here two questions raised by mr ashmore in this case the first of those being did the government violate a pretrial were prior to getting into the argument on that particular issue  concede after further research and review that the standard of review would be plain error as to question one i think in the brief that we had but that it would be no but after further review we would concede that it is  there but even at that standard here you're talking about his exactly what well it would apply to the fact that the evidence given to by the case agent jenkins in this matter was not consistent nor supported by previous testimony that he had given that was presented to the district court motion to dismiss after the turn of the jordan in this case that the statements made to the officer read only after the defendant got a car before the warning bell that that should be suppressed need to make an objection at the time of the trial because you already lost that question we had that's the context here but that would be the context of the second question the first question we would submit on plane air in that the testimony from agent jenkins that mr ashmore made a statement of the specific caliber of the weapon being a thirty eight was made prima rand a warning not post marina but in this case there was no contention from the defendant that there was a basis for suppressing the weapon correct that's correct and i believe what happened in that your honor was the fact that the magistrate judge made some mention as to inevitabl discovery we would feel bad in a constructive possession case like we had in this particular instance the fact the weapon was found in a location where it was found it was not in plain view was under the seat of the driver side that the highest and best that the prejudice as extreme torque line in that you are dealing with a constructive position case not an actual possession case case you have a passenger in a be able that is not his own with a firearm found in that vehicle that was not in plain view and he was acquitted of the first the first charge and first it was yes there were two guns in the first charge and then the second charge that was the one firearm but he was acquitted on the press charges so you are conceding then that there would be inevitable discovery  the firearm i believe there would have been there was a valid arrest warrant there would have been an inventory of the vehicle but why if he was not the owner or driver why would there be an interest in the vehicle well i would imagine the fact that they took  the driver of the vehicle misty hutchens they took her into custody as well now whether to take her into custody permanently i mean i don't know long term or just seized at the time of the stop she may have only been seized at the time i don't know if the river state charges brought against her no no federal charges were brought against her i'm just curious why why are you making that concession well i guess your honor it in all due respect to that particular issue our position would be that had the gun obviously never been found in there would never been a second charge that's clear and the gun even if the gun had been discovered we believe that we would've been successful at trial based on the fact that it is a constructive possession case not an actual possession case there's there's lots of case law about items being found in cars that have not been held accountable to certain passengers but it would be a jury question it would be a trick question  there was no consent to look into but there had been consent by the defendant there was it or a weapon or to look in the car th consented and they look for it which they did that's another reason that you might concede that it would be when was the consent given the consent was given after the initial question term what agent jenkins so so agent jenkins without giving miranda warnings says to the defendant do you have any weapons in the car in the defendant says yes and then consent to search is an acquired yes and that question was and i've yet to read give me your honor i don't recall the officer's name but he was a state officer that was involved with the kingsport swat team so if we if we get to the issue the key issue that you're is the completeness in the detail involved in the first round of questioning and i think you have to review the actual charge in this particular charge when you're dealing with a felon in possession of firearms the biggest and most incriminating statement and question is are you in possession before and that essentially the answer to that if it is incriminating is the element of the offense the other elements of that offense or having been a convicted felon that can be proven through documents and did the  interstate commerce and that can be proven where the gun was manufactured so when you're looking at the specific charges the completeness of the question questioning is you get incriminating statement that is a very complete confession in this type of case  specifically when you look at the fact that agent jenkins prior statements as to what was said prima rand was much more detailed than what he testified to a trial so you're bringing up the prior statements are the prior statements of jenkins in our record they are in the record in that the government  the notes that were provided in discovery so when you say the government relied on the notes did the government produce the notes in and put them in the district court record or did you put them were you the trial i was secretary to so did your side put the notes in the record they are in court they are not in the district court record they were addressed direct examination they were address d redirect examination they were addressed in the motion to dismiss they were referenced in the government's reply brief but no they were not let into and and similarly i know there are references to the agent's grand jury testimony but did you were those put in the record no that was a place in the record either but those the transcript of the grand jury testimony is something that your side saw yes and in the testimony from the grand jury it clearly shows in chronological order that the statements that mr ashmore made in reference to the caliber of the weapon being the thirty eight were made prima brand enough post miranda and they may or agent jenkins notes and in addition we had the suppression hearing in which point agent jenkins made no reference to the caliber of the weapon even though he had been sworn in to tell the truth the whole truth and nothing but the truth is the record reflect whether your side had access to unusual for me one of the unusual things about those cases that response pre miranda the question goes both to the potential guilt of the defendant and to the safety of the officer be the officer i think most officers or very concerned when they first arrest someone first and foremost about their own safety oh so many officers get injured and killed at that point in time and here the question is do you have a weapon in the car do you have a course that the officer was entitle to patting down to look for a weapon but the question you have a weapon or dangerous something dangerous in the car the question obviously goes to the officer safety and part and it also with respect to the good goes to the defendant's guilt and i haven't seen a case safety is that this was a well planned and executed felony arrest stop they had over fifteen officers their swat team mr ashmore was on the ground handcuffed behind his back they were frightened they were afraid that this man was thought to be dangerous obviously if i would say that that's true but i would say that at the point that he was actually questioned that there was a zero threat and there would not