Legal Digest Part 2
Search Warrant Execution: When Does Detention Rise to Custody? (Part 2)
By M. Todd Heflin, J.D.
United States v. Craighead, Ninth Circuit1
This important case illustrates the role of the interview during the execution of a search warrant in cases involving crimes against children. During the early morning of July 27, 2004, eight law enforcement officers executed a search warrant on base housing at Davis-Monthan Air Force Base in Tucson, Arizona. The specific residence was assigned to Ernest Craighead, an electronic warfare technician for the U.S. Air Force. Craighead was the subject of a crimes against children investigation based on information obtained from his Internet service provider.2
Law enforcement agencies should plan for contingencies that may arise during the execution of the warrant, including the possibility of an interview.
The eight law enforcement officers represented three agencies, including the FBI; Pima County, Arizona, Sheriff’s Office; and Air Force Office of Special Investigations (OSI). In addition two civilians were brought along in the event Craighead needed emotional support. All of the officers were armed, and most wore body armor identifying them as law enforcement.3 In addition, at the time of entry, some of them had their sidearms unholstered while they executed the warrant.4
After securing the residence, the lead agent and a detective from the sheriff’s office introduced themselves to Craighead and asked to speak with him about the search warrant. They told Craighead that he was not under arrest; he was free to leave; and that regardless of the answers he gave to any questions, they would not arrest him that day.5 Craighead agreed to speak with the officers and accompanied them to a storage room in the back of the house. During the interview, Craighead sat while the agent squatted on the ground and the detective leaned against a wall near the exit.6 The detective was wearing his body armor and an exposed sidearm. During the interview, the door was shut, and Craighead was not told about the Air Force sergeant brought along for his emotional support. The interview lasted about 20 minutes.7
During the interview, Craighead admitted that he accessed and downloaded child pornography. He further confessed to having such material on his computer. At no time during the interview was Craighead advised of his Miranda rights. The search of Craighead’s computer, retrieved during the execution of the search warrant, revealed both images and movies depicting child pornography. Craighead was indicted for transporting and shipping child pornography, as well as possession of such materials.8
Craighead challenged the government’s case, arguing that evidence, including his statements, obtained during the execution of the search warrant should be suppressed.9 The Ninth Circuit Court of Appeals ruled that the physical evidence seized during the execution of the search warrant was admissible, but ruled that Craighead’s statements should be suppressed.10
The court reiterated that the proper standard to apply in this case is whether, based on the totality of the circumstances, a reasonable person in Craighead’s position would have felt deprived of his freedom of action in a significant way and, thus, could not end interrogation. The court in this case noted that this determination may not be as easy when a defendant is interrogated in his home, the very place he would retreat to when faced with law enforcement interrogation. According to the court, a person “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.”11 The court focused on “how to apply the traditional Miranda inquiry to an in-home interrogation.”12
The court held that to resolve the in-home interrogation question, the benchmark to apply is the extent to which it was a “police-dominated atmosphere.”13 The court described this as a fact-sensitive inquiry. However, it referred to several factors that can be considered when determining whether an interrogation in this context triggers Miranda, including 1) the number of law enforcement personnel and whether they were armed; 2) whether the suspect was at any point restrained, either by physical force or by threats; 3) if 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 information was provided.14
Applying these factors to Craighead’s interrogation, the court noted the presence of eight armed law enforcement officers from three jurisdictions in Craighead’s home during the execution of the warrant. The court viewed this as significant because Craighead indicated that he was unsure if the agencies were acting in coordination and, thus, did not know whether the FBI agent’s pronouncements that Craighead’s statements were voluntary and that he was free to leave applied to the other two agencies.15 Further, the court found that a reasonable person in the defendant’s position could have felt that his home was dominated by law enforcement agents prepared for a confrontation.
Officers never handcuffed or physically restrained Craighead during the initial execution of the search warrant or during the subsequent search and his interrogation. However, during the interrogation, a uniformed sheriff’s deputy stood between Craighead and the only exit to the room.16 The uniformed officer was wearing external body armor and was visibly armed. According to Craighead’s testimony, the only way he could have exited the room was to either move the officer or ask him to move. The court found this a significant enough restraint on Craighead’s movement to weigh in favor of custody for purposes of Miranda.17
The agents and officers conducting the search and interrogation took Craighead to a separate part of the house away from the Air Force sergeant brought by the team to, in the words of the law enforcement officers, provide emotional support for Craighead. The court found this isolation to weigh in favor of custody, noting that the Supreme Court has indicated that “isolating the suspect from family and friends is one of the distinguishing features of a custodial interrogation.”18 The record does not indicate that Craighead ever became aware of the Air Force sergeant’s presence or purpose nor does it indicate whether Craighead ever asked for anyone else to be present during the interrogation.
