United States v. Mittel-Carey

United States Court of Appeals
For the First Circuit

No. 06-1960

UNITED STATES,

Appellant,

v.

ROBERT MITTEL-CAREY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Chief Judge,
Cyr and Stahl, Senior Circuit Judges.

Cynthia A. Young, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief
for appellant.
Oscar Cruz Jr., Assistant Federal Public Defender, with whom
Christopher R. Goddu, Assistant Federal Public Defender, was on
brief for appellee.

July 11, 2007
 STAHL, Senior Circuit Judge. The district court issued

an order suppressing statements made by the appellee, Robert

Mittel-Carey, to FBI agents during a search of his home. Because

we agree with the district court that a reasonable person in the

appellee's situation would have believed he was in custody during

the search, we affirm the suppression order.

I. Background

"We view the facts in the light most favorable to the

district court's ruling with respect to [the defendant's] motion to

suppress."1 United States v. Kimball, 25 F.3d 1, 3 (1st Cir.

1994).

A magistrate judge issued a search warrant for Mittel-

Carey's house, located in Lowell, Massachusetts, for evidence of

possession and transportation of child pornography. The warrant

was based on law enforcement allegations that Mittel-Carey chatted

on-line with an undercover agent posing as a 14-year-old and sent

1
The district court made extensive findings of fact and
conclusions of law in its oral decision at the suppression hearing.
After the government filed this appeal and submitted its opening
brief, the district court issued a written memorandum of law
elaborating upon its oral decision. The written memorandum is not
at odds with the court's oral findings and conclusions in any
significant way. However, the government, in its reply brief,
strenuously objects to the district court's belated memorandum on
the grounds that the notice of appeal divested the district court
of jurisdiction to supplement its findings. We decline to reach
this issue because we can affirm the district court's conclusion of
custody based solely on that court's original oral factual
findings. Therefore, we draw our recitation of the facts from that
oral decision alone.

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the agent several images over the internet containing child

pornography. At 6:25 AM on January 20, 2005, eight law enforcement

officers arrived at Mittel-Carey's house, which he shared with his

girlfriend, to execute the search warrant. Both Mittel-Carey and

his girlfriend were asleep upstairs when the agents knocked on

their door. When the girlfriend answered the door, the agents

explained the search warrant and entered the house to locate

Mittel-Carey and conduct the search. Two agents entered the dark

bedroom where Mittel-Carey was; one of them carried a flashlight

and an unholstered gun. The district court determined that Mittel-

Carey saw the gun "at least when [the agent] holstered it and put

it back in its holster."

The agents ordered Mittel-Carey to dress and escorted him

downstairs, first into the dining room and then into the living

room. They told Mittel-Carey where to sit. The agents separated

Mittel-Carey from his girlfriend, whom they sent upstairs, and they

did not allow the two to speak to each other. Mittel-Carey's

girlfriend was questioned by two agents upstairs for approximately

20 minutes. At the conclusion of her interview, the girlfriend

said she was late for work and asked an agent for permission to

shower and change into her work clothes. The agent granted her

permission to do so. She testified that she requested permission

because she felt the agents "were escorting me and that they were

in charge of the situation and they were in charge of my house at

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that time." When she was dressed and ready to leave for work, she

asked permission to go downstairs and leave the house. Again, the

agents granted the requested permission. The agents permitted

Mittel-Carey to briefly speak with his girlfriend before she left,

but an agent was present for the conversation.

Meanwhile, as other agents searched the house, two FBI

agents remained with Mittel-Carey in his living room and began to

interrogate him.2 Prior to beginning this interrogation, the

agents did not give Mittel-Carey Miranda warnings. One of the two

agents, Agent Travaglia, explained to Mittel-Carey that his house

was being searched based on an undercover sting operation

investigating child pornography. Travaglia also told Mittel-Carey

that he did not have to respond to the agents' questions, but that

in his experience, "those individuals that cooperated with

investigations at the outset . . . tended to fare better if a deal

was to be had later on down the road." He also told Mittel-Carey

that the federal sentencing guidelines contain "a provision for

acceptance of responsibility which may qualify him for a reduction

in sentence." In response, Mittel-Carey asked, "Should I have an

attorney for this?" Traviglia replied that he "could not advise

him one way or the other," but that it was "his right." He also

told Mittel-Carey that "if he got an attorney, the attorney was

2
The government does not contest that Mittel-Carey was
interrogated.

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going to tell him not to speak to the FBI." Finally, Traviglia

told Mittel-Carey that "based on what [the agents] anticipated

[finding] on his computer and what he had already done he was

looking at a lot of jail time."

The agents interviewed Mittel-Carey for one-and-a-half to

two hours. During that time, he received permission from the

agents on three occasions to move from his seated position in the

living room. First, he was permitted to briefly speak to his

girlfriend before she left for work. An agent was present for this

brief conversation. Second, he requested to use the bathroom. The

agents granted this request, and accompanied him to the bathroom.

An agent stood outside the bathroom with the door partially open,

in order to monitor Mittel-Carey while he was going to the

bathroom. Finally, the agents permitted Mittel-Carey to feed his

pet rabbits on the back porch after the interview was finished. He

was accompanied by agents for this task as well.

