United States v. Jean Panak ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0011p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
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v. -
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No. 07-4476
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Defendant-Appellee. -
JEAN F. PANAK,
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Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 07-00355-001—Solomon Oliver, Jr., District Judge.
Argued: December 12, 2008
Decided and Filed: January 9, 2009
Before: ROGERS, SUTTON and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Michael L. Collyer, ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellant. William Lawrence Summers, SUMMERS & VARGAS, Cleveland,
Ohio, for Appellee. ON BRIEF: Thomas J. Gruscinski, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellant. William Lawrence Summers, LAW
OFFICES, Cleveland, Ohio, for Appellee.
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OPINION
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SUTTON, Circuit Judge. At issue in this appeal is whether the district court properly
granted Jean Panak’s motion to suppress incriminatory statements she gave to two Drug
Enforcement Administration (DEA) investigators during an un-Mirandized interview, lasting
45 minutes to an hour, at her home. Because she was not in “custody” during the interview,
we reverse.
1
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I.
In the winter of 2006, DEA investigators became aware that Dr. Donald Chionchio,
a dentist in Kinsman, Ohio, had purchased unusually large amounts of hydrocodone—a
schedule-three controlled substance—in 2004 and 2005. Suspicious of the purchases, two
investigators visited Chionchio’s office on February 8, 2006, where Chionchio admitted that
he was abusing hydrocodone and that he was illegally distributing the drug. The
investigators seized Chionchio’s license as well as his log books detailing the recipients,
frequency and amounts of his hydrocodone distributions. Jean Panak, Chionchio’s 76-year-
old receptionist and sole employee, witnessed the inspection, heard “most or all” of the
conversation between Chionchio and the investigators, JA 39, answered some questions from
the investigators and saw the investigators seize the license and log books.
One week later, the same two investigators visited Panak’s residence, where they
questioned her about Chionchio’s dental practice and his abuse and illegal distribution of
hydrocodone. Panak told the investigators about her role in the office and what she knew
about Chionchio’s dental practice—including the high volume of hydrocodone prescriptions
he filled without any apparent connection to dental work. At the conclusion of the 45-to-60-
minute interview, the investigators thanked Panak, left her house and did not contact her
again for some time.
Several months later, one of the investigators called Panak and asked her what the
codes in Chionchio’s log books meant. Panak answered his questions and confirmed that
her handwriting appeared in the log books.
Over a year after the February 15 interview, Panak was indicted for (1) conspiring
to distribute and to possess with intent to distribute hydrocodone, see 21 U.S.C. §§ 841(a)(1),
846; (2) possessing hydrocodone with intent to distribute it, id. § 841(a)(1); and (3)
distributing hydrocodone, id. § 841(a)(1). Panak moved to suppress her statements from the
February 15 interview, arguing that they were given without any warning of her Sixth and
Fifth Amendment rights, see Miranda v. Arizona, 384 U.S. 436 (1966), and were
involuntary. The district court granted her motion on the Miranda claim and found it
unnecessary to rule on her involuntary-statement claim.
No. 07-4476 United States v. Panak Page 3
II.
The United States filed this appeal, which we have jurisdiction to address on an
interlocutory basis. See 18 U.S.C. § 3731. In doing so, “we review the district court’s
findings of fact for clear error and its conclusions of law de novo,” United States v. Ellis, 497
F.3d 606, 611 (6th Cir. 2007), and draw all factual inferences in favor of upholding the
district court’s suppression ruling, see United States v. Dillard, 438 F.3d 675, 680 (6th Cir.
2006).
III.
The Fifth Amendment says that an individual may not be “compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. To the ends of protecting that
right, Miranda requires law-enforcement officers to give warnings, including the right to
remain silent, before interrogating individuals whom the officers have placed “in custody.”
