United States v. Crooker

United States Court of Appeals
For the First Circuit
No. 10-2372
UNITED STATES OF AMERICA,
Appellee,
v.
JAKE C. CROOKER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.
Rebecca A. Jacobstein for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
July 27, 2012
LIPEZ, Circuit Judge. Jake Crooker was charged with
possession of firearms and ammunition by an unlawful user of a
controlled substance, in violation of 18 U.S.C. § 922(g)(3), and
possession of marijuana, in violation of 21 U.S.C. § 844. After a
jury trial, Crooker was convicted of possession of marijuana and
fined $4000. He now appeals the district court's denial of his
motion to suppress statements and evidence recovered during the
July 15, 2004, search of 62 Joseph Avenue in Westfield,
Massachusetts, where he resided with his parents and brothers.
Crooker argues that the search warrant was not supported by
probable cause and was a defective general warrant that did not
state with particularity the items to be seized. Moreover, he
alleges that the agents executing the warrant exceeded its scope.
He also argues that the statements admitted against him were made
during custodial interrogations without the benefit of Miranda
warnings. We affirm.
I.
When reviewing the denial of a motion to suppress, we
rehearse the facts as supportably found by the court below,
including any inferences drawn by the court from the discerned
facts. United States v. Pontoo, 666 F.3d 20, 24 (1st Cir. 2011).
Here, we draw from the district court's bench decision, issued
after a hearing on Crooker's motion to suppress, as well as the
-2-
affidavit supporting the search warrant and other hearing
testimony.
A. Factual Background
The relevant series of events was triggered by an ongoing
Federal Bureau of Investigation ("FBI") investigation of Crooker's
uncle, Michael Crooker.1 The application and affidavit in support
of a warrant to search the buildings and grounds of 62 Joseph
Avenue, Crooker's residence, were submitted by FBI Special Agent
Richard Winfield. The documents primarily described the FBI's
evidence against Michael, who does not live at 62 Joseph Avenue.
The evidence suggested that Michael was involved in the unlawful
manufacture, storage, and interstate shipping of explosives,
biological toxins, and weapons. Although Michael did not live at
62 Joseph Avenue, Winfield's affidavit stated that the FBI had
reason to believe that Michael had buried ricin near a stump in his
brother Stephen's (and Crooker's) backyard at 62 Joseph Avenue.2
The warrant application included an attachment detailing the items
the government sought to seize during the search, including
specified firearms and evidence of explosives and biological
1
Because many of the parties share a last name, first names
will be used. Any use of "Crooker" alone refers to Jake Crooker.
Crooker's father is Stephen Crooker, and his uncles are Michael and
Peter Crooker.
2
Ricin is a deadly toxin derived from castor beans. A few
grains, if injected, inhaled, or ingested, can kill an adult.
-3-
weapons violations, as well as evidence related to those violations
stored on one or more computers.
On July 14, 2004, a warrant was issued to search the
grounds and residence at 62 Joseph Avenue for
evidence, fruits or instrumentalities of the
manufacturing of explosive materials without a
license, in violation of Title 18, United
States Code, Section 842(a)(1); shipping,
transporting or receiving any explosive
materials in interstate commerce, in violation
of Title 18, United States Code, Section
842(i); illegal storage of explosive
materials, in violation of Title 18, United
States Code, Section 842(j); and possession
and manufacture of biological weapons in
violation of Title 18, United States Code,
Section 175.
The warrant did not incorporate the affidavit or the list of items
to be seized. Thus, the warrant did not authorize seizure of
firearms, ammunition, drugs, or drug paraphernalia. See Groh v.
Ramirez, 540 U.S. 551, 557-58 (2004) (stating that a warrant
authorizes only the seizure of items described with particularity
on the face of the warrant or in documents explicitly incorporated
in the warrant).
Agents from the FBI and the Bureau of Alcohol, Tobacco,
Firearms and Explosives ("ATF") and local police executed the
search warrant on the afternoon of July 15, 2004. A team of agents
consisting of between four and eight men led by FBI Special Agent
Mark Karangekis (the "entry team") entered and cleared the house.
They were clad in black clothing and FBI attire and ran up the lawn
-4-
single file with their weapons drawn. Karangekis knocked at the
front screen door and announced the agents' purpose. After Crooker
exited the house and chained up one of his dogs at the agents'
request, the entry team went into the house and began clearing it.3
After the house had been cleared, the "search team" led by FBI
Special Agent Robert Lewis entered the house. Lewis was
responsible for coordinating the search, taking custody of seized
evidence at the conclusion of the search, and maintaining contact
with the individuals whose house was being searched.
