                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-1908
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellant,
                                v.

JAMES CRANLEY,
                                               Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
              No. 02-CR-222—Lynn Adelman, Judge.
                         ____________
  ARGUED SEPTEMBER 23, 2003—DECIDED NOVEMBER 19, 2003
                         ____________

  Before POSNER, MANION, and EVANS, Circuit Judges.
   POSNER, Circuit Judge. James Cranley, indicted for federal
firearms-related offenses, moved to suppress the confession
that he had given to an agent of the federal Bureau of
Alcohol, Tobacco, and Firearms. The district judge granted
the motion, and the government appeals.
  Cranley had been convicted in a Wisconsin state court
of misdemeanor theft and had been placed on probation.
Among the terms of his probation was a requirement that he
report to his probation officer “as directed for scheduled or
unscheduled meetings,” and he was also required to
“provide true and correct information verbally and in
writing, in response to inquiries by the [probation] agent.”
A BATF agent traced several guns to Cranley, learned he
2                                                 No. 03-1908

was on probation, and asked Cranley’s probation officer to
arrange a meeting at which the agent could question
Cranley about the guns. She did so, explaining to Cranley
that a BATF agent wanted to talk to him about guns. The
meeting was held in a conference room at a local probation
office with just Cranley, the probation officer, and the agent
present. The room was unlocked, but to leave the probation
office Cranley would have had to have been buzzed out by
a guard. The meeting lasted an hour. The agent wasn’t
satisfied with Cranley’s answers to his questions about the
guns, and he asked the probation officer to arrange another
meeting, in the same room, and she did so. At this meeting,
which differed from the first only in that it lasted a half hour
or hour longer and the probation officer was not present,
Cranley gave a full confession, but was permitted to leave
without being arrested. Prior to either the first or the second
meeting (we do not know which), the probation officer had
reminded him of his duty to answer questions truthfully. He
was not given Miranda warnings at either meeting; nor did
he invoke his Fifth Amendment privilege not to be com-
pelled to incriminate himself.
  The district judge ruled that Cranley had not been in
custody and therefore had not been entitled to the Miranda
warnings. But the judge thought that Cranley’s Fifth
Amendment privilege had been infringed because there was
an implicit threat that if he refused to answer the BATF
agent’s questions his probation would be revoked and he
would be sent to prison.
  Cranley advances an alternative ground for upholding the
suppression of his confession, namely that he was in cus-
tody and therefore was entitled to the Miranda warnings. As
a matter of logic and good sense, it would seem that a
district court’s finding that a defendant was or was not in
custody when he made a statement that the prosecution
wants to use against him must stand unless the finding was
No. 03-1908                                                    3

clearly erroneous. United States v. Humphrey, 34 F.3d 551, 558
(7th Cir. 1994) (concurring opinion). That is the usual scope
of appellate review of applications of a legal standard to the
facts, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-05
(1990); Thomas v. General Motors Acceptance Corp., 288 F.3d
305, 307-08 (7th Cir. 2002); United States v. Frederick, 182 F.3d
496, 499-500 (7th Cir. 1999); Anderson v. Flexel, Inc., 47 F.3d
243, 248 (7th Cir. 1995), and we cannot think of a good
reason for an exception when the legal standard is custody.
Whether a particular set of facts adds up to custody—that
is, to the defendant’s reasonably believing himself unable to
leave without the permission of the police, Stansbury v.
California, 511 U.S. 318, 322-23 (1994) (per curiam); Berkemer
v. McCarty, 468 U.S. 420, 442 (1984); United States v. Scheets,
188 F.3d 829, 841 (7th Cir. 1999)— will vary unpredictably
from case to case, so that the appellate court’s primary duty
of prescribing uniform rules is not engaged by its having to
rule on the existence of custody in a particular case. But we
bow to the weight of contrary authority, e.g., United States
v. Jackson, 189 F.3d 502, 509 (7th Cir. 1999); United States v.
Mancillas, 183 F.3d 682, 701-02 (7th Cir. 1999); United States
v. Salyers, 160 F.3d 1152, 1159 (7th Cir. 1998); United States
v. Yusuff, 96 F.3d 982, 987-88 (7th Cir. 1996), and so give the
district court’s ruling plenary review.
  With reluctance, given the coercive atmosphere and the
pressure on Cranley to talk in order to avoid jeopardiz-
ing his probation, we accept the district court’s finding that
he was not in custody. We are influenced by the fact that
Cranley’s lawyer failed to tell us (and admitted at argument
that he did not know) the character of the building in which
the probation office in Sturtevant, Wisconsin, is located. If
the office shares the building with the local jail or police
department, or even a courthouse, that is one thing, but if it
shares it with offices unrelated to law enforcement, such as
4                                                 No. 03-1908

