in custody when these two plainclothes officers arrived at his workplace at the department store and asked him if they wanted to if he minded speaking with them and that as this court knows this custody question it turns on whether there was a restraint on mr robbins freedom to a degree that would be associated with a formal arrest or a reasonable person just feel that's correct and so as the court's well familiar we have the five factor test and what we use that test for us to help analyze the question that judge fletcher just said so does he feel free to leave and so will go with that starting if i may with the confrontation with no evidence of guilt factor this is a factor that the district cou favored custody and the government disagrees with that analysis for a couple of reasons the case sets this factor up requiring confrontation and also known evidence of guilt and so i think there are two issues with that there wasn't the type of legally specific confrontation and that's noted in the case because we know that inquiring about the specifics of an investigation is not necessarily confrontation and this is in the bus igniting hese in that case they asked the defendant some specific questions about his e mail account about specific child pornography images that were found and it wasn't just that they were asking specifics that made it a competition or not the court looked at how it was done was it accusatory what was the tone and so what we have here is very similar to bostik nonny when yes they're asking him some questions do you want to talk about some specifics here's where we'd like to go we'd like to talk about downloading what do you have to say about downloading and they proceed but it's not accusatory and it doesn't have that it is critical because he says he gives them some phony story about we're here to help law enforcement and they come back is there or i don't think so we have the download we've seen the stuff well your honor i don't think so you're we hear that a lot what they're trying to do is say ok that we understand this is where you're going to start your explanation do you want to tell us anything else do you want to tell us about the downloading for example you want the truth well that's correct and he comes around and  he does say he talks about where this interest might have started and how he found it the officers don't challenge that story about how he stumbled upon it and we've got some of those were your search terms were they say that they have the forensic capabilities once the search warrant is completed to go in and confirm search terms they tell him at least five separate times the search warrants not done we haven't linked to your computer yet so they are saying very clearly we have the ip address we're going to go up at here's what we expect to find so they're giving him an open forum to say you want to tell us or not he can he's free to leave or not the they say you can end the questioning at any time and so with that in mind there they're leaving it to him how much if anything he wants to tell and maybe you can help me and maybe i'm just missing something and not the i thought in nazi that advising him that he has the right to counsel during this question is mandated by the constitution doesn't have in the case so you're speaking of the miranda issue correct or honest no so there's two separate issues if let's if the court disagrees with the government on the custody issue then you're correct we would need to reach miranda and so shifting to that for a moment what not and i'll hold off i decide that no no we don't we don't have to hold off but if let's get let's just answer that question first and what not he says is it can't be misleading you have to examine it from a practical perspective and in that case the problem with why it was misleading was because you used the the warning there was you could have an entitled to counsel prior to pick up the two protocols that's correct your honor and so we're just distinguish you know t on the point that there was misleading because the word prior was inserted and we're saying what could robin's reasonably understand in this case if he's told at that moment you have a right to an attorney meaning that starts now and they don't limit it or qualify in any way so that's our point of distinguishing it but what i'd like to do is actually draw the court back to the custody question because if robbins is not in custody the court doesn't need to reach that miranda issue and whether this formulation as judge fisher recognized was done from memory unfortunately when the card wasn't available then that issue can not bear on this case because it really turns on whether he  prior workplace cases so that kim invested nonny and rather than looking at what happened there and drawing a legal significance from what this court said the court was focused on the facts of those cases so it was where people coming in and out there were no officers here but the relevance there wasn't that there were people coming out the legal test that that he set forth was did the officers do anything to create the seclusion to the officers close him off from the outside world and we don't have that here because they step into the break room they're sitting down they're having a conversation and then we do know some employee comes in apparently to get coffee and leaves but the officers didn't do anything besides say do you want to talk to us they go sit down and talk people could have come and gone just because nobody more than one person needed to come in at that time doesn't mean the officers set that up and same thing with the compactor about whether someone could provide moral support the issue is not whoever's closest could provide it was that the person in  father and the husband was something we're looking at all the factors though which of course we have to one of the things that bothers me about this case from respect to the government is at the beginning one of the officer says you're not under arrest he's never told you're free to leave at any time that's the standard thing to say and well trained officers will say it like every twenty minutes maybe every ten minutes and then they never told him that so that