processing it wasn't in anticipation of booking it was he actually booked three months later they were for the federal charge of the federal charges when they left him he was arrested by the postal inspectors right he was picked up off the street by the postal inspectors and brought to their federal inspection office and then after the interrogation without miranda he was brought to local authorities they didn't book him the local authorities i don't know exactly what happened by the local authorities but the federal inspectors when they were interrogating mr duran were not in the process of booking him they were just interrogating him and failed to give him miranda rights but did see there was a reference somewhere if you know where it is no but that there was a pending state prosecution against him at the time that was referenced i think in the report of the interview by the postal inspectors that's why they took him over across the street we don't know what that was or what happened the rest of that day whether he was actually brought in and booked on the state charges or even book earlier on some charges you know i believe that he was processed by the local authorities that day but i have there are no facts in the record process he wasn't booked your honor i don't believe the record is quite clear on what happened in the local court but what is important when your honour's are looking at what happened during the in the federal election it says paragraph ten on or about june ninth two thousand and fifteen which was the date of the interview there and was arrested in connection with a criminal matter pending in the nassau county first district court b don't know anything more about that i just have to ask the governor what that was all about whether it was in connection with this case or something else well it certainly wasn't this case and the two jurisdictions are separate and i think that matters here  when considering what the federal inspectors were doing they weren't doing any sort of standardized federal booking process and they weren't doing any state of the process either and that's different than all of the cases that i've found where this circuit or indeed any of the cases that either of us have cited rely on a routine booking exception to miranda and that that makes sense the cases that rely on that exception note that the interrogators the agents are going through a standard form they're asking questions just in the order of the form there's no indication that they're doing anything than filling out arrest probably would you agree that if he was being processed by the two inspectors at that time on june ninth these were appropriate questions including what your phone number and the phone didn't work would try another phone if they were really booking him in this particular information but i wouldn't agree if i would agree for a few reasons first even when somebody is going through a formalized booking process if the agents are actually asking questions for an investigative purpose that still is interrogation under miranda and that's clear from this court's decision and rose that i really believe all the decisions just because it's a booking process the agents can ask questions that they know in this particular case will listen incriminating answers or the moment when they tried the phone it didn't work and they said tell  number they were acting in an investigatory capacity not in information gathering that's correct your honor these agents knew through their investigation that phone numbers were crucial to their case and they knew that w in answer to that question could be crucial to their case and when looking at the facts of what happened here in this interrogation it has all the hallmarks of a regular interrogation they accuse him of lying they confront him when they don't believe his and that if your honor agrees with agrees with me that it was interrogation custodial interrogation that his statement should be suppressed the case the conviction should be reversed and it should be sent back for further proceedings we can make that decision that phone numbers at the time and that there were set off alarms during the interview but what we do we don't even know it's an objective test we don't really know much about why how many phone numbers they had whether this was one of the phone numbers whether they actually filled out any forms at the post office that had pedigree information would never be relevant to whether it should be suppressed or not we do know the answers to those questions are on a just articulated this phone number was on the list and they were not filling out a form the we have the information that they produced in relation to that interrogation is not a form so if your honour's find that miranda should have been given because either this wasn't booking  processing and there's no evidence that it was and or that they were asking questions that were investigative in nature then his statements must be suppressed no miranda was given but would have to go to the pedigree form from the state court across the street the district attorney's office the county sheriff's office county police office and they were just filling out the form wouldn't be handing it over to the county detectives or something like that would not be relevant to suppression it might be but that's pure speculation there's there's no evidence that happened here and we're not working with no information at all i think we have a lot of the information we know how the interrogation went because the agents testified at trial about what happened we know the forms that they filled out because they were attached to to me it wasn't it was in a report of interview form that they filled out with because it was attached to the defense attorney's motion to suppress the evidence here were not missing facts about about the processing and also the government had the opportunity already to introduce any facts they thought were relevant to the district court's determination about whether this was processing and they failed to do so they just say it's processing but point to no facts at all that indicate that mr duran was booked or processed and at stage poor points out he wasn't booked are processed by those authorities for three more months the other thing that makes this case different than the cases that this court and others have found are under this exception is that the agents here should not have been surprised at all by the incriminating nature of mr  answers this is not a situation where an answer that seems innocuous is later found to be incriminating because they knew phone numbers were crucial and the other cases where the exception applies rely on this element