when he is advised that he is and that he is free to leave this case should not be the st though the core question the ultimate question here is whether the defendant was formally arrested or whether his movement the degree associated with a formal arrest whether what was going on here was a quid went to a formal arrest that's the miranda custody determination and the most important factor what this court has characterized as the most important factor and what the supreme court called most important in house is whether the defendant is told that he was free to leave here during the interview the defendant was told multiple times over that he was free to leave that the interview was voluntary that he was not under arrest that he was not in custody he was told from the outset the very st statement on the recording after they sit down in the large unlocked conference room is i appreciate you being here voluntarily he's told that from the outset and then after east told that the investigation is about him the agents repeat the minute one i do appreciate the fact that you're willing to sit down and talk with us today willing that's a statement about voluntariness but i mean he was never told directly you are free to leave the room i don't think that's correct your honor in fact  minute forty one he's told you're free to leave at minute eight though that's pretty early on he's told you're not in custody i never said you were under arrest i can't force you to talk officers from the agents no your honor we're not asking for a categorical rule that says any time they say that it can never be custody you can imagine if they said that they were pointing a gun at him for instance i mean the actions will speak louder than the words here but in a close case this court has said that those in monish means make all the difference and at best for the defense this was a close case and more likely than that every single other factor supported the government here so we're just asking this court to follow what it said in panic w said in other cases that in a close case those admonishments make all the difference and with the record here is just replete with those it's regular every few minutes he is told this is a voluntary interview he does say i want to i just want to go home and they basically say you can't go home and i understand that's different from you can't leave this room but it sure could be interactive if what he wants to do when he leaves the room is go on and he's told he can't go on that sounds like you can sounds like it anyway know if that were taken in isolation judd rogers that might be a point against us but in context it was taken in that it was responded to when they were talking about what was happening at his home that the search warrant was happening at this hole so even if they were p terminate the interview and leave where you'd like to go under you know lots of places he'd like to go and this actually dovetails with the point the defense is making that he asked several times that he wanted to work his shift work in that the different question he's not going to be able to work his shift that night i mean  understand what about when he asked for some he wanted to get some water yes so he asked for some water he actually didn't ask to go get the water he just asked if you could have some water and the agent immediately says he'll go get it for him and he did there's no question he did so there's nothing in the record indicating he wanted to leave the room to get some water there is testimony from the defendant that he wanted to leave the room now that doesn't quite square with what the recording says but even if you interpret that fact in the light most favorable to the defendant the fact that he would have needed an escort or couldn't go freely to get water within detroit police headquarters doesn't point in favor of custody of these interviews frequently happen in a station house or an employment setting where there are restrictions on where the person can go in the building that doesn't mean the person isn't free to terminate the interview and leave so you bring up the recording and i've listened to the recording and the the district court judge made some conclusions about what was made inferences from the recording says things like you can hear the desperation in mr martinez as well as i listen to the recording i don't really  hear that the district court judge says that the officers were confrontational i forget exactly what the words were that the district court judge confrontational something like that i listened to it i didn't think they were aggressive or confrontational nonetheless the district court made these findings and i'm wondering well we do with that i'm not the district court judge now supreme court said in the qualified immunity context for example that if there is a video recording that contradicts the evidence found by the district court but there it is on video playing for everyone to see in that district or from something else you don't know any difference to those findings by the district court is that the case here what do i do with the fact that judge her know and i listen to this recording differently the answer is yes that is the case here and actually this court you prompted it's the miranda case actually from the same district judge with the recording where the government appealed where the district judge said that they were courting the officer in the court and contradicted his own miranda warnings and this court listen to that recording and so the left was not what happened that's not what the recording shows i mean but that would be one thing that these are sort of inferences about tome as opposed to like was this fact stated did someone make this