the department of motor vehicles or of natural resources,
that is quite another, muting the impression that the
probation service is a branch of the state correctional
authority. In fact it appears from discreet inquiry that the
probation office shares the building with the state’s depart-
ments of transportation and natural resources rather than
with law enforcers.
  Cranley would have been reluctant to break off an in-
terview by a police officer, but that would have been true if
the BATF agent had accosted him on the street outside. He
could, however, have asked the agent, when the questioning
got hot, “Am I under arrest or am I free to leave?” Had he
done that we would know from the answer whether he was
in custody. His failure to ask, given the location of the
interview and the absence of the usual indications of police
custody, precludes a finding of custody, in light of such
cases as Minnesota v. Murphy, 465 U.S. 420, 433 (1984);
United States v. Humphrey, supra, 34 F.3d at 554: United States
v. Hayden, 260 F.3d 1062, 1066-67 (9th Cir. 2001); United
States v. Howard, 115 F.3d 1151, 1154-55 (4th Cir. 1997);
United States v. Nieblas, 115 F.3d 703, 704-05 (9th Cir. 1997),
and United States v. Ruggles, 70 F.3d 262, 264-65 (2d Cir.
1995), all closely in point. (Only United States v. Byram, 145
F.3d 405, 406, 409 (1st Cir. 1998), tugs in the opposite
direction.) These cases are perhaps not entirely realistic, and
may reflect a subterranean dissatisfaction with the Miranda
rule. But we are not disposed to buck such a long list of
cases, especially when their fons et origens is a Supreme
Court decision (Murphy).
  On whether Cranley’s Fifth Amendment privilege was
violated, we have some doubt whether the question would
even arise under a rational system of criminal-law enforce-
ment. Our system seems to critics irrationally complex,
No. 03-1908                                                   5

and not tethered very closely to common sense either. It has
been argued with some force that an innocent defendant
would rather be tried under the European system of
criminal justice than under the American, and a guilty
defendant under the American system rather than the
European. William T. Pizzi, Trials without Truth: Why Our
System of Criminal Trials Has Become an Expensive Failure and
What We Need to Do to Rebuild It (1999).
  Criminal defendants are free to waive constitutional
rights, including the right not to be forced to incriminate
themselves. They do it all the time, for example in pleading
guilty, which in fact is the mode of conviction in the vast
majority of criminal cases in America. At least as an original
matter it would seem that Wisconsin courts should be
allowed to require as a condition of probation that every
person admitted to probation waive his Fifth Amendment
right and answer all questions put to him by law enforce-
ment officers concerning his criminal conduct. Cf. United
States v. Ross, 9 F.3d 1182, 1190-91 (7th Cir. 1993), vacated on
other grounds, 511 U.S. 1124 (1994); Asherman v. Meachum,
957 F.2d 978, 982-83 (2d Cir. 1992) (en banc).
  Of course there are what are called “unconstitutional
conditions.” Board of County Commissioners v. Umbehr, 518
U.S. 668, 674-75 (1996); Dolan v. City of Tigard, 512 U.S. 374,
385 (1994); Burgess v. Lowery, 201 F.3d 942, 946-47 (7th Cir.
2000). Although Wisconsin doesn’t have to provide a pro-
bation option to convicted criminals at all, it could not
condition the option on the probationer’s being a white man
or a non-Jew. But to say to a convicted criminal we will not
let you substitute freedom for imprisonment unless you
agree to give a full accounting of any criminal behavior in
which you have engaged seems a reasonable condition to
attach to probation. Granted, it would be in tension with
language in Minnesota v. Murphy, supra, 465 U.S. at 435-37,
6                                                  No. 03-1908