Stansbury v. California, 511 U.S. 318, 322 (1994) (internal quotation marks omitted). In
drawing the line between a non-custodial encounter between a citizen and the police (where
Miranda does not apply) and a custodial encounter (where it does), courts consider “all of
the circumstances” surrounding the encounter, with “the ultimate inquiry” turning on
whether “a formal arrest” occurred or whether there was a “restraint on freedom of
movement of the degree associated with a formal arrest.” Id. (internal quotation marks
omitted). To answer this question, courts focus on the “objective circumstances of the
interrogation,” id. at 323, to determine “how a reasonable person in the position of the
individual being questioned would gauge the breadth of his or her freedom of action,” id. at
325 (internal quotation marks omitted). Several factors guide the inquiry: the location of
the interview; the length and manner of questioning; whether the individual possessed
unrestrained freedom of movement during the interview; and whether the individual was told
she need not answer the questions. See United States v. Swanson, 341 F.3d 524, 529 (6th
Cir. 2003).
Measured by these considerations, the February 15 encounter did not rise to the level
of a custodial interrogation. Start with the location of the encounter: Panak’s residence. If
a home is a “castle,” 3 W. Blackstone, Commentaries on the Laws of England 288 (1768),
a secure redoubt from the cares of the world, it presumably is the one place where
No. 07-4476 United States v. Panak Page 4
individuals will feel most unrestrained in deciding whether to permit strangers into the
house, in moving about once the police are there, in speaking as little or as much as they
want, in curbing the scope of the interview or in simply asking the officers to leave. It is the
rare homeowner who has not exercised these types of control at some point in encountering
uninvited visitors. No doubt, some individuals may find it more difficult to do these things
during a visit by the police. But all individuals, the meek and the brazen alike, generally will
find it easier to exercise such control on their home turf than at the station house.
Recognizing the differences between these settings, we have noted that, “when police
question a suspect in a residence,” the encounter “often” will “not rise to the kind of
custodial situation that necessitates Miranda warnings.” United States v. Salvo, 133 F.3d
943, 950 (6th Cir. 1998); accord Coomer v. Yukins, 533 F.3d 477, 486 (6th Cir. 2008); cf.
United States v. Griffin, 922 F.2d 1343, 1355 n.15 (8th Cir. 1990); 2 Wayne R. LaFave et
al., Criminal Procedure § 6.6(e) (3d ed. 2007). In Miranda itself, the Court quoted from a
police manual that contrasted the differences between interrogations at a station house and
the individual’s home and emphasized the psychological advantages of station-house
interrogations:
If at all practicable, the interrogation should take place in the investigator’s
office or at least in a room of his own choice. The subject should be
deprived of every psychological advantage. In his own home he may be
confident, indignant, or recalcitrant. He is more keenly aware of his rights
and more reluctant to tell of his indiscretions of criminal behavior within the
walls of his home. Moreover, his family and other friends are nearby, their
presence lending moral support. In his office, the investigator possesses all
the advantages.
Miranda, 384 U.S. 449–50 (internal quotation marks omitted). In later explaining that the
Miranda requirements do not apply to a non-custodial interview in a person’s home, even
though the individual has become the focus of an investigation, the Court reasoned that an
important factor underlying Miranda was the interrogator’s goal of “isolating the suspect in
unfamiliar surroundings ‘for no purpose other than to subjugate the individual to the will of
his examiner.’” Beckwith v. United States, 425 U.S. 341, 346 & n.7 (1976) (quoting
Miranda, 384 U.S. at 457). These concerns simply do not apply to most in-home
interrogations, and both parties to this case as a result agree that an in-home encounter
between the police and a citizen generally will be non-custodial.
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But both parties also agree that all generalizations, including this one, have
exceptions. Even when an interrogation takes place in the familiar surroundings of a home,
it still may become custodial without the officer having to place handcuffs on the individual.
See, e.g., Orozco v. Texas, 394 U.S. 324, 325–26 (1969). The number of officers, the show
of authority, the conspicuous display of drawn weapons, the nature of the questioning all
may transform one’s castle into an interrogation cell—turning an inherently comfortable and
familiar environment into one that a reasonable person would perceive as unduly hostile,
coercive and freedom-restraining. See United States v. Craighead, 539 F.3d 1073, 1083 (9th
Cir. 2008).
