United States of America, State of California, Intervenor v. Raphyal Crawford, AKA Aarmyl Crawford

Opinion by Judge GRABER; Concurrence by Judge O’SCANNLAIN; Concurrence by Judge TROTT; Concurrence by Judge KLEINFELD; Dissent by Judge W. FLETCHER

GRABER, Circuit Judge:

Defendant Raphyal Crawford appeals the district court’s denial of his motion to suppress a statement that he made to law enforcement officers, arguing that the statement was taken in violation of his Fourth Amendment protection against unreasonable searches and seizures and in violation of his entitlement to Miranda warnings under the Fifth Amendment. Defendant also appeals the district court’s imposition of a two-level sentence enhancement for physical restraint of a victim during the commission of the offense. We affirm Defendant’s convictions, but vacate his sentence and remand for resentencing.

FACTUAL AND PROCEDURAL HISTORY

Sometime in 1998, FBI Special Agent David Bowdich received information from an unnamed source that a person known as “Ralphy Rabbit” had participated in the February 10, 1998, armed robbery of a Bank of America branch on Ulrich Street in San Diego. Bowdich’s subsequent investigation led him to believe that “Ralphy *1051Rabbit” was an alias used by Defendant. Bowdich also learned that Defendant was currently on state parole in California. As a condition of his parole, Defendant had signed a “Fourth Waiver,” a document that purportedly signifies a parolee’s consent to a search by any law enforcement officer, with or without cause. The “Fourth Waiver” states:

You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer.
You agree to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant, and with or without cause.

Bowdich testified that it is common practice for law enforcement officers to use “Fourth Waivers” as a “tool to talk” to suspects about crimes.

Bowdich sought out Defendant’s parole agent, Carl Berner, hoping to accompany Berner on a parole search of Defendant’s residence. After Berner was obliged to cancel a previously scheduled parole search, Bowdich, after consulting with Berner, conducted the parole search himself, accompanied by four state law enforcement officers. Because the robbery had occurred more than two years earlier and because Defendant had changed residences, Bowdich did not hope to find evidence of the Ulrich Street robbery during the parole search. Rather, Bowdich intended to use the parole search as a pretext to speak to Defendant about the Ulrich Street robbery. As Bowdich explained, however, he would have approached Defendant to discuss the robbery even if the parole search had not occurred.

At 8:20 a.m. on July 27, 2000, Bowdich and the state officers arrived at Defendant’s home to conduct the'parole search. Defendant’s sister met them at the door and informed them that Defendant was in the bedroom, asleep, with his 18-month-old daughter. Bowdich and two officers entered the bedroom, with weapons drawn, and. told Defendant that they were conducting a parole search.1 Bowdich escorted Defendant to the living room, hoping to defuse the “me-versus-you” atmosphere, while the state officers conducted the parole search. Defendant. remained seated on the couch, under detention, for the duration of the parole search (between 30 and 50 minutes).

After Defendant was seated on the couch, Bowdich attempted to engage him in “chit-chat.” Eventually, Bowdich asked Defendant about “an old bank robbery case.” Defendant was not forthcoming; Bowdich attributed this reticence to the presence of the four state officers. As the state officers were completing their search, Bowdich asked Defendant whether he would prefer to speak in “a private place” with just Bowdich and San Diego Police Department Detective Michael Gutierrez. Defendant agreed to accompany Bowdich and Gutierrez, in Bowdich’s vehicle, to the local FBI office. The trip from Defendant’s home to the FBI office took about 20 minutes. Defendant was not interrogated in the car.

At the FBI office, Defendant was placed in an interview room with Bowdich and Gutierrez. Bowdich told Defendant that he was not in custody and could leave at any time. However, “to make it as clean as possible,” Bowdich attempted to give Defendant the Miranda2 warnings. Defendant stopped Bowdich, protesting that *1052the warnings were making him nervous and that he thought he was present merely to discuss an old case. Both Bowdich and Gutierrez reassured Defendant that he was not under arrest and that he was free to leave. They made no further attempt to read the Miranda warnings to Defendant.