Finally, the court looked at its fourth factor, whether a subject was informed that the questioning was voluntary and that he or she was free to leave or terminate the interview. While the record indicated that the lead agent told Craighead that he was not under arrest nor would he be that day, the mere recitation of such language does not automatically make an interrogation noncustodial.19 The court found that while these statements made by the agent to Craighead would tend to weigh in favor of finding a noncustodial environment, all the other factors present would lead reasonable people to believe that they were not, in fact, free to leave and, thus, that they remained in custody for Miranda purposes.
United States v. Hargrove, Fourth Circuit20
On January 5, 2007, officers executed a search warrant at the residence belonging to John Hargrove. Authorities issued the warrant after Hargrove began communicating on the Internet in a sexually explicit manner with two undercover law enforcement officers he believed to be underage females, as well as two actual underage girls. Hargrove expressed interest in meeting in person and engaging in sex acts.21
A team of between 10 and 15 law enforcement officers were present during the execution of the warrant, and while neither of the lead agents unholstered their firearms, it was not clear whether any other officers at any point had weapons drawn.22 Hargrove was not handcuffed at any time during the search. After an initial sweep of the residence, one of the lead agents told Hargrove that he was free to leave the house at any time and that he was not under arrest. The agent asked Hargrove if he would speak with the agents and Hargrove agreed.23
The interview took place at Hargrove’s kitchen table. While one agent asked Hargrove questions, another stood in the doorway of the kitchen. At no time during the interview did any of the agents have their weapons drawn in the house. Hargrove did not protest any of the questions, and the tone of the interview was “polite and cooperative.” During the interview, Hargrove made incriminating statements. He was not arrested at the conclusion of the interview.
Hargrove filed a motion to suppress his statement to the agents, alleging a violation of his rights pursuant to Miranda. The lower court denied the motion to dismiss. Hargrove appealed his conviction, primarily arguing that the court erred when it failed to suppress the statements he made during the execution of the search warrant.24
The fourth circuit faced a scenario similar to that presented in Craighead, framing the question before it as to “whether the January 2007 interview in Hargrove’s kitchen constituted a custodial interrogation. If it did, then Hargrove’s statements, which the parties agree were made without the benefits of Miranda warnings—were inadmissible against him at trial.”25 The court also applied the same standard as that used in Craighead—whether, under the totality of the circumstances, reasonable persons in an identical situation would have felt their freedom of movement was impaired to a degree significant enough to constitute formal arrest.
Officers might consider advising the subject of their Miranda rights prior to an interview, even if the subject is not formally placed under arrest.
In Hargrove the court covered much of the same ground in analyzing the relevant factors to determine whether custody existed, as it did in the ninth circuit in Craighead. The court recognized that Hargrove was initially detained at the execution of the search warrant as permitted by Summers. He was not put in any type of restraints. Further, while there were between 10 and 15 law enforcement officers present during the search, only 2 were with Hargrove during the interview. The court noted that “[t]he mere presence of armed law enforcement officers during the interview is not sufficient to create a custodial situation.”26
Important in the court’s ruling was the fact that the lead agent told Hargrove not only that he was not under arrest but that he also was “free to go.” The court observed that such a statement “is not ‘talismanic’ or sufficient in and of itself to show a lack of custody,” it is “highly probative” in determining whether a reasonable person would have felt they were in custody.27 In addition, the court noted that Hargrove was permitted to move around his home, albeit with an escort, during breaks in the interview. The interview was conducted in an innocuous setting—at the kitchen table. Hargrove argued that the second agent assisting in the interview had blocked the kitchen door, but the court found no evidence to support these allegations, noting that the agent simply stood near the door during the interview and was not “blocking” Hargrove.28 The interview was described as “amicable” and “nonthreatening.”29
The court gave little weight to assertions by Hargrove that he felt he would be arrested at the end of the interview and that he felt as if he was under arrest because the subjective beliefs of the defendant are not what is relevant to the court’s review, but only what an objectively reasonable person would believe in the same circumstances.30 In addition, the court pointed to Hargrove’s conduct during the interview, observing that he was “cooperative, loquacious, and expressing interest in working undercover to help the Task Force.” Further, Hargrove never objected to answering questions nor asked for the interview to end, cooperating throughout.31
After weighing all of the relevant facts presented to the lower court at the suppression hearing, the Fourth Circuit found that Hargrove was not in custody for purposes of Miranda and, thus, the statements could be used against him. The court then affirmed the district court’s judgment, upholding Hargrove’s conviction.