statement and the recording doesn't have that statement is different then that after the then officer martinez sounded desperate or the officers subjective fact that doesn't influence the custody alice's here the down meaning mightiness martinez it still is that's a subjective fact and that's actually where the district court goes off the rails legally in trying to explain away all the statements the agents made about this being a voluntary interview so that that's a legal error his tone what he's thinking doesn't matter for purposes of the subjective analysis so that's what you do with that step one step step two i think's more of a a  nuanced point when the cases talk about tone and deference they're usually talking about such situations where somebody is testifying in court and all the court of appeals has a transcript so that's maybe we're a little bit more deference is due maybe there's some deference to here but this court has that recording you can hear that the questioning is polite there's no desperation it is firm it's thorough it's polite and cordial and recording really speaks for itself as in crompton now in addition to all the statements that he's here voluntarily all the other factors here point in the government's direction as well the length and manner of questioning for instance it was a cordial interview the length an hour and twenty minutes is actually less time than the hour and thirty minute interview in my hand where this court said that cut against a finding of custody and it's far less time than it housed were five hours wasn't enough to turn something into a custodial encounter so  of questioning come in the government's favor here to location of the questioning this is a thirty year veteran of the detroit police department who's interviewed in an unlocked conference room at detroit police headquarters and officer there it said it was  uck how do i know that it's unlocked that district court at everything it's clear that you had to enter this room with a key that just a court says the conference room was locked i know you're of government buildings similar to a judge's chambers similar to the u s attorney's office similar to a lot of places they require a key card to get in the conference room itself to record a key card in or out and that's actually a page two hundred and thirty three and then two hundred and twenty eight through twenty nine of the record where they talk about the differences here it's like to get into that section not like to be in the congress room not lock to get out of anything when the fire marshal would want to have a word with them if it was like to get out so it's just not the case  two questions there is is the fact that he was arrested at the end as that isn't that a factor we should consider as well as to whether or not he was in custody it is a factor or one it's one that cuts at most a very weakly in his direction i'm just keep in mind he wasn't arrested at the end he was arrested after a break where there's that intervening event where they talk to the usa they compare notes about what happened they compare notes about what happened at the search and then they decide to arrest him and the kid to the extent the cases are concerned about that they're concerned about  a form over substance circumstance where every fact points in favor of custody except them announcing your under arrest and at the end they say oh and by the way you're under arrest i mean that's different than what we have here it wasn't he allowed to use the restroom cetera after the before after the interview before he was arrested yes your honor he was allowed to use the bathroom and make a couple of calls i believe so and so there wasn't there was a break now it's it's not as big of a break in some of the cases will concede that but there is an intervening event and it just doesn't cut that strong by other question and i think i know the answer already but i just want to confirm this the fact that he is a police officer doesn't play into this analysis at all  quite your honor so objective fact usually don't matter except for age under j d beavers in north carolina but under house i think his the fact that he's a police officer weighs in our favor in two respects one it means he's more familiar with the location like the prisoner and housed and two he'd be more familiar with what they mean when they say he's not under arrest so the district court judge thought that if he wasn't going to be interviewed at his home which would be a less course environment he should have been interviewed at his cell precinct that agents seem to have at least told mr martinez that the reason they weren't doing that was because it would be embarrassing for him to be interviewed at his own precinct on these about these particular charges and mr martinez expresses gratitude that this wasn't being done in front of the officers in his squ two reasons why he wasn't interviewed as precinct think both are reflected by the record one is not to embarrass him when you're telling somebody hey we found your collection of child pornography i'm trying to do it discreetly this is the type of thing that even an allegation can ruin somebody's life so one person's priest sense of the fact that just throwing that out there in front of his fellow officers could be a problem especially if it turns out somebody else was using that computer and not him and also they want to make sure he wasn't armed and that was the whole point of the ruse was to make sure that when you tell someone hey by the way we're the f b i and we know you have child pornography they don't have a gun on them because this is also a type of allegation that causes people to do dangerous things to cause them to panic i mean it's on a common