Bowdich and Gutierrez questioned Defendant for more than an hour. According to Defendant, every time he tried to terminate the interview, Gutierrez or Bowdich would ask him one or two more questions. The government’s witnesses disputed this assertion, and the district court credited those witnesses’ version of events. Eventually, Defendant said that he had participated in the Ulrich Street bank robbery, and he admitted having used a gun during the crime. The officers ended the interview without arresting Defendant, drove him back to his home, and left.

Thereafter, a grand jury indicted Defendant for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and using and carrying a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and (2). Defendant moved to suppress the statement that he had made to law enforcement officers on July 27, 2000. After several evidentiary hearings, the district court denied Defendant’s motion to suppress. Relying on our decision in United States v. Knights, 219 F.3d 1138 (9th Cir.2000), later rev’d and remanded, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the district court held that the search of Defendant’s home was a violation of Defendant’s constitutional rights under the Fourth Amendment. However, the district court concluded that Defendant’s confession was sufficiently attenuated from the illegal search to purge the taint of the constitutional violation, rendering Defendant’s statement to the law enforcement officers admissible. The district court also held that Defendant was not in custody when questioned at the FBI office and that Miranda warnings therefore were not required. The district court rejected Defendant’s claim that his confession was involuntary as the result of alleged promises from Bowdich and Gutierrez that Defendant would not face imprisonment for his involvement in the Ul-rich Street robbery if he cooperated with the investigation.

After the district court ruled, Defendant entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2). Defendant reserved for appeal the denial of his motion to suppress, the district court’s holding that his statement was voluntary and not taken in violation of Miranda, and the district court’s application of the sentencing guidelines.

At the sentencing hearing, the government offered the testimony of Louis Lopez, a security guard who was on duty during the Ulrich Street robbery. Based on Lopez’ testimony, the district court imposed a two-level sentence enhancement for physical restraint of a victim, pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 2B3.1(b)(4)(B).

Defendant timely appealed. A majority of the three-judge panel of this court held that the parole search of Defendant’s residence was illegal under the Fourth Amendment and that there was insufficient attenuation to avoid the exclusion of Defendant’s statement. United States v. Crawford, 323 F.3d 700 (9th Cir.2003). The panel thus reversed Defendant’s convictions on his first theory, without reaching any of his other assertions of error. We ordered this case to be reheard en banc, United States v. Crawford, 343 F.3d 961(9th Cir.2003), and we now affirm Defendant’s convictions on a different ground, but vacate and remand with respect to his sentence.

*1053STANDARDS OF REVIEW

We review de novo the denial of a motion to suppress. United States v. Fernandez-Castillo, 324 F.3d 1114, 1117(9th Cir.), cert. denied, - U.S. -, 124 S.Ct. 418, 157 L.Ed.2d 299 (2003). Whether the exclusionary rule applies to a given case is reviewed de novo, while the underlying factual findings are reviewed for clear error. United States v. Hammett, 236 F.3d 1054, 1057-58(9th Cir.2001).

We review de novo whether a defendant is constitutionally entitled to Miranda warnings. United States v. Butler, 249 F.3d 1094, 1098 (9th Cir.2001). We also review de novo whether a confession is voluntary or coerced. Pollard v. Galaza, 290 F.3d 1030, 1032 (9th Cir.), cert. denied, 537 U.S. 981, 123 S.Ct. 449, 154 L.Ed.2d 343 (2002).

The district court’s interpretation and application of the Sentencing Guidelines are reviewed de novo. United States v. Garcia, 323 F.3d 1161, 1164 (9th Cir.), cert. denied, - U.S. -, 124 S.Ct. 842, 157 L.Ed.2d 720 (2003).

DISCUSSION

A. Convictions

In the district court, Defendant made four arguments in support of a motion to suppress his confession, three of which he renews on appeal.

Under the Fourth Amendment, he first argued that the search exceeded the scope of the “Fourth Waiver” because it “was conducted for the impermissible purpose of gathering evidence against [him] in the investigation of the bank robbery.” For that argument he relied on this court’s opinion in Knights, which later was reversed by the Supreme Court. Defendant did not contend that the “Fourth Waiver” itself was invalid, however. Second, he asserted that, because the pre-textual parole search made “the detention ... while this search was being conducted ... also illegal,” his confession “was the product of this illegal detention.” He concluded that “the taint arising from the unlawful detention[ ] requires] suppression of the subsequent statement.” For that argument he relied on two detention cases, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Under the Fifth Amendment, Defendant likewise made two arguments. First, he argued that his interrogation was “custodial in nature” but not preceded by Miranda warnings. Second, Defendant claimed that his confession was involuntary because of a promise allegedly made by Bow-dich, a claim that the district court rejected because it found that Bowdich (who denied making the alleged promise) was credible and Defendant was not. Defendant has abandoned this final argument.

