United States v. Craighead

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10135
Plaintiff-Appellee,
v.  D.C. No.
CR-04-02351-JMR
ERNEST CRAIGHEAD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
February 12, 2008—San Francisco, California
Filed August 21, 2008
Before: Sidney R. Thomas and Jay S. Bybee, Circuit Judges,
and Frederic Block,* Senior District Judge.
Opinion by Judge Bybee
*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
11325
11330 UNITED STATES v. CRAIGHEAD
COUNSEL
Celeste Corlett, Assistant United States Attorney, United
States Attorney for the District of Arizona, Tucson, Arizona,
for plaintiffs-appellee.
Steven D. West, Tucson, Arizona, for the defendant-appellant.
OPINION
BYBEE, Circuit Judge:
The home occupies a special place in the pantheon of con-
stitutional rights. Under the First Amendment, the “State has
no business telling a man, sitting alone in his house, what
books he may read or what films he may watch.” Stanley v.
Georgia, 394 U.S. 557, 565 (1969). The Second Amendment
prohibits a federal “ban on handgun possession in the home.”
District of Columbia v. Heller, 554 U.S. ___, ___ (2008), slip
op. 64. The Third Amendment forbids quartering soldiers “in
any house” in time of peace “without the consent of the
Owner.” U.S. CONST. amend. III. The Fourth Amendment pro-
tects us against unreasonable searches or seizures in our “per-
sons, houses, papers, and effects.” Id. amend. IV. The
question presented in this case is one of first impression in our
court: under what circumstances under the Fifth Amendment
does an interrogation by law enforcement officers in the sus-
pect’s own home turn the home into such a police-dominated
atmosphere that the interrogation becomes custodial in nature
and requires Miranda warnings?
Appellant Ernest D. Craighead appeals his conviction fol-
lowing entry of a conditional guilty plea for transportation,
UNITED STATES v. CRAIGHEAD 11331
shipping, and possession of child pornography. A search of
Craighead’s home computer system revealed numerous mov-
ies and images depicting child pornography. On appeal, as his
plea agreement permits, he renews his argument that he is
entitled to an evidentiary hearing under Franks v. Delaware,
438 U.S. 154, 155-56 (1978), because the affidavit used to
obtain the warrant for this search depended on misleading
statements and omissions. Craighead also renews his argu-
ment that his confession to having downloaded and stored
child pornography on his computer system should be sup-
pressed because the interrogation in his home was custodial
and he was not read his Miranda rights.
We have jurisdiction under 28 U.S.C. § 1291. We affirm
the district court’s ruling that Craighead was not entitled to a
Franks hearing because Craighead did not properly allege that
any specific portion of the warrant was actually false or mis-
leading. On the Miranda question, we reverse the district
court’s ruling that the interrogation in Craighead’s home was
not custodial and that Miranda warnings were not required.
Craighead’s self-incriminating statements should have been
suppressed. We remand for further proceedings.
I
A
Craighead first came to the FBI’s attention in 2004. At that
time, Craighead was an electronic warfare technician in the
U.S. Air Force. On July 13, Special Agent Robin Andrews
(“SA Andrews”), a seventeen-year FBI veteran, logged onto
the LimeWire peer-to-peer file-sharing network to conduct
undercover surveillance of child pornography distribution.
Using LimeWire, SA Andrews entered a search term that she
knew was associated with graphic files depicting child por-
nography. Her search revealed that a computer using IP
address 68.0.185.111 was sharing files that, by their titles,
appeared related to child pornography. SA Andrews down-
11332 UNITED STATES v. CRAIGHEAD
loaded two of these images, and confirmed that they depicted
prepubescent females in sexually explicit positions. She
attempted to download a third image but received the mes-
sage, “Waiting for Busy Host.” SA Andrews knew from expe-
rience that this message indicates that the server will not
permit the download because demand for the image has over-
loaded its capacity to supply it.
Using a publicly-accessible online database, SA Andrews
determined that IP address 68.0.185.111 was owned by Cox
Communications. By administrative subpoena to Cox Com-
munications, SA Andrews learned that IP address
68.0.185.111 was assigned to Ernest Craighead’s residence in
base housing on Davis-Monthan Air Force Base in Tucson,
Arizona. The subpoena listed Craighead’s address and tele-
phone number. SA Andrews then corroborated the name,
address, and telephone number by running a driver’s licence
check, querying the County Clerk’s Office, and contacting the
Air Force Office of Special Investigations (“OSI”). On July
26, 2004, SA Andrews swore out an affidavit for a search
warrant. The warrant was authorized the same day by Magis-
trate Judge Glenda Edmonds.
The search warrant for Craighead’s residence on the Air
Force base was executed at approximately 8:40 A.M. on July
27, 2004. Eight law enforcement officers, representing three
different agencies, went to Craighead’s residence: five FBI
agents, a detective from the Pima County Sheriff’s Depart-
ment, and two members from the OSI. All of these law
enforcement officers were armed; some of them unholstered
their firearms in Craighead’s presence during the search. All
of the FBI agents were wearing flak jackets or “raid vests.”
