[00:00:01] Speaker 00:
good morning your honors and may it please the court a lot of it means on behalf of kyle shepard this court should reverse the district court counselor will you be uh... requesting some time uh... reserving yes your honor good point i'm gonna request two minutes held off a rebuttal thank you

[00:00:18] Speaker 00:
This court should reverse the district court's denial of Mr. Shepard's motion to suppress because the district court clearly erred in two ways.

[00:00:27] Speaker 00:
First, by finding with very little supporting explanation that Mr. Shepard consented to search, and second, by improperly analyzing the voluntariness of any alleged search.

[00:00:40] Speaker 00:
And if it's okay with the court, I will proceed, I think, with the voluntariness issue first.

[00:00:46] Speaker 00:
So while Mr. Sheppard does maintain that he did not consent to search, assuming that this court upheld district court's finding and determined there was consent, reversal is still appropriate because the government failed to meet its burden of finding that that consent was voluntary.

[00:01:03] Speaker 00:
The court acknowledged, as well as the government really, that four out of the five voluntariness factors used in the circuit leaned in favor of Mr. Sheppard and his argument that any consent would be involuntary.

[00:01:16] Speaker 00:
The one factor that was not in his favor was the fact that no guns were drawn.

[00:01:20] Speaker 00:
Everything else wasn't his favor.

[00:01:21] Speaker 03:
But isn't it the government's point that, hey, this is not a, however many factors are on your side, they look at the totality of the circumstances here and weigh those

[00:01:33] Speaker 03:
factors depending on what happened here.

[00:01:34] Speaker 03:
So what does that matter?

[00:01:37] Speaker 00:
Absolutely, Your Honor.

[00:01:38] Speaker 00:
And you're correct that it's not simply a rote recitation of the five factors, check them off, and then we win.

[00:01:44] Speaker 00:
We acknowledge that.

[00:01:45] Speaker 00:
However, I think there were two primary errors with the district court's decision, and similarly, the government's arguments in this case.

[00:01:52] Speaker 00:
And the first was that I think there was an improper characterization of the fifth factor related to whether or not Mr. Sheppard was advised that a warrant could be found.

[00:02:03] Speaker 00:
And the second issue was- What is that?

[00:02:06] Speaker 02:
I mean, in fact, a warrant could have been gotten.

[00:02:09] Speaker 02:
And it's a little strange that it wasn't gotten beforehand, but it certainly could have been.

[00:02:15] Speaker 02:
And it really was kind of futile.

[00:02:17] Speaker 02:
I mean, the only question I suppose is whether he would have had to be released in the meanwhile.

[00:02:21] Speaker 02:
And he probably had enough probable cause to arrest him by then anyway, because they'd found

[00:02:27] Speaker 02:
they'd stopped his girlfriend conspirator and they knew that she had, they may have had probable cause anyway to arrest him at that point, but that's the only thing that would have mattered because certainly they could have gotten a warrant.

[00:02:43] Speaker 00:
Your Honor, I think that the record demonstrates that there was probable cause to arrest Mr. Shepherd, and obviously they had already obtained a warrant for his residence in San Marcos and his car and to search his person.

[00:02:54] Speaker 02:
So telling him that, which was completely truthful and in a non-threatening way, what was wrong with it?

[00:02:59] Speaker 00:
Your Honor, first, I don't know that the record really demonstrates probable cause to get a warrant to search his hotel room.

[00:03:05] Speaker 00:
that he was staying at there at the casino.

[00:03:07] Speaker 00:
I don't believe that there was really anything shown by the government to demonstrate that he was actively dealing drugs out of that location.

[00:03:14] Speaker 02:
So I just, I'm not ready to concede that point.

[00:03:22] Speaker 00:
Your honor, I'm not sure that it was clear on the record as well how long he well, it was clear how long he'd been staying there, but there was some debate over whether the government knew how long he was staying there and whether this was merely just a couple nights vacation versus something that he was using as his home.

[00:03:37] Speaker 00:
But regardless, I think that in this situation, when you look at the totality of the circumstances, the way that Deputy Milano spoke to Mr. Shepherd in saying

[00:03:48] Speaker 00:
If you don't consent, I'm just going to go get a warrant.