We turn to a consideration of the other three theories. As to the first, we assume for purposes of our decision, but need not and do not decide, that the parole search was unlawful.3 As to the second theory, we hold that Defendant’s confession was not a product of the detention in his home and that, under New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), his confession is admissible. Finally, we hold that Defendant was not entitled *1054to Miranda warnings because the questioning at the FBI office was not custodial.

1. Fourth Amendment

As we have foreshadowed, we assume, without deciding, that the parole search of Defendant’s residence, and his detention during it, were illegal under the Fourth Amendment. We need not and do not decide whether “Fourth Waivers” are valid, what they mean, or whether suspicion-less parole searches violate the Fourth Amendment. Instead, we proceed to examine the Supreme Court precedents that govern an analysis of the relationship between an illegal detention or illegal search and a defendant’s confession. Under those precedents, Defendant’s confession is admissible.

It is well established that the Fourth Amendment’s exclusionary rule applies to statements and evidence obtained as a product of illegal searches and seizures. Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Evidence obtained by such illegal action of the police is “fruit of the poisonous tree,” warranting application of the exclusionary rule if, “granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Brown, 422 U.S. at 599, 95 S.Ct. 2254 (internal quotation marks omitted). The exclusionary rule requires a causal connection between the illegal conduct and the evidence sought to be suppressed. ‘When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but also use of the evidence is more likely to compromise the integrity of the courts.” Dunaway, 442 U.S. at 218, 99 S.Ct. 2248.

Whether the twin aims of deterrence and judicial integrity warrant application of the exclusionary rule depends largely on the facts of each case. Brown, 422 U.S. at 603, 95 S.Ct. 2254. In this case, three key facts guide our inquiry into whether application of the exclusionary rule to Defendant’s statement is warranted. First, the police had probable cause to arrest Defendant when they entered his home. Second, the search yielded no evidence of the “old robbery” or of any other crime. Indeed, both Bowdich and Defendant knew from the inception of the parole search that no evidence of any crime likely would be found. Third, Defendant made no incriminating statement before reaching the FBI office and was not questioned about the robbery substantively until he reached the FBI office.4

The analysis that applies to illegal detentions differs from that applied to illegal searches. See 5 Wayne R. LaFave, Search and Seizure 273, § 11.4(c) (3d ed.1996) (noting that “the two situations are quite different”). Therefore, we begin by addressing whether the detention of Defendant in his home, which we assume was illegal, requires the suppression of his later statement at the FBI office. We then turn to an examination of what, if anything, the presumed illegal search of Defendant’s home adds to this analysis.5

*1055a. Detention

Defendant’s opening brief frames the issue before us as “[wjhether [his] initial detention while an unlawful parole search was conducted at his residence was illegal, and the taint of this illegality not attenuated, requiring the suppression of his later statement at the FBI offices.” He focuses, in other words, on the connection between his detention at home and his later confession at the FBI office.

Unlike most cases involving detentions and confessions, here the officers had probable cause to arrest Defendant. Although there may have been some confusion on this point below, defense counsel clearly and expressly conceded on appeal, both in briefing and at oral argument, that when Bowdich and the state officers arrived to perform the parole search, they had probable cause to arrest Defendant for the Ulrich Street bank robbery.6 A judicial admission is binding before both trial and appellate courts. Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir.1988).

The presence of probable cause to arrest distinguishes this case from cases such as Brown, Dunaway, and Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), where police officers illegally seized the defendants without having probable cause to arrest them. The Supreme Court described Taylor as a “virtual replica of both Brown and Dunaway ” because the “[pjetitioner was arrested without probable cause in the hope that something would turn up.” Taylor, 457 U.S. at 690-91, 102 S.Ct. 2664(emphasis added).7 In all three cases, the Court excluded the defendants’ confessions as fruits of the illegal seizures. See also Wong Sun, 371 U.S. at 485, 83 S.Ct. 407.

