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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