indicative or even more indicative of a testimonial statement by the complaining witness than the facts and ham in the end in indiana which is the supreme court case which sets the marker now it's frequently the bane of petitioners in this kind of case to be able to prove what is objective leon reasonable because an opinion is difficult to show to be an objective leon weasel but in this case i don't believe we have that problem because when you look at what the testimonial statement you have a spectrum of factual possibilities and the supreme court has given us to marcus heavy indiana as to what facts testimonial statement and davis but as you move closer and closer to one of these markers by the supreme court a decision by a lower court which is not consistent with the supreme court becomes a more and more on reasonable until the facts of the case at bar are equivalent to the facts in this case of hammon in which case i think we can say with perfect certainty that the ruling is objectively unreasonable as you know the argument is i'm more into it in this case unlike the ham in case my client was not at large and him in case he was actually in the house still and still trying to get at the his wife because your client was in custody that's correct that's correct is there a case where the court said that no murders existed happened because it is big because the suspect is in custody well in hand and have determined who and where the suspect is but did yang know that your client was in custody she was crying she was upset she well frayed two things there is nothing in the that specifically says she saw my client however we do know that the statement was taken outside of the home ok we know that and we know that my client was in a police car which was outside of the home s yes we do well but she had just fled the home hadn't she she she was actually in the driveway of the next door neighbor yeah so he'd run over there from the home right from the front from the front a police car but the other thing is this common sense has let's let's assume that maybe she is upset because she doesn't know where the client is and she says that the cop the police officer the st thing he's going to say oh he's right there we walk him up don't worry about that well could there be anything else that would be an emergency  but in other words the police officer comes to the police officer by the way is important as to whether he knows whether my client's in custody which clearly that's because then he's what questions are he is he asking in other words the supreme court said when the police ask questions she will find the suspect or make sure that he's not going to harm the suspect or harm the community at large those are facts that are made to the police work in terms of finding that suspect stopping the emergency so the emergency is exclusive and it revolves around the suspect only assessing whether there's an emergency when the police are talking to the victim is it only based on the location of the suspect no well i think that's i think that is a very strong large factor  i guess there could be other factors but that is the overwhelming factor and that's what the supreme court said and in and hemant they said the police know even though he has not been arrested like my client the police have arrived on scene and they have stopped the fight or the fight is no longer going on so that emergency which is what they were called for is no longer going on similarly in this case the emergency that the woman made the call for is no longer going on the  arrested him and placed my letter with respect counsel i mean i think justice scalia is something of a monster of foot with crawford but be that as it may well yes here we have a situation where somebody is highly emotional what she said was not what i'm going to use this to testify against my friend or husband or whatever it was she just d that's the very kind of thing that at least my understanding is crawford is not designed to cover to cover drive time to cover situations where you have somebody who is not there you can't cross examine and yet you've got critical evidence here isn't that the difference here i mean the it's the emotion in this case yang rather that in the custody of your client respectfully i disagree on ok and i think that many of us grew up professionally jewish potentially under the paradigm of map oh my under paradigm of map the ohio where if you could place the statement into a common hearsay objection like an excited utterance it was good right that's no longer the what's the limiting principle but you have to sit down in a minute but the limiting principle is it doesn't matter if she's excited or not and by the way remember due respect the excitement is irrelevant what it is is that like in davis murder she's saying he's at large i don't know where he is he's running down the street but somebody is what do you want in this if he's not in immediate danger correct and it's testimony is that's really because he's not immediate danger and because what she's talking about is not what's happening now she's talking about what happened before maybe she's excited maybe she's you know whether it's fear or methamphetamine we don't know but she's excited and she thinks what happened one day ago two days ago three days ago is yes you want to say when your time up here yes i do ok good morning may it please the court just in reilly on behalf of the warden the principle of play is what is the primary purpose of the invest in the interrogation the primary purpose is michigan versus brian the state court and the court found that the primary purpose in this case was to solve an ongoing emergency and for safety of the victim and safety of the officers here's what had been going on for the last twenty four to thirty petitioner had handcuffed the victim around her house had stolen her identification and wouldn't give it back to her had been beating her for the better part of the last couple of days she was covered in bruises and scratches she had tried to escape once to a family member's house tried to come back and get her things he was there again and it choked her the morning that the law enforcement officials showed up well let's talk about what happened at the time of the interview ok  the primary purpose if it's found not to be testimonial must be for the to enable police assistance to meet an ongoing emergency yes that's my question what police assistance was officer do looking to provide the victim after the defendant was in custody the short answer is after he he was in custody he was being detained yes he was in handcuffs he was in the back of a car but he wasn't under arrest and so his his custody was temp y the ongoing emergency was the last forty eight hours and the primary purpose of the victim talking to law enforcement was to effect her escape she couldn't escape she couldn't get her id back she couldn't get back to the house without him handcuffs she doesn't know that who doesn't know that the victim does not know that law they were looking at what the what the police officer tanto is is are we are we looking away why the police officers ask you these questions the police officer asked her one question what's going on thats it that was the there were two different interviews separated by a search of the house in the st interview law enforcement said i showed up i contacted her i said what's going on well regardless of what he asked or we're looking to determine whether or not he was asking her questions to to meet an ongoing emergency and to provide assistance so what i'm going to merge and see what's going on when he handcuffs the ongoing emergency is every time the victim tried to escape petitioner either handcuffed her to something or beat her up when he's in police car handcuffs she