The agents left Mittel-Carey's home without placing him

under formal arrest.

The district court ordered the suppression of Mittel-

Carey's statements to the agents, finding that his interrogation

was custodial, and therefore that Miranda warnings were required.

The government timely filed this interlocutory appeal of the

district court's decision.

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 II. Discussion

"The district court's conclusion that a person is in

custody is a mixed question of fact and law, subject to de novo

review. The district court's findings of historical fact

concerning the circumstances of the interrogation are reviewed for

clear error." United States v. Fernandez-Ventura, 132 F.3d 844,

846 (1st Cir. 1998) (citations omitted). See also Thompson v.

Keohane, 516 U.S. 99, 116 (1995) (concluding that "state-court 'in

custody' determinations warrant independent review by a federal

habeas court"); United States v. Young, 105 F.3d 1, 5 (1st Cir.

1997) (noting that the dual standard of review for a motion to

suppress includes review of "findings of fact for clear error" and

"conclusions of law de novo"; the appeals court "subject[s] the

trial court's constitutional conclusions to plenary review").

The constitutional requirement of Miranda warnings is

well-traveled legal ground. "[A] person questioned by law

enforcement officers after being 'taken into custody or otherwise

deprived of his freedom of action in any significant way' must

first" receive Miranda warnings. Stansbury v. California, 511 U.S.

318, 322 (1994) (quoting Miranda v. Arizona, 384 U.S. 436, 444

(1966)).

The "ultimate inquiry" when determining whether a

defendant was in custody during an interrogation "is simply whether

there was a formal arrest or restraint on freedom of movement of

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the degree associated with a formal arrest." Id. (quotation

omitted); see also Fernandez-Ventura, 132 F.3d at 846. This

inquiry is informed by considering the "totality of the

circumstances," id., and asking whether in light of the

circumstances of the interrogation, "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.

Though by no means an exhaustive list, this circuit has

identified four factors which ought to be considered when custody

is at issue, including "whether the suspect was questioned in

familiar or at least neutral surroundings, the number of law

enforcement officers present at the scene, the degree of physical

restraint placed upon the suspect, and the duration and character

of the interrogation." United States v. Masse, 816 F.2d 805, 809

(1st Cir. 1987) (quoting United States v. Streifel, 781 F.2d 953,

961 n.13 (1st Cir. 1986)).

Considering the totality of the circumstances, and these

four factors in particular, we conclude that the district court was

correct that Mittel-Carey was in custody at the time of his

interrogation and therefore should have received Miranda warnings.

The facts we find dispositive are (1) the early hour of the search

and interrogation (6:25 AM); (2) the presence of eight officers in

the home; (3) that the defendant was confronted with an unholstered

gun in his darkened bedroom; (4) the physical control the agents

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maintained over the defendant at all times; (5) the length of the

interrogation (ninety minutes to two hours); and (6) the coercive

statements made by the interrogating agent, which seemed designed

to elicit cooperation while carefully avoiding giving the defendant

Miranda warnings.

Among these facts, the element that carries the most

weight is the level of physical control that the agents exercised

over the defendant during the search and interrogation. Cf. United

States v. Nishnianidze, 342 F.3d 6, 14 (1st Cir. 2003) (affirming

a finding of non-custody where, among other things, the "agents did

not make physical contact with [defendant] or restrain his

movement"). Mittel-Carey was ordered to dress, go downstairs, and

was told where to sit; he was physically separated from his

girlfriend and not allowed to speak to her alone; and he was

escorted by agents on the three occasions that he was permitted to

move, including while he used the bathroom. While an interrogation

in a defendant's residence, without more, certainly weighs against

a finding of custody, see id., the level of physical control the

agents exercised over Mittel-Carey in this case weighs heavily in

the opposite direction, despite the fact that the control was

exercised inside defendant's home, see e.g., Sprosty v. Buchler, 79

F.3d 635, 641 (7th Cir.), cert. denied, 519 U.S. 854 (1996) ("More

important than the familiarity of the surroundings where

[defendant] was being held is the degree to which the police

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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 setting of

the interrogation is not so important to the inquiry as the

question of police domination of that setting."); see also Orozco

v. Texas, 394 U.S. 324, 326-27 (1969) (finding a custodial

interrogation where defendant was questioned in his residence).

The government argues that the physical control was

necessary to preserve potential evidence within the house and

protect the safety of the officers. While that may be so, this

justification does not answer the very different question of

whether a reasonable person, awakened at 6:25 AM by law enforcement

officers (one with an unholstered gun), who is interrogated for up

to two hours and not permitted freedom of movement within his own

home, would believe he was not at liberty to terminate the

interrogation and leave. We believe that a reasonable person in

Mittel-Carey's situation would conclude that he was not free to do

so. 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 Mittel-Carey. Either step would

have protected both the defendant's constitutional rights and the

officers' legitimate law enforcement needs.

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 III. Conclusion

For the foregoing reasons, we affirm the district court's

suppression of the appellee's statements.

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