Two non-agents accompanied the law enforcement officers:
an FBI evidence control clerk, and Air Force Sergeant Mike
Ramsey, who the government later represented was present
for Craighead’s “emotional support.”
UNITED STATES v. CRAIGHEAD 11333
At the hearing on Craighead’s motion to suppress, SA
Andrews testified that while other officers executed the search
warrant, she introduced herself to Craighead as Robin
Andrews from the FBI. She also introduced Jeff Englander,
the detective from Pima County. She told Craighead that the
two of them would like to talk with him about the search war-
rant. She told him that he was not under arrest, that any state-
ment he might make would be voluntary, and that he would
not be arrested that day regardless of what information he pro-
vided. SA Andrews also testified that she told Craighead that
he was free to leave.1
SA Andrews and Detective Englander then directed Craig-
head to a storage room at the back of his house, “where [they]
could have a private conversation.” SA Andrews did not
handcuff Craighead at any point while escorting him to the
storage room nor during the interview that followed. As SA
Andrews described the storage room, it was cluttered with
boxes. She could not recall whether Craighead sat on a box,
or whether he sat on a chair grabbed from the kitchen. SA
Andrews squatted on the ground, taking notes. Detective
Englander stood leaning against the wall near the exit, with
his back to the door. Detective Englander wore a flak jacket
and a sidearm. SA Andrews testified that they shut the door
“for privacy.” Although Sergeant Ramsey had ostensibly been
brought along to provide emotional support for Craighead, he
was not permitted to accompany Craighead into the storage
room. SA Andrews testified that this was because he was
“non-law enforcement” and therefore would “never” be per-
mitted to be present during an FBI interview.
The interview lasted approximately twenty to thirty min-
utes. SA Andrews testified that it was her practice to tell inter-
viewees that they are “free to leave” at the beginning of each
1
Craighead denied that he was told he was free to leave. The district
court, however, found SA Andrews’ testimony credible, and thus found
that SA Andrews did tell Craighead he was free to leave.
11334 UNITED STATES v. CRAIGHEAD
interview, even if she has already told them this when escort-
ing them to the interview location. However, she could not
recall whether she actually repeated this statement to Craig-
head after they entered the back storage room and she closed
the door. During the interview, SA Andrews did not make any
threats or promises to induce Craighead to speak. She did not
use any force. She did not read Craighead the Miranda warn-
ings.
Craighead testified that he felt that he was not free to leave
because he “would have either had to have moved [Detective
Englander] or asked him to move.” He also testified that the
“prevailing mood of the morning” left him with the impres-
sion that he was not free to leave. He knew there were mem-
bers of three different law enforcement agencies present in his
home: the FBI, the Pima County Sheriff’s Department, and
the Air Force OSI. He believed that even if SA Andrews per-
mitted him to leave, members of the other two law enforce-
ment agencies would not. He was concerned that the agencies
had not coordinated and so members of the other agencies
might not know that SA Andrews had authorized him to
leave. Similarly, he was unsure if he needed permission from
all three agencies to leave, or if the Air Force investigators
believed that he needed such permission.
Craighead also testified that he was unaware during the
interview that Sergeant Ramsey had been invited to provide
emotional support. Rather, as Craighead explained, Sergeant
Ramsey was his “first sergeant,” a superior with authority
over him. Craighead assumed Sergeant Ramsey was required
to be there by Air Force regulation. It was not until after
everyone had left his house that he had a moment to speak
with Sergeant Ramsey and discover the reason for Sergeant
Ramsey’s presence.
During the interview, Craighead admitted that he down-
loaded child pornography using LimeWire, that he stored
child pornography on his computer, and that he had saved
UNITED STATES v. CRAIGHEAD 11335
some to a disk. Craighead was not arrested at the end of the
interview. He was never arrested at any time prior to his con-
viction; he appeared in court by summons only.
The search resulted in the seizure of the hard drive and
loose storage media (compact discs and 3.5-inch floppy dis-
kettes) from Craighead’s computer. The FBI computer foren-
sics expert located sixteen movies of various lengths depicting
child pornography on the hard drive of Craighead’s computer.
The movies were found in a folder titled “PTHC,” which the
FBI expert testified based on his experience stands for “Pre-
Teen Hard Core.” The loose storage media contained fifteen
images and three movies depicting child pornography. The
two files that SA Andrews had downloaded on July 13, 2004,
were not located on Craighead’s computer. The FBI expert
was able to locate on the computer multiple exact references
to the file name of the first file downloaded by the FBI—a file
name consisting of a long string of explicit words related to
child pornography. Neither the image itself nor references to
the file name of the second file were located.
B
In November 2004, Craighead was indicted for Transporta-
tion and Shipping of Child Pornography, in violation of 18
U.S.C. §§ 2252(a)(1) and (b)(1); and Possession of Child Por-
nography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
(b)(2).