doesn't know that and she doesn't know that when these police officers leave that he won't just do that again we're not looking at what the victim knew or look at what the police officer knew when he's asking questions why is he asking her questions what the primary purpose is right it's the totality of the circumstances and so we look at what both of the circumstances that is one aspect of what we're looking for the primary purpose of the questioning now with a question like what's going on that a fair minded jurist might argue what's going on is just trying to figure out is there an emergency the nine hundred and eleven call said that someone was going to kill me so what you're saying anytime a police officer arrives on the scene st question is automatically not testimonial because he's just trying to find out what's going on there is no automatic rule we have to look at that salary to the circumstances but yes if it were in the circumstances the victim is in i mean the suspect in the vehicle handcuffed in police custody so what is the emergency the officer does not know what the danger is and who the danger is coming from remember the victim didn't know that the petitioner was in the police car so they did not have a discussion about is that the guy who's beating you up is that the guy who's going to kill you the only thing that the officer has when he comes up is there's a nine hundred and eleven call where a victim is saying he's trying to kill me he's been beating me up all day i'm covered in bruises that's the nine hundred and eleven call to one of the ongoing emergency and t i want to just be sure i understand the government's position on this so you're saying it's not what the police officer knows it's what the victim in this case knows and that's how we measure the emergency it is the totality of the circumstances so it is what everybody knows what everybody gets what did the state court say the state court said that due to the circumstances the victim being covered in bruises the nine  eleven call saying he's going to kill me and the officer coming up to say what's going on that the circumstances showed that the based on how frantic she was how non linear her conversations were that it was an excited and the beginning statements the initial statements that the victim made to law enforcement the state court found those to be not testament and what do we have to decide whether or not that was unreasonable i believe that the argument is if the the facts in this case are materially distinguishable from the facts and ham and so it's a contrary to analysis and the district court did a great job pointing out the point pointing out the facts that are distinguishable and it's  could summarize those but to answer your question again in the context of that summary the ongoing emergency was ongoing for about twenty four to thirty six hours she just couldn't escape  she couldn't escape the suspect who's in the police car in handcuffs yes here we are there is there any cases where the suspect has been in custody like this one with the court and said it's an ongoing emergency  i don't know of one he was not under arrest that was a temporary situation and she didn't know about it so she she was trying to convince the officers and inevitably at the end of this conversation she convinced the officers that she needed protection she went in the house gathered her belongings and left that was her goal that was her primary purpose to using the sick michigan versus brian's language was to get these officers to protect her long enough to effectuate heard escape she had been beat up for the last forty eight hours she'd been handcuffed to things he had withheld her property she needed protection to effectuate her escape is the emotional state of the victim important for deciding if there's an ongoing emergency some definitively prove that it's an emergency situation if someone is frantic no but it's one of the circumstances under the talladega circumstances test that one would view to see whether or not there was an ongoing emergency whether or not this was testimonial and its primary purpose remember that hammond's primary purpose was investigation of past crimes for the purpose of prosecution the result of the hammond interaction was an affidavit that was the end result of this and i see i'm out of time the end result of this interaction was she was able to affection later escape so was that the ongoing emergency effectuating her escape yes every time she tried to escape she was either handcuffed or beaten ok for the last forty eight hours that's what the testimony showed so that i've been trying to understand the on going to mergence when you're saying the i'm going to emergency the officer confronted when he talked to her the interviewer was her inability to escape yes every time she tried to get out of the house he had taken her identification card she may not have had as many resources as you are and i may have had to leave a situation like this and so she needed to get back to that house to gather her necessary belongings and get out every time she tried to do that he either so i'm still puzzled by that because she was not in the house and he was no more able to get near her because he was in the police car and handcuffs i don't understand your ongoing emergency she did she was trying to convince the officers to protect her long enough to do these things she didn't know he was in the car and remember the officers question to her was what's going on this is what's going on i need to escape will you please help me escape and then she did at asking to to be able to escape that's not on the record we have no idea what she said to the to the to the officer but that's certainly not in the record nd of all i think it brings up a good point she was excited and she was asking for help on an ongoing emergency in the nine hundred and eleven call that she made ok which is why we are not challenging the statement on the nine hundred and eleven call that does pass muster in terms of being non testimonial and that's where the police get all the information they need to put my client in custody is there any case that says when the current is in custody there's no longer an ongoing emergency i'm not aware of any case that says that but what i what i would urge the court is again to go back to hammond itself when the court when the court said simply being on the scene and now making sure that that the incident is no longer occurring is enough so clearly think he did not feel free to leave the scene well do you agree that this is the issue that we have to decide it is whether this is contrary to clearly established law or are you arguing that this was an unreasonable application of the facts or well two things i'm arguing that this is unreasonable simply and i've given you a charge because i think that's a clear way of seeing it in my reply brief that shows why the facts of this case are the same or more testimonial then in hammond so i'm saying it subjectively unreasonable because hammond says it is i have a nd claim which we have not be able discuss discuss at all which is completely separate that there was an unreasonable determination of the facts by the court because  not excited anymore again going back to the map the ohio but that's not a criterion under under crawford but what why have indicated in my brief and i clear the police officer who took the statement says i took all of her statements from the st and the nd i took she said and put it in one statement there is absolutely no way to determine which of the things she  came from the quote testimonial statement of the state court and which came from the non testimonial statement so for them to try and say that you can't do that is an unreasonable application of the facts i raise that the state court