But, as noted, in this case the FBI had probable cause to arrest Defendant by the time Bowdich contacted him. Thus, this case is governed by Harris. In Harris, police officers had probable cause to arrest the defendant, but they entered his residence without a warrant and without consent, in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Although the officers’ conduct violated the Fourth Amendment, the Court held that, “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.” Harris, 495 U.S. at 21, 110 S.Ct. 1640. In other words, despite the illegal arrest inside the defendant’s home, the exclusionary rule did not bar the admission of the defendant’s later statement to officers at the station house.

Harris distinguished Brown, Dunaway, and Taylor on the basis oí probable cause to arrest: *1056Harris, 495 U.S. at 18-19, 110 S.Ct. 1640. By contrast, the Court said, although the officers’ initial entry into Harris’ home was illegal, “Harris’ statement taken at the police station was not the product of being in unlawful custody” because, in the light of the officers’ probable cause to arrest Harris, the custody was not unlawful. Id. at 19, 110 S.Ct. 1640. The Court emphasized that “attenuation analysis is only appropriate where, as a threshold matter, courts determine that ‘the challenged evidence is in some sense the product of illegal governmental activity.’ ” Id. (quoting United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980)). Because Harris’ statement “was not the fruit of the fact that the arrest was made in the house,” the Court held that this threshold for attenuation analysis was not met and that the exclusionary rule did not apply to Harris’ later statement at the station house, although it would apply to “any evidence found, or statements taken, inside the home. Id. at 20, 110 S.Ct. 1640 (emphasis added).

*1055In each of those cases, evidence obtained from a criminal defendant following arrest was suppressed because the police lacked probable cause. The three cases stand for the familiar proposition that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.

*1056After Harris, the presence of probable cause to arrest has proved dispositive when deciding whether the exclusionary rule applies to evidence or statements obtained after the defendant is placed in custody. See, e.g., United States v. Villa-Velazquez, 282 F.3d 553, 556 (8th Cir.2002) (holding that, because law enforcement officers had probable cause to arrest the defendant, “the evidence obtained during the time that [the defendant] was in lawful custody was not tainted by the earlier unlawful entry into his residence” (discussing Harris, 495 U.S. at 18, 110 S.Ct. 1640)). Even before Harris, we acknowledged that the applicability of the exclusionary rule in Dunaway and Brown hinged on the officers’ lack of probable cause to arrest. In a case in which the officers did have probable cause to arrest, we held that the exclusionary rule did not apply. United States v. Manuel, 706 F.2d 908, 911-12 (9th Cir.1983). With a certain prescience, we distinguished Brown and Dunaway because, “[i]n each of those cases, the defendant was arrested without probable cause,” whereas Manuel was “totally different from Dunaway and Brown because probable cause [to arrest] was amply established before the officers began their interrogation.” Id. at 912. We therefore declined to apply the exclusionary rule even though the initial arrest had been illegal. Id.

That Defendant was detained in his home, rather than formally arrested there, does nothing to alter the Harris analysis. In both instances, the illegality was a form of detention in the home. As the Court explained in Dunaway, “[t]he application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an ‘arrest’ under state law.” 442 U.S. at 212, 99 S.Ct. 2248. The present case is an even weaker one for the defendant than was Hards. Although there was probable cause to arrest Defendant, he was not placed in custody either in his home or at the FBI office. Rather, after the search ended, he agreed to accompany Bowdich and Gutierrez to the FBI office. At that point, the involuntary detention ended.

Further, in Harris, the officers actually succeeded in obtaining the defendant’s confession during the illegal entry. In this respect as well, this case is weaker than Harris for the defendant. In Harris, officers appeared at the defendant’s front door and fire escape window with their weapons drawn. People v. Harris, 72 N.Y.2d 614, 536 N.Y.S.2d 1, 532 N.E.2d 1229, 1230 (1988). The defendant opened the door and allowed the police to enter his apartment. The police arrested the defendant and questioned him in his home. Although no search was performed, the *1057police obtained the defendant’s confession before removing him from the apartment.8 Here, however, Defendant made no confession during the presumed illegal detention, nor did substantive interrogation begin during that detention. Thus, Defendant’s later statement at the FBI office is even less a “product of being in unlawful custody” than was the confession obtained by the police in Harris.