In February 2006, Craighead filed a Motion to Suppress
Evidence Illegally Seized, arguing that he was entitled to a
Franks hearing because SA Andrews’ search warrant affidavit
contained false and unreliable information. Oral argument on
the motion was held on April 6, 2006 and again on July 6,
2006. Craighead’s claim was based on the fact that SA
Andrews observed that the files named in her warrant affida-
vit were available from a computer at Craighead’s IP address,
yet these particular files were never found on Craighead’s
11336 UNITED STATES v. CRAIGHEAD
computer system. Craighead’s claim was that someone else
could have hacked into his computer and downloaded the
named files. Craighead provided an affidavit by his forensic
computer expert, Tami Loerhs, which provided general infor-
mation regarding the widespread risks of computer hacking,
IP spoofing, internet hijacking, and internet theft. Loerhs
averred that she had performed an examination of Craighead’s
computer, and could not locate the two downloaded files.
The district court denied the request for a Franks hearing,
ruling that Craighead did not satisfy his burden of proof as to
any alleged falseness in SA Andrews’ affidavit. The court rea-
soned that the theory that someone had hacked into Craig-
head’s computer, even if credible, would be relevant to
Craighead’s guilt or innocence of the criminal charges, not to
the truthfulness of SA Andrews’ affidavit.
On the same day that Craighead filed his motion for a
Franks hearing, he also filed a Motion to Suppress Statements
Taken in Violation of Miranda. After hearing testimony and
oral argument, the district court held that the interrogation in
Craighead’s home was not custodial and therefore that
Miranda warnings were not required.
On August 7, 2006, Craighead entered a conditional guilty
plea to both counts in the indictment, while preserving the
right to appeal his Franks claim and his Miranda claim.
Craighead was sentenced to 78 months’ imprisonment, fol-
lowed by a term of supervised release for life.
II
[1] We first consider Craighead’s claim that the district
court erroneously denied him an evidentiary hearing under
Franks when Craighead alleged falsity in the affidavit used to
secure a search warrant for his house. A defendant is entitled
to an evidentiary hearing if he “makes a substantial prelimi-
nary showing that a false statement knowingly and intention-
UNITED STATES v. CRAIGHEAD 11337
ally, or with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause.”
Franks, 438 U.S. at 155-56. To justify a hearing, a defendant
must make specific allegations, allege a deliberate falsehood
or reckless disregard for the truth, and accompany such a
claim with a detailed offer of proof. United States v. Kiser,
716 F.2d 1268, 1271 (9th Cir. 1983). We review a district
court’s refusal to conduct a Franks hearing de novo. United
States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004).
[2] We affirm the district court’s denial of a Franks hearing
on the ground that Craighead failed to properly allege any-
thing that was false or misleading in SA Andrews’ affidavit.2
See 438 U.S. at 171. Craighead first points to SA Andrews’
statement in paragraph 32 of the affidavit that “[t]wo files
from IP address 68.0.185.11 were downloaded by your affi-
ant.” He contends that this statement impermissibly suggests
that the files were downloaded from his computer, when they
were never located on his computer. Craighead’s claim lacks
merit because the statement does not suggest that the files
were downloaded from his computer. The statement commu-
nicates only that SA Andrews downloaded two files that were
listed as available for download from IP address
68.0.185.111. SA Andrews does not aver that the files were
found on Craighead’s computer.
[3] Craighead next argues that SA Andrews impermissibly
omitted any statements from her affidavit relating to IP spoof-
2
We assume for purposes of this appeal that Craighead is correct that
the district court erroneously considered Craighead’s confession and the
fact that child pornography was eventually found on Craighead’s com-
puter as a basis for denying the Franks hearing. We assume without decid-
ing that the evidence obtained from a fruitful search may not be used to
cure an affidavit based on deliberately or recklessly false or misleading
statements. We may affirm the district court’s judgment on any ground the
record supports, United States v. Lehman, 792 F.2d 899, 901 (9th Cir.
1986), and therefore we affirm for the reasons stated above.
11338 UNITED STATES v. CRAIGHEAD
ing, internet hijacking, and internet theory. His theory, appar-
ently, is that had SA Andrews included this information, the
magistrate judge would have understood the possibility that,
despite the IP address connection, the files may not have orig-
inated on Craighead’s computer. It is true that “deliberate or
reckless omissions of facts that tend to mislead” can be
grounds for a Franks hearing. United States v. Stanert, 762
F.2d 775, 781 (9th Cir. 1985). However, the omission rule
does not require an affiant to provide general information
about every possible theory, no matter how unlikely, that
would controvert the affiant’s good-faith belief that probable
cause existed for the search. SA Andrews did not commit a
misleading omission by failing to omit from her affidavit gen-
eral knowledge about computer hacking that might support
how, hypothetically, Craighead may not have downloaded to
his own computer the files that SA Andrews downloaded
from Craighead’s IP address. See United States v. Kelley, 482
F.3d 1047, 1053 (9th Cir. 2007) (holding that an affidavit’s
failure to raise the possibility that emails containing child por-
nography could have been unsolicited spam was not a mis-
leading omission); cf. United States v. Hay, 231 F.3d 630, 638
(9th Cir. 2000) (holding that a district court’s failure to con-
sider theories such as spamming or automated bulk download-
ing that might support the unlikely possibility that the suspect
did not actually transmit 19 images of child pornography him-
self did not constitute error in a probable cause determina-
tion).