This interrogation, however, did not cross that line and retained a non-custodial hue
throughout. The encounter began when the investigators knocked on Panak’s door, Panak
answered and the investigators told her that they wanted to ask her a few questions about
Chionchio. Recognizing the two men from the prior week’s inspection, Panak “let them in.”
JA 104. During the interview, Panak sat on her living-room couch, while the investigators
sat in chairs. The interview lasted “[b]etween 45 minutes and an hour,” JA 107, a length of
time that compares favorably with other encounters we have deemed non-custodial. See
United States v. Crossley, 224 F.3d 847, 862 (6th Cir. 2000) (less-than-an-hour interview);
United States v. Mahan, 190 F.3d 416, 420, 422 (6th Cir. 1999) (hour-and-a-half interview).
During the interview, the officers did not handcuff Panak or physically restrain her,
and they did not otherwise limit her freedom of movement. See Swanson, 341 F.3d at 530;
Crossley, 224 F.3d at 862; Salvo, 133 F.3d at 951. She was never told that she could not
leave, that she could not ask the investigators to leave or that she was required to answer
their questions. Nobody raised his voice, the investigators did not possess, much less
brandish, firearms or handcuffs, see Crossley, 224 F.3d at 862; Mahan, 190 F.3d at 422, and
the investigators arrived at her home in an unmarked DEA Trail Blazer. Although they
began the interview by telling her “[y]our boss is going to jail,” JA 100, and questioned her
about her knowledge of Chionchio’s abuse and illegal distribution of hydrocodone, the
investigators never threatened Panak with arrest, never told her that she was in trouble, never
told her that she was a suspect and never told her that she was potentially subject to criminal
penalties. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); Mahan, 190 F.3d at 422.
No. 07-4476 United States v. Panak Page 6
At the end of the interview, the officers did not arrest Panak or even suggest that they would;
they simply thanked her and left. See Yarborough, 541 U.S. at 664; Oregon v. Mathiason,
429 U.S. 492, 495 (1977).
Consistent with the non-threatening and cooperative nature of this interview, one of
the investigators called Panak several months later with some follow-up questions. Panak
answered the questions and does not complain about this follow-up interview.
One factor, it is true, cuts in the other direction. During the February 15 in-home
interview (and apparently during the office and telephone interviews), the officers never told
Panak that she need not answer their questions or could end the interview at will. But the
existence of such advice is one factor among many, Swanson, 341 F.3d at 529, and we have
never held that it is a necessary condition (as opposed to a frequently sufficient condition)
before officers may question an individual in a non-custodial setting. It would be strange,
indeed, to say that a telltale sign of whether an individual must be Mirandized is whether the
officer gave the individual one of the Miranda warnings—that she need not answer the
questions. Proving the point, we have found law-enforcement interviews to be non-custodial
when the officers never gave the individual this advice. See, e.g., United States v. White, 270
F.3d 356, 366 (6th Cir. 2001); Crossley, 224 F.3d at 861–62; cf. Ohio v. Robinette, 519 U.S.
33, 39–40 (1996) (holding that officers need not “inform detainees that they are free to go
before a consent to search may be deemed voluntary”); Schneckloth v. Bustamonte, 412 U.S.
218, 227 (1973).
Still, the factor bears on the analysis, and it is a particularly important factor in
showing that no custody occurred. See United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir.
2006); see also Mathiason, 429 U.S. at 495; Swanson, 341 F.3d at 530. In 2004, the Eighth
Circuit observed that it was unable to find a single precedent from the Supreme Court or the
courts of appeals—save for a 1982 Ninth Circuit decision “decided under an outmoded
standard of review”—that “holds that a person was in custody after being clearly advised of
his freedom to leave or terminate questioning.” United States v. Czichray, 378 F.3d 822, 826
(8th Cir. 2004). But to say that such a clear warning likely would have guaranteed the non-
custodial nature of this interview is not to say that its absence transformed the meeting into
an arrest-like situation. In a close case, sure enough, the existence of such advice might
No. 07-4476 United States v. Panak Page 7
affect the outcome. Had this interview occurred in a less congenial location, had the officers
by word or action asserted their arrest authority or had they threatened Panak by
emphasizing their knowledge of her guilt, the absence of such advice might have made all
the difference.