just as a leap but as a legal matter you're saying that district court erred because he he focused on whether there were sort of less restrictive alternatives to where the interview took good morning and i please the court i'm josh blanchard i'm here on behalf of happily mr martinez when the f b i agents tricked mr martinez the detroit police officer into showing up for an interrogation by lying to him and telling him there was an injured officer then taking him deep into a police station that he was not familiar with that was controlled by the michigan state police that required keycards to access both the elevators and the doors then they separated him from his weapon separated him from his partner had him turned off his communication devices and then when he tried to sit next to the door told him to go to the other end of the table when all of those things happened mr martinez was in custody or its equivalent to be clear when you listen to the the audio there is eighty minutes of this back and forth that to me sounds like mr martinez trying to get out of that room without getting arrested and the police or the f b i agents trying not to let him get out of that room and on that one judge larson's question about what deference do we owe to the the finding of desperation i think you i think it's clear error and the reason is judge tarnow had an opportunity to hear testimony both from the agent who was doing the interrogation and mr martinez at the evidentiary hearing that's something that your honour's don't have the opportunity to do and to compare and contrast and so that's something that the trial court was uniquely situated to compare their demeanor and their testimony at that time and there was some discussion about some subjective factors that i think would inform the court's decision on whether there was desperation and so i think i think the court knows deference to the decision there do most of those instances that you cite where he asked to leave me i listened to it as well it sounded like they mostly were i just wish i could go out and arrest this guy that i'm that i suspect had a gun or some some previous thing that he was working on he wanted to finish or he said i want to be with my teammates or whatever that was that was the expression or i want to go i mean the and and  and negative types of the negative or quasi negative responses to those sounded like that's something you won't be able to do in light of this investigation you're not going get to go out and make the arrest that you wanted to make today or you're not going to get to go into your home anyway because they're not to let you in your home while they're doing this so those are sympathetic and away and and but they don't sound like you're stuck here so maybe any one of them in isolation i would agree it's just that there's a whole lot of you can't go here and you can't go there suggest that you have to stay here and then at forty nine minutes and fifteen seconds in and so we're quite a ways in mr martinez says yeah i can't i can't sit here if i can just terminate this and just go home i'm fine do you want to call and make sure your agents are gone and all that it's just man they tore up my house i know they did and rather than say you can take off the special agent says hey same ago they don't they're not going to tear the house up and they redirect when he says i want to terminate this right here and as i just again i quibble with the numbers there are a couple of places like that where two i guess i'm saying well and if if it had just been those light versions i don't know that i would count i think i would be you know it would be a different case i would be in a different position but i mean there were some very clear requests and at one point early on i think about eleven minutes in he's talking about one of the workings as you shift not going to happen i don't know what authority the f b i had to tell him a shift wasn't going to happen and then another time when he says he wants that estimation which is probably correct could have been perfectly true without saying you can't you can't go to go to the grocery store get some groceries while you're waiting for them to finish i think it was a clear expression that he wanted to be done and he wanted to go try and i don't think the f b i can stop him from that now maybe your honour's right that he wouldn't have been allowed to work a shift maybe the courts wrong about that if you hadn't been arrested i don't know but the reality is he wasn't given an opportunity to leave because every time he made those expressions the agents redirected and tried to question at one point they say well you just listen to what we have to say why does he need to just listen to what they have to say if he's free to go they should have said thank you have a nice day and they kind of on th same tone i don't think that saying you know they think i'm for being there voluntarily the st time they do that they haven't even told him why he's there right he came there thinking he was helping out an injured officer they say thanks for being here voluntarily and then each of these other times they reference voluntary the referencing that st statement well just saying something doesn't make it true and he knows he's not there voluntarily he was tricked into that room and if we're looking at the factors from salvo on but it point and so it's not just quite as easy as get up and leave you've got a police officer who doesn't have his duty weapon and so it's not just so easy as walk out the door then we have the issue the government's kind of walked out the door and then  back later he doesn't need the gun in order to be free he might need the gun in order to work a shift but he doesn't need