[4] Finally, Craighead points to SA Andrews’ statements
about what files were available to download via LimeWire
and which files were actually downloaded. In paragraph 32 of
the warrant affidavit, SA Andrews stated that she ran a search
and “viewed the results of the search and observed multiple
files available to be viewed and downloaded by others at IP
address 68.0.185.111” and that she downloaded two of these
files. In paragraph 33, SA Andrews stated that “[n]umerous
other files were also available for downloading from IP
address 68.0.185.111” and then listed seven of those file-
UNITED STATES v. CRAIGHEAD 11339
names as a “sampling.” Craighead argues that SA Andrews
impermissibly failed to state that the filenames shown in para-
graph 33 were merely text in a search results window and that
it was not possible to know whether these files actually
existed unless SA Andrews had successfully downloaded
them. This argument lacks merit. SA Andrews’ statements in
these two paragraphs communicate only that her search indi-
cated that numerous files were available for download from
the listed IP address. None of SA Andrews’ statements in
paragraphs 32 and 33 amount to an averment, express or
implied, that she knew that all of the files whose names
appeared in the search results window actually existed on
Craighead’s computer. On the contrary, in paragraph 34, SA
Andrews expressly stated that she attempted to download one
of the files listed in paragraph 33 but was unable to do so
because the server was overloaded. Nowhere did she indicate
that she had attempted to download or otherwise verify the
location of the other files whose names she listed in paragraph
33.
[5] Craighead did not point to one specific statement in the
affidavit that was false or misleading. Therefore, he did not
meet his burden to demonstrate cause for a Franks hearing.
Because he failed to allege a false or misleading statement,
we do not reach the issues of whether these statements were
made intentionally or with reckless disregard for the truth or
whether they were necessary to the finding of probable cause.
See Franks, 438 U.S. at 155-56; United States v. Bennett, 219
F.3d 1117, 1124 (9th Cir. 2000). We affirm the district court’s
denial of a Franks hearing.
III
We turn to Craighead’s claim that the district court errone-
ously denied his motion to suppress on the ground that Craig-
head was not given the Miranda warnings to which he was
entitled. We review a denial of a motion to suppress and
whether a defendant is constitutionally entitled to Miranda
11340 UNITED STATES v. CRAIGHEAD
warnings de novo. United States v. Crawford, 372 F.3d 1048,
1053 (9th Cir. 2004) (en banc). We review the underlying fac-
tual findings for clear error. Id. Where testimony is taken, we
give special deference to the district court’s credibility deter-
minations. See United States v. Nelson, 137 F.3d 1094, 1110
(9th Cir. 1998).
A
[6] The Fifth Amendment provides that “[n]o person . . .
shall be compelled in any criminal case to be a witness
against himself.” U.S. CONST. amend. V. In Miranda v. Ari-
zona, the Supreme Court adopted prophylactic procedural
measures to guarantee that a suspect is advised of his Fifth
Amendment rights before custodial interrogations. 384 U.S.
436, 444-45 (1966). These protections are constitutional in
nature. See Dickerson v. United States, 530 U.S. 428 (2000).
The parties agree that Craighead was interrogated but not
given Miranda warnings. Therefore, the only issue before us
is whether Craighead was in custody at the time of his interro-
gation.
In cases such as this in which the suspect has not formally
been taken into police custody, a suspect is nevertheless con-
sidered “in custody” for purposes of Miranda if the suspect
has been “deprived of his freedom of action in any significant
way.” 384 U.S. at 444. To determine whether the suspect was
in custody, we first examine the totality of the circumstances
surrounding the interrogation. See Thompson v. Keohane, 516
U.S. 99, 112 (1995). We then ask whether a reasonable person
in those circumstances would “have felt he or she was not at
liberty to terminate the interrogation and leave.” Id.; see also
Berkemer v. McCarty, 468 U.S. 420, 442 & n.35 (1984).
Accordingly, taking into account the totality of the circum-
stances, we must decide whether a reasonable person in
Craighead’s position would have felt deprived of his freedom
of action in any significant way, such that he would not have
felt free to terminate the interrogation.
UNITED STATES v. CRAIGHEAD 11341
Applying this standard to an interrogation conducted within
the home presents some analytical challenges, however, and
presents an issue on which our court thus far has said little.
The usual inquiry into whether the suspect reasonably
believed he could “leave” the interrogation does not quite
capture the uniqueness of an interrogation conducted within
the suspect’s home. “Home,” said Robert Frost, “is the place
where, when you go there, they have to take you in.” Robert
Frost, The Death of the Hired Man, in THE POETRY OF ROBERT
FROST 38 (Edward C. Latham ed., 1967). If a reasonable per-
son is interrogated inside his own home and is told he is “free
to leave,” where will he go? The library? The police station?