of surprise for example one of them that the government relies on rodriguez the questions actually weren't incriminating intil the person later returned to the country using a fake name then his previous answer about his real name became incriminating that's not only a surprise but it just wasn't incriminating you would argue in the in the words of i think the supreme court that this question was designed to elicit an incriminating response under the guise of asking a pedigree question is that your argument it's part of my argument your honor but also it's not pedigree because they're just not doing a routine processing here this was just interrogation and when when mr drummond is read his miranda rights he exercises rights immediately but you're asking that we were vers the decision not to suppress and then send it back to the district court for further proceedings consistent with the decision correct on it the government could decide to retry him or  fully and the government decides to prosecute mr duran because of course the slate will have been wiped clean right what jeopardy is he in at that point but he not run the risk of a more severe sentence certainly a new sentence if he's convicted right what i'm getting at is very simply this this crisis and we discussed this case with your client as to what what can happen if he has this spectacular victory before the court of appeals i always discuss my cases of my clients your honor and i don't think that that he knows that he knows that he runs that there's a risk that he may be tried upon remained he was tried already and sentenced so i'm not sure what the what is it  well what is it that you want from that's willing to this let's go back to find out what it is you want from us and you want us to reverse an end to judgment for him on the suppression on the suppression issue yes your honor and i don't know i'm talking about the judgment of conviction right reversed the judgment of conditions right so it's not just a question of reversing a terminations on with respect to a search you want his you want us ten to judgment for him and general but without the statement why is that why is that good for him maybe you can give us a general explanation of why why a criminal defendant should deeply desire to well because right now he is serving a sentence of fifty one months your honor and you think and you think that on and on if we reverse that he's going to prevail at this putative trial the information that was taken from this interrogation and the government's words cracked the case open so the statements we're talking about suppressing aren't some small ancillary thing they are the products of the case against your view is that it's highly unlikely that the government would pursue or another trial know i would not have know if you would have him in but mr drenthe chances of success in future proceedings without his under and eyes interrogation are dramatically different that his chances were originally right ok great so what in your view is going on here good morning or my name is matthew hagan's i represent the united states in this case and i prosecuted the case a trial i believe the question presented for this court is the same question that confronted the postal inspectors on the date of the june ninth two thousand and fifteen arrest which is did they know or should they have known that the content of their questions was reasonably likely to produce an incriminating response was they try the first phone and it doesn't work it seems to me they have changed their mode from gathering information to investigatory i don't believe it means they've changed their mode from a pedigree gathering exercise to an investigative exercise your honor however the counter did not start with the question about the phone number the encounter started with much more basic pedigree information and the officers on this record as both officers testify at trial had an increasing concern that the defendant was being misleading and candid about his pedigree information he was reticent to provide his social security number although he confirmed it when the officer said we think this is it is this it so you feel that the fact that he's read a sentence that things that we all agree or pedigree information gave the postal inspectors the right to investigate further his answers and under this court's holding in rosa versus mcrae your honor the officers have a duty to press upon responses that they believe are either false or on reliable in that case the circumstances presented were were somewhat similar the same officers who were responsible for the underlying investigation which in that case i believe was an assault where the officers conducting the booking interview so they had the knowledge in their heads of what the nature of the case was and we all agree that this wasn't a booking this was an interview  booking no no your honor the government contends that it was for the ball the booking take place it happened immediately after this interview booked where or by whom he was booked in nassau county on state charges this was an investigation overseen by the postal inspection service the arrest was undertaken by officers of the postal inspection service and inspectors mckechnie and belfort had principal responsibility for the investigation once they've arrested once he was arrested on state charges he was booked in nassau county that day and with this to george's were i i believe it was related to credit card in deference to the federal prosecution when he was booked across the street to do the pedigree for information you know i do not know the answer to that standing here today and he wasn't he wasn't arrested on the federal charges until september a complaint the federal charges were not filed until september your honor and the federal charges also encompassed charges that had neither been filed in state court or could not be filed in state court for example as a think we i think this court could assume that any time a defendant is mirandized they will decline to provide additional information and this information was so crucial as opposing counsel said it broke the case wide open  would that it broke the case wide open yes your honor the association of this telephone number with the defendant absolutely did constitute a very important development for the strength of the government's case however that association was available to the government by alternative means the defendant was carrying the same wireless device the cellular telephone in his possession on that are you arguing eventual discovery that is one of our arguments your honor that make that argument below didn't you waive that argument we did not the argument was not made