[00:03:53] Speaker 00:
It was exactly what this court talks about when it talks about voluntariness and the heart of what that means, which is that he felt he had no choice.

[00:04:01] Speaker 00:
It was a foregone conclusion.

[00:04:02] Speaker 00:
And although this court has held that this factor might be less weighty when there could be probable cause, it still is an important factor that reflects whether his will was overborn.

[00:04:14] Speaker 00:
And I think when you combine that with everything else,

[00:04:18] Speaker 00:
you find that this was not a voluntary search.

[00:04:20] Speaker 00:
And that leads me really to the second error that I believe that was made by the district court.

[00:04:25] Speaker 01:
Let me interrupt a second.

[00:04:26] Speaker 01:
You mentioned the government didn't show there was necessarily cause to search his hotel room.

[00:04:33] Speaker 01:
And we could agree or disagree with that.

[00:04:35] Speaker 01:
But did they actually have to show that?

[00:04:38] Speaker 01:
Or just show that it was likely, when the officer said what he said,

[00:04:44] Speaker 01:
that it was likely that they probably could get one, or do they actually have to show in this voluntariness hearing that there was probable cause?

[00:04:55] Speaker 00:
Your Honor, that's a good question, and I don't believe that they necessarily need to exactly lay out a perfect case for probable cause.

[00:05:03] Speaker 00:
But again, I just think that the record is pretty bereft of anything specifically related to anything tying the drug-dealing activity that was allegedly going on with that hotel room.

[00:05:14] Speaker 00:
And again, I still think that regardless of that, that factor still has weight, even if that probable cause did exist.

[00:05:20] Speaker 03:
Going back to your voluntariness challenge,

[00:05:23] Speaker 03:
One of the things, if I remember correctly, that the judge mentioned was that Mr. Shepard refused to sign a property sheet.

[00:05:36] Speaker 03:
Why doesn't that show that he knows the difference between saying yes and no, and when he really didn't want to do something, he didn't sign it?

[00:05:46] Speaker 00:
Your Honor, I think that absolutely demonstrates what was different here and why that last fifth factor matters.

[00:05:52] Speaker 00:
He did invoke his Miranda rights, and he did refuse to sign that document because it was incorrect, but he wasn't told whether you sign this document or not, you know, I'm still going to say that you had no money on you.

[00:06:04] Speaker 00:
He wasn't told whether you invoke Miranda or not, we're still interrogating you.

[00:06:09] Speaker 03:
Does it matter also that that happened at the booking and not not initially when they sought and obtained the consent?

[00:06:17] Speaker 00:
Yes, your honor.

[00:06:18] Speaker 00:
And that was my second point.

[00:06:19] Speaker 00:
Both of those things happened after he had allegedly had this conversation about consent.

[00:06:24] Speaker 00:
And Deputy Milano had told him, you know, I'm getting a warrant regardless of what you do.

[00:06:30] Speaker 00:
So at that point, I think he had already gone through that.

[00:06:33] Speaker 00:
And so he'd learned more things later by the time those two

[00:06:37] Speaker 00:
issues came up.

[00:06:38] Speaker 00:
So I don't know that those two can be used to demonstrate why he would have known at the time that the question was asked about consent.

[00:06:46] Speaker 01:
What did he learn between the time he was in the holding cell at the casino and the time that he invoked his Miranda rights and refused to sign the property?

[00:06:57] Speaker 00:
I'm not saying that he learned something different.

[00:06:58] Speaker 00:
I guess I'm saying that first, I think that those two issues are different because he wasn't told that it was futile for him to invoke his rights in those two ways.

[00:07:07] Speaker 00:
But second, I'm not sure that they can demonstrate that he had some type of savvy in the first place because it's just two different circumstances in those that happened later.

[00:07:17] Speaker 02:
I also think that- I suppose one thing that was different is that at the time he gave the consent, he was alone in a small room, handcuffed to a-

[00:07:26] Speaker 02:
bench or something with nobody else there and nobody essentially just isolated.

