as well as the physical evidence that was obtained there from this case presents a straightforward application of the supreme court's straightforward holding an edwards that the minute an accused invokes his right to have coun present a questioning all further questioning my cease until counsel has been made available it's difficult to watch mr mathis's interrogation in this case and come away with any conclusion other than that he repeatedly asked for a lawyer from the minute the detectives entered the interrogation room and for the next four hours after that mr math is said it so i can get one now can i have a lawyer before i do a i think i should get a lawyer i think i should ask a lawyer st ted i get a lawyer now i'm just saying like i'd rather like a lawyer here now and i want to get a lawyer st and instead of honoring his requests for counsel detectives misled mr mathis they informed him of his right to have counsel present but in the same breath negated that right by noting no lawyer is going to show up here it's a saturday no lawyer is going to be here for you and so sort of rendered at this right to counsel that he has under the constitution merely illusory because in one breath they said you have it in the next breath they say no you don't and argue trying to put this together based on the government's exhibit of the you know that included or i guess it's the government's response to an opposition to the motion to suppress and because it's not it's not all four hours right but that clearly the where your clients he was told before talking to me  and have a lawyer here with you during questioning i'm sorry there was a cut off so you can have a lawyer with you during questioning now or in the future do you understand that your client says so i can get one yeah you can get one now but he's not going to show up here in as i understand that was before mr mathis made any incriminating statements and that was fairly early on corrective would then i'd say within the st five to seven minutes of him entering the interrogation room the tactics entered didn't immediately mirandize him even though it was pretty clear that he was in custody at that moment asked him many questions before detective live and then just proceeded to mirandize mr mathis and it was in the course of administering miranda that that exchange occurred and in direct response to detective lippman advising mr mathis of his right to have counsel present during these proceedings mr mathis responded so i can get one now and that to that clearly is indication of his right to counsel if you look at that statement in context as davis the case that the government cites to says must be done it's very clear that when it comes during the miranda period and in direct response to being advised of his right to have counsel present there's no other way to read or understand that statement than that he wanted counsel present ahead of a follow up question of that so it's some point i gather told the detectives the belt the yankee sweatshirt and that it should be in his house was it was that after that was he told them that after the exchange that i just referred to right so that statement so i  put together a timeline just from watching his there's no transcript of the four hour interrogation so per my record my note taking that exchange occurs very much near the end of the interrogation around twelve o seven pm at that point they've elicited a number of incriminating statements from him received consent from him to search his phone and there at that point asking him to sign a consent form to search his room and they get that on the basis of him advising them that the sweatshirt will be found in my bedroom at three thousand and thirty north west th street in miami gardens and so that comes a little later but i believe he puts himself in the yankee sweatshirt a little earlier a little closer to after he says so i can get one now and then places it in a physical location later on during the investigation so there's multiple multiple ways that this interrogation sort of violated mr mathis's rights and so the way the supreme court precedent at least as to the th amendment has preceded it actually has been pretty logical and it has built there's been built a body of case law and so miranda you know it came out that you have the right to have these procedural protections in place in order to protect your privilege against self incrimination and that means that officers in an in custody situation must issue you your miranda warnings and solicit a knowing and voluntary and intelligent waiver of that right before they initiate questioning and then in edwards the supreme court explain that there's this nd layer of prophylaxis that they're building on top of that which is if if you've invoked your right to have counsel present it regardless of anything else that happens all questioning my c s and you must be provided counsel before they can talk to you again and you know davis the way the government appears to be reading davis is that it's this is this whole new rule and really what davis does is just clarify a little better the holding in ad words which basically you know if you've been issued the miranda warning and if you've clearly waived and proceeded to speaking to the officers and then at some point during the interrogation want to invoke your right to have counsel present your invocation needs to be clear and unambiguous davis doesn't overrule edwards in any way and in fact acknowledges that both miranda and edwards provide the controlling law in in this and the courts and so here the argument is that he gets into the room immediately asks do i need an attorney for anything is then mirandized and then in the middle of his miranda warnings says so i can get one now and so the st question is did he even knowingly and intelligently waive miranda because from his questions it's maybe clear that he didn't understand the right that he was entitled to and so we the case at least out of this circuit that would be most similar that i submitted in supplemental briefing would be heart and heart to defend it in direct response to being read his rights indicated that he he didn't fully understand that he had a right to an attorney there and the same situation exists here and then if you continue forward throughout this entire four hour invest in an interrogation of mr mathis he brings up counsel no less than six times and it is each time sort of misled or rebuffed and into believing yeah you have this right but it's not a real right because counsel's not going to be provided to you and so that's where edwards comes into play because clearly he's no reasonable officer or in in these