to the to the extent that  the government argues that a reasonable you look at it from an innocent person is inconsistent with both birchmere and stansberry and the last point that i want to make is with respect to judge what you asked whether or not it mattered that the probation officer was there i think it did matter the agents the f b i agent said their policy is not to arrest individuals in child pornography cases unless there's some imminent danger that that was not the case here but  the probation officer was advised of the the six the search as a courtesy and the officers had to know that if mr saylor made some kind of incriminating statement there's somebody out there who could arrest him immediately the probation officer of the agents could have arrested him oh sure matter of policy sure looking at that from from the agents he didn't have any knowledge one way or another of either of the agents policy or your adversary said he didn't know of the probation officers present do you dispute that you know you're that there's no indication in the record that he knew the probation officer was there but my point is the probation officer is waiting in the wings and even