i mean he's at liberty with or without his  some somewhat like if they took his car keys and he wanted to leave i don't think we would say that that that factor doesn't bear on his freedom to leave or whether he's been restricted when they take his property and hold it tends to hold him in that room i agree he could have i don't know the analogy i mean you don't need it gun for transportation so the party seems like a strange analogy to me also i mean isn't it standard police practice to disarm people even if they're there for a voluntary interview i would think so it's up that he was brought there not for an interview with this with many of the cases they say well the suspect came voluntarily i think or they invited the officer in like an salvo in pain or here he's tricked into this room and they they don't tell him they want to interview him about something right they tell him to put his gun in the in the locker and then he suddenly in the room  they start confronting him is it standard police practice i would imagine so but does that i think that bears on if they're ordering him they're exerting control over him telling him to disarm i think that bears on his freedom to move right and whether there was restraint on him i think holding someone's property saying making the person take the choice of either i'm going to abandon my property we're going to stay here saying it is standard police practice even in a voluntary interview to disarm someone so i don't know how the fact that he has disarmed can be that show me the line between whether it was voluntary or not voluntary i don't think it's standard police practice to interview on duty police officers though and so that's the but what if i had a concealed weapons permit and i have my concealed weapon and the officer says i'd like to interview you about this and i say well officer i need to know that i have a concealed carry permit here's my weapon here's my permit i assume the officer would now take the weapon from me and i don't think the officer was like i mean i don't know you can tell me but it seems unusual that the officer would allow me to sit there with a loaded gun and i was interviewing me even if it's abundantly clear that it's just a voluntary interview i think the facts would probably informant but my my guess would be the officer would ask permission to secure it rather than order that it be secured if it's a voluntary interview and the testimony here was not that they asked him if he wanted to give up his gun it's that he was directed to and judge tarnower was asked the question of the agent well if he had put it in there would you have made a yes and so it was a direction to do it rather than a voluntary request and so i think that shows there exerting some dominion and some control over him when they're going into that room  on the location of the interview i think it's significant i mean it's on the record the f b i agents aren't there between him and the door that's a factor that's been considered before my client was not familiar with this location the government says what was the d p headquarters the testimony was he had been to that building twice before and he had never been in the michigan state police force and it wasn't under the control of deputy and so i don't think that it happened to be owned by his employer is very instructive it would be a different scenario if  like judge rogers wrote in elliot we were interviewing someone in a room at their place of employment that they were familiar with that would be a different scenario if they got out to the th precinct and talk to him in a squad room or a conference room that he was familiar with he'd feel more comfortable just like if they'd gone to his home we would say well he'd feel more comfortable instead they put him somewhere in the middle of a building at d v d or in detroit that he's not familiar with where he can't access it the outside he doesn't know where he's at and the surgeon said that th government has to choose the most comfortable place so among the range of alternatives and three on the table his home might be the most comfortable but it was being searched so they can do it at the police station might be the most comfortable i guess in that he's the most familiar although also might have cost him a great deal of anxiety if he's being interviewed by the f in front of his coworkers but let's say i mean he's certainly more familiar with the precinct do they have to choose the most comfortable among the range of no i don't think the law requires that they choose the most comfortable i do think the law requires that they live with the consequences of their decisions and if they choose a custody environment and they don't mirandize and they have to live with that and i know officers i know from experience agents will go out and do knock and talks at home because they don't want they want to be lowkey and i want to get a confession at home and they do that strategically they made a strategic decision here to trick him into coming to the police department to take him into an area he was unfamiliar with to disarm him to put him in a room and not let him sit next to the door to not allow him to get some water but i think that could be interpreted either way and but he wasn't permitted and judge her no made a finding that when he asked the question the agent shook his head no and then another agent went to get it and so i think what was to move had been limited i mean it would be a more difficult case for me if they had walked him down to the water fountain or company but they didn't once he went into that room he did not leave until he was arrested no they say we let him go to the bathroom we let him make some phone calls that's true he was accompanied