[00:07:36] Speaker 00:
Yes, Your Honor.

[00:07:36] Speaker 00:
And that was the second point I was making, is that even when looking at the totality of the circumstances and stepping away from just checking off these factors, I believe that everything together really belies the casual and friendly vibe, that was the quote of the district court, that has been

[00:07:53] Speaker 00:
used to describe this event by the government.

[00:07:56] Speaker 03:
Well, counsel, maybe the other thing he learned was that at that point he's being arrested into the jail.

[00:08:01] Speaker 03:
He's being booked into the jail at that point.

[00:08:04] Speaker 03:
And whereas at the beginning they were telling him, oh no, this is a, you know, we're just detaining you here.

[00:08:10] Speaker 03:
You're not being arrested.

[00:08:12] Speaker 03:
So could that be another difference?

[00:08:14] Speaker 00:
Yes, Your Honor, absolutely.

[00:08:16] Speaker 00:
I think that the circumstances of those last two interactions with the police were very different than that first one when it was earlier and he didn't quite understand what was going on.

[00:08:25] Speaker 00:
He didn't realize that he was going to be subjected to a search that he did not consent to or did not voluntarily consent to.

[00:08:31] Speaker 00:
So I do think those are totally different circumstances.

[00:08:33] Speaker 00:
Do you want to reserve your time?

[00:08:35] Speaker 00:
Oh, yes, Your Honor.

[00:08:35] Speaker 00:
Thank you so much.

[00:08:43] Speaker 04:
The court Daniel Zip on behalf of the United States.

[00:08:47] Speaker 04:
Going to the voluntariness factors, we believe the district court properly weighed the five factors and it was not clear error for her to determine that the consent in this case was not involuntary.

[00:08:57] Speaker 04:
At the outset, we don't agree that four of the five factors weigh against a finding of consent in this case.

[00:09:04] Speaker 04:
Certainly the failure to inform him that he didn't have to consent and the fact that he was in custody weigh against us.

[00:09:12] Speaker 04:
The fact that none of the officers were pointing their guns at him or display their weapons in any manner certainly weighs in our favor.

[00:09:19] Speaker 04:
The other two are more of a toss-up.

[00:09:22] Speaker 04:
Certainly on the Miranda issue, this court has recognized that Miranda goes to the Fifth Amendment to the right against self-incrimination that doesn't directly line up to the Fourth Amendment analysis here.

[00:09:36] Speaker 04:
And in Perez Lopez, this court even recognizes that it's an open question as to whether this is even relevant to the analysis anymore.

[00:09:43] Speaker 04:
So we would view that as sort of not cutting one way or the other in this case as to whether he was given formal Miranda rights in this context.

[00:09:50] Speaker 03:
So he was changed to the wall.

[00:09:52] Speaker 03:
Correct?

[00:09:53] Speaker 03:
Yes.

[00:09:55] Speaker 03:
He was in a small room, correct?

[00:09:57] Speaker 03:
Yes.

[00:09:58] Speaker 03:
He was escorted by five officers with badges in front of them, removed from a public space, correct?

[00:10:05] Speaker 04:
That's correct, yes.

[00:10:06] Speaker 03:
With other security officers' assistance there as well, correct?

[00:10:09] Speaker 04:
Correct.

[00:10:10] Speaker 03:
He was placed in this room, correct?

[00:10:12] Speaker 04:
Yes.

[00:10:13] Speaker 03:
And then they didn't advise him of his Miranda warnings, correct?

[00:10:18] Speaker 04:
That's correct.

[00:10:21] Speaker 03:
And that was voluntary.

[00:10:23] Speaker 04:
Yes, Your Honor.

[00:10:24] Speaker 04:
At the very least, the district court, who heard two days of testimony of this and heard the live testimony from the officers who viewed the video, her ultimate determination was not clearly erroneous that this was a voluntary.

[00:10:36] Speaker 02:
Do you think that's a factual determination?

[00:10:38] Speaker 04:
Yes, that's the case.

[00:10:39] Speaker 04:
About the ultimate filolatarianist determination.