We therefore hold that Defendant’s initial detention in his home does not require the suppression of his later statement at the FBI office.

b. Search

Having determined that the presumed illegal detention in Defendant’s home does not require suppression of his later statement at the FBI office, we next consider whether that statement nonetheless is a product of the presumed illegal search. We are guided by the Supreme Court’s statement in Harris that, “[f]or Fourth Amendment purposes, the legal issue is the same as it would be had the police arrested Harris on his doorstep, illegally entered his home to search for evidence, and later interrogated Harris at the station house.” 495 U.S. at 18, 110 S.Ct. 1640 (emphasis added). Indeed, we have applied Harris to allegations that a confession is the product of an illegal search, albeit under a different set of facts. In United States v. Ladum, 141 F.3d 1328 (9th Cir.1998) (en banc), we denied a motion to suppress a statement made during a search of the defendant’s business pursuant to a defective warrant. The government stipulated that the search warrant was overbroad and that the evidence obtained during that search could not be used during its case-in-chief. Id. at 1336. Nonetheless, we held that the defendant’s later statement was not a product of the illegality because, notwithstanding the overbroad warrant, the police had probable cause to search the defendant’s business and thus had a “legitimate reason to be present at the time of questioning.” Id. at 1337. We therefore held that the relationship between the illegality and the confession more closely resembled the relationship in Harris, where there was probable cause to arrest, than the one in Brown, where probable cause to arrest was lacking. Id.

Although illuminating on the applicability of Harris in the context of a search, Ladum does not control here for two reasons. First, although the officers in this case had probable cause to arrest Defendant, they did not have probable cause to search his home. Second, and more importantly, unlike the search in Ladum, the search in this case was entirely fruitless. Indeed, as Bowdich admitted at trial, the parole search was never intended to produce evidence of the old robbery. Instead, the parole search was intended to buy time for a conversation with Defendant.

At most, Bowdich hoped to find evidence of a new crime or parole violation, which he could use to convince Defendant to confess to the old crime. In Bowdich’s words, “[w]e weren’t looking for evidence of a bank robbery, but we were looking at potential of possibly flipping him, if we were able to find evidence of a state case.” Had the search yielded such evidence, we would have to confront the constitutionality of the suspicionless search because the confession would have been an indirect product of the search. Because the search failed to produce any physical evidence, however, and because Defendant made no incriminating statement during the search, *1058we fail to see how the search, as distinct from the presumed illegal detention, caused Defendant’s statement in the FBI office.

The only two connections between the search and the confession are the officer’s intent to use the search as a pretext to speak to Defendant and the fact that Defendant made a statement at the FBI office after the search. As to the former, Bowdich needed no pretext to speak to Defendant because he had probable cause to arrest him, and Bowdich testified unequivocally that he would have contacted Defendant to discuss the old bank robbery whether or not the parole search had taken place. We need not decide whether pretext would matter had there been no probable cause. As to the latter, post hoc is not necessarily propter hoc; in the light of the known fruitlessness of the search, sequence should not be confused with consequence. That a search was conducted does not in itself make a later-given confession the fruit of that search.

We are not the first court to reach this conclusion. Thompson v. United States, 821 F.Supp. 110 (W.D.N.Y.1993), applied Harris to statements taken after a war-rantless entry and an illegal search of the defendant’s home. The court noted that the federal agent would have questioned Thompson regardless of the evidence uncovered by the search and that there was no evidence “that defendant’s answers to [the agent’s] questions would have been different, depending on whether defendant knew of the existence of the illegal search or was confronted with the documents.” Id. at 117. Therefore, the district court concluded, there was no causal connection between the evidence seized during the illegal search and Thompson’s statements. Noting that “[t]he Payton violation in Harris is functionally similar to the warrant-less entry to search in this case,” Thompson concluded that Harris would require suppression of any statement made by the defendant in his home during the illegal search, but would not require the suppression of a statement made outside the home. Id. at 119. The court went on to conclude that the questioning of Thompson violated Miranda, id., which (as we shall explain below) did not occur here.

