they are also judges of the united states court of appeals for the fourth circuit all right thank you you may be seated well few of you there are left  it was mr riley's probation officer that had him arrested and then chose to interrogate him while he was in custody about something that he had been arrested for about distribution of methamphetamine mr bradley had that amendment right despite the fact he was on supervised release and despite the fact that he was in custody cannot cannot stop you there i was going to get to this later but you raise it here why why was he in custody for miranda i mean under under how and lots of other cases merely the fact that you're detained doesn't mean you're in custody for miranda purposes there has to be a meaningful change from the normal trappings of detention for you to be placed into custody otherwise you know every purposes so why why do we think he was in custody here when he's you know in jail admittedly but he shows up in a room with his probation officer what about that su custody for miranda purposes well your honor i think that is a few factors that make this a custodial interrogation first it was never contested in a district court that he was in custody but there are significant factors he's not just in a room at the jail he's actually been arrested he can't leave if you can't walk out of that room and it's just a room but what's different from him than any other inmate right that that's what the court says and how it should be something different between him and every other and this thing wishing factor in this case your honor is that he's under the obligation to answer all questions of this relation officer truthfully so it's not just that he setting in jail and can't leave he's being questioned by somebody for whom he has a court ordered obligation to him that's all or fungi so but that's murphy and the from court murphy says yes you have an obligation to answer questions honestly but that didn't make it inherently coercive that's right because the questioning in murphy was very different in the questioning here in murphy your honor the parties arranged a time to me and they met at the probationers office the probation earth in that case mr murphy could've walked out the door and the supreme court carefully exempted this exact circumstance from its decision in minnesota versus murphy where it said we're not addressing a custodial interrogation right but that just goes back to the earlier question of why we think he was in this guy different from your average preacher all the taney at this particular jail so it's that we would find him to be in custody under the thumb but i think it's a combination your honor of the fact that he's in jail and at the question or in this case is this probation officer and that mr riley has a condition of a supervised release that requires him to answer all those questions truthfully so it's the combination your honor i spoke the condition those are the those are the only to me that's what we're looking at i think that's right but to the extent that that ends up being critical in this cour analysis and the district never made any findings of fact in this case about whether or not he was in custody the district court merely found this wasn't a question he could even entertain because of the court's previous decision in armstrong's there's been no factual findings about whether mr riley was actually in custody or not so to the extent that that would be critical this court should remain and then ask the court to make those considerations is important because the district what was wrong to find that armstrong was determined it in this case armstrong is disdainful from these facts in several different w the language of armstrong doesn't turn at all on the nature of the right i disagree or honor while the word fourth amendment doesn't appear and i'm sure words fourth amendment just do not appear inherent question armstrong is a balancing test it's looking at  balance is the cost of applying the exclusionary rule worth the benefit and inherent in determining what the costs are the most significant input in that case was well is fourth amendment evidence inherently reliable and that's very different from the kind of evidence proceeding it's certainly not a criminal proceeding your honor but since this court's prior decision and armstrong there have been significant additional protections afforded to criminal defendants in the revocation context this court in doswell recently decided that you have six process concern that creates a confrontation clause right in that context so if there is rule thirty two point one they talk about the confrontation call they talk about due process your honor and they reference the confrontation clause they don't specifically find the confrontation clause right but due process concerns that require confrontation when i when they say those that you just made this doesn't matter but they say isn't due process require something and that manifested in rule thirty two point one here's what rule thirty two one was promulgated because of due process concerns and that well essentially affirms that reading of rule thirty two point one despite the government's arguments in that case similar to today that this is going to fundamentally change the nature of supervised release that adding these rights into a supervised release violation hearing makes it like a criminal trial it's still different than a criminal trial your honor but at this point someone does have the right to confront witnesses and that six and this is a long time sometimes well if they raise the objection your hon but i do think that the fact that you have the right to confront witnesses is important to consider because that's about testimony we want people to confront the witnesses against them so you can actually still court can a judge how reliable the evidence is that goes to the heart of  fifth amendment concern is testimony is a confession reliable or not and that's why i think the memmott input into armstrong is different but there's another reason i think armstrong is distinguishable and that's the nature of the interrogator the armstrong case decision had to do with law enforcement officers and armstrong and scott found well you know law enforcement officers are already deterred they