precise phrasing is certainly one factor that helps to fight against a city however this court has never set down a bright line rule that said it has to be verbatim well unlike investing money for example that precisely and i don't know and of course i'm not asking for a but i'm putting that is one of the factors and i think it's a real factor i mean if you're not told you're free to go but instead you're told well we haven't arrested you yet but you're told you can speak to us if you want you can stop answering questions at any time and the import of that is if you decide to stop answering answering questions well if i'm sort of working my work on that through my head does that mean assume i stop answering questions they're going to arrest me it all depends on the factors whether there's corps and whether they're pressuring him and your honor we would just ask that you listen to the  good morning your honor erica choi for mr ickes and rob i'd like to pick up where the court left off about that should have never told him that he was free to leave and in fact they told him you're not under arrest right now but three things happened before he even said you're not under arrest right now which i think are salient to this question of custody within the first two minutes they tell him one we have police at your house executing a search warrant two we've been downloading child pornography f a year and three they tell him they confirm that he's on the clock work that he's out is on his shift and the district court actually quoted this on page seven of the record in its order on on line nineteen what time are you supposed to start your shift i'm already on ok let me see if i can get some more information from you a person in that position who has been told a reasonable person has been told you can't go home because  because our officer searching there we've been investigating you for a year for this very serious serious crime and i understand you're in your work shift but we're going to continue talking here all of that conveys to the person that they're not free to leave and then when they're told they're not under arrest right now that person would reasonably understand well that means they have to stay here and continue answering these questions which is exactly what mr evans did for the next ninety minutes  all of the facts that the district court laid out are undisputed in the court reviews those facts for clear air and that includes scene and action setting questions such as that the interrogation took place in a secluded break room  was the warning said that you have the right to the services of an attorney before questioning if you desire an attorney and cannot afford one one will be appointed by the court with no charge to you and this court said that that was not sufficient even when they said before questioning it didn't convey the right to counsel during questioning and here i was selling that nobody would apply to this case yes yes that was the import of my question why doesn't that end the case it doesn't the  to thank you not only was the not only does nobody answer that question miranda itself answers a question because the right must be conveyed the warnings must be given before questioning and in this case they just started questioning him immediately obtained a confession and continued questioning for the next ninety minutes but i think i'm right that if he's not in custody a miranda warning is not necessary that's portions of that worth orally analyzed by the district court below and this court i think can easily affirm based on the findings in the record and the court's analysis in the court and i think about ten pages of the seventeen page order very carefully went through the five factors law to the facts of this case and so for that reason i'd asked the court to affirm the order suppressing statements and remained for trial on the tangible evidence in this case unless the court has further questions ok thank you briefly your honors and judge nelson i apologize i think i misunderstood your question about no t and probably by full when you rephrase i understand your question you said specifically when we have to overrule it if we found there is custody i think you would have to distinguish it i don't think you would specific that that's all you get and so here we're saying it was more blanket in saying you have a right to an attorney that's right now you have that right we're not limiting it by time or space or anything you would have to make that distinction it sounds like the court does not want to go in that direction so i just want to make one final point about the custody analysis which would be again we look at the totality if we look at what the officer said here one thing that happens in cases like this if we have an issue where the officers have made a mistake it's really incumbent upon the government to be able to go back and tell them this is what you did wrong here you for example you showed your gun don't do that next time and so we really have to look at these facts and say they didn't show their guns it wasn't placed on unaided room he's sitting by the door he wasn't restrained they asked him if he wanted to go and they didn't tell him they kept a low key tone they let him decide they seat friendly and they made that comment that they can end it at any time and so if we have all those facts we just we're trying to find what we could tell them that they did wrong here and i think the only thing that we can land on is judge the comment earlier about free to leave at any time but we do feel that there was the equivalent statement that was made about you can stop answering questions at any time or you can stop when you want and so we're just trying to find a clear rule here that we crown multi factor test so you're not going to get a clear rule but it is a very obvious that you would have a different case if they had said early and often your free to leave at any time we would just ask the court to consider that advisement he was given that he could stop answering questions at any time thank you ok thanks both sides for your good arguments united states versus r submitted for decision the next case from a management versus united states