                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 21 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-30129

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00070-RFC-1

  v.
                                                 MEMORANDUM*
KRISTI MAE LITTLE WOLF,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                            Submitted March 6, 2012**
                                Portland, Oregon

Before: W. FLETCHER, FISHER, and BYBEE, Circuit Judges.

       Appellant Kristi Mae Little Wolf appeals the denial of her motion to

suppress statements made to police during an in-home interview about her




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
participation in a scheme to distribute methamphetamine. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Little Wolf argues that because the investigating officers did not inform her

of her right against self-incrimination, “the prosecution may not use statements . . .

stemming from” that questioning because she was in custody at the time. See

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Little Wolf was “in custody” when

interviewed in her home if, based on “the totality of the circumstances . . . a

reasonable person in [her] position . . . would not have felt free to terminate the

interrogation” and leave. United States v. Craighead, 539 F.3d 1073, 1082–83 (9th

Cir. 2008). In evaluating such claims, courts examine:

      (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) whether 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
      statements were made.

Id. at 1084.

      None of these factors weigh in favor of the conclusion that Little Wolf was

in custody when questioned by the investigating officers. As the district court

found after conducting a hearing, three law enforcement officers entered Little

Wolf’s home dressed in plain clothes. None of the officers openly carried

weapons. The tone of the interview was generally cordial and Little Wolf was
cooperative. Little Wolf was not handcuffed or otherwise restrained, and the

record shows that she could move freely about her home. The officers permitted

Little Wolf to keep her baby with her during their questioning, and the record does

not suggest that the officers attempted to isolate Little Wolf from the outside

world. In fact, one of the investigating officers told Little Wolf that she was not

going to be arrested and she was free to leave. While “[t]he mere recitation of the

statement that the suspect is free to leave or terminate the interview . . . does not

render an interrogation non-custodial per se,” Craighead, 539 F.3d at 1088, and

the court must consider the delivery of these statements within the context of the

interview as a whole, id., the record here shows that Little Wolf was not questioned

while in custody.

      AFFIRMED.




                                           3