are to have an incentive to protect constitutional rights because they know if they violate those rights the evidence can't come in at a criminal trial there's no deterrence here for probation officer such as mr riley's probation officer if you violate constitutional rights there's there's no stick he can go ahead by those constitutional rights and the impact in this case is large fine if there's any problem with this case the alternatives here for the probation officer are very simple and if this court were to reverse be very simple for how the probation office could proceed first just question mr reilly before you have him arrested that's a that's a small step second if you're going to question him just to get the probation officer not utilize the marshals to perform arrest right well of course they can choose to go that route but in this case the probation officer could have also arranged a consensual meeting like the meeting in minnesota versus murphy and just ask mr by the questions in a non coercive environment where mr riley like mr murphy could have walked out the door and the other alternative is to simply mirandize him that's a low cost solution to a problem it's not like going to get a warran which takes a lot of time and other actors all he would have had to do is say a few simple sentences or the third option is that if a probation officer once to go into custody and interrogate somebody and elicit responses we just can't use that to prove the violation at th s has really released hearing just got other evidence to do that so it's not as if this would handicap probation and the deterrence effect here is important because unless the court reverses in this case the message sent to probationers and supervise these everywhere is that this really isn't a relationship of trust even though we're constantly telling people on supervised release it's about the trust of the court and you're not being punished because of what you did you're being punished as you violated the court's trust well the incentive created here is to l incentive for mr riley and every supervisee to come after him will be to lie and to not truthfully answer the inquiries of their probation officer and that's an important reason exclusionary rule is worth the cost in this case it's worth the cost as the evidence isn't inherently reliable like physical evidence and because less the court acts probation officers can be sort of deputized as law enforcement officers to go in and ask questions of every single person about anything they want to and they can be used to violate that person lives a different question about about anything did lie because we could have a different discussion about this evidence being used in a criminal trial so probation officer shows up says hey did you kill your wife yesterday i know you got caught you know testing positive for drugs or did you kill your yes like your mom why we have a separate discussion about whether that could be used in a criminal trial but this is simply the probation officer performing his function informing the corps when violations of happened and the probation or is required to provide those answers later on i think there's a distinction the moment that mr riley is arrested on the probation officers attention information officers role changes he's not asking him questions about whether he distributed methamphetamine to get him into a treatment program for drug dealers he's asking him whether he distributed methamphetamine so he can increase the guideline range in this case from four to ten months to twenty four to thirty months there's no harm but truthful information to the court right that's what you're saying so the probation officer desire to provide truthful information to the core is what you think needs to be deterred by the exclusionary your honor that it's the opposite i think if i'm understanding your it's it's to  incentivize the probationer to provide truthful information to the probation officer because otherwise they're instead of us to lie that's correct your honor and that's the incentive structure that i think this court should protect because the primary role of the probation officer is not to the probation officer to respect constitutional rights and to not become turned into an interrogator which that impacts the overall nature of supervised release which is something the court can consider with the exclusionary rules balancing test is it worth the cost of applying the rule that is because they've got constitutional rights at issue because we have a concern about the nature of the asker probation officer who does not have a constitutional duty to investigate new offenses they have constitutional duties a sort of statutory d to report about behavior to the judge and they have sacked it your duty is to help rehabilitate but they don't they're not like law enforcement officers and they they shouldn't be there should be a distinction with they're not tasked with investigating every possible offense a supervise may have committed and i think that that role of the probation officer is relevant for the court to consider here and so this court would not have to find huge exception to the armstrong case the court only needs to find that on the limited fac here when you have a probation officer as interrogator asking statements in custody that the fifth amendment exclusionary rule should apply that's the only deterrent that would apply and i think that is another issue that i've raised my research i'll just address quickly  which is the separate issue about whether assuming the statement came in appropriately that's enough to crop rate mr riley's great a violation that he distributed methamphetamine and i would suggest that the reasoning from the offer decision of the supreme court and the other warnings against just confessions alone that we see from the supreme court in escobedo vicious illinois statement alone confessional low should not be enough to corroborate someone's even under the preponderance of the evidence standard that someone committed a new and separate offense other some other evidence should be required and the report was wrong to find no provocation was required and it was also wrong to find that even if provocation was required that this offense was corroborated simply because the confession was oral