But on these facts it did not. “All of these objective facts are consistent with an
interrogation environment in which a reasonable person would have felt free to terminate the
interview and leave,” Yarborough, 541 U.S. at 664–65, or, to be more precise in the setting
of one’s home, to ask the investigators to leave. The investigators’ conduct did little to make
the familiar surroundings of Panak’s living room a freedom-robbing environment, and it thus
did not rise to the level of a “restraint on freedom of movement of the degree associated with
a formal arrest.” Stansbury, 511 U.S. at 322 (internal quotation marks omitted).
Considerable authority supports this conclusion. When presented with reasonably
analogous facts, we likewise have concluded that in-home questioning did not rise to the
level of custodial interrogation. See, e.g., White, 270 F.3d at 366 (in-home interview not
custodial where two federal agents questioned employee for 30 minutes about her
submission of fraudulent monthly reports because employee had complete freedom of
movement, was not handcuffed or physically restrained and agents made no suggestion that
she was not free to leave); United States v. Robinson, 217 F. App’x 503, 507–509 (6th Cir.
2007) (same where three officers questioned defendant in living room about location of
firearms even though defendant was not informed that the questioning was voluntary);
United States v. Flores, 193 F. App’x 597, 605–606 (6th Cir. 2006) (same where six officers
entered interviewee’s home, interviewee was not handcuffed, confined or restrained and had
a “casual conversation” with a detective while sitting on the living room sofa); cf. Coomer,
533 F.3d at 486 (same in an AEDPA-governed case). We have reached like conclusions in
cases involving similar facts but where the interview occurred at a suspect’s place of
employment. See Crossley, 224 F.3d at 861–62; Mahan, 190 F.3d at 421–22; see also
Mason v. Mitchell, 320 F.3d 604, 631–32 (6th Cir. 2003). And our sister circuits have
reached similar conclusions under comparable circumstances. See, e.g., United States v.
Thompson, 496 F.3d 807, 811 (7th Cir. 2007); United States v. Parker, 262 F.3d 415, 419
(4th Cir. 2001); United States v. Mitchell, 966 F.2d 92, 99 (2d Cir. 1992).
No. 07-4476 United States v. Panak Page 8
Just as importantly, today’s fact pattern differs materially from the cases in which
courts have come out the other way. See, e.g., Orozco, 394 U.S. at 325–27 (in-home
interrogation custodial where four officers entered defendant’s bedroom at 4 a.m. and where
one officer testified that “[f]rom the moment he gave his name” the defendant was “not free
to go where he pleased but was under arrest”); Craighead, 539 F.3d at 1084–89 (same where
eight law-enforcement officers from three different agencies entered defendant’s house—all
of whom were armed and some of whom wore protective gear and unholstered their firearms
in defendant’s presence—and questioned defendant in a back storage room with the door
closed while other officers executed a search warrant in the house); United States v. Newton,
369 F.3d 659, 675–77 (2d Cir. 2004) (same where six officers came to defendant’s apartment
and questioned him while he was handcuffed and in his underwear); United States v.
Madoch, 149 F.3d 596, 600–01 (7th Cir. 1998) (same where federal agents entered
defendant’s home at 7:00 a.m., ordered defendant into kitchen, ran through the house yelling,
handcuffed her husband and took him away, told defendant she could not leave the kitchen,
did not let her answer the telephone and held her for five hours).