have been any excuse to question him without miranda warnings under those circumstances where he is handcuff behind his back laying on the ground without not within arm's reach really laying on the ground when the he was asked these questions i think he was initially on the ground or maybe they they stood him up and when he was handcuffed when he was asked the first set of questions he was waiver rule in situations that are exceptional circumstances where the error is so egregious that failure to permit the appellate review would work a miscarriage of justice well why isn't the whole set of question post  that's correct but our position would be that either under the plurality decision that there were five factors to consider or under justice kennedy's analysis that there are two factors to consider that under either situation our case is still distinguishable with regards deliberate and intentional delay of miranda an order to elicit a confession after the confession was listed the defendant was then miranda asked after a short break and then asked the same questions and gave the same confession in our case after the defendant was taken into custody handcuffed he was not on the and he was standing up at the rear of a police car handcuffed he was asked a single question he was asked whether or not there was anything dangerous on his person in his vehicle or whether more detail about the weapon and at that point the questions after the miranda warning different than the questions before the miranda warning he the question before miranda was is there anything on your person on the vehicle that might be dangerous you have a firearm on your person or in the vehicle after miranda the defendant was asked specifically about the the weapon and the defendant was not advised as to what type of weapon it was with the caliber of the weapon was or where it was located and at that point the defendant stated that the farm in the car was a thirty eight that it was loaded and that it belonged to his wife and that he was a convicted felon and he knew he could not possess firearms so the united states believes that the facts in this case are clearly distinguishable from the facts that are counted and super case because the questions were different after miranda correct and because it happened very close in time correct and it was not an intentional and deliberate  why couldn't one have a different viewpoint of that that if he was under arrest there was no reason not to give him or him to warnings here and we would agree that the defendant in a perfect world should have been mirand immediately however as judge merritt alluded to a little earlier this was a very volatile situation and it was a very serious situation in which the officers took their safety is as at most concern but it's isn't also clear that in  justify the miranda warning from up being immediately because everybody knew that the goal was to arrest them and absolutely one of the miranda warnings as i said in a perfect world should have been given immediately however it was a very serious situation that was  defended who the officers had a concern about their safety and that is why they chose this manner in which to execute of their compressor and about their safety at best would be that he had a weapon on him because he was handcuffed and surrounded by fifteen swat team people and the only other person with him was the woman who was driving the car and she had been detained as well right she was out of the car and detained that's correct your honor and that's why the district court in the match a judge rejected the argument that there was a public safety exception for the first question and suppressed the first statement with regards to whether or not there was a firearm in the vehicle you know your opponent referred whether or not he took contemporaneous notes about the defendant statement after he was mirandized at that point agent jenkins said he did take contemporaneous notes of the statements defense counsel and trial after that question was asked did not ask any questions on right so should we be able to look at the language there which seems to contradict your position on our position would be that if if the appellant had felt that those in a perfect world that would have happened but it didn't happen here but it would appear from reading these transcripts which i did read that jenkins got the information of the thirty eight caliber at the first interaction with ashmore as opposed to at the second interaction at the prayer and interaction isn't that a fair reading statement that it was the caliber of the weapon if that's the only offending statement even without that the defendant still had made a number of inculpatory statements post marina that we believe still would go towards his guilt and still would have been sufficient for a jury to make a  the judge had already ruled that he not that he would not suppress these ost miranda statements you've already made a ruling on that at suppression hearing in his supplemental report recommendations the so why should the a warrior for the defendant have made an objection i was he required to make process the answer then they should have objected so that the district court could have had the opportunity to fix the problem and they did not even identify that there was any violation of the suppression order until my own so we preserve we objected to the way holy the preacher the suppression hearing order because they when into the premier and statements that's what you're saying and she says they did it your honor i think it's clear it is not a charge i make lightly however i think that the evidence is overwhelming that the officer manipulated the sequence of events in order to get in the statement that the thirty eight was post very difficult for him to reach that weapon our whole trial strategy would have been considerably different we felt that we would have been successful had we been able to keep the statements that came in that violated miranda in our opinion out i thought the weapon was under the driver see it wasn't and he's seeing a passenger see that that's going to sit under the driver's seat in a fashion such that you would reach it from the front or you would reach in from the back seat well there is some to speed on that as well your honor that the evidence from the government witnesses would have been that you could have reached the firearm by reaching behind the seat our position would have been difficult to reach from the passenger side obviously the government's position was that it would be easier to get to from the passenger side however  would have been a a jury question where we would have had that issue without the additional incriminating statements that we felt were in violation miranda it would've been a completely different trial strategy that we would have used that he previously been convicted of you know i would have to go back and check his list i don't believe that he had been previously convicted of felony possession of a farm i would have to go back don't check his criminal history i know he had prior felony convictions bring him record that the police believe that he had a gun and he had previously had guns he and i don't get what that's based on he does have a violent criminal history but he was and again i really think it's important to look at the the actual charge and the completeness of question needs to be on film and you look at the content of the statement made before and after the content is almost identical from the first statement to the second statement and mr dashwood hadn't no idea at that time that his prima randall warning statements would not be admissible so giving him rant at that point would have had almost zero effect on him as to whether or not he was aware that his