the whole time and i think he was informed that he was under arrest before he did those things but he was allowed to do those things before he was taken to jail i would you respond the question i'd asked mr getz about your client's status as a police officer does that should that bear into our analysis any i don't think so i think you know it's an object of standard i think yarbrough is the case that says it's objectively don't get into his head but i also think the record is such that it wouldn't matter the record evidence is that he didn't mirandized people he didn't interview people for thirty years he was a patrol officer responding to calls and i think it's on the record that the d p processes they have investigators do the interviews and the miranda so you don't think it's relevant to his understanding of whatever he was told he was not under arrest the fact that he's a police officer no i don't think so and because he's not there's no record evidence that he's doing this kind of work and also you've got to i think we have to view the whole interview in context and he's also asking am i going to be arrested and they w answer that question and you can contrast that with the cases where at the outset i think oregon versus matheson they tell him you know you're not going to be arrested today and they let him leave and that and then  isn't it possible that whether he was going to be arrested depended on two things what they found during the search and what he said during the interview so i don't know how they could have truthfully said no you won't be arrested today it happens frequently it happens in reported cases that they say whatever happens today you're not going to jail and that matters but they can list i mean maybe they can lie but they couldn't have truthfully said that because they wouldn't have known if they had searched his home and come up with nothing on his computer presumably he would not have been arrested that day or if he had made no incriminating statements then he would not have been right like it depended on what they found and whether it so happened they say ex ante no you won't be  arrested i mean there are reported cases where people confess to murder they walk out the door later they're charged right i mean that happened and i don't think there's any record evidence here that they found anything on the computer prior to the arrest this and so i don't think it was the search of the computer that informed it so that last point isn't true there is record evidence that what they found during the search was very concerning if you look at the bond transcript on february th two thousand and seventeen it turns out they found his laptop on his a bad next to a child's pillow that's where they found his laptop so that is in the record in the district court that nd point his comment about wanting to go home he takes that right out of context it occurred immediately after the officer said and this is a quote you're here voluntarily we've never said you can't leave and then they go back and forth and whether his chief has been told and he says so i can leave now and go home the agent then responds well there might be someone else who wants to talk to you so that's my statement your hearing you can't leave that a statement that even if you leave here somebody else will want to talk to you before you can get home so that is just a different point than what defense counsel is said here and that really gets back to the ultimate question here whether this was the equivalent of a formal the fence counsel both in the their briefs and here want to talk about well it's just whether is freedom of movement was curtailed that's not the question burker says that's not the question swanson says that's not the question the question is whether this rises to the degree of restraint on freedom of movement like a formal arrest that's a much higher bar getting to the freedom of movement point he wasn't handcuffed that much is undisputed the record there were no guns drawn yes they were armed but they were dressed like me they were dressed in the suit and the guns were covered up by the suit they were brandishing the guns the defendant conceded in his testimony that's at page two hundred and eighty four dollars there were no threatening gestures and yes the conference room door was closed but the defendant actually can see it in his testimony again that's the middle of page two hundred and eighty three that the agents didn't bar the door didn't block the door didn't block him from leaving so the freedom of movement prong supports us to know i'm happy to have them move what about the water so the water gets to the same point that i think the court made an elliott and that the court made other circumstances that just because he might have needed somebody to come with him or wasn't allowed to go to with it walk around on a company within a restricted area doesn't mean he wasn't free to leave the interview just means it was a restricted location and the agent thing got in the water and this i think also gets to judge larson's point it wasn't an unequivocal request to leave the room and go get water he just asked for some water in the agent immediately got it for his testimony as to that right judge isn't just relying on the record on the record the only testimony was the agent shook his head no it's not clear what that meant now the judge did make a finding that that meant the agent wasn't going to let him leave and go get water let's just a different question than whether he's free to terminate the interview but on that issue it would be clearly erroneous from them to know yes that's correct i mean that that's a fact finding and it cuts weekly against us but it's not weighed by all the other