During the multiple hour search, Lewis and Springfield
Police Officer Ronald Sheehan had a conversation with Crooker in
front of the house. At the beginning of the interaction, Sheehan
frisked Crooker and seized a cigarette pack that held a bag
containing a green leafy substance.4 The agents did not arrest
Crooker or advise him of his Miranda rights, but instead asked him
to consent to questioning. The conversation began in the front
yard and, due to the heat, at least some part of the conversation
occurred in Lewis's air-conditioned car. During the conversation,
Crooker told the agents that there were four safes in the house -
3
Karangekis testified that he entered before Crooker removed
the dog and that the rest of the entry team came in after the dog
was secured. The discrepancy does not change our analysis.
4
The parties disagree about the location on Crooker's person
of the cigarette pack. Lewis testified that he saw Sheehan take
the pack from Crooker's hand. Crooker testified that Sheehan took
the pack out of his front left jeans pocket.
-5-
Crooker had access to two, which contained his and his mother's
weapons, and his father had access to the other two, which
contained antique firearms.5 Lewis testified that he knew at the
time of the search that the warrant did not authorize seizure of
firearms or ammunition. Nevertheless, Lewis asked Crooker to open
the two safes to which Crooker had access, and agents seized
several weapons and ammunition from inside the safes. Lewis stated
that he seized the weapons because he knew that: (1) Stephen
Crooker's prior felony conviction made his possession of weapons
and ammunition unlawful and he was unsure whether Stephen had
access to the items, and (2) Crooker had confessed to using illegal
drugs, making his possession of firearms unlawful.
Later in the search, ATF Special Agents Michael Curran
and Debora Seifert interacted with Crooker, who was cooperative and
again described the family members' varied access to the four
safes. Crooker also mentioned that there was an unlocked tackle
box containing ammunition that belonged to him in the living room.6
When Curran asked Crooker if he used drugs, Crooker said that he
occasionally used marijuana and that there was some marijuana
inside the house that belonged to him. Agents then seized bags of
5
Individuals previously convicted of felonies may lawfully
possess "antique firearms" as defined in 18 U.S.C. § 921(a)(16).
6
Crooker refers to the box as a tackle box, while the
government calls it a toolbox. The distinction is not relevant,
and we refer to it throughout as a tackle box.
-6-
what appeared to be marijuana from the kitchen and basement. The
tackle box containing ammunition and a cigarette rolling device was
seized, along with all of its contents. Curran and Seifert
testified that, although they knew that Crooker had a valid state
license to possess firearms, they considered him a user of illegal
narcotics, and thus it was unlawful for him to possess the weapons
and ammunition.
B. Procedural History
After he was indicted, Crooker moved to suppress the
statements he made during the search as well as various physical
evidence seized that day. Crooker argued, among other things, that
Winfield's affidavit failed to establish probable cause for the
issuance of the warrant; the search exceeded the scope of the
warrant; the plain view exception did not apply to seizure of
various pieces of evidence; and he was subject to custodial
interrogation without being advised of his Miranda rights. After
the district court denied the motion to suppress, Crooker was tried
for unlawful possession of marijuana and possession of firearms and
ammunition while using illegal narcotics. The jury convicted
Crooker on the marijuana charge and acquitted him of the firearm
charge. The court imposed a $4000 fine. Crooker now appeals the
district court's denial of his motion to suppress. In so doing, he
both repeats grounds he argued below and challenges for the first
time the particularity of the warrant. Although his particularity
-7-
claim is presented for the first time on appeal, he argues that the
claim was forfeited - not waived - and thus is entitled to plain
error review.
II.
A. Motion to Suppress Tangible Evidence
In support of his appeal, Crooker argues that (1) the
warrant was not properly supported by probable cause, (2) the
agents executing the search exceeded the scope of the warrant, and
(3) the warrant lacked the particularity required by the Fourth
Amendment. When reviewing a denial of a motion to suppress, we
review the district court's factual findings for clear error, and
its legal conclusions (for example, that a given set of facts
constituted probable cause) de novo. United States v. McMullin,
568 F.3d 1, 5 (1st Cir. 2009). "A clear error exists only if,
after considering all of the evidence, we are left with a definite
and firm conviction that a mistake has been made," and "we will
uphold a district court's decision to deny a suppression motion
provided that any reasonable view of the evidence supports the
decision." Id. (quoting United States v. Woodbury, 511 F.3d 93,
96-97 (1st Cir. 2007)) (internal quotation marks omitted).
