nevada and joined the morning and here's a knock on the door you go to the door three individuals at the door lo and behold he learns that there are f b i agents undercover fully with weapons also learns that they're looking for his roommate his roommate has an arrest warrant through through some deception and some lies the f b i agents have his roommate come to the door where he's taken into custody not only are there three agents at the door there are an additional five agents at the bottom of the stairs after they take the roommate into custody they put my client in handcuffs and they do a cursory search of the in part apartment to put him in the kitchen when they're done with that they then take him out of handcuffs take them into the front room and interrogate him for approximately an hour from the time that the arrest warrants process wrongdoing and he had met and he had found specific instances of concern regarding my client during that is just and when he was that he did not during that questioning believe that there was a reason to arrest your client isn't that correct  on was during the questioning he did not and this is subjective and we deal with objective tests but that it might be at least ten generally relevant from an evans point of view his testimony was that he did not think he had cause to arrest during the until the a was explained no you can be you can arrest him for aiding and abetting mr likely well initially when he walked in the room and started questioning my client i'll agree with that but it's pretty quickly my client needed missions to him that clearly show that he violated law gave him better basis republic was then he got additional information contact the u s attorney's office and said you know what you can i'm also be arrested for aiding and abetting it but clearly from the beginning he was looking at my client i believe as a perpetrator of wrongdoing and was questioning him entire two and a half time period my client was never issued his miranda warnings and so we issued we believe he was but he was told number one you're not being arrested number two you don't have to answer questions and number three you're free to i didn't say he's free to follow your roommate i just said he was free to leave and they just record and i agree with book me and isn't that right so the answer is yes but i believe that's air because here's the issue at the evidence of standard of reviewing a district courts error you know finding that the plane error analysis and so there is evidence from book meet that supports the district court finding as we believe he said so you have to argue to us tha explicit statement by a person who is there his direct statements made is not enough that we can still reverse its record in the open so i don't disagree but what i want to do is follow up and see if the evidence for hearing that was never contested they never recall the agent to say hey that's not what i said they never called any of the witnesses they had additional witnesses there i'm the person who did that evidentiary hearing much of my client testified to that very issue and it was never challenged on the record now it seems to me with the time you have remaining sure your best argument is to explain this court why the craighead case why that's a good case for you and why the the why they are your case is very similar to craig had the governor's going to go up and say it's nothing if you want to say it is to want you to spend some time on that sure sure cricket is i feel it's directly on point because this is an issue that took place in our client's residence you look at the kim factors one of the fact this is where this where the presence was and that's  extended to craighead in craighead says you know what even though it's in a person's house that isn't we believe creates a heightened issue a heightened sense because when they tell you you can leave we're do you go when you're home and you're told you can leave where do told he was free to leave or not and that's why i address that as i did i think that is important that's what i want to point out of the evidence or in the hearing itself that the court or the government had an opportunity to respond to that very issue so craig hit is on point of the four factors three are found by the court to say that they violated my client's constitutional protection the only issue is the fourth issue which is whether he actually was told he's free to leave and that's why i direct the court to bait step one seventy five one seventy six because it goes on to explain what occurred during that communication and i take it you would argue that in craig had mr craig it was told he was free to leave he was discord still found that he was an underdog in custody for miranda purposes absolutely and cricket he was never put into cantos and he actually was summoned to the court at a later date and my situation my client was actually handcuffed for a period of time he was taken by hand into a different room he was interrogated and then he was arrested and take n directly to the detention center so i was a little confused by the handcuffing that that happened when they were looking through the house and it was it was let me talk to him he wasn't up so the matter is wouldn't when their officers arrived at the front door it was a ruse they had lied to centrally to these folks and on that they were looking for another person that's how they found my client's name and that's how the roommate came to the door and gave his name and he was arrested at the time of the arrest the roommate that is when they put both of them into handcuffs and searched the entire apartment for officer safety that search took place took approximately three to four minutes my client was in the kitchen at that time they didn't two of the it also was then took the roommate to the detention center five of them approximately stayed at the apartment complex at that point they took the cuffs off my client and led him into the front room where they then interrogated him and questioned him and so our position is is because this was a home required to provide miranda warnings for an interview that took place in the living room of the defendant's residence the magistrate judge magistrate judge lane also found that no reasonable innocent person would have believed they were in custody where the agent sat down on a milk crate next to the defendant in the living room after asking him if he was willing to answer some questions told him he was free to leave it that he was not under arrest and also told him that it would not hurt his feelings if he didn't want to talk to him and this case is very readily distinguishable from craighead as the district court found in this case after the magistrate judge issued  her report and recommendation the district judge didn't just summarily affirm her report recommendation the district court undertook the craighead analysis and found that the circumstances in craighead were much more than they were in the case involving this defendant and those those factors in craighead involved primarily as this court found multiple law enforcement agencies present in the defendant's residence when he was interviewed and that kept the defendant or prevented the defendant craighead from understanding or from from being able to accept the authority of the agent who told w the records not clear as to what whether he knew how many were below on the