The execution of a search warrant may bring about an opportunity to engage and interview individuals, including subjects, resulting in valuable information in addition to the physical evidence seized consistent with the warrant. The priority and focus, of course, is the execution of the search warrant safely and efficiently. Law enforcement agencies should plan for contingencies that may arise during the execution of the warrant, including the possibility of an interview. This planning should include identifying which officers would conduct any interviews and how to address the factors that may give rise to a claim that due to a police-dominated atmosphere, the interview was custodial in nature.
While officer safety and the safety of those present at a search scene must be the primary concerns during the execution of a search warrant, officers also should consider the role this focus plays in determining if it creates a custodial environment. While an agency or task force should take as many officers as needed to execute the search warrant and conduct the subsequent search safely and efficiently, large numbers of heavily armed officers who no longer are needed for officer safety should not linger in an area where prospective interviewees are placed.
While the officers designated to conduct interviews may want to conduct them in as private an area as possible, they should be aware of locations that would be deemed as remote within the residence. Further, if a subject not in custody wishes to speak with a family member or someone else present at the scene, officers may consider allowing it if they do not deem it a threat to their safety or the well-being of others and something that would not jeopardize future interviews. The safety of all those present at the search scene should always be the paramount concern.
An important factor considered by the courts in determining whether custody existed is telling a subject that he is not under arrest. In addition, the court in Hargrove pointed to the fact that the subject was told he was free to leave at any point during the interview. This same representation was made to the subject in Craighead, but the ninth circuit was unconvinced that the “free to leave” representation had any meaning to the subject given that he was in his house. As stated by the ninth circuit, “to be free to leave is a hollow right if the one place the suspect cannot go is his own home.”32 Law enforcement should consider a statement that offers more clarification, such as “you are free to end this interview at any time including while we are still in the process of executing the warrant, you need not submit to the interview merely because we are present executing a search warrant.”
If the execution of a search warrant and the subsequent interactions with potential interviewees at the scene create an environment that officers present believe suggests a custodial environment, options still exist. Officers might consider advising the subject of their Miranda rights prior to an interview, even if the subject is not formally placed under arrest. Because many search warrants do not result in arrests at the time of execution, officers might consider returning to the residence at a later time or arranging a meeting with a potential interviewee away from the residence under less police-dominated circumstances. The ability to conduct noncustodial interviews at the scene of a search warrant is an important tool, but officers must be aware of the potential problems with such interviews and consider an alternative course of actions if necessary.
Special Agent Heflin is a legal instructor at the FBI Academy.
1 539 F3d. 1073 (2008).
2 Id. at 1077-1078.
3 Id. at 1078.
6 Id. at 1079.
8 Id. at 1079-1080.
9 Id. at 1080 (Craighead challenged the validity of the search warrant and the admissibility of his statements. The district court ruled in the government’s favor on both issues.).
10 Id. at 1080-1081.
11 Id. at 1083.
14 Id. at 1084 (The Court noted that these factors do not create an exhaustive test, and other circuits have examined the question using similar standards. See United States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007) (concluding that the suspect’s home had become a “police-dominated environment” because “the facts belie any conclusion that [the suspect’s] home, on the morning of the questioning at issue, was the traditional comfortable environment that we normally would consider a neutral location for questioning”); United States v. Mittel–Carey, 493 F.3d 36, 40 (1st Cir.2007) (finding suspect was in custody although interrogated 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.”); and 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.”).
15 539 F3d. 1073, 1084-1085 (2008).
16 Id. at 1085.
17 Id. at 1086.
18 Id. at 1087.
19 Id. at 1088.
20 625 F.3d 170 (2010).
21 Id. at 172-173.
22 Id. at 173-174.
23 Id. at 174.
24 Id. at 170.
25 Id. at 177.
26 Id at 179.
27 Id. at 179-180.
28 Id at 180.
30 Id. at 181.
32 539 F3d. at 1083.