you may proceed i think your honor when the defendant tells a police officer that interviewing him i actually want to change that i haven't had a chance to get a lawyer or it and then you say i have i want to change what's happening i haven't even had a chance to get a lawyer the defendant has unequivocally stated that he wants a lawyer and questioning has to stop and that's what's happened in this case and i think the the perversion of this case is the idea that the officer saying no no no you can't waive your right to a lawyer yet because i haven't read your miranda rights and so i need to record this and i need to read these rights over to you and go over your options with you before you can waive your right to a lawyer and that's exactly backwards of what the supreme court said in edwards and specifically in smith versus on the annoyance smith saying look if the person invokes the invoke question hastert stop it you can't use the fact that because the police don't stop questioning and keep talking to the guy and then convince him to waive his right to a lawyer as evidence that he didn't didn't follow it flips that brand exactly on its head it was mr hampton that there was nothing a quizzical about what he said and it was in the present tense i haven't had a chance to get a lawyer that's invoking it is not the same as the wising or case that the government primarily relies on in the brief where the defendant said do i need a lawyer before we start talking that's not an indication because it's somebody asking the question do i need a lawyer that's not what mr hampton said he said i have not yet had a chance to get a lawyer you know what did they do when he said that when they said that they turned off the recording equipment then the testimony at the suppression hearing was that two of the officers went out in the hall talked for a few minutes and went back in and talk with mr hampton the only one of the guys testified at the suppression hearing your honor so it's a you're only getting that person heard they when they said they went over mr hampton's options with him but there was no detail description of what that entire that what that entailed but what the what the options you don't know if they gave him the cooperation speech of why hey this is your chances your chance to talk with us you know if you get a lawyer we can't talk with y u maybe they just said hey you can hire a lawyer you cannot hire a lawyer but there's no reason for them to go over his options with him because he's already told them what he wants to do with that is i want to get a lawyer so after he tells them hey you need a chance to get a lawyer is because you want a lawyer but you just haven't had a chance to get one yet because he had just been arrested the night before and since he you know had only been in jail overnight you hadn't had a chance to contact a lawyer to make arrangements but when he says i haven't had a chance haven't even had a chance to get a lawyer or anything that is a president's intention to retain counsel to get the assistance of counsel and if you're going to say equivocal then you really are getting to the point where there is some kind of magic word or magic phrase that a defendant has to use that requires the police to stop questioning otherwise the police are always going to be able to say well it was it was it was equivocal so i could keep talking to him and try and clarify what he meant and of course the police they're not neutral they're trying to get him to talk and they know they can't talk with him if he invokes so they have no incentive to clarify that yeah he really does want a lawyer all of their incentives are to get him to say no i don't want to or i peep talking to you without a lawyer so that's why the supreme court said we don't let the police keep talking to someone's after they say they want a lawyer and it was they should have had this off the  that they they convinced him to let them turn the tape back on and then they read him the miranda warnings telling him he's got a right a lawyer when he's already told them hey i haven't even had a chance to get a lawyer yet and they got him to waive and then it's an hour and a half about an hour and a half where you can fast as they first they ask him about a lot of local of burglaries or he was stealing from businesses scrap metal and stuff like that but then they work their way into deep post office robbery and  terrell it's february on this like almost your february twenty six at the time is that we're videotaping you know we have your permission to do that and then mr hampton says actually i want to change that i haven't even had a chance to get a lawyer or anything does your argument depend on the prefatory state and actually i want to change that in other words prior agreement to make a statement that i don't i don't think so it i think at most it's they want to change the fact that we're recording when you certainly want to say i want to change what the status quo is right now and we don't know exactly what it because terrell the guy doing the questioning on the tape claims walker had agreed to the recording but there's nothing on the recording where they say hey do we have your permission to record this so what i don't know if they had a conversation before hand terr when the video comes on terrell's eason he opens up his book looks at his watch which is look it's kind of a standard thing you know they just it's this is the date this is the time you know this is where we're located we're talking to this person we have your  permission to record this right and that's when mr hamdan says no i want to change that i haven't had a chance to get a lawyer and you know if that's not invoking your rights or if that's not telling a reasonable objective observer that i want the assistance of a lawyer in dealing with you you know then you really are the only way you can invoke it is if you say the words i want to have been the lawyer with me right now please stop context and the context was the officer saying we're going to have your permission we're going to record this and mr hampton says actually i'd like to change that i haven't had a little a chance to get a lawyer or anything the officer immediately responds yeah that's right and i want to talk you about those rights i just want to get that recorded where i go over your rights with you and how you respond to that mr hampton says no i don't want to do that and it's shut off and the shutting off honestly i think it does suggest that the office is trying to respect the wishes of what mr hampton wants to have happen and i think there's anything in that record to suggest that they're somehow overcoming what he wants to have happen and that for now also by when the recordings turn back done they make it crystal clear if you want a lawyer it's over we start questioning you right now and he says no i will talk to you and i do think context is critical the inflection of this court has the same video can watch it but inflection and how things are said what they're in response to all of that matters to whether it's an unequivocal invocation of counsel and given what happened here we don't believe that there was an unequivocal so yes we think judge gerald got it right that context matters and if there are no questions the government response really don't we don't know what we know in the conversation when the recorder off we have the testimony of what they said happened and what they said happened was they talked to him about why they wanted to talk to him that he had the right to a lawyer to do that we have the testimony we don't have the recording and it wasn't like he was blown up about it the thing there was no i don't believe there was any interrogation about the had a chance you know were was in the alert yes and the officers talked about that amongst each other do we think this is an equivocal or an unequivocal and went over and clarify that exactly what the supreme court said officers ought to do and they did it on the the idea that you have to explain the perk to a person the right to a lawyer you can't accept their statement that i haven't had a chance to get a lawyer yet isn't unequivocal invocation of the right to counsel because i as a police officer haven't told you yet that you have the right to a lawyer is ridiculous when somebody invokes it's over and you don't get to keep talking to them anybody said well we didn't think it was unequivocal we thought it was equivocal we talked about it amongst ourselves and surprisingly we decided that it wasn't an unequivocal request for a lawyer i mean what do you think they're going to conclude amongst themselves police that person wants the assistance of counsel in dealing with the police that question should have stopped at that point and to statements have been suppressed the point would it be appropriate for them to s directorate there would be two i think it would be improper because number one you don't have to inform somebody who if they've invoked the right to counsel you you don't need to explain to them the right that they have coun and the whole idea in the supreme court said this in smith and they said look whether it's intentional or unintentional overt or subtle the idea is we're not going to let the police keep the person talking in the hopes that we can bring them around to waiving the rights because that's what happens i mean that's what the police are trying to accomplish that doesn't make them bad police officers but they're trying to get the guy to talk and so you can't use the cover of trying to explain the rights to them or words but what they've said is as soon as the person invokes you have to stop it's not you have to stop except that you can continue and give them these warnings that we've set out it's as if they invoked you gotta stop thank you