circumstances could read his in vocation to be anything other than a clear indication of his right to counsel and so it was rania's for the this videotaped interrogation to be admitted at trial and it served as the the only evidence physically linking mr mathis to the scene of the crime in the scene where they found the bullets in his the it was on the basis of his of his statements about where the yankee sweater would be found that officers even had probable he was sorry it's the it's the evidence without mr mathis's statements there is nothing that physically puts him at the liquor store well in his car with his phone that night because there is there is surveillance footage and there is the license plate capture of his vehicle entering and exiting lighthouse but the argument would be you know as to because the argument as to the physical evidence on the basis of the interrogation is that there is no probable cause to search the address that the officer searched without his statement that evidence of the crime that was being investigated would be found in the room of that particular house because there were multiple other addresses linked to him up until that point and so i see myself time has run thank you w hear from you again  that this was in custody at the time this interview took place nor is there any dispute as to what was actually set as you have the video recording yourself so the only issue in this case is whether masses mathis's various references to attorneys were brought up at the very beginning of the interview mathis says my going to need an attorney for anything did the detective did what he answered how we would expect it attempted to answer he's not going to provide legal advice to a suspect so he says i can't tell you what you need or you don't need i can tell you why i want to talk to you in why you're here that's all i can do you then goes on to say whether you want to speak to me is up to you  at that point the suspect talks about his injury and having to work and some various pedigree information is obtained from him including at notably his address which was three thousand and thirty southwest one hundred and sixty eight street which was the address included in the search warrant now as judge martin you indicated this was a four and a half hour interview i think what's important though is only the st twenty six minutes of this entire interview were introduced at trial it was it cut off before there was even any references to attorneys for d n a or for the consent to search the cell phone so i submit to your honor's that really the only two references for counsel that matter in this determination are that st statement when you saying requesting legal advice from the detective when he says well i need a lawyer for anything and then during the actual miranda warnings when he's advised you have the right to the presence of an attorney during questioning now and in the future at which time at this says so i can get one now that statement suggests he's seeking additional information from the officer about his ability to have an attorney we that's i think that's you know when i read edward versus arizona in the talks about what's required in the circumstance says you know there's cannot be further interrogation by the authorities until counsel has been made available to him in you know the the response to mr matheson's statement so can i get one now and the answer is yeah you can get one now but he's not going to show up here if on the receiving end of that you might think well he's not available now so  the court expressly addresses this issue they say that there is no requirement that an attorney be producible on cole and in fact rejected the suggestion that a station house lawyer needed to be present in the precincts to advise the suspects but what about that language and edwards  you know we further hold that the accused such as edwards having expressed his desire to do what the police own through counsel is not subject to further interrogation by the authorities until counsel has been made available to mean in here mr mehlis has been told he's not going to be available to you now he's not going to come here i think a prerequisite for that is he needs to make an unequivocal request for counsel in order for  that right to attach and the government's position is that asking so i can get one now is not a request for counsel this is not you know f up if you had been in the room you would have said it differently well we know that this knows how to invoke his right to counsel because later in the interview after he's confronted with some incriminating evidence recovered from his phone he knows how to say i want a lawyer now you know this is a person i've been through the system before had a prior manslaughter conviction from two thousand and five which according to the miranda rights and provided a confession not only that before the miranda rights were read to him he says oh i already know these i'll never forget these so this is a person knows how to invoke his rights and also in the interview it becomes clear that he's trying to figure out what information the police officers have on him as well you know he asked whether or not you know you can see him in the car during some of the video surveillance so you know this is you know a savvy individual who's been through the system and clearly knows how to invoke his rights because he did so at the termination of the interrogation with respect to how well how could so i can get one meeting a lawyer now how how is you mike that was ambiguous i think i would like a lawyer now you know i think as opposed to posing as a question to order is actually important i think so i can get one now is even different than you know possibly can i get one now one of the six you know a little bit more clarification about you know so i can get a bottle of water now miss to say so would have me one with yeah so you are saying to me you know you can have a bottle of water anytime you want and i say so i can get one now you know that would require some additional information from you about whether you would give it to me would you to an attorney now or in the future and so it appropriate response seems a bit oh i can i can so i can go on now well i mean i think the davis decision makes clear that you know what these officers trying to interpret you know these are biggest requests from suspects in adopting the rule that it must be clear and unequivocal they recognize that there is another consideration which is the ability of law enforcement to gather information and investigate crimes you know they're not supposed to go on some kind of a guessing game in determining whether or