below in large part because it was not necessary as the district court granted the you knew that this was a case seeking suppression prudence might have argued for you do you eventually discovery below you can't make an argument for the first time to the court of appeal mean this this court has the authority to affirm a judgment on any decision or excuse me on any basis presented in the record and the search warrant on which the device in question was ultimately searched and this same telephone number was identified was part of the record but it was part of the discovery the government at trial introduced both the device and the limited result but if it were not for an over eager postal inspector you would have in the in the fullness of time gotten your search warrant and found information about that phone but he asked for the number in advance of miranda warnings given to this defendant he didn't you never made the argument about eventual discovery before the district court at your honour's correct the record does not contain that that argument before the district court however i the government does not believe the postal inspectors were overeager here the government believes the postal inspectors were within their authority under this court's decision in rows of human cry and similar decisions in which the officers are entitled to press an arrestee when the booking information provided to them appears to be unreliable in that case it was the defendant arrestee in that case it was his hair color the the officer said what is your real hair color and it ended up being a very important item of identification information that corroborated the statement of the witness the victim in that case this case is at least one dimensional moved from that in the fact that the officers did not ask is this specific number your telephone number they did not ask from this list of six or seven or eight telephone numbers that are relevant to the various credit cards but they asked what is the number of the phone you caring and they knew if that if they if they needed it that they could get a search warrant for that phone because they had the phone in their own possession so what was the russe to get him to identify the phone that's the very purpose of miranda to keep defendants potential defendants from giving information that is harmful to themselves without being warned of the consequences the only reason it got to that point your honor is that the defendant provided a telephone number that was a non working number just after i understand that's when it turned investigative in my view there is no holding of this court and i'm not aware of the holding that requires the officers to be continuously on guard for when any question might conceivably start to trammel into potentially incriminating information the officers the inspectors in this case did not have a particular basis to believe that the device was assigned a number that would end up being so important anymore then the officers in rows had a basis to believe that the hair color would end up being so important or that in other cases such as hyams or it's got just that marital status or employment would end up being so crucial i would also add that identification an attribution of particular statements particular devices particular social media accounts in this day and age is a part of almost any criminal case and a holding that requires officers to perform a no from asking these types of questions in the bookin context as this was potentially creates an issue where officers are on able to ask any questions that might go towards identification or traditional pedigree questions that's what that's what the rules have been and it's only the district court the one district court case that judge glass or sites which included telephones anyway is in no what is traditionally viewed as pedigree information that was an outlier case when he decided we had decided  sweep of this court's precedent but if we look back at some of the factors at some of the questions that were deemed necessary as pedigree information either because of a net need to contact the defendant i need to identify associates of the defendant who might be able to vouch for them in a bail hearing i need to identify the defendant's ties to the community marital status employment address a cell phone is that we least as relevant to those queries to those issues as those same queries work but it's a good question and that is what i think you knew you were going to get which is you said before the district were a couple times i think we need a hearing here and there was no hearing how do you feel about that i mean the government was was i think clear on this record the government was prepared to hold a hearing on the said the court may need to  the question presented as to whether or not there should have been hearing is a little different from the standard of review a political to the suppression question in direct which is that would be at an over review here on the decision to hold  suppression hearing it's up to this court's determination as to whether that was an abuse of discretion and while the government was certainly prepared to hold a hearing i don't believe there are sufficient facts in the record to conclude that it was an abuse of the district court's discretion if the defendant asked for here i believe the defendant did request a hearing your honor that was effectively did i just not acted on it either way it was effectively than either there was no hearing held you were speaking about the record before and in response to judge poolers questions i want to just make sure i understand this the search warrant it's not appended to your brief  d where is the search one i believe the search warrant is appended if i may have just a moment i believe it it is in our appendix yes it's government's appendix  one is the application and the warrant itself begins at fifteen in the appendix to the government's brief and to the government's read it was it it was filed it i believe on the docket in the same p d f so it it appears in the same it should appear in the same read brief right correct your honor read the read ok i have some questions through that why is it being done it goes to the question of inevitable discovery i guess this is all before the district court that the search warrant certainly was the defendant did not move to suppress that i would also add that during the course of inspector bell for its testimony the government introduced both the device itself as well as of a limited printout of the results of the examination of that device application it is it certainly at the defendant's admission of his telephone number is an important part of the case