He is already in the most constitutionally protected place on
earth. To be “free” to leave is a hollow right if the one place
the suspect cannot go is his own home. Cf. Crawford, 372
F.3d at 1060 (holding that an interrogation at an FBI office
was not custodial because, inter alia, the defendant was told
he was free to leave and “was, in fact, returned home at the
end of the interview”). Similarly, a reasonable person interro-
gated inside his own home may have a different understand-
ing of whether he is truly free “to terminate the interrogation”
if his home is crawling with law enforcement agents conduct-
ing a warrant-approved search. He may not feel that he can
successfully terminate the interrogation if he knows that he
cannot empty his home of his interrogators until they have
completed their search. We must, therefore, consider how to
apply the traditional Miranda inquiry to an in-home interroga-
tion.
[7] An interrogation conducted within the suspect’s home
is not per se custodial. See Beckwith v. United States, 425
U.S. 341, 342-43, 347 (1976). On the contrary, courts have
generally been much less likely to find that an interrogation
in the suspect’s home was custodial in nature. United States
v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994); 2 WAYNE R.
LAFAVE, CRIMINAL PROCEDURE § 6.6(e) (3d ed. 2007). The ele-
ment of compulsion that concerned the Court in Miranda is
less likely to be present where the suspect is in familiar sur-
11342 UNITED STATES v. CRAIGHEAD
roundings. See Orozco v. Texas, 394 U.S. 324, 326 (1969).
Nevertheless, an interrogation in the suspect’s home may be
found to be custodial under certain circumstances. See id. at
325-26 (holding that an interrogation was custodial where
four police officers arrived at the suspect’s home, entered the
bedroom, and behaved as though the suspect was not free to
leave while he was questioned).
[8] Miranda held that warnings were required when the
person being interrogated was “in custody at the station or
otherwise deprived of his freedom of action in any significant
way.” 384 U.S. 436, 477 (1966). The Court held that certain
essential salient features made situations in which the suspect
was “otherwise deprived of his freedom of action” similar to
those in which the suspect was taken into custody at the
police station, id., specifically, “incommunicado interrogation
of individuals in a police-dominated atmosphere.” Id. at 445(stating that the salient feature was that the suspect was “cut
off from the outside world”). Drawing on this reasoning,
when applying Miranda to the task of sorting a non-custodial
in-home interrogation from a custodial one, our analysis con-
siders the extent to which the circumstances of the interroga-
tion turned the otherwise comfortable and familiar
surroundings of the home into a “police-dominated atmo-
sphere.”
Our approach of using the “police-dominated atmosphere”
as the benchmark for custodial interrogations in locations out-
side of the police station is consistent with the Supreme
Court’s adaptations of Miranda to these types of locations.
See Berkemer, 468 U.S. at 438-39 (holding that Miranda
warnings are not required at an ordinary traffic stop because
the atmosphere there “is substantially less ‘police dominated’
than that surrounding the kinds of interrogation at issue in
Miranda itself”). This approach has also been taken by our
sister circuits that have considered whether an in-home inter-
rogation was “custodial” under Miranda. See, e.g., United
States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007) (con-
UNITED STATES v. CRAIGHEAD 11343
cluding that the suspect’s home had become a “police-
dominated environment” because “the facts belie any conclu-
sion that [the suspect’s] home, on the morning of the ques-
tioning at issue, was the traditional comfortable environment
that we normally would consider a neutral location for ques-
tioning.”); United States v. Mittel-Carey, 493 F.3d 36, 40 (1st
Cir. 2007) (finding suspect was in custody although interro-
gated in his home because of the “level of physical control
that the agents exercised over” the suspect); Sprosty v.
Buchler, 79 F.3d 635, 641 (7th Cir. 1996) (“More important
than the familiarity of the surroundings where [the suspect]
was being held is the degree to which the police dominated
the scene.”); United States v. Griffin, 922 F.2d 1343, 1354-55
(8th Cir. 1990) (“Questioning which occurs in the suspect’s
own home may provide a margin of comfort, but . . . the set-
ting of the interrogation is not so important to the inquiry as
the question of police domination of that setting.”).
B
[9] The determination of whether an in-home interrogation
was custodial “is necessarily fact intensive.” United States v.
Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993). Although our
opinion today “should not be interpreted as an exhaustive pro-
nouncement,” id., reviewing the facts of Craighead’s case and
the relevant factors identified by our sister circuits, we con-
clude that several factors are relevant to whether the circum-
stances of Craighead’s interrogation effected a police-
dominated atmosphere: (1) the number of law enforcement
personnel and whether they were armed; (2) whether the sus-
pect was at any point restrained, either by physical force or by
threats; (3) whether the suspect was isolated from others; and
(4) whether the suspect was informed that he was free to leave
or terminate the interview, and the context in which any such
statements were made.3 We address each factor in turn.