As Thompson illustrates, the rationale and holding of Harris are not limited to the context of Payton violations. Rather, as the Eighth Circuit has held, “Hams demonstrates that for testimony or evidence to be considered the fruit of an illegal search, it must be directly or indirectly attributable to the constitutional violation.” United States v. Duchi, 944 F.2d 391, 395 (8th Cir.1991).

In this case, the necessary connection between the presumed illegal parole search and Defendant’s later confession at the FBI office is missing. The search, which produced no evidence whatsoever, had no bearing on the officers’ decision to question Defendant; Bowdich testified that he would have spoken to Defendant with or without a search. The officers had probable cause to arrest Defendant for the bank robbery, and Defendant could not have avoided being questioned about it. Thus, the fruitless search, during which Defendant was not questioned substantively about the robbery, cannot be said to have “caused” Defendant’s later confession.

“There is no question of ‘attenuation’ until the connection between the primary illegality and the evidence obtained is established.” Thompson, 821 F.Supp. at 118(citing Harris, 495 U.S. at 17-19, 110 S.Ct. 1640). Because that connection is missing in this case, the reasoning of Harris applies. The officers had probable cause to arrest Defendant when they entered his home. The search of Defendant’s home yielded no evidence. The *1059challenged statement was not made, or even sought, while Defendant was detained in his home. Mindful of Brown’s admonition that the applicability of the exclusionary rule depends on the facts of each case, we hold that Defendant’s confession at the FBI office does not “bear a sufficiently close relationship to the underlying illegality” to warrant its suppression. Harris, 495 U.S. at 19, 110 S.Ct. 1640. Therefore, the district court did not err in denying Defendant’s motion to suppress that confession.

2. Fifth Amendment

We will address two Fifth Amendment claims, only one of which Defendant raises on appeal. First, Defendant argues that the questioning at the FBI office amounted to custodial interrogation and that he was therefore entitled to Miranda warnings. Second, the dissent implicitly asserts that Defendant’s confession was involuntary due to a “psychological advantage” that the police gained by means of the pretextual search.

a. Miranda Warnings

“An officer’s obligation to administer Miranda warnings attaches ... ‘only where there has been such a restriction on a person’s freedom as to render him “in custody.” ’ ” Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam)). Whether a suspect is in custody turns on whether there is a “ ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Mathiason, 429 U.S. at 495, 97 S.Ct. 711). This inquiry requires a court to examine the totality of the circumstances from the perspective of a reasonable person in the suspect’s position. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

Defendant’s situation at the FBI office is remarkably similar to those in which the Supreme Court has held that Miranda warnings are not required. As in Mathiason, Defendant was questioned in a closed room in the office of a law enforcement agency. See Mathiason, 429 U.S. at 493-94, 97 S.Ct. 711. Although taking place in an admittedly “coercive environment,” such questioning does not amount to custodial interrogation where, as here, the suspect is told that he is not under arrest and is free to leave, and he does in fact leave without hindrance. See id. at 494-95, 97 S.Ct. 711.

Neither does the fact that Agent Bow-dich and Detective Gutierrez escorted Defendant to the FBI office after the parole search require Miranda warnings. In this regard, the present case resembles Beheler, where the suspect agreed to accompany police to the station house. 463 U.S. at 1122, 103 S.Ct. 3517. In Beheler, the Court held that Miranda warnings were not required although the suspect was the target of a police investigation, had been escorted by police, and was ultimately questioned at the station house. Although adding to the coercive environment, these factors do not lead to the conclusion that a suspect is in custody. Id. at 1125, 103 S.Ct. 3517.

In arguing that the actions of Bowdich and Gutierrez amounted to custodial interrogation, Defendant concentrates on what happened at his home. He argues that, because he was detained during the parole search and officers had entered his bedroom with weapons drawn, his later questioning at the FBI office amounted to custodial interrogation. However, that detention ended when Defendant agreed to go to the FBI office. The “in custody” *1060determination requires us to examine the “circumstances surrounding the interrogation,” which did not occur in Defendant’s home. Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (emphasis added). What took place in Defendant’s home did not transform the later events at the FBI office into custodial interrogation.