that i don't believe the government has any part of that search warrant application affidavit in support of the search warrant it's it's certainly added to the quantum of probable cause in the application however it only appears in one paragraph and there are numerous references drawn from the bank records that identify that telephone number as appearing on multiple either applications for credit card accounts and other person's names or upon the call records of when the credit card company would receive a call inquiring about the account that number  the commonality of the appearance of that number across those multivariate accounts is something that stood out to the investigators and would have stood out to them in the absence of the defendant's admission that it was his telephone number all of that is a long way to say based on the search warrant we know what happened in this case because we have a search warrant and the results of that search warrant were introduced at trial the government might be taking a longer walk to get to that result but the government gets to the result that this telephone number is associated with this defendant inevitably now want to do address my earlier concern with mr glass house what you see prevails  vacate the judgment the government would have to retry this case without the benefit of the defendant's admission of his telephone number i think it's important to note that the defense did not challenge below nor have they challenge here numerous other admissions that the defendant made during the course of that booking interview that the government used the trial particularly in summation to highlight his lack of candor and therefore his consciousness of guilt right so let's limit it to exactly what's before of this particular inquiry as to which his counsel objects in this appeal so that's the hypothetical she the glasshouse would prevails completely what's what's the prosecutorial stance at that point the government would have the option to retry the case with the exception of one count on which the jury acquitted speak fully that the government would seek to retry that case and i'm confident that we would win that case notwithstanding that we're not we're not raising a harmless error argument here because the record fairly supports that the government view this is important evidence before the jury the quantum of evidence identifying the defendant by an eyewitness the defendant's appearance on multiple surveillance items of surveillance video at multiple places multiple dates right now we would certainly have enough evidence to go to trial cracked the case why don't again i i would i would contend there is some nuance in that it's the association of the telephone number with the defendant the cracked the case wide open and certainly the defendant's admission in a pedigree interview after having made multiple uncandid statements but that was his telephone number got the government to that result much more quickly but the government gets there in the end but help me follow my hypothetical so it's back to the district court and you're prepared to on this hypothetical to pursue prosecution  what in your view would be his exposure in those circumstances were he to be convicted in this putative hypothetical trial he would he would face the same counts with the one exception i highlighted i do not believe there would be i don't know if the sentencing guidelines have changed if they if they change to his benefit then he would have the benefit if they change to his detriment that would potentially present an ex post facto problem at so long way of saying i don't i don't standing here now i'm not i'm not thinking of detrimental change to his status other than perhaps to get credit if you were convicted again very sentence for any time he served on this first conviction which i would imagine he would get credit for that time yes or how much you know many months of his visitor he was taken into custody at the taking of the verdict which i believe was june or to address some of the questions about inevitable discovery i think there are a number of ways that the crew can find this was an inevitable but one that hasn't been mentioned is that the only reason the government thought that this particular phone with this particular number the only reason they had that number to put in the search warrant and say this number is associated with all of this other stuff that we have probable cause about was mr durant's statement without that statement it's not even clear they would have taken his phone that they would have probable cause to seek a search warrant to the phone because they did not know what number was on it so it's pure speculation to say they would have found this out anyway the other thing i'd like to address is the government suggestion that this would somehow be a novel ruling from the court the court's ruling in our favor would follow very clear precedent that miranda is required before questions that are designed to elicit elicit interrogating response that's what we have here there's a narrow exception for booking and the government relies heavily on rosa but in rosa the officers were filling out an online booking sheet they were sitting in front of a computer ask and asking questions and blood tips and then we found him the next day he had totally blind here and that's why they kind of pressed him on it because those were the same detectives that took the statement the day before from the victim we said that was  colored hair so it's i would say it's you would argue it's more similar to here where they knew this number had some significance had a time just like for his hair color had significance other than what your hair color i don't believe that's true in rosa because i believe it's the entire it's the interpreter who's asking the question who is not the agent that knew anything about the case it's the spanish interpreter it's my understanding i could be misremembering king officer who was doing one of the two  know i could be mr miss remembering that but in rose a it's a question on the standard form and he's going through that form and that's not what we have here there's no form there's there's no standard paperwork that's being filled out and telephone numbers are also not something that are part of the normal pedigree information is not because of cell phones people had telephone numbers before they had cell phones this isn't a novel thing it's not in the list of standard questions theory with well and he was being questioned as part of his booking and processing and the investigators in the case that no reason to think that the questioning of this particular person would elicit an incriminating response maybe