[00:10:41] Speaker 04:
That's what this court's case law says, yes.

[00:10:43] Speaker 04:
And ultimately, it's a question of whether the district court's determination here was so illogical or implausible or without support in inferences from the record that this court can reverse on a clear error standard.

[00:10:56] Speaker 04:
But going to the last and final factor.

[00:11:00] Speaker 04:
Could they have gotten a warrant?

[00:11:04] Speaker 04:
Yes.

[00:11:05] Speaker 04:
They had a warrant.

[00:11:06] Speaker 02:
One of the problems here is they almost surely could have, because there was evidence that they knew that he'd been there for a couple weeks.

[00:11:12] Speaker 02:
But the officers, that's not really an established fact in the record, because the officers kept saying, who supposedly came there two weeks before, said he didn't remember anything.

[00:11:24] Speaker 04:
Right.

[00:11:24] Speaker 04:
There was a different officer who came two weeks before when the court held a second day of testimony.

[00:11:29] Speaker 04:
He explained he didn't remember it.

[00:11:30] Speaker 02:
So although it does appear that he really was there for two weeks and it really wasn't established at the time.

[00:11:37] Speaker 04:
Officer Milano testified that he did not know that he was in the room.

[00:11:41] Speaker 04:
He did not remember that.

[00:11:42] Speaker 02:
So if they didn't know that or if they couldn't have told and magistrate that, then what?

[00:11:52] Speaker 02:
And with regard to whether they actually could have kind of

[00:11:55] Speaker 04:
Well, they certainly had probable cause to search his house and to search his person.

[00:11:59] Speaker 04:
So it's difficult to see how probable cause to search someone's person wouldn't also provide enough probable cause to search the room where that person was staying, particularly if they could also search his house.

[00:12:09] Speaker 04:
What showing has to be made?

[00:12:10] Speaker 03:
Well, counsel, the case law is different, though.

[00:12:11] Speaker 03:
This was a hotel room.

[00:12:13] Speaker 03:
And you've just indicated that they didn't have someone that was going to be able to testify that he had been there for a few weeks, correct?

[00:12:21] Speaker 04:
for a few weeks certainly but they had the his key card was in his girlfriend's car and he had a key card on his person and the officers or the security officers at the casino confirmed that he was staying in that room so there again if they knew they had probable cause to search his person was the girlfriend stopped in his car or her car it was her car

[00:12:42] Speaker 04:
And again whether what formal showing needs to be made as to probable cause in Kaplan this court simply said that there's diminished weight that goes to this last factor if the officers in fact could get a search warrant.

[00:12:55] Speaker 04:
We believe that the record here is clear that they had probable cause to get a search warrant so that factor

[00:13:00] Speaker 04:
ultimately doesn't weigh strongly one way or the other.

[00:13:03] Speaker 02:
Could you talk a little bit about the other issue, about the consent, whether he actually gave consent.

[00:13:09] Speaker 02:
What bothered me, I understand that the district judge

[00:13:17] Speaker 02:
believe the officer and do not believe him.

[00:13:20] Speaker 02:
But although she had earlier recognized that the officer had been convicted of false statements and so on, at the point that she actually made this credibility determination, she said very little.

[00:13:36] Speaker 02:
And the main thing she said during that hearing was,

[00:13:39] Speaker 02:
that there was sloppy police work.

[00:13:42] Speaker 02:
So she didn't seem to be... I mean, she seemed to be taking this as an ordinary credibility determination between two witnesses rather than between one witness who had recently been convicted of false testimony and the other one.

[00:13:59] Speaker 02:
Yes.

[00:14:00] Speaker 04:
At the outset of the hearing, the court recognized that this past finding by the jury was extremely... I thought that was not the same hearing.

[00:14:07] Speaker 02:
I thought it was a different hearing.

[00:14:08] Speaker 04:
At the beginning of the first hearing, she said, this is extremely relevant.

[00:14:11] Speaker 02:
The government had asked not to get into it.

[00:14:12] Speaker 02:
But it wasn't the hearing that was she made this finding.

