dissenting.
I respectfully dissent from the judgment of the court for the reasons that follow.
I.
In granting the motion to suppress, the district court made the following findings of fact, none of which is clearly erroneous. FBI agents, Timothy Bisswurm and Sean Boylan, called Dr. Czichray’s home at 4:30 one morning, and when he answered they pretended that they had reached the wrong number. Two hours later, they knocked on his door or rang his doorbell. When Dr. Czichray did not answer, the agents telephoned him and instructed him to open the door. He did so, wearing only a t-shirt and boxer shorts, and the agents informed Dr. Czichray that they wanted to talk to him for “a few minutes.” After Dr. Czichray let them come into his home, the agent’s “few minutes” turned into nearly seven hours.
During this time, the agents told Dr. Czichray about their investigation into health care fraud and their belief that he was involved. When Dr. Czichray told the agents that he was late for work, they instructed him to call in sick, and when he spoke with his office, the agents further instructed him not to inform his co-workers that the FBI was interviewing him. Dr. Czichray’s home and cell phones rang several times during the interview, but the agents admonished him to not answer the calls. When Dr. Czichray wanted to get dressed, Agent Boylan escorted him to the bedroom and did a quick search to ensure that there was no telephone in the room that Dr. Czichray might use to alert others about the FBI’s interview. When Dr. Czi-chray needed to use the bathroom, a similar check was performed.
While the agents informed Dr. Czichray that he was free to end the interview at any time, they also told him that if he did not cooperate they would “light up” his world and tell insurance companies to stop *831making legitimate payments to his chiropractic practice. After nearly seven hours, one of the agents wrote out a statement outlining what Dr. Czichray had said during the interview, which included an assertion that Dr. Czichray had not been “threatened, coerced, or promised ... anything.” Dr. Czichray signed the statement but was never informed of his Mircmda rights.
II.
Law enforcement officers are bound to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), only when a suspect is interrogated in a so-called custodial setting. See, e.g., Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In Miranda, 384 U.S. at 444, 86 S.Ct. 1602, the Supreme Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Courts do not determine whether a suspect is in custody from the perspective of the interrogator; “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In other words, the question is whether, viewing the totality of the circumstances, a reasonable person would have believed that the police curtailed his or her freedom of movement to a “degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam). Admittedly, “the task of defining ‘custody’ is a slippery one,” Elstad, 470 U.S. at 309, 105 S.Ct. 1285, that presents mixed questions of fact and law. A court of appeals reviews a district court’s custody determination de novo, but the underlying factual findings for clear error. United States v. LeBrun, 363 F.3d 715, 719 (8th Cir.2004) (en banc).
In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990), we identified six considerations which “either mitigate or aggravate an atmosphere of custodial interrogation.” These considerations are “whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not under arrest”; “whether the suspect possessed unrestrained freedom of movement” during the interview; “whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions”; “whether strong arm tactics or deceptive stratagems were employed during questioning”; whether the atmosphere of the questioning was dominated by law enforcement officers; and “whether the suspect was placed under arrest at the termination of the questioning.” Id. No one consideration is dispositive on the question of custody, nor must all of the matters considered weigh in favor of the defendant before a finding that the defendant was in custody is warranted. Id. I will address each of these considerations in turn.
With respect to the first consideration, there is no dispute that the agents informed Dr. Czichray several times that he could refuse to speak to them or could ask the agents to leave his home at any time. This weighs against a holding that Dr. Czichray was in custody.
But the restriction on Dr. Czichray’s freedom of movement supports the suppression of the statement that he signed. As I have said, when Dr. Czichray announced that he was late for work, the agents, rather than permitting him to leave, directed him to call in sick. And *832even though he was in his own home and not at a police station, he could not go to his bedroom or bathroom unattended. The district court rejected the government’s contention that the agents escorted Dr. Czichray around his home because they were concerned for their safety. Instead, the district court found that the agents’ only reason for escorting Dr. Czi-chray was “[to] look[ ] for a telephone to make sure that Czichray did not place any outside calls” to alert others of the investigation.
The government relies heavily on United States v. Axsom, 289 F.3d 496 (8th Cir.2002), to support its contention that requiring that an interviewee be escorted when he or she wants to visit rooms outside the interview area does not restrict the suspect’s freedom of movement. In Axsom, however, the police escorted the suspect about his house because they had observed numerous weapons when they entered the house to execute a search warrant. In that case we explicitly held that the absence of “unrestrained freedom of movement” was “much less significant” to a determination of whether the suspect was in custody than it otherwise would have been because a reasonable person in the suspect’s “shoes should have realized the agents escorted him not to restrict his movement, but to protect themselves and the integrity of the search.” Id. at 502-03. That was not the case here. There was no evidence to suggest that Dr. Czichray possessed weapons that he might use against himself or the agents, nor was there an ongoing search that needed protection against the destruction of evidence. And the district court found that when Dr. Czichray needed to use the bathroom, the agents asked him whether there was a phone in that room but did not inquire about weapons. The district court had ample reason to believe that the justification of officer safety was a post hoc invention, and to find, as it did, that the agents “true concern was preventing Czichray from communicating with anyone else.” The agents thus deliberately subjected Dr. Czichray to incommunicado interrogation, a consideration that particularly concerned the Miranda court. See Miranda, 384 U.S. at 445-46, 86 S.Ct. 1602.
