                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0465n.06

                                         No. 16-6085

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                              )                   FILED
                                                       )              Aug 09, 2017
       Plaintiff-Appellee,                             )          DEBORAH S. HUNT, Clerk
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
THOMAS SAYLOR,                                         )      COURT FOR THE WESTERN
                                                       )      DISTRICT OF KENTUCKY
       Defendant-Appellant.                            )
                                                       )
                                                       )



       BEFORE: BOGGS, BATCHELDER, and WHITE, Circuit Judges.

       BOGGS, Circuit Judge. This case turns on whether the appellant, Thomas Saylor, was

“in custody” for the purposes of Miranda when he made incriminating statements to law-

enforcement officers in an interview conducted at the halfway house where he lived. Saylor was

the target of a six-month-long federal investigation for his involvement in the possession and

distribution of child pornography. The investigation culminated in the execution of a search

warrant at Saylor’s home, a halfway house for convicted sex offenders in Louisville, Kentucky.

During the execution of that warrant, law-enforcement officers conducted a brief interview with

Saylor, which both parties agree was not preceded by a Miranda warning. Saylor made several

incriminating statements about his possession and distribution of child pornography and was

subsequently arrested and charged with multiple counts of possessing child pornography and

exploiting children, in violation of 18 U.S.C. §§ 2251 and 2252A. He filed a pretrial motion to
No. 16-6085, United States v. Saylor


suppress his incriminating statements, which was denied. Saylor pleaded guilty to the charges,

reserving his right to file this appeal challenging the district court’s denial of his suppression

motion, and was sentenced to 300 months in prison. For the following reasons, we affirm the

district court’s denial of Saylor’s suppression motion.

                                                 I

                                                 A

        In August 2013, the Federal Bureau of Investigation (FBI) received a tip from the

National Center for Missing and Exploited Children (NCMEC) indicating that Microsoft had

reported that a user sent known child pornography to another email address on July 27, 2013.

NCMEC had traced the authoring email address to Thomas Saylor, a registered sex offender in

Louisville, Kentucky, who had previously been convicted of two sex offenses involving minors:

(1) prohibited use of electronic communication to procure a minor for sex, and (2) possession of

matter portraying sexual performance by a minor. The FBI agents confirmed Saylor’s presence

in the sex-offender registry and communicated with his state probation officer, but did nothing

further at that time.

        In March 2014, the FBI received another tip implicating Saylor, this time from an

Immigration and Customs Enforcement (ICE) agent. The agent stated that, in October 2013, an

individual emailed an account that had been taken over by ICE agents, requesting to trade child

pornography. The individual specifically requested “2/6 yo girls only,” and included in the email

an image of a prepubescent girl exposing herself to the camera. Subsequent subpoenas for the

email address returned the number of a disposable cell phone that was registered in Saylor’s

name.




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No. 16-6085, United States v. Saylor


       In response to this new information, the FBI secured a federal search warrant for Saylor’s

residence. At this time, Saylor lived in a halfway house for sex offenders in Louisville. On

March 27, 2014, a team of approximately ten FBI agents and Louisville Metro Police

Department (LMPD) officers, led by Special Agent Tracey Riley, executed the search warrant at

Saylor’s address. Because the three-story home housed nearly a dozen convicted felons, agents

entered the building with their weapons drawn and began directing residents into a central room

in order to keep track of everyone. Residents were informed that they could leave if they chose,

but they were initially handcuffed for the agents’ safety.

       During this sweep of the home, an agent spotted Saylor in the hallway outside one of the

home’s kitchens. Unlike the other residents in the home, Saylor was not immediately handcuffed

and escorted to the centralized location.      Instead, Special Agent Riley confirmed Saylor’s

identity, informed him that they were there to execute a search warrant, and asked him if he

would be willing to speak with law-enforcement agents in the kitchen. Saylor agreed and

entered the kitchen, where he remained under monitoring by an agent standing at the kitchen

door until FBI interviewers could arrive at the scene. No one else interacted with Saylor until the

interviewers arrived, and at no point was Saylor informed that he was free to leave or read his

Miranda rights.

       After waiting approximately fifteen minutes, Saylor was met by FBI Special Agent Adam

Keown and LMPD Detective Shawn Hamilton. The agents offered Saylor water and took seats

opposite Saylor at the kitchen table with their backs to the hallway door, which was no longer

manned by an FBI agent. In a tactical decision, the agents kept their initial questions vague and

generalized, telling Saylor that they simply wanted to discuss his online activity, including

several online accounts that they believed belonged to him.        As the interview progressed,



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No. 16-6085, United States v. Saylor


however, the agents made it clear that they were there to discuss Saylor’s involvement in the

trade of child pornography. In the interview, which lasted somewhere between fifteen and thirty

minutes, Saylor made a number of incriminating statements regarding his involvement in the

transmission of child pornography. He admitted using the email addresses identified by the FBI,

sending emails with child pornography attached, and possessing child pornography on his cell

phone. When presented with copies of the images that he had sent via his email address, he

admitted that they belonged to him and initialed them accordingly at the officers’ request.