[00:14:14] Speaker 02:
It was a different hearing.

[00:14:16] Speaker 04:
So she found that this was extremely relevant.

[00:14:18] Speaker 04:
The facts came in through cross-examination.

[00:14:20] Speaker 02:
I thought that was in the guise of assuming what was going to come in before the jury, essentially.

[00:14:29] Speaker 04:
No, it was what was going to come in before her.

[00:14:31] Speaker 04:
And she ruled, because I'm the fact finder, let's just let it in.

[00:14:34] Speaker 04:
And I find it very relevant.

[00:14:36] Speaker 04:
I would push back a little bit on the fact that he was found guilty of a false statement crime.

[00:14:40] Speaker 04:
This was a jury verdict that he had made false statements as part of an arrest.

[00:14:46] Speaker 02:
Oh, no, no, you're right.

[00:14:47] Speaker 02:
It wasn't a crime.

[00:14:48] Speaker 02:
It was an arbitrary crime.

[00:14:49] Speaker 02:
For several million dollars.

[00:14:51] Speaker 04:
And as the prosecution outlined beforehand, this was ultimately dismissed after the jury verdict came in.

[00:14:56] Speaker 04:
They settled it and dismissed it with prejudice.

[00:15:00] Speaker 02:
Wait a minute.

[00:15:02] Speaker 02:
For several million dollars.

[00:15:04] Speaker 04:
What's that?

[00:15:05] Speaker 02:
They settled it for several million dollars.

[00:15:07] Speaker 02:
Correct.

[00:15:07] Speaker 02:
And certainly the court considered it.

[00:15:09] Speaker 02:
So it wasn't just missed.

[00:15:11] Speaker 04:
Go ahead.

[00:15:13] Speaker 04:
Certainly the court considered it.

[00:15:14] Speaker 04:
The defense cross-examined on it.

[00:15:16] Speaker 04:
The district court here, sort of by happenstance, was in a position to have sat through two entire trials.

[00:15:22] Speaker 04:
One resulted in a hung jury, and one ultimately resulted in the verdict.

[00:15:26] Speaker 04:
She was in the best position possible to understand exactly what

[00:15:29] Speaker 04:
the officer had testified to and what the impact of that case had on his credibility here.

[00:15:35] Speaker 04:
At the end of the day, at ER 154, the district court directly addressed Mr. Sheppard after he testified that he did not give consent.

[00:15:43] Speaker 04:
She asked him to explain what exactly the officer said.

[00:15:46] Speaker 04:
He explained that he said he

[00:15:48] Speaker 04:
Yes, I object," and then sort of rambled on for a bit.

[00:15:52] Speaker 04:
And then shortly after that, the court made this, or at the next hearing, the court made this credibility determination and said, I find what Officer Milano said credible, and I find the directly contrary thing that Mr. Sheppard said to be incredible.

[00:16:04] Speaker 04:
That type of determination, based on this demeanor and tone and the sort of things that only a district court can see from live testimony, is not demonstrably clear error in this case.

[00:16:15] Speaker 04:
as the court held in Anderson, as long as it's a coherently and facially plausible story not contradicted by extrinsic evidence, it can virtually never be clear error for a court's credibility finding to rise to the level of clear error.

[00:16:29] Speaker 04:
We will leave that to the case here.

[00:16:33] Speaker 04:
And just one final point on the voluntariness issue.

[00:16:37] Speaker 04:
Again, certainly this court could disagree with how the district court balanced the five factors in this case.

[00:16:44] Speaker 04:
The court also relied heavily on the fact of the tone of this interaction, the fact that multiple witnesses testified that it was calm.

[00:16:51] Speaker 04:
Even Mr. Shepard admitted that no one raised their voices or used any sort of threatening manner in this case.

[00:16:56] Speaker 04:
At the end of the day, this is a factual finding by the district court who held the hearing.

[00:17:00] Speaker 02:
Can you point to any specific case in which voluntariness was found on similar facts, that of somebody handcuffed to a wall in a small, I mean, I don't mean the same, but the same aura, that is, he was isolated in a small room and handcuffed to the wall.