3
Other circuits have identified various lists of relevant factors for deter-
mining when an in-home interrogation is custodial. See, e.g., Revels, 510
11344 UNITED STATES v. CRAIGHEAD
1
[10] First, we consider the number of law enforcement per-
sonnel and whether they were armed. When a large number
of law enforcement personnel enter a suspect’s home, they
may fill the home such that there are no police-free rooms or
spaces to which the suspect may retreat should he wish to ter-
minate the interrogation. Similarly, when the number of law
enforcement personnel far outnumber the suspect, the suspect
may reasonably believe that, should he attempt to leave, he
will be stopped by one of the many officers he will encounter
on the way out. The suspect may also believe that the large
number of officers was brought for the purpose of preventing
his departure. In addition, if the suspect sees the officers
unholstering their weapons within his home, the suspect may
reasonably believe that his home is no longer safe from the
threat of police force. In short, the presence of a large number
of visibly armed law enforcement officers goes a long way
towards making the suspect’s home a police-dominated atmo-
sphere. See Mittel-Carey, 493 F.3d at 38, 40 (finding that the
presence of eight officers in the home, one of whom unhol-
stered his gun, contributed to a police-dominated environ-
F.3d at 1275 (listing: whether the atmosphere was police dominated;
whether the nature and length of the officers’ questioning was accusatory
or coercive; and whether the suspect was informed that statements were
voluntary and she was free to leave); Mittel-Carey, 493 F.3d at 39 (listing:
whether the suspect was questioned in familiar surroundings; the number
of law enforcement officers present; whether the suspect was restrained;
and the character of the interrogation); Sprosty, 79 F.3d at 641 (listing:
whether “and to what extent” the suspect was informed that questioning
was voluntary; whether police have employed subterfuge; the degree to
which the interrogation is “police dominated”; whether the suspect was
restrained; whether the suspect could reasonably believe he could termi-
nate the interrogation and leave); Griffin, 922 F.2d at 1348-49 (listing:
purpose, place, and length of interrogation; whether the suspect was
informed that he was free to leave; whether the suspect was restrained;
whether the suspect initiated contact; whether strong arm tactics were
employed; whether the atmosphere was police-dominated; whether the
suspect was arrested at the termination of questioning).
UNITED STATES v. CRAIGHEAD 11345
ment); Revels, 510 F.3d at 1270 (seven officers from two
different agencies); Sprosty, 79 F.3d at 638, 642 (five officers,
one of whom was visibly armed and in uniform, who sur-
rounded the suspect in two police cars).
[11] Here, eight law enforcement officers, representing
three different law enforcement agencies, entered Craighead’s
home. They were accompanied by two others, one of whom
was Craighead’s Air Force superior. All of the law enforce-
ment personnel were armed, some wore protective gear, and
some of them unholstered their firearms in Craighead’s pres-
ence. The fact that the personnel represented three different
law enforcement agencies was particularly relevant to Craig-
head’s understanding of events. He testified that he was
unclear as to whether the agencies were acting in coordina-
tion. The presence of the different agencies led him to doubt
whether SA Andrews spoke for all of the agencies (or if she
was required to) when she informed him that his statements
were voluntary and that he was free to leave. A reasonable
person in Craighead’s position would feel that his home was
dominated by law enforcement agents and that they had come
prepared for a confrontation.
2
[12] Second, we consider whether the suspect was at any
point restrained, either by physical force or by threats. When
law enforcement agents restrain the ability of the suspect to
move—particularly through physical restraints, but also
through threats or intimidation—a suspect may reasonably
feel he is subject to police domination within his own home
and thus not free to leave or terminate the interrogation.
Orozco, 394 U.S. at 325, 327 (finding custody where four
officers entered the suspect’s bedroom and acted as though he
was “not free to leave,” but did not actually handcuff or phys-
ically subdue the suspect); Revels, 510 F.3d at 1276-77 (find-
ing that handcuffing of suspect upon entry into her home by
law enforcement contributed to a custodial environment);
11346 UNITED STATES v. CRAIGHEAD
Sprosty, 79 F.3d at 642-43 (finding that police officers’ use of
their police cars to block the suspect’s driveway to prevent his
departure, and their standing so as to block the suspect’s exit
path from his home, contributed to a custodial environment);
Griffin, 922 F.2d at 1350 (discussing restraint as a factor).
Restraint amounting to custody may also be inferred where
law enforcement officers permit the suspect to move around
the house for brief periods but insist on escorting and moni-
toring him at all times. See Mittel-Carey, 493 F.3d at 40 (find-
ing an interrogation custodial where the suspect was escorted
by agents on the three occasions that he was permitted to
leave the interrogation space, including while he used the
bathroom); Griffin, 922 F.2d at 1350-51 (“We realize that the
likely effect on a suspect of being placed under guard during
questioning, or told to remain in the sight of interrogating
officials, is to associate these restraints with a formal arrest.”)
[13] Craighead was not handcuffed or physically restrained.
However, he was escorted to a back storage room and the
door was closed behind him. Craighead testified that Detec-
tive Englander appeared to him to be leaning with his back to
the door in such a way as to block Craighead’s exit from the
room. Detective Englander wore a flack jacket or “raid vest,”
and was visibly armed. Detective Englander did not partici-
pate in the interrogation by asking questions; he stood silent
with his back to the door facing the suspect. Craighead testi-
fied that he did not feel he had the freedom to leave the stor-
age room because, in order to get to the room’s only door, he
“would have either had to have moved the police detective or
asked him to move.” While perhaps not everyone in this cir-
cumstance would have felt restrained, it was certainly objec-
tively reasonable for Craighead to believe he was under
guard. When viewed in their totality, these facts demonstrate
that Craighead’s freedom of action was restrained in a way
that increased the likelihood that Craighead would succumb
to police pressure to incriminate himself. See Miranda, 384
U.S. at 467.