as interpreted in such cases as Mangarella v. State, 17 P.3d
989, 992-93 (Nev. 2001); State v. Eccles, 877 P.2d 799, 800-01
(Ariz. 1994), and Gyles v. State, 901 P.2d 1143, 1148 (Alaska
App. 1995). But American law doesn’t stand still. Decisions
subsequent to Murphy, such as Griffin v. Wisconsin, 483 U.S.
868, 874-75 (1987), and United States v. Knights, 534 U.S. 112,
119-20 (2001), evince a greater willingness to enforce terms
attached to conditional release, though neither involved the
right not to be compelled to incriminate oneself.
   In Griffin, the Supreme Court permitted dilution of the
Fourth Amendment’s “probable cause” requirement be-
cause “a State’s operation of a probation system, like its
operation of a school, government office or prison, or its
supervision of a regulated industry, . . . presents ‘special
needs’ beyond normal law enforcement that may justify
departures from the usual warrant and probable-cause
requirements.” 483 U.S. at 873-74. The Court added that
probationers “do not enjoy ‘the absolute liberty to which
every citizen is entitled, but only. . . conditional liberty
properly dependent on observance of special [probation]
restrictions,’ ” Id. at 874, quoting Morissey v. Brewer, 408 U.S.
471, 480 (1972). California has gone further: “When involun-
tary search conditions are properly imposed, reasonable
suspicion is no longer a prerequisite to conducting a search
of the subject’s person or property. Such a search is reason-
able within the meaning of the Fourth Amendment as long
as it is not arbitrary, capricious or harassing. . . . [T]he
government’s action is triggered by defendant’s own
conduct. The existence of this triggering event—the crime
which results in conviction or juvenile adjudication—creates
the compelling need for government intervention and
diminishes any reasonable expectation of privacy.” People v.
Reyes, 968 P.2d 445, 450 (Cal. 1998). And it has long been
understood that a fundamental and unchallenged condition
of probation is that the probationer surrender his right to
trial by jury should the government seek revocation, and
No. 03-1908                                                   7

thus imprisonment. Minnesota v. Murphy, supra, 465 U.S. at
435 n. 7; United States v. Czajak, 909 F.2d 20, 23-24 (1st Cir.
1990); Morgan v. Wainwright, 676 F.2d 476, 481 (11th Cir.
1982); United States v. Nagelberg, 413 F.2d 708, 709-10 (2d Cir.
1969).
   A person untutored in the baroque structure that is the
modern U.S. system of criminal procedure might have
supposed that when as a condition of probation Cranley
agreed to “provide true and correct information verbally
and in writing, in response to inquiries by the agent,” he
surrendered his Fifth Amendment privilege and with it his
right to Miranda warnings, since their purpose is to back up
the privilege by making it less likely that it will be forfeited
through ignorance. New York v. Quarles, 467 U.S. 649, 654
(1984); United States v. Gupta, 183 F.3d 615, 617 (7th Cir.
1999); Winsett v. Washington, 130 F.3d 269, 275 (7th Cir.
1997); United States v. Bautista, 145 F.3d 1140, 1146 (10th Cir.
1998); United States v. Sullivan, 138 F.3d 126, 130 (4th Cir.
1998). It is such a natural condition that the district judge
thought that Cranley must have believed that his probation
would be revoked if he refused to answer the BATF agent’s
questions—natural because Cranley would assume that
failure to answer would indeed be grounds for revocation,
though in fact it would be only if he had waived his Fifth
Amendment right when he was admitted to probation. As
a matter of fact, Wisconsin does require probationers to
answer questions put to them by law enforcement authori-
ties, but grants them immunity from use of the answers in
evidence against them. State ex rel. Tate v. Schwarz, 654
N.W.2d 438, 443-44 (Wis. 2002); State v. Evans, 252 N.W.2d
664, 668-69 (Wis. 1977); State v. Carrizales, 528 N.W.2d 29,
32 (Wis. App. 1995).
  However these larger issues be resolved, we disagree with
the district judge that Cranley talked to the agent only
because he was afraid that if he didn’t do so his probation
8                                                  No. 03-1908