The third consideration identified in Griffin also supports a finding that Dr. Czichray was in custody: No one disputes that it was the agents who approached the defendant and asked to speak with him. While Dr. Czichray allowed them to enter his home, the district court found that he did not “voluntarily acquiesce[]” to the interview, see Griffin, 922 F.2d at 1349. The government argues that Ax-som precludes this conclusion, but there the defendant (who we said had voluntarily acquiesced) “was extremely friendly and cooperative during the interview” and even telephoned the FBI agents afterward to commend them for their professionalism, Axsom, 289 F.3d at 501-02. Here, in contrast, Dr. Czichray did not make any effort to assist in the investigation. While I would not hold that a defendant needs to be enthusiastic about an interview before the balance can tip against a finding that he or she was in custody, I think that the mere absence of resistance is not sufficient to do so.
The magistrate judge who conducted a hearing on the suppression motion made a proposed finding, rejected by the district court, that Dr. Czichray voluntarily acquiesced because he “made no attempt to terminate the interview directly or indirectly” and allowed the interview “to proceed to its closing.” See 28 U.S.C. § 636(b)(1)(C). There is a difference, however, between allowing an interview to continue and taking affirmative steps to make it go more smoothly. When a defendant can only be said not to be acting in a rude *833or uncooperative manner, the presumption that an officer-initiated interview lends weight to a finding of custody is not rebutted. I agree with the district court that Dr. Czichray’s level of active cooperation was not sufficient to undermine the inferences that are properly drawn from the fact that the agents initiated contact with him. In any event, I believe that in this context the voluntariness of Dr. Czichray’s actions are a matter of fact, and the district court’s finding is certainly not clearly erroneous.
I also agree with the district court that it is a “close question” whether the agents used strong-arm tactics or deceptive stratagems in their interview with Dr. Czi-chray. They did, however, threaten to interfere with Dr. Czichray’s legitimate business and to “light up his life,” insinuating that they would begin investigating his elderly father unless Dr. Czichray agreed to cooperate. These threats support an inference that Dr. Czichray was in custody.
Whether the police dominated the interview is the fifth consideration under Griffin. While we have recognized that “[w]hen a suspect is interrogated in the comfort and familiarity of his home, a court is less likely to find the circumstances custodial,” Axsom, 289 F.3d at 502, “a suspect’s sense of captivity can actually be intensified by the intrusive and intimidating environment created when agents ... take control of a person’s private residence,” Griffin, 922 F.2d at 1355 n. 15. The actions of FBI Agents Bisswurm and Boy-lan, including directing Dr. Czichray not to communicate with others during the interview and not allowing him free, unaccompanied movement about his own home, demonstrate the agents’ domination of the interview.
Finally, it is undisputed that the agents did not place Dr. Czichray under arrest at the conclusion of the interview. According to Griffin, this fact weighs against a finding that the interview took place in a custodial setting.
III.
To determine whether Dr. Czichray was in custody, we must assess the totality of the circumstances surrounding his statement. It is important to emphasize that the considerations identified in Griffin are not by any means exclusive, and that the answer to the ultimate question depends on a careful evaluation of all the relevant facts. But in this case, I think that our opinion in Griffin directs us rather clearly to a conclusion that the district court did not err when it held that Dr. Czichray’s situation entitled him to Miranda warnings. Only two considerations (whether Dr. Czichray was informed that he was free to end the interview and whether he was arrested at the end of the interview) tend to support a finding that he was not in custody. But actions sometimes speak louder than words. I believe that the agents’ restrictions on Dr. Czichray’s movements and on his access to his telephones significantly undermined any statements that they made to him about his freedom to ask them to leave or to end the interview. A reasonable person in Dr. Czichray’s position would not believe that he was free to end the interview or to ask the agents to leave. Thus only one fact (the absence of an arrest at the interview’s conclusion) weighs substantially in favor of the government’s position, and in any event as an original proposition it is hard to see why this fact has much if any relevance to the question of whether Dr. Czi-chray was in custody.
I would therefore hold that Dr. Czichray was in custody when he signed the statement. While the absence of Miranda warnings will not require suppression *834when suspects volunteer inculpatory evidence during a non-custodial interrogation, they must be informed of and voluntarily, intelligently, and knowingly waive their Miranda rights when they are in custody, or their statements are inadmissible. See Miranda, 384 U.S. at 478-79, 86 S.Ct. 1602. Because the written statement in the instant case was made during an “incommunicado interrogation ... in a police-dominated atmosphere ... without full warnings of constitutional rights,” id. at 445, 86 S.Ct. 1602, I would affirm the district court’s order granting the motion to suppress.