UNITED STATES v. CRAIGHEAD 11347
[14] At the evidentiary hearing on the Miranda issue, the
government made much of the fact that Craighead was taller
and larger in physical stature than both Detective Englander
and SA Andrews. The government’s argument appears to be
that, because he was so much bigger, Craighead would not
have felt intimidated or guarded by the two agents during the
interview. This reasoning is untenable. When we consider
whether a suspect would feel free to leave or terminate the
interrogation, we do not presume that the suspect is consider-
ing accomplishing these goals by force. Miranda’s conception
of “custody” does not depend on whether the suspect reason-
ably believes he can overpower his interrogators. On the con-
trary, we presume that citizens accord officers of the law
respect no matter what their relative sizes. Indeed, Craighead
testified that even though he was taller and heavier than
Detective Englander, he found him to be “physically intimi-
dating” because “[h]e represents law enforcement,” and, we
would add, he was armed. Far from accepting the govern-
ment’s invitation to discount these statements due to Craig-
head’s size, we laud Craighead’s instinct to afford respect and
deference to an officer of the law.
[15] We understand that in many cases, when law enforce-
ment agents conduct an in-home interrogation while conduct-
ing a lawful search of the home, physical control of the
suspect will be necessary to preserve evidence and protect the
safety of the agents. The fact that these precautions may be
necessary to the success of the lawful search does not lessen
their tendency to make a reasonable person believe he is in
custody. We agree with the First Circuit that:
If the government is correct that the agents’ actions
were necessary for evidence preservation and officer
safety, then it could have chosen to postpone the
interrogation until a non-custodial moment, or to
Mirandize [the suspect]. Either step would have pro-
tected both the defendant’s constitutional rights and
the officers’ legitimate law enforcement needs.
11348 UNITED STATES v. CRAIGHEAD
Mittel-Carey, 493 F.3d at 40.
3
[16] Third, we consider whether the suspect was isolated
from others. The Supreme Court highlighted isolation from
the outside world as perhaps the crucial factor that would tend
to lead a suspect to feel compelled to provide self-
incriminating statements. Miranda, 384 U.S. at 445-46, 449-
50; see also id. at 448 (raising the concern that interrogations
conducted in private are difficult to monitor for abusive tech-
niques and have been associated with past practices of unlaw-
ful interrogation). “A frequently recurring example of police
domination concerns the removal of the suspect from the
presence of family, friends, or colleagues who might lend
moral support during the questioning and deter a suspect from
making inculpatory statements . . . .” Griffin, 922 F.2d at
1352; see also Revels, 510 F.3d at 1275; Sprosty, 79 F.3d at
641. In this case, Sergeant Ramsey was specifically asked to
accompany the law enforcement agents to Craighead’s home
to provide “emotional support” for Craighead. Yet, SA
Andrews did not permit Sergeant Ramsey to accompany
Craighead into the dark recess of the back storage room where
the interrogation took place. The fact that Craighead did not
even realize that Sergeant Ramsey was there to provide emo-
tional support only underscores this point; he might have dis-
covered Sergeant Ramsey was there to offer emotional
support if SA Andrews had in fact permitted Sergeant Ram-
sey to accompany Craighead into the storage room and pro-
vide such support.
[17] SA Andrews testified that Sergeant Ramsey was not
permitted to remain with Craighead because he was “non-law
enforcement” and therefore would never be permitted to be
present during an FBI interview. The record does not present
evidence of any policy, formal or otherwise, to this effect.
Moreover, the record does not indicate whether such a policy,
if it exists, is directed to all interrogations or only interroga-
UNITED STATES v. CRAIGHEAD 11349
tions conducted after Miranda warnings are given. If such a
policy does exist, the fact that the FBI may choose to exclude
all “non-law enforcement” individuals from all of its interro-
gations does not make the interrogations less custodial in
nature. On the contrary, the Supreme Court was explicit that
the law enforcement technique of isolating the suspect from
family and friends is one of the distinguishing features of a
custodial interrogation. See Miranda, 384 U.S. at 445-46,
448-50. Moreover, the fact that the FBI excluded non-law
enforcement reinforces our understanding that the FBI con-
trolled Craighead’s environment; it is difficult to see how
Craighead was free to leave if he was, apparently, not free to
invite others into the storage room of his own house. The FBI
may exclude whomever it chooses from an interrogation;
Miranda requires that if the FBI isolates the suspect, and the
suspect does not reasonably believe he is free to leave, warn-
ings must be given.
4
[18] Fourth, we consider whether the suspect was informed
that questioning was voluntary and that he was free to leave
or terminate the interview. If a law enforcement officer
informs the suspect that he is not under arrest, that statements
are voluntary, and that he is free to leave at any time, this
communication greatly reduces the chance that a suspect will
reasonably believe he is in custody. Griffin, 922 F.2d at 1349.