In looking at this issue, the district court reached a different conclusion, which is
reason enough for thinking twice about whether Panak was being held in custody. First, the
court noted that Panak was present at the February 8 office inspection, which gave her
“specific knowledge of the extent of the information that the investigators had acquired
concerning Chionchio’s and, by extension, [Panak’s], alleged illegal activities,” United
States v. Panak, No. 4:07 CR 355, 2007 WL 3355088, at *3 (N.D. Ohio Nov. 7, 2007). But
Panak’s knowledge of this information does not change the equation. The question is not
whether the interviewee knew of evidence that she may have committed a crime—after all,
we undertake the custody analysis from the perspective of a reasonable person “innocent of
any crime.” United States v. Galloway, 316 F.3d 624, 629 (6th Cir. 2003) (internal quotation
marks omitted); accord United States v. Street, 472 F.3d 1298, 1309 (11th Cir. 2006); United
States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985). And the question is not whether
the investigator knew of evidence inculpating the interviewee. See Stansbury, 511 U.S. at
324–25. The question, rather, is whether the investigator connected the two in front of the
individual. An investigator’s knowledge of an individual’s guilt “may bear upon the custody
issue” not simply because the officer possesses incriminating evidence but because he has
No. 07-4476 United States v. Panak Page 9
“conveyed [it], by word or deed, to the individual being questioned,” id. at 325, and thus has
used the information to create a hostile, coercive, freedom-inhibiting atmosphere. That is
why such knowledge is relevant only if (1) it was “somehow manifested to the individual
under interrogation” and (2) it “would have affected how a reasonable person in that position
would perceive his or her freedom to leave.” Id.; see also Berkemer v. McCarty, 468 U.S.
420, 442 (1984); Salvo, 133 F.3d at 952.
Yet none of that happened. The investigators, at most, made it clear that Chionchio
was in jeopardy, not that Panak was, all of which was consistent with her observations of the
dental-office inspection the week before and her answers to the investigators’ questions at
that time. During the in-home interview, the officers did not attempt to use any
incriminating information against Panak to leverage their authority over her: They never
told Panak she was in trouble, never told her she was a possible suspect, never asked her any
accusatory questions, never told her she was potentially subject to criminal penalties and
never reminded her of any information they may have gathered against her during the office
visit. The same is true of the investigator’s telephone call to Panak a few months after the
in-home interview, in which she answered some additional questions about the meaning of
certain codes in the dental records.
That forces Panak to argue that a reasonable person, who knew that the investigators
were aware of Chionchio’s illegal activities but who was never threatened with or told of any
potential criminal liability that she faced, would have felt that her freedom of action had been
curtailed to the degree associated with a formal arrest. Not here, we think. Indeed, it bears
remembering that, even if the investigators had told Panak that they suspected her of a crime
and that they had evidence against her, such a statement, without more, would not
necessarily have made the encounter custodial. See Stansbury, 511 U.S. at 325 (“Even a
clear statement from an officer that the person under interrogation is a prime suspect is not,
in itself, dispositive of the custody issue, for some suspects are free to come and go until the
police decide to make an arrest.”). Perhaps in some circumstances a reasonable innocent
person, who knew that her coworkers were under criminal investigation, might feel that her
freedom of action had been curtailed to the degree associated with a formal arrest. But these
facts do not warrant such a holding.
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Second, the district court noted that “the investigators ignored [Panak’s] statement
that she did not want to speak with them. The investigators told [Panak] that her long-time
employer was going to jail, and they implied that negative results would occur if she
persisted in her refusal to be questioned.” Panak, 2007 WL 3355088, at *4. While this
consideration provides some support for the district court’s conclusion, it does not show that
Panak was in custody.
Here is what Panak said in full at the suppression hearing on this topic:
Q: Did you indicate to them that you really did not want to answer any
questions?
A: Yes, I did.
Q: Tell us exactly what you remember saying.
A: He said, “Did your boss ever dispense Vicodin without an
antibiotic,” and I said, “I do not want to answer that question,
because you have the books and you know what he did.” And he
said it will be to the best of your knowledge—to the best of your
benefit, he said, if you answer the questions we’re going to ask you.
JA 100–01.