would be revoked. The suggestion is implausible, because
if his probation were revoked he would face only 47 days in
prison, while if he confessed to federal firearms violations
he would face a much longer term. But what is more im-
portant is that the Supreme Court held in Minnesota v.
Murphy, supra, a case nearly identical to this one, that fear of
revocation is not a ground for ruling that a probationer’s
confession deprived him of his Fifth Amendment privilege.
It is one thing if the police tell the probationer that unless he
talks his probation will be revoked; that places a price on his
invoking the privilege that the Court thought excessive. 465
U.S. at 435; United States v. Humphrey, supra, 34 F.3d at 554-
55; United States v. Frierson, 945 F.2d 650, 657-58 (3d Cir.
1991). That did not happen here; and the Court in Murphy
held that the lesser price that consists of a merely plausible
fear that invoking one’s Fifth Amendment privilege will get
one into trouble with the probation authorities is not a
heavy enough penalty to excuse the failure to assert the
privilege.
  The only difference between this case and Murphy is that
here the questions that elicited the defendant’s confession
were put by a police officer rather than, as in that case, by
the probation officer. We cannot see what difference that
makes, given the reasoning of Murphy, legalistic as it may
seem. The Court thought there was no difference between
being ordered to show up for questioning at the probation
office and being summoned to testify before a grand jury. If
the grand jury witness thinks his answers are going to in-
criminate him and therefore he doesn’t want to be ques-
tioned, he has to assert his Fifth Amendment right. He can’t
not do so and then later seek to suppress his answers on the
ground that he was afraid that if he “took the Fifth” it
would get him into trouble with the prosecutor. Probably it
would—though less trouble than if he confessed. It is the
same here. Cranley had to show up for the interview, but he
could decide whether it would be better for him to confess
No. 03-1908                                                  9

or to take the Fifth, and he did the former and will not now
be heard to complain of the consequences. He knew what
the interview would be about and who would be doing the
interviewing. That gave him a better opportunity to plan an
appropriate response than if, as the district court thought
would have been less coercive, he had not been told and
instead the probation officer had sprung the questions about
guns on him when he arrived not knowing why he’d been
summoned.
   Realistically, it is more likely that a grand jury witness
will be aware of his right to claim the Fifth Amendment
privilege and that he will forfeit the right if he fails to
invoke it than that a probationer will know that he has a
Fifth Amendment privilege, because the former is more
likely than the latter to have consulted a lawyer in advance
of his appearance. But that is a distinction the Supreme
Court declined to draw in Murphy. 465 U.S. at 427, 431-32.
   It is always something of a puzzle why criminals confess.
Probably Cranley realized that the BATF had the goods on
him and so would nail him even if he clammed up, but that
if he confessed he might get points for having cooperated.
No matter. His failure to assert his Fifth Amendment priv-
ilege forfeited it, and so the order of the district court sup-
pressing his confession must be
                                                   REVERSED.
A true Copy:
        Teste:
                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit


                    USCA-02-C-0072—11-19-03