1. Probable Cause for the Issuance of the Warrant
As he did below, Crooker argues that "[t]here was
absolutely no probable cause to believe that evidence of a crime
would be found in the residence at 62 Joseph Avenue," and that
-8-
there was no nexus between the residence and the crimes committed
by his uncle Michael. As Crooker puts it, "[t]he only and tenuous
link to 62 Joseph Avenue, that Michael Crooker hid a handful of
ricin by a stump in the backyard, came from an untrustworthy
jailhouse informant with prior convictions for fraud." Crooker
argues that this information was insufficient to provide a reason
to believe that there was contraband related to explosives or
biological agents in his backyard. Moreover, he argues that even
if there were reason to believe contraband might be found in the
backyard, there was no reason to believe contraband would be found
inside the house.
In response to the government's evidence, the district
court concluded in a bench decision that the warrant was supported
by probable cause. In so doing, the court relied on information in
the Winfield affidavit, noting that it had been clearly shown that
Michael was "involved in the production of explosives and very
dangerous materials" and various evidence tied those materials to
Crooker's house. For example, a prisoner at the Hampden County
Correctional Facility ("CI-2")7 told agents that Michael told him
that a handful of ricin was buried near a tree stump in Crooker's
yard.8 The court noted that although CI-2's word alone would be
7
Our use of "CI-1" and "CI-2" corresponds with the parties'
use of those labels in their briefs.
8
Michael was arrested on June 23, 2004, pursuant to a warrant
and imprisoned in the Hampden County Correctional Facility. On
-9-
unreliable, much of the information he provided was corroborated by
Special Agent Winfield.9 The district court also relied on a phone
call between Stephen and Michael that was described in the Winfield
affidavit.10 During that call, Stephen and Michael discussed "R"
and how to use Michael's "R" as a plea negotiating tool.11 Agent
Winfield believed "R" to be a reference to ricin. From this phone
call, the court found that "it was clear that the two of them were
speaking to some extent in code, which suggests that they had
information that they did not want others to easily understand, and
that the material was of sufficient importance and potency that it
was a bargaining chip in the negotiations with the government."
Moreover, according to a former friend of Michael's ("CI-1"),
Michael had recently moved his poisons and explosives lab to
Crooker's grandfather's house. Michael showed CI-1 the lab,
July 13, 2004, he was indicted for shipping a firearm in interstate
commerce, in violation of 18 U.S.C. § 922(g).
9
For example, Winfield verified the addresses and unlisted
phone numbers that CI-2 said Michael had given him for Stephen and
Peter Crooker, so that CI-2 could contact them on Michael's behalf
when CI-2 was released from jail. CI-2 also stated that Michael
told him he had access to a National Car Rental ("NCR") facility in
Connecticut. According to Winfield, by mid-June 2004, Michael had
stolen approximately 27 vehicles from NCR.
10
This phone call was recorded by officials at the Hampden
County Correctional Facility where Michael was being held at the
time of the call.
11
We do not know how Michael and Stephen thought that Michael
might use the ricin as a plea negotiating tool. The Winfield
affidavit does not elaborate, and the record does not contain the
full content of the call between Michael and Stephen.
-10-
pointing out where he made and kept explosives. Michael also told
CI-1 that he had buried a MAC 10 gun but could not find it and had
buried various gun parts in ammunition cans. Michael did not
specify to CI-1 where the MAC 10 or gun parts were buried. Also,
according to CI-2, Michael hid ricin in two locations other than
Stephen's backyard. Based on this evidence, the district court
concluded that "it would have been irresponsible for the government
not to make an effort to recover this very dangerous material from
the location [in] which they had probable cause to believe they
would find it."
We agree with the district court's analysis. The
government had specific information from a confidential informant
that ricin was buried in Crooker's backyard, and that Michael hid
various weapons and biological agents in numerous locations and
moved those items around to avoid detection. This information was
the backdrop for additional information that the government had
from recorded phone conversations between Michael and Stephen,
notably Michael and Stephen's discussion in coded language about
ricin and its value in Michael's plea negotiations with the
government. In another discussion, Stephen and Michael referred to
unidentified property belonging to Michael, noting that Crooker's
grandfather had moved it to an undisclosed location. This
information was supplemented by information from a confidential
informant, who stated that Michael kept his explosives lab
-11-
equipment and supplies as well as ammunition in Crooker's
grandfather's basement and shed. In light of Stephen and Michael's
secretive conversations about the biological toxin ricin, their
discussion about moving Michael's possessions while Michael was
incarcerated, and information provided by confidential informants -
including information that Michael had buried ricin in Crooker's
backyard, there was probable cause to believe that evidence of the
enumerated crimes would be found at Crooker's house. Accordingly,
the district court did not err in denying Crooker's motion to
suppress on probable cause grounds.