Giving the district court’s finding and Panak’s testimony the benefit of the doubt, we
think that they indicate that at some point during the interview Panak did not want to answer
any more questions (because the agents knew what Chionchio “did”) and that the “to the best
of your benefit” comment encouraged her to continue the interview—which she did and
which she did without manifesting any other expressions of concern about continuing the
interview. Even then, however, the investigators’ response would not make a reasonable
person feel her freedom to move, to leave or to ask the officers to leave had been
encumbered in a manner akin to the custody associated with an arrest. Panak acknowledges
that the investigators never threatened her or told her that she was in trouble and does not
deny that the investigators never told her that she was a suspect or potentially subject to
criminal penalties. Without more, this sort of prompting, at least in the absence of contextual
clues indicative of a veiled threat, does not make the encounter custodial.
In defending the district court’s decision, Panak separately argues that she did not
“remember inviting [the investigators] in” and that she “just opened the door and they just
No. 07-4476 United States v. Panak Page 11
came in.” JA 100. But while she may not have “invit[ed]” the investigators into her home
or given them explicit permission to enter, Panak acknowledged that she knew who the
investigators were (given the office inspection the week before) when they appeared at her
doorstep. And when they told her that they wanted to ask her a few questions about Dr.
Chionchio, she allowed them into her house. “I let them in my house,” she said. JA 104.
Whatever the difference between “inviting” and “letting” someone into a home, the
investigators plainly did not force their way in against her wishes but entered only after she
allowed them to do so, a feature of the encounter that is perfectly consistent with a non-
custodial interview.
Panak has not offered any argument, and the district court made no finding, that turns
on the relevance of the general life experiences or mental faculties of a reasonable 76-year-
old. That may be because there is some debate about the relevance of an individual’s age
in this setting. Compare Yarborough, 541 U.S. at 666–68 (plurality opinion) (suggesting
that a suspect’s age is irrelevant to the custody analysis), with id. at 669 (O’Connor, J.,
concurring) (stating that “[t]here may be cases in which a suspect’s age will be relevant to
the ‘custody’ inquiry under Miranda”). Be that as it may, Panak has not made any argument
bearing on how a reasonable 76-year-old person would have perceived her freedom to leave
in this setting, We thus need not address the point. The point, however, does prompt a
different question: Why did the government indict a 76-year-old, part-time dental secretary
who, whatever she did or did not do in working for Dr. Chionchio, cannot plausibly be
characterized as the key culprit in this alleged crime? There will be time enough to answer
that question on remand.
In the final analysis, Panak fails to come to terms with the fact that, while any
encounter with law enforcement officials may have “coercive aspects to it, simply by virtue
of the fact that the [official] is part of a law enforcement system which may ultimately cause
the suspect to be charged with a crime,” investigators “are not required to administer
Miranda warnings to everyone whom they question,” and a “noncustodial setting is not
converted to one in which Miranda applies simply because a reviewing court concludes that,
even in the absence of any formal arrest or restraint on freedom of movement, the
questioning took place in a coercive atmosphere.” Mathiason, 429 U.S. at 495. While
Panak may well have felt some internal pressures to answer the investigators’ questions (to
No. 07-4476 United States v. Panak Page 12
relieve her conscience or to curry favor with the investigators) and some external pressures
(due to the status and manner of the questioners), we cannot say that she was subject to
“formal arrest or restraint on freedom of movement of the degree associated with a formal
arrest.” Stansbury, 511 U.S. at 322 (internal quotation marks omitted). The question in the
end is not whether the individual felt pressure to speak to the officers but whether she was
forced to stay with them. No such showing was made here.
IV.
Because it found that Panak was “in custody” at the time of questioning, the district
court “decline[d] to address” Panak’s alternative argument that her statements were not made
voluntarily. Panak, 2007 WL 3355088, at *5. Rather than determine for ourselves whether
Panak’s statements were involuntary, we remand this issue to the district court so that it may
consider this distinct question in the first instance.
V.
For these reasons, we reverse and remand for further proceedings.