Perhaps most significant for resolving the question of custody, Defendant was expressly told that he was not under arrest after interrupting Bowdich’s attempt to recite the Miranda warnings. Bowdich testified that he read the Miranda warnings in order to make the questioning of Defendant “as clean as possible.” Defendant stopped him and said, “Oh, I’m under arrest?” Agent Bowdich answered in the negative and later repeated that Defendant was not under arrest and was free to leave. Defendant was, in fact, returned home at the end of the interview, without being arrested. Being aware of the freedom to depart, and in fact departing after questioning at a law enforcement office, suggest that the questioning was noncustodial. See United States v. LeBrun, 363 F.3d 715, 722 (8th Cir.2004) (en banc) (concluding “that the defendant was not in custody because, among other things, the officers told him that he was free to leave and that he would not be arrested and because he was in fact not arrested at the conclusion of the interview”).

Viewing the “totality of the circumstances” from the perspective of a reasonable person in Defendant’s position, and applying the Supreme Court’s guidance, we hold that the questioning of Defendant at the FBI office did not amount to custodial interrogation. The district court thus did not err in holding that Miranda warnings were not required.

b. “Psychological Advantage”

The dissent argues that Bowdich used the pretextual search to gain a “psychological advantage” over Defendant that would have been unavailable had the officers simply arrested him at his doorstep. Dissent at 8331. As we have noted, Defendant does not renew his Fifth Amendment claim that his confession was involuntary. Therefore, that issue is not properly before us. Guam v. Gill, 61 F.3d 688, 695 (9th Cir.1995). Even if it were, however, we disagree with the dissent’s conclusion.

“A confession is involuntary if coerced either by physical intimidation or psychological pressure.” United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir.2003). In determining whether a defendant’s confession was voluntary, “the question is ‘whether the defendant’s will was overborne at the time he confessed.’ ” Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir.), cert. denied, - U.S. -, 124 S.Ct. 446, 157 L.Ed.2d 313 (2003) (quoting Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)). Psychological coercion invokes no per se rule. United States v. Miller, 984 F.2d 1028, 1030 (9th Cir.1993). Therefore, “we must consider the totality of the circumstances involved and their effect upon the will of the defendant.” Id. at 1031(citing Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

Beyond doubt, the police used a deceptive tactic to induce Defendant to come to the FBI office and speak about the old bank robbery. The police lied to Defendant when they said that their purpose was to look for physical evidence of a parole violation; what they really wanted was an opportunity to talk to him about the “old bank robbery.” “Trickery, deceit, even impersonation do not render a confession inadmissible, certainly in noncustodial *1061situations and usually in custodial ones as well, unless government agents make threats or promises.” United States v. Kontny, 238 F.3d 815, 817(7th Cir.2001) (citing Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969)). As the First Circuit has noted,

trickery is not automatically coercion. Indeed, the police commonly engage in such ruses as suggesting to a suspect that a confederate has just confessed or that police have or will secure physical evidence against the suspect. While the line between ruse and coercion is sometimes blurred, confessions procured by deceits have been held voluntary in a number of situations.

United States v. Byram, 145 F.3d 405, 408 (1st Cir.1998); see also United States v. Orso, 266 F.3d 1030, 1039(9th Cir.2001) (en banc) (holding that an inspector’s misrepresentation that a piece of evidence existed, while reprehensible, does not constitute coercive conduct); Clanton v. Cooper, 129 F.3d 1147, 1158 (10th Cir.1997) (holding that a confession was voluntary despite the fact that an officer falsely told the defendant that physical evidence connected him to the crime).

Here, the deception did not involve a misrepresentation of the strength of the case against Defendant. To the contrary, the fruitlessness of the search demonstrated to Defendant that the police lacked physical evidence of his involvement in the old bank robbery or in any other crime. The pretextual search simply gave Bow-dich an opportunity to speak to Defendant about the robbery. We need not consider whether, had Defendant confessed in his home, we might be able to say that the search overbore his will and caused his confession.9 However, the pretextual search, if it influenced anything, influenced only Defendant’s agreement to go to the “more comfortable” atmosphere of the FBI office.