2. Scope of the Search
Crooker alleges that the seized tackle box, on which
marijuana residue was found, and its contents, including the seized
ammunition and cigarette rolling device, should have been
suppressed.12 He argues that the seizure of the tackle box and its
contents was beyond the scope of the warrant because the warrant
only authorized the seizure of evidence related to explosives and
biological weapons. The warrant did not incorporate the list of
items to be seized submitted with the affidavit. Thus, Crooker
argues, any seizure of drugs or drug paraphernalia was unlawful.
12
In his motion to suppress, Crooker also argued that the
seized guns should be suppressed because their recovery was beyond
the scope of the warrant. Crooker's claims with respect to the
guns and ammunition are moot on appeal. Crooker was acquitted of
the weapons charge at trial.
-12-
In the alternative, Crooker argues that, even if some
contents of the tackle box could have been seized under the plain
view exception to the warrant requirement, the agents were required
to separate out the items with immediately apparent evidentiary
value and leave behind those items that were not immediately
identifiable as contraband or evidence of a crime. Specifically,
he argues that the agents should have removed the loose ammunition
and rolling device from the tackle box and left the box and the
remainder of its contents in the house.
The district court concluded that the search and seizure
of the tackle box did not exceed the scope of the warrant. Because
the warrant authorized the agents to search for evidence of
biological weapons, including small amounts of ricin powder, the
agents could legitimately open every container in the house to find
those items. The agents opened the tackle box to search for items
covered by the warrant, and, once the box was opened, the
contraband items not covered by the warrant were in plain view.
We agree. In general, "any container situated within
residential premises which are the subject of a validly-issued
warrant may be searched if it is reasonable to believe that the
container could conceal items of the kind portrayed in the
warrant." United States v. Rogers, 521 F.3d 5, 9-10 (1st Cir.
2008) (quoting United States v. Gray, 814 F.2d 49, 51 (1st Cir.
1987)) (internal quotation mark omitted). The warrant in this case
-13-
permitted agents to search for items as small as grains of powder.
Thus, the agents had a right to search the tackle box. While
lawfully searching the tackle box, agents saw what they believed to
be contraband and evidence of a crime - ammunition and a cigarette
rolling device.
A law enforcement agent may, without a warrant, seize an
object in plain view so long as he or she has (1) lawfully reached
the vantage point from which he sees the object, (2) has a right of
access to the object itself, and (3) has probable cause to support
his seizure of that object. United States v. Paneto, 661 F.3d 709,
713 (1st Cir. 2011). In this case, the agents satisfied the first
requirement - lawfully reaching the vantage point from which they
saw the ammunition and rolling device - because they were in the
house pursuant to a warrant supported by probable cause. Second,
as discussed, the warrant permitted agents to search for items as
small as grains of powder. Thus, the agents had a right to access
and open the tackle box. Once inside the tackle box - recognizing
that both Jake and Stephen Crooker were unable to lawfully possess
ammunition - the officers had probable cause to seize the
ammunition, satisfying the third plain view requirement. Moreover,
the rolling device, which agents believed was used to roll
marijuana cigarettes, was in plain view within the tackle box and
its value as evidence of illegal activity was immediately apparent.
-14-
Thus, the ammunition and rolling device were properly seized
pursuant to the plain view doctrine.
With regard to Crooker's alternative argument, we need
not decide whether the agents acted reasonably in seizing the
entire tackle box instead of separating out the loose ammunition
and rolling device and leaving the tackle box behind. The only
item of evidentiary value that resulted from the seizure of the
tackle box was trace marijuana residue. The government presented
a wealth of other evidence supporting its allegation that Crooker
possessed marijuana, including (1) three bags of leafy green
substance recovered from different areas of the house, (2) the
cigarette rolling device, (3) a bag of leafy green substance
recovered from a cigarette pack on Crooker's person, and, most
notably, (4) Crooker's confession that he used and possessed
marijuana. Ignoring the residue completely, the evidence was
sufficient to demonstrate that Crooker possessed marijuana. Thus,
even if it was impermissible for agents to seize the entire tackle
box and later examine it for residue, admission of that residue was
harmless error. See United States v. Jiménez, 419 F.3d 34, 42 (1st
Cir. 2005) (finding harmless error where erroneously admitted
evidence "pales in light of the other evidence introduced at
trial," including defendant's confession to the charged offense).