not somebody invokes their right and if they guess wrong that leads to suppress and interestingly you know council referenced the number of times that councils mentioned by mathis i guess the st point i would reiterate that really the only two that matter are the st twenty three and during miranda because afterwards is when the incriminating statements were made but in the davis case they express the noted that there were bearing approaches adopted by different jurisdictions state and federally some jurisdictions held that any reference to counsel on a matter how ambiguous was sufficient to invoke the right to counsel somehow there had to be some minimal threshold level of clarity and somehow that you were permitted in need to ask clarifying questions even understanding all these different approaches the court said we are adopting a rule that you need to be clear and unambiguous and you don't need to ask clarifying questions if there is a question about whether there invoking their right interrogation they continue in the case cited in the brief propes to the th circuit case  conceivably it's not published but in that case the suspects said i'd rather have a lawyer and that was found to be an ambiguous request namely because if a statement is subjected to reasonable competing interpretations interrogation they continue under davis because it's not a clear indication of their right to counsel respect to the linkage between the statement that was made with the though mathis did say that he had a cell phone on him at the time he was at the liquor store that didn't make a difference because there were cell site records that had come into the possession of the police on july t which puts mathis at the scene pinged off of the nearest cell phone tower to the liquor store set alone would have been a sufficient basis to get a search warrant for the cell phone with the search warrant of the house it is true that the statement by yankee shirt is in this particular address was near the end of the interview with it was at about twelve o seven pm however the pedigree information that was elicited from the detective happened at the very beginning that happened immediately after that the said do i need a lawyer for anything you've been provided that same address so if you excise the yankee share from that statement you still are left with the admissible information of his address and i believe that this court has held that you know pedigree information isn't designed to elicit an incriminating response so that's not subject to  much so i wanted to start st by addressing some of the case law the government references and then it's also applicable in this situation and i think if you follow the government's reasoning in divorce the work the the statement that's made from its context than it does become a very confusing standard to apply which is why the supreme court in davis said that the standard that they were adopting was an objective standard from a reasonable officer in the circumstances so progress for example the unpublished opinion cited to by the government this statement was i mean i'd rather have a lawyer around to talk to you know what i'm saying have some paper saying something that was in response to this discussion about maybe coming to a deal or entering into some sort of agreement and so the context there mattered in edward's same statement was i want to attorney before making a deal in the context within which that statement was made the supreme court held that to be an unequivocal request for counsel and it's meant to be illinois which i would say is relatively similar to the situation at hand here in the middle of being issued his miranda warning the defendant there  and direct response to being advised of his right to have counsel present stated yeah i'd like to do that and the supreme court found that to be in an ambiguous unequivocal request for counsel and while admittedly that case is a itself and when it was made was unambiguous and unequivocal and at that point all questioning needed to seize as to davis you know that the date the statement that was made and davis was made an hour into the interview or ninety minutes into the interview after the suspect had been mirandized and had waived miranda and then he said maybe i should talk to a lawyer and in response the officers clarified and he responded no i'm not asking for a lawyer and so davis is distinguishable from this case on many fronts and it doesn't do anything to undercut the right and edwards that once even about your right to have counsel present officers must honor that request and as for the physical evidence that was obtained as a result of his statements that the home address that he gives right at the beginning of the interview the government appears to be arguing that that that's pedigree information or like booking questions that were asked we would argue that that question analysis is inapplicable here from the minute these officers enter the room they had him on a a warrant but it was clear that their intention was to question him and to obtain information from him in the questions that they asked him go beyond mere you know pedigree questions or poking questions they get into where is your brother living does your brother look like you you know you know has information that was beyond booking and they weren't arresting him at that point and they made that very clear to him as well and the mere giving of that address doesn't do anything in terms of probable cause for a search warrant to search the home because at that point officers were investigating the scene of a murder at let house point and they were looking for evidence of that crime and the only evidence of that crime that can be linked to that three thousand and thirty address is the yankee sweatshirt otherwise the car was registered to a completely separate address and up and up until that point in the investigation the car was sort of a key piece and it was sort of how they came upon mr mathis to begin with and so there was a separate address for the car there's a separate address that they surveilled him at and there was a yet another address that they picked him up at in order to execute the d n a wore it so without his statement there is no probable cause for the house search why did they stop question because they got everything they needed from him four and a half hours into the interview at that point they had gotten believes that he had invoked at that point but he said things that were not really different from what he said at the end of the interview and the only difference between what he said earlier and what he said later is that at that point they need they got what they