SA Andrews told Craighead that he was not under arrest and
that he would not be arrested that day regardless of what
information he provided. She told Craighead his statements
were voluntary. She also told Craighead that he was free to
leave, although she could not recall whether she told him this
once she had escorted him to the back storage room and
closed the door, or whether she told him this when she first
introduced herself to him in the living room. The fact that SA
Andrews made these statements weighs against a finding of
custody.
11350 UNITED STATES v. CRAIGHEAD
[19] The mere recitation of the statement that the suspect
is free to leave or terminate the interview, however, does not
render an interrogation non-custodial per se. We must con-
sider the delivery of these statements within the context of the
scene as a whole. See United States v. Lee, 699 F.2d 466, 467-
68 (9th Cir. 1982) (per curiam) (holding that an interrogation
was custodial even though the interrogating FBI agents told
the suspect that he was free to leave or terminate the interview
at any time because the suspect was questioned in a closed
FBI car for over an hour while police investigators searched
the house). The Miranda test for custody does not ask
whether the suspect was told that he was free to leave; the test
asks whether “a reasonable person [would] have felt he or she
was not at liberty to terminate the interrogation and leave.”
Thompson, 516 U.S. at 112 (emphasis added).
[20] Although our past cases have not considered in-home
interrogations, they are instructive on how to interpret an
agent’s statement that a suspect is free to leave in the context
of where the statement was given. In Crawford, the suspect
was questioned at an FBI office, which is of course far more
like a police station than a home in terms of comfort and
familiarity. The agent repeated more than once during the
interview that the suspect was not under arrest and was free
to leave. We found that the interrogation was not custodial:
“Being aware of the freedom to depart, and in fact departing
after questioning at a law enforcement office, suggest that the
questioning was noncustodial.” Crawford, 372 F.3d at 1060.
Particularly relevant was that the suspect “returned home at
the end of the interview, without being arrested.” Id. In Lee,
however, the suspect was questioned in a closed FBI car
parked in front of his own home by two agents for over an
hour. 699 F.2d at 468. As the car was parked in front of Lee’s
home, it was possible he had his home in sight during the
entire interview. Nevertheless, we held that “considering the
totality of the circumstances a reasonable person could con-
clude that Lee reasonably might feel he was not free to
decline the agent’s request that he be interviewed.” Id. Partic-
UNITED STATES v. CRAIGHEAD 11351
ularly relevant was the fact that “police investigators were in
and around his house.” Id. These cases read together suggest
that an agent’s statement that a suspect is free to leave may
have more or less resonance with the suspect depending on
whether he can leave the interrogation site and retreat to the
safety of his home or whether his home is in fact the locus of
police activity.
[21] Here, several facts lead us to conclude that Craighead
could have reasonably believed he was not free to leave, not-
withstanding that SA Andrews told him he was. Most impor-
tantly, Craighead testified that the presence of agents from
three different law enforcement agencies left him with doubt
as to whether SA Andrews had the authority to pronounce
him free to leave. He believed that even if the FBI permitted
him to leave the storage room, he might be confronted by
members of the other two agencies and forbidden to leave the
house. Before he could leave the room, Craighead would have
had to deal with Detective Englander, who appeared to be
guarding the door to the storage room.
[22] Finally, we consider SA Andrews’ statements that
Craighead was free to leave in the context of the physical
characteristics of the interview location. An interview con-
ducted in a suspect’s kitchen, living room, or bedroom might
allow the suspect to take comfort in the familiar surroundings
of the home and decrease the sensation of being isolated in a
police-dominated atmosphere. Here, SA Andrews escorted the
suspect to a storage room in back of the house. The room was
unfurnished. SA Andrews testified that she herself was squat-
ting on the floor, and that Craighead was probably sitting on
a box or a chair grabbed from another room. The room had
a single door. In front of the door stood an armed detective
wearing a raid vest. Beyond the door were six more officers
searching his house. Craighead testified that he did not want
to leave his house entirely, because he did not want to leave
the officers alone with his belongings and did not want to
leave his dog unattended. Although SA Andrews had told him
11352 UNITED STATES v. CRAIGHEAD
he was “free to leave” and that his statements were voluntary,
a reasonable person in Craighead’s position would not have
actually “felt” he was free to leave. Thompson, 516 U.S. at
112.
5
[23] Considering the totality of the circumstances as ana-
lyzed under the four factors listed above, we find that the fact
that SA Andrews told Craighead that he was free to leave
weighs in favor of finding he was not in custody, but the other
three factors lead us to the conclusion that Craighead was in
custody for purposes of Miranda. Craighead’s home had
become a police-dominated atmosphere. Escorted to a storage
room in his own home, sitting on a box, and observing an
armed guard by the door, Craighead reasonably believed that
there was simply nowhere for him to go.
IV
The search of Craighead’s home was lawful. Craighead did
not allege any specific portion of the warrant affidavit that
was actually false or misleading. We affirm the district court’s
ruling that Craighead was not entitled to a Franks hearing.
[24] The interrogation within Craighead’s home was custo-
dial, and Miranda warnings were required. Because the warn-
ings were not given, Craighead’s self-incriminating
statements should have been suppressed. We therefore reverse
this portion of the district court’s order and remand for further
proceedings.
AFFIRMED in part, REVERSED in part, and
REMANDED.