-15-
3. The Warrant's Particularity
Crooker argues for the first time on appeal that the
warrant lacked sufficient particularity to satisfy the requirements
of the Fourth Amendment because it did not specifically describe
the things to be seized. Instead, it only permitted the seizure of
"evidence, fruits, or instrumentalities" of violations of four
enumerated statutory provisions. Although he failed to timely
raise this objection prior to trial pursuant to Federal Rule of
Criminal Procedure 12(b)(3)(C), Crooker claims that the language in
Rule 12(e) stating that "[a] party waives any Rule 12(b)(3)
defense, objection, or request not raised by the deadline" means
that such arguments are forfeited, not waived. See Fed. R. Crim.
P. 12(e). Hence, he says he is entitled to plain error review of
his particularity argument.
In United States v. Walker, 665 F.3d 212, 227-28 (1st
Cir. 2011), where there was a failure to challenge a defect in an
indictment under Rule 12(b)(3)(B), we rejected the argument that
the waiver language in Rule 12(e) means forfeiture: "Rule 12(e)
says what it means and means what it says" when it states that a
12(b)(3) defense not raised before trial is waived. Walker, 665
F.3d at 228. Crooker argues that the difference between a
defective indictment and a ground for suppression warrants
different treatment of the distinct 12(b)(3) claims under Rule
12(e). He cites language from Walker in support of this position:
-16-
[T]he matters that fall within the compass of
Rule 12(b)(3) (and thus Rule 12(e)) are
normally correctable before trial if
seasonably brought to the attention of the
district court and the government. It strikes
us as manifestly unfair for a defendant to sit
silently by, take his chances with the jury,
and then be allowed to ambush the prosecution
through a post-trial attack. Accordingly, we
join the majority view and hold that a failure
to challenge a defect in an indictment before
trial, as required by Rule 12(b)(3), results
in an unreviewable waiver of that challenge
pursuant to Rule 12(e).
Walker, 665 F.3d at 228.
Unlike a defective indictment, Crooker asserts, the
government cannot fix suppression matters prior to trial. Here,
for example, the government could not correct any particularity
defects in the warrant. Moreover, Crooker says that he did not sit
silently by and later ambush the prosecution. Instead, he filed a
pre-trial motion to suppress, albeit on other grounds. He insists
that "[a]lthough the government may not always have the incentive
to present all of the facts if an issue is not raised below, if an
issue can be resolved on the record before this Court, the
government is not prejudiced by the initial failure to raise the
issue and review for plain error is warranted."
The government argues that it could indeed be prejudiced
by a defendant's failure to timely raise a ground for suppression.
If appellate review of that omitted ground is successful,
convictions may be vacated even though the government may have had
other evidence of guilt that, with proper notice, could have been
-17-
introduced at trial. Furthermore, the timely presentation of
suppression claims to the district court allows full development of
the factual record and permits the government to appeal any adverse
suppression decision prior to trial.
We agree with the government's position. There is the
potential for both unfairness to the government and needless
inefficiency in the trial process if defendants are not required,
at the risk of waiver, to raise all of their grounds in pursuing a
motion to suppress. Hence, the reasoning of Walker on the import
of the waiver language of Rule 12(e) applies as well to the failure
to include a particular ground in a motion to suppress. Of course,
as we noted in Walker, defendants are not without recourse. If a
defendant can show "good cause" for failing to timely raise a
12(b)(3) challenge, that challenge "may be entertained by the
district court and reviewed on appeal." Walker, 665 F.3d at 228;
see also Fed. R. Crim. P. 12(e).
Crooker argues that his trial counsel's failure to raise
the particularity issue in the motion to suppress amounted to
ineffective assistance of counsel, which in turn constituted good
cause. We need not decide whether the government is correct that
a defendant must bring his good cause argument to the attention of
the district court before having it reviewed by this court. Even
assuming arguendo that a good cause argument can be raised for the
first time on appeal, and further assuming that a successful
-18-
ineffective assistance of counsel claim could constitute good
cause, we would not be able to review Crooker's ineffective
assistance of counsel claim because the record here is
insufficiently developed. See, e.g., United States v. Rodriguez,
675 F.3d 48, 56 (1st Cir. 2012) ("It is only in exceptional cases
when there are no 'critical' facts in dispute and the record has
been sufficiently developed that we will address an ineffective
assistance of counsel claim on direct appeal.").