and then also that the defendant in this case initialed next to a writ that haitian officers notes of his confession and the government suggestion and it's briefs now well that there's other corroborating evidence that he had possessed methamphetamine and isn't the opera the idea that you have to corroborate the action that took place you don't have to corroborate the mental state because the middle stage really difficult to corroborate and so what we've got here is a possession with intent to distribute i may answer your question just by my time expiring and i believe that the district court found that the offense of distribution occurred not possession with intent to distribute and so we're not talking about a mental state we are talking about the actual act of distribution mr bradley is confession was supreme court in scope the argument is that we need the exclusionary rule in circumstances like this because the probation officer turns into functionally a police officer puts on his investigation hat and the one in the s that argument was squarely rejected by the supreme court in scope in fact if the court looks at page three seventy five in the scott opinion you'll see that that was actually the dissents argument in scott that the parole officer turns into to use my friend's language just now and interrogator and of course the majority of the supreme court and scott reject that i think it's a port a point worth emphasizing the language it's the supreme court emphasize there was that i believe it's at page three sixty eight scott said that it would be unfair to assume that the probation officer was not neutral these of the a police officer supreme court and scott went on to say that the interests of the probation officer and the probation earth that he or she is supervising are actually more aligned they're not hostile again these are the police officers so that argument has already been  rejected and if i may i'd like to just take a few moments to respond to a few of the other arguments and i believe as as judge stacker noted and judge richard simmons well miranda only applies when two conditions are present one we have a custodial interrogation and two when the statements are used in a subsequent criminal proceeding miranda does not apply where the statements are to be used in a criminal proceeding here supervised release revocation here and i would like to direct the court's attention to some language in murphy that i believe really reinforces the government's argument on this point and that is this is footnote seven just as there is no right to a jury trial before probation may be revoked neither is the privilege against compelled self incrimination available to a probation neither is the privilege against compelled self incrimination available to a probationer let me change the subject slightly for you it is you made the point you said there are two different things in these because so you'll need to be a criminal don't that grounds for rejecting his claim yes if i'm understanding the court's argument correctly we we have never argued we don't argue here we didn't argue that he was not in custody that was not an issue that was  was there and i think of course the supreme court has said we're supposed to engage in the balancing act right kind of the costs versus benefits in terms of applying exclusionary rule apply you know which here would be miranda i'll emphasize for the court here that if if the court forces miranda enforces exclusionary rule into supervised release revocation hearings there will be blowback understanding of course that the purposes of supervisor least are very different they serve the purposes of rehabilitation reintegration of the probation or in society and protection of the public the life blood the bedrock of supervised release is the flow of information the communication by the probation or to the court through the probation officer if we inject miranda and the exclusionary rule here it's going to stem that flow of information we're going to have probation officers excuse me we're going to have probationers deciding to not answer questions upon hearing a miranda reading of their miranda rights which is going to in effect it's also going to have another blowback where they're going to be revoked for failing to comply with the conditions that require them to answer questions and then i think it will give rise to additional litigation as to whether there was miranda solution or rule in the different resources suffice it to say that the costs the government's position is will be tremendous if this court forces brand and the exclusionary rule and really is a kind of a square peg round hole problem i would also like to address the powerless argument that this court should narrowly interpret armstrong to only apply to violations of the fourth amendment and it's problematic for numerous reasons the first reason it's problematic is when you just look at the plain language of this court's holding in armstrong it says no solution or rule in supervisor release hearings period there's no limitation at all if the court agrees and goes forward with the appellate argument that armstrong should be limited it's going to be treating the rights of the probationer in two different ways going forward that is the court will be protecting the fifth amendment rights of the prohibition because exclusionary rule would apply but then under our strong it would not be protecting the fourth amendment rights of the probation or consistent with our freedom so now unavoidably you would end up with this  bifurcated regime where again the law is protecting some rights of the probationer it's not protecting other rights of the probationer and it's just tough to imagine that that was this court's intent when it crafted armstrong also proceeding forward under that narrow interpretation that long look at scott and armstrong is there any sort of reference to her support for her argument that it turned on the  liability the physical evidence compared to the reliability of confessions i do not recall any of that reasoning in either of those cases you are and in fact i think that that argument is flawed because i think we can all imagine circumstances where physical evidence may not be that reliable as to one definite or another for example law enforcement goes