[00:17:22] Speaker 02:
And so on.

[00:17:23] Speaker 04:
Sure.

[00:17:23] Speaker 04:
I think I don't have one with handcuffs to the wall, but in Espinosa Flores, which we cited in our briefs, this court, there was multiple factors that weighed against voluntariness.

[00:17:33] Speaker 04:
The officers initially had their guns drawn and then put them away.

[00:17:37] Speaker 04:
The defendant was in custody.

[00:17:39] Speaker 04:
He wasn't told that he had a right to refuse.

[00:17:41] Speaker 04:
They lied to him about their ability to get a search warrant.

[00:17:44] Speaker 04:
And at the end of the day, the only factor weighing in favor of it was the Miranda warning.

[00:17:49] Speaker 04:
Again, this court, and this is an unpublished decision, as many government wins are, that the court relied heavily on this clear-error standard and held that on the overall totality of the circumstances, the district court's decision was not illogical or implausible.

[00:18:04] Speaker 03:
Counsel, I guess when I turn to the long line of cases that we have under Miranda,

[00:18:11] Speaker 03:
where the court has instructed us, and our case law certainly talks about this, that custodial environments are inherently coercive.

[00:18:25] Speaker 03:
Why don't we apply that sort of looking glass at what happened here?

[00:18:33] Speaker 03:
That this was a coercive environment where someone then voluntarily acquiesced to a search of their hotel room.

[00:18:45] Speaker 04:
certainly the court considers that it's one of the five factors in the totality of the circumstances this is the Supreme Court has recognized that this is different from Miranda and that the Fifth Amendment rights in that in that context requires some sort of prophylactic warning in this case the the fact that they that the

[00:19:03] Speaker 04:
defendant was not told that he had the right to refuse consent does not rise to that same level and it's just one of five factors that the court views in the totality of the circumstances.

[00:19:13] Speaker 03:
But why shouldn't we be looking at it from, again, that looking glass, that this was a coercive environment?

[00:19:19] Speaker 03:
You would concede this was a coercive environment?

[00:19:22] Speaker 04:
I would concede that he was in custody and that that is one of the factors that weighs on the ultimate determination on all the facts that are unique in each case as to whether this particular defendant, you know, whether his consent was the result of duress or coercion.

[00:19:39] Speaker 04:
So it's certainly a factor.

[00:19:40] Speaker 04:
But the law is clear that that's not, it's not a situation where anytime someone's in custody like this that they necessarily can't consent.

[00:19:47] Speaker 02:
Well, for one thing, if he doesn't consent,

[00:19:48] Speaker 02:
He presumably is going to stay there in custody in this little room while they go off and get a search warrant.

[00:19:55] Speaker 04:
Yes.

[00:19:56] Speaker 04:
And the officer told him that in a calm, non-threatening way.

[00:19:59] Speaker 02:
Might have preferred not to.

[00:20:00] Speaker 04:
I can go get a warrant.

[00:20:02] Speaker 04:
And this court has recognized on that last factor there, the tone matters.

[00:20:07] Speaker 04:
And whether it's done in a threatening matter, I don't care if you're going to consent because I can go get a warrant or sort of calmly, more like a Miranda, like here's the situation.

[00:20:17] Speaker 04:
I can get a warrant or you can consent and the court went through that specifically.

[00:20:22] Speaker 02:
One other thing is that, well I guess maybe this goes more to the whether he consented question but as the officer reported what he said he said something like do you consent to the search or I can get a warrant?

[00:20:35] Speaker 02:
All in one sentence.

[00:20:37] Speaker 02:
Yes.

[00:20:38] Speaker 02:
And so when Mr. Shepard says

[00:20:46] Speaker 02:
Yes, I guess, or he says he says, yes, I guess.

[00:20:54] Speaker 02:
How did he know what he was saying yes to?

[00:20:59] Speaker 04:
I think that the testimony from Mr. Milano was that he understood that as a consent, that he was saying, yes, I guess, go get a warrant, or?

[00:21:07] Speaker 02:
Or he could say, yes, he could say, yes, I guess you can get a warrant, or yes, I guess I consent.