Looking to the setting and to the totality of circumstances, we find that Defendant’s confession was voluntary. The interview at the FBI office took about an hour. We have upheld as voluntary, confessions obtained after much lengthier interrogations. See Haswood, 350 F.3d at 1028(“Even if we assume that the interrogation lasted all day, ... coercion typically involves far more outrageous conduct.”). Similarly, nothing about the environment in which the statement was given or the manner in which Defendant was questioned suggests coercive conduct by the police. Defendant was not in custody when he confessed. Bowdich repeatedly told Defendant that he was not under arrest and was free to leave, and Defendant in fact did leave after the interview, without being arrested. Significantly, Bowdich “did not misrepresent the nature or purpose of the interview, nor did he make promises or threaten [Defendant].” Pollard, 290 F.3d at 1035. The search of his residence, while deceptive, did not amount to “coercion sufficient to make the statement involuntary.” Id. at 1033.

B. Sentencing

Finally, Defendant contends that the district court erred by imposing a two-level enhancement, pursuant to U.S.S.G. § 2B3.1(b)(4)(B), for physically restraining a victim during a robbery. That guideline states that the enhancement applies “if any person was physically restrained to facilitate commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(B). The commentary lists several examples, such as “where a victim was forced to accompany the defendant to another location, or was physically re*1062strained by being tied, bound, or locked up.” Id. at cmt. background. This commentary is merely instructive and does not set forth an exhaustive list of situations in which an enhancement for physical restraint may be appropriate. United States v. Foppe, 993 F.2d 1444, 1452 (9th Cir.1993).

The district court correctly held that physical contact with the victim is unnecessary for imposition of the two-level enhancement under § 2B3.1(b)(4)(B). However, the court did not go on to apply United States v. Parker, 241 F.3d 1114, 1119 (9th Cir.2001), which adopted a “sustained focus” standard for cases that — like the present one — -do not involve forcible restraint of the victim.

Because the district court did not apply Parker, and did not make findings with the Parker standard in mind, we cannot tell whether Defendant had the “sustained focus” necessary under our precedents for imposition of this sentence enhancement. As a general matter, “if a district court errs in sentencing, we will remand for resentencing on an open record — that is, without limitation on the evidence that the district court may consider.” United States v. Matthews, 278 F.3d 880, 885 (9th Cir.) (en banc), cert. denied, 535 U.S. 1120, 122 S.Ct. 2345, 153 L.Ed.2d 173 (2002). We therefore vacate Defendant’s sentence and remand to the district court with instructions to determine, on an open record, whether Defendant physically restrained the security guard, in the light of the standard announced in Parker.

Defendant’s convictions are AFFIRMED. The sentence is VACATED; and the case is REMANDED for resen-tencing.

. Although the record does not reflect when the officers holstered their weapons, they apparently did so at some point.

. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

. The dissent quarrels with the label "parole search,” which has been used throughout this litigation. Dissent at 1093. In view of the fact that those who conducted the search hoped they might find evidence of current wrongdoing, and believed that their authority to conduct the search arose from the "Fourth Waiver” that was a condition of Defendant's parole, see People v. Reyes, 19 Cal.4th 743, 80 Cal.Rptr.2d 734, 968 P.2d 445, 452-53 (1998), we continue to use the same label.

. Defendant testified differently about the nature of the conversation in his home but, as we have noted, the district court credited Bowdich — not Defendant — "where they do disagree” in their testimony.

. The dissent asserts that the majority insists that both an illegal seizure and an illegal search be causally connected to a confession before the exclusionary rule applies. Dissent at 1096. Not so; either kind of causal connection will do, but (as we shall explain) we see neither.

. As defense counsel explained, however, his concession that there was probable cause to arrest did not imply a concession that there was probable cause, or even reasonable suspicion, to search Defendant's home.

. In Dunaway, the defendant was not formally arrested, although the Court went on to hold that the formality of the seizure was not relevant. Dunaway, 442 U.S. at 216, 99 S.Ct. 2248. The Court in later cases referred to Dunaway as having been arrested. Taylor, 457 U.S. at 693, 102 S.Ct. 2664; Harris, 495 U.S. at 18-19, 110 S.Ct. 1640.

. The officers administered Miranda warnings before questioning Harris in his home. However, as Brown clarified, Miranda warnings do not suffice to purge the taint of police conduct that violates the Fourth Amendment. Brown, 422 U.S. at 605, 95 S.Ct. 2254.

. But see Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (holding that a later statement was admissible despite illegal detention at home).