into a house where there's five people and there's a bag of we have less concern to an extent we have concerns about false confessions the primary concern about those in a jury context not in a judge contest who sees a number of professions as much more versed with those issues that's correct your honor hal there the burden of proof is much higher the burden of proof here in the supervisor release revocation context is much lower it's only preponderance of the evidence a nother problem with narrowly and map quoting boyd i believe explained kind of there was this interesting historical analysis about the fourth and fifth minute reflecting that the two admits are very very similar and they're closely related and i believe the language was they cast light upon one another and that they were they were founded kind of to protect the same right kind of security and property of the citizenry so if the court proceeds with the a palace interpretation of armstrong it will also not fly in the face of those points made in those historic supreme court cases and again already i've already explained the problems with going to the  regime we would we would end up in  and i think the final point that i would make on this particular issue believe is it is a point that judge richardson was making when the power house counsel was making the argument it's true doswell and even ferguson those cases didn't create new rights they didn't extend new rights those were cases about whether the district court had properly applied interpret rule thirty two point one those were reliability in evidentiary cases a palin makes this argument that there's this momentum this groundswell to make supervis release revocation hearings more akin to trial and have trial like protections and that's just it's just not correct rule thirty two point one is the court knows was initially passed that was created in one nine hundred seventy nine nine hundred eighty shortly before that in the seventy's was morsi v v brewer the supreme court case and that was the i believe the first the first court that said the confrontation clause rights may apply in the context of supervisor lease revocation here it's not  limited protection and that's kind of the theme that we see in all these cases that there's a limited protection limited due process in the for probationers piece of the criminal defendants and all these cases we hear that and you read the constitutional protections for probationers are less than they are for those that are not in probation and for good reason for all of the the costs that i alluded to a moment ago if there are no other questions from the panel on issue number one i will move to op or the government's argument here of course is that the district court got it right when it decided that offer did not apply and does not apply to supervise of these revocation hearings that of course is because it's in a very different context the burden of proof is much higher than it is here in supervised release and our alternative argument an o thank you very much for your attention thank you i want to start by addressing minnesota versus murphy which mr hoffman in the government have suggested means that the probation officer patient has diminished constitutional rights because of the fact that he's on probation or supervised release but that is not minnesota versus murphy held in fact minnesota versus murphy affirmed that someone on probation and equipment here being supervised release still has constitutional amendment rights that apply minnesota versus murphy turned on the fact that that defendant was not in custody and that's a crucial point here mr hoffa the government say there's someone has less rights when they're on supervised release but they don't have less fifth amendment rights they don't have a diminished expectation about self incrimination because mr riley was in custody because he had fifth amendment rights this court only needs to decide well is the fact that this statement is being used in a supervised release hearing determinative versus a criminal trial and it shouldn't be determinative because of the fundamental balancing test that the court has to apply when deciding whether the exclusionary rule would be appropriate and that balancing here is different than the bouncing in armstrong and the government suggested that armstrong doesn't really look at the nature of the underlying constitutional right but i would disagree armstrong quotes from scott quote the cost of excluding reliable probative evidence are particularly high in the cont occasion proceedings and there's no case i'm aware of that suggests that confessions are inherently reliable in fact it's case like that just the opposite so that answer the question i put to him you mean the best site or support armstrong or scott for the idea that it turned up in any way on the reliability of physical evidence as opposed to confession evidence well your honor it's simply that the court as i've quoted looked at the fact that inherently reliable whether they're inherently unreliable i don't think i can cite to support for that but they're not here only reliable there's no case that has suggest that we don't need at least something else to cross rate a confession there's a concern because of the fact that they are inherently reliable and also just know that and on this very issue of the attention that a probation off probation or feels upon being questioned by her patient officer and the implication of these fifth amendment rights provoked the united states sentencing commission and two years ago to actually change the standard condition of supervised release that condition that apply to mr riley's case used to require someone to answer all questions of their probation officer truthfully now that language all has been taken out and the commentary notes that amendment specifically notes that the fifth amendment tension that was created by that prior condition and that's also relevant for this court to consider and it's also another way to cabin how significant the alleged sea change would be for  no there's not going to be some hindrance to the flow of communication between the probationer and a probation officer or supervisee probation officer if the line is custody custody is clear it's the one we rely on in every other circumstance