B. Motion to Suppress Crooker's Statements
"A person need not be under arrest for Miranda rights to
arise[, b]ut he must be in 'custody.'" United States v. Guerrier,
669 F.3d 1, 6 (1st Cir. 2011) (internal citation omitted); see also
Miranda v. Arizona, 384 U.S. 436 (1966). To determine whether a
person was in custody for Miranda purposes, the district court
looks to the circumstances surrounding the questioning and
determines "whether those circumstances would cause a reasonable
person to . . . underst[and] his situation to be comparable to a
formal arrest." Guerrier, 669 F.3d at 6. "Several factors guide
this analysis, including '(without limitation) where the
questioning occurred, the number of officers, the degree of
physical restraint, and the duration and character of the
interrogation.'" Id. (quoting United States v. Teemer, 394 F.3d
59, 66 (1st Cir. 2005)). We review a district court's factual
determinations about the circumstances surrounding the questioning
-19-
for clear error, and its legal conclusion about a reasonable
person's understanding of those circumstances de novo. United
States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011).
Crooker alleges that law enforcement agents failed to
advise him of his Miranda rights, but nevertheless subjected him to
a series of custodial interrogations on the day of the search.
Crooker argues that he was interrogated on more than one occasion
and that, under the totality of the circumstances, a reasonable
person in his situation would not have felt free to leave. He
notes that the environment was "police-dominated," with
approximately thirty officers present during the execution of the
search warrant, some of whom "forced [him] outside, at gunpoint,
and searched him." He claims that he was escorted and followed by
agents and that soon after being searched by the entry team, he was
again frisked by other agents. He adds that the fact that he asked
agents if he could leave illustrates that a reasonable person in
those circumstances would not have felt free to leave. Moreover,
he points to the testimony of Agent Curran, who stated that at the
time of the search, he was unsure if Crooker was free to leave.
Because he was subjected to custodial interrogations without the
benefit of Miranda warnings, Crooker insists that the statements
admitted against him should have been suppressed.
The district court disagreed. It found that the agents'
interactions with Crooker were consensual – the officers asked
-20-
Crooker if they could talk to him and noted that there was "no
testimony that there were any weapons drawn, any shouting, any use
of profanity." The court found that Crooker freely walked around
the property and that the officers were "fairly calm and polite and
accommodating." The district court determined that "[t]here was no
evidence that there was any imposition of any custody on Mr. Jake
Crooker at the time of the conversations. This was simply not a
custodial interrogation, Miranda didn't apply, and Mr. Jake
Crooker's statements were all perfectly voluntary and knowing and
intelligent."
Our review leads to the same conclusion. Crooker was
questioned in familiar surroundings where, in general, questioning
tends to be significantly less intimidating than questioning in
unfamiliar locations. See Hughes, 640 F.3d at 435-36 ("Though
questioning in a suspect's dwelling may at times comprise a
custodial interrogation, such a location generally presents a less
intimidating atmosphere than, say, a police station." (internal
citation omitted)). Although there were numerous officers on the
property, those officers holstered their guns after the entry team
cleared the house and left them holstered throughout the afternoon-
long search. Cf. id. at 436 (finding no custody where visible
weapons remained holstered throughout visit to suspect's home).
Moreover, although those officers were present inside and around
Crooker's house, no more than two agents were in direct
-21-
conversation with Crooker at one time. Crooker was never
physically restrained, and, in fact, moved freely about his
property throughout the search, even leaving the property for some
time after he was questioned. See id. (finding no custody where
there was no "meaningful physical restraint" and any police escort
was not so pervasive and close "as to intrude upon any intimate
moment or private activity"). By all accounts, Crooker's
interactions with the agents were cooperative and relatively brief.
See Guerrier, 669 F.3d at 6 (finding no custody where interview
atmosphere was "relatively calm and nonthreatening" and interview
lasted approximately 20-25 minutes, "a relatively short time").
Given the familiarity of the surroundings in which
Crooker was questioned, the calm and peaceable nature of the
conversations between Crooker and agents, and the lack of physical
restraint or show of force during questioning, we conclude that
Crooker was not in custody for Miranda purposes. Thus, the agents'
failure to advise Crooker of his Miranda rights was not a
constitutional violation, and the district court did not err by
denying Crooker's motion to suppress his statements.
Affirmed.
-22-