below the stairs or versus in the apartment certainly he saw multiple agents agents came and left but by the time the interview took place it was clear that the situation was dialing down or deescalating half the agents had left by that time there were only four agents by both accounts to defend its and the f b i agents account do you think the defendant would really feel more free to leave because it's only for agents corning one man with any weapons versus eight or ten or a thousand i mean and some point don't you have enough  make a person feel freer if with only four people around that factor in and of itself your honor is is not controlling that that is a factor but here it's the test is of the circumstances under reasonable innocent person's point of view not just this defendant's point of view or not this defend its point of view and in this case in addition to the number of agents that had decreased by the time the interview took place he'd been told that he did he was not under arrest that he was free to leave and it wouldn't hurt the agents feeling if you didn't even want to talk to him so under a totality of the circumstances including the number of agents running through the brief a little bit by the appellant his that this was all a ruse that they were out to get him and i know from the facts i gather that the primary object of their coming to the house in the first place with this all these people was to get the roommate is that yes your honor there's there is considerable evidence that the agent well there's the evidence was that there was an arrest warrant for the defendant's roommate and there's considerable evidence that the agent agent bumi knew very little about this underlying michigan investigation and the match matched that judge lane  accredited that view of things and that that is entitled to deference by this court under a clear standard of review they had an arrest warrant for the roommate but they didn't have no questioning took place until after mr lively had been arrested and removed from the scene and the record shows that the agent was was perhaps taken aback by the defendant's forthcoming about this this matter that agent was going to question the defendant but that he was really taken aback by how forthcoming he was well he one hundred percent forthcoming and one of the questions is whether the agent takes an accusatory stance and it wasn't until he even said look we know about your trip to michigan that he kind of changed his position on that as we would know that forthcoming about michigan that is correct that the defendant did not initiate that he denied initially ever having been in the state of michigan but the agent merely told him that we had i know about a report where another law enforcement officer had encountered you with a minor child in michigan and the defendant immediately said oh you know about that and then began to get in there that certainly has an accusatory sting to it i mean it may not be quite the same as saying we've got some to confront the defendant with his knowledge that he had been in michigan but that was the extent of it he didn't accuse him of any specific criminal activity and one single incident this court has found is said that one single isolated incident of  confrontational aspect to and interview is not enough to to find that the entire interaction was heightened confrontation between the agent and a defendant here the magistrate judge found that this was a low key interview that the agent never raised his voice there was no yelling or anything of that nature the agents weren't dressed in tactical or regular as they were in the craighead case they were wearing khakis and shirts are their firearms were concealed they were never on holsters they were in cricket and most significantly as opposed to the facts in craighead the defendant was interviewed in the familiar surroundings of his living room as opposed to that and for a kid where he was taken back to us a storage shed and the world was closed yeah that's what's so odd about these cases  it's really very odd to think to have a standard if you're free to go when the fellow is in his own  house i think that's what is a little bit troubling cases your honor perhaps it would have been a better practice if the agent had said to the defendant if you'd like for us to leave i will leave accurate because they're if they're still executing a warrant let's say they're doing a computer download that could take hours and the agent would still need to remain in the apartment so you know i'm not sure the agent could necessarily say we're will if you honestly believe because they actually have a warrant from a judge saying they could be the searching the premises your honor they did the search under your honour's hypothetical that is correct but in this case they did not have the search warrant until after they had interviewed the defendant he had made some admissions about the particular computer so they were they had authority to be there for the arrest of the roommate but in any event the agent's words to the defendant had the were the functional equivalent of of will leave if you want to when he asked me if you're willing to answer some question if he was willing to answer some questions and told him if you're not going to hurt our feelings if you don't want to talk to us and you're not under arrest i thought the record in this case did really reflect that he said as you just said you don't have to talk to us if you don't want to  that that's correct i believe that the agent testified i've hurt my feelings you're not going to hurt our for my feelings if you don't want to talk to us which i think those words exact words are important in this case because i would communicate to a reasonably to a reasonable person that they don't have to talk to the agent they're not in custody on the town it would depend on the tone in the magistrate judge found that there there was this was a low key as agent test passing my time is thank you mr question bush was in handcuffs in the kitchen he was released he was then escorted by hand into the front room the reproachfully four to five officers surrounding him in his testimony on page one seventy three he says there were between three people between him and the door he made mention of page one seventy three that he made reference to the fact he'd like to leave and their body language changed and in his opinion he couldn't leave or did that that was very ambiguous of course that there wasn't enough detail about because because of course he never gave his word specific enough to advance that that argument so i agree with that but if you look at and that's why i direct this court pages one seventy three to one seventy six where my client specifically testified to those very issues and was not contested by the government there after i think that has merit has weighed and shipped something that should be interviewed at the end of the day i do believe reasonable innocent person would have felt they could not leave because of the factors that they were facing the number of people the way they escorted the fact that they had been in handcuffs the fact that there were a number of people between them and the door and the fact that they had no place else to go that was their home when you go search for safety you go home and when you're home where do you go from there after and that is the holding  argument this matter submitted