[00:21:12] Speaker 02:
It's a compound sentence.

[00:21:14] Speaker 04:
That's true.

[00:21:14] Speaker 04:
I think Officer Milano's testimony was that he asked if he would consent to his room, and if not, I can get it back.

[00:21:21] Speaker 02:
I'm sorry.

[00:21:21] Speaker 02:
I didn't hear that.

[00:21:22] Speaker 04:
Officer Milano's testimony was clear that he understood that as a consent.

[00:21:26] Speaker 02:
Well, I understood it.

[00:21:27] Speaker 02:
I understand that that's what he understood.

[00:21:28] Speaker 02:
But when you give somebody a compound question, essentially, then the answer isn't so clear as to what he's saying yes to.

[00:21:40] Speaker 04:
Officer Milano testified as to his understanding.

[00:21:42] Speaker 04:
And of course, Mr. Shepard took the stand and did not testify that it was his understanding.

[00:21:46] Speaker 02:
Well, I understand.

[00:21:47] Speaker 02:
He said he didn't say that at all.

[00:21:47] Speaker 04:
He said I didn't say anything at all.

[00:21:49] Speaker 04:
So I think Officer Milano's testimony, which the court found to be credible, was that this was a straightforward request for a consent to search and that he gave his consent.

[00:21:58] Speaker 03:
Any additional questions?

[00:22:00] Speaker 03:
No.

[00:22:01] Speaker 03:
Any additional questions?

[00:22:03] Speaker 03:
No.

[00:22:03] Speaker 03:
All right.

[00:22:03] Speaker 03:
Thank you.

[00:22:13] Speaker 00:
Your honor, I don't believe that this was akin to a Miranda rights when he told him about this.

[00:22:17] Speaker 00:
He did not explain this is how the law works.

[00:22:20] Speaker 00:
I can, I have probable cause go seek a warrant or you have the right to not consent and lay it out that way.

[00:22:26] Speaker 00:
Obviously when the law was laid out to Mr. Shepherd about Miranda, where he was given the full facts of how things work, he invoked his right.

[00:22:33] Speaker 00:
The only reason he did not invoke his right here to refuse consent is he was never told he had the right to refuse consent.

[00:22:40] Speaker 00:
and because his will was overborn.

[00:22:41] Speaker 01:
Does it matter?

[00:22:42] Speaker 01:
The judge obviously found Mr. Shepard not credible.

[00:22:53] Speaker 01:
She specifically found that he didn't say, no, I object.

[00:22:59] Speaker 01:
Is his lack of credibility

[00:23:03] Speaker 01:
also something we should consider in the overall voluntariness things because he also talked about how he was feeling.

[00:23:12] Speaker 00:
Your honor, I suppose that it is correct that you're reviewing the district courts assessment.

[00:23:18] Speaker 00:
And so that is something that would be taken into consideration.

[00:23:22] Speaker 00:
But overall, I still think that the majority of the clear cut factors that are obvious and don't depend on his testimony, he did say he was feeling like he was having a panic attack.

[00:23:30] Speaker 00:
The handcuffs were too tight, although they acknowledge that they loosen them later.

[00:23:33] Speaker 00:
So some of the things he said were corroborated later.

[00:23:37] Speaker 00:
So I think that one issue of her saying he was not credible on that one

[00:23:41] Speaker 00:
statement doesn't really affect the analysis, because most of it is either corroborated by other testimony or is just plain on the facts to be seen.

[00:23:49] Speaker 00:
I have 10 seconds.

[00:23:52] Speaker 00:
No, you're over.

[00:23:54] Speaker 00:
Oh my gosh, I'm so sorry.

[00:23:56] Speaker 00:
Well, thank you very much, Your Honors.

[00:23:58] Speaker 00:
Thank you.

[00:23:58] Speaker 00:
You're better at looking at the clock than I am.

[00:23:59] Speaker 00:
You're pros.

[00:24:00] Speaker 00:
Have a great day.

[00:24:04] Speaker 03:
This case will stand submitted.