Throughout the interview, Saylor appeared remorseful and avoided making eye contact with the

interviewing officers. His remorse gave way to despondence, however, when he threatened to

stab himself with the pen that officers gave him to write his confession.        This ended the

interview.

       Because Saylor was not deemed an immediate risk to any nearby children, FBI agents did

not arrest Saylor after the interview was completed. At no point did the agents read Saylor his

Miranda rights or place him under arrest. Although the agents did not inform Saylor that he was

free to leave at any time, they insist that he was free to do so. Agents did, however, inform

Saylor’s probation officer—who, at Special Agent Riley’s invitation—observed the execution of

the search warrant, of the details of Saylor’s confession. After conferring with his supervisor,

Saylor’s probation officer placed him under arrest immediately following the interview. FBI

agents insist that they did not coordinate with the probation officer to have Saylor arrested and

did not direct him to do so.

       Subsequent to Saylor’s arrest, FBI agents executed search warrants on several of the

email addresses Saylor admitted using to transmit child pornography.          One of the email

addresses contained over 4,000 images and 300 movies of child pornography in attachments to



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No. 16-6085, United States v. Saylor


messages sent to and from that address, including a particularly distressing image of a three-

year-old female who had been bound and gagged.

                                                 B

       Saylor’s actions led to a four-count indictment, charging him with violations of 18 U.S.C.

§§ 2251 and 2252A. Saylor filed a pretrial motion to suppress the statements he made to agents

on the day that they searched his home, arguing that he was in custody for the purposes of

Miranda and never read his rights. A magistrate judge held a hearing and, in a 17-page

memorandum, concluded that Saylor was not in custody for the purposes of Miranda. Saylor

objected to the magistrate judge’s findings, but the district court agreed with the magistrate judge

and denied Saylor’s suppression motion. Saylor subsequently pleaded guilty to the charges, but

reserved his right to challenge the district court’s denial of his suppression motion on appeal. He

was sentenced to 300 months in prison and brings this timely appeal.

                                                 II

       We review the district court’s findings of fact regarding a suppression motion for clear

error and its conclusions of law de novo. United States v. Al-Cholan, 610 F.3d 945, 953 (6th Cir.

2010) (citations omitted). Because Saylor’s motion to suppress was denied below, we review the

evidence “in the light most likely to support the district court’s decision.” Id. at 954 (quoting

United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009)).

                                                 A

       In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court interpreted the Self-

Incrimination Clause of the Fifth Amendment “to protect persons in all settings in which their

freedom of action is curtailed in any significant way from being compelled to incriminate

themselves.” Id. at 467. In practice, this places a burden upon state and federal officers to



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No. 16-6085, United States v. Saylor


ensure that a suspect in custody is “adequately and effectively apprised of his rights” and to

honor those rights when exercised unless they have been waived. Ibid. As the warning of rights

and their subsequent waiver are both “prerequisites to the admissibility of any statement made by

a defendant,” the failure of law-enforcement officers to adequately warn a suspect in custody of

his constitutional rights is fatal to the admission of any testimony induced by subsequent police

interrogation. Id. at 476. If, however, the suspect is not in police custody at the time that the

statements are made, then the safeguards of Miranda do not apply and the testimony is

admissible. Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

       Here, neither party contests that Saylor was interrogated within the meaning of Miranda

and that he was not read his Miranda rights. The only issue is whether Saylor was in police

custody when the interview within the halfway house took place. Saylor argues that he was; the

United States disagrees.

       Whether a suspect is “in custody” for the purposes of Miranda is an objective inquiry that

asks whether there was “a formal arrest or restraint on freedom of movement of the degree

associated with formal arrest.” J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011) (quoting

Thompson v. Keohane, 516 U.S. 99, 112 (1995)). Considering the totality of the circumstances,

“courts focus on the ‘objective circumstances of the interrogation’ to determine ‘how a

reasonable person in the position of the individual being questioned would gauge the breadth of

his or her freedom of action.’” United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009)

(quoting Stansbury v. California, 511 U.S. 318, 323, 325 (1994)). Factors that guide this inquiry

include “the location of the interview; the length and manner of questioning; whether the

individual possessed unrestrained freedom of movement during the interview; and whether the




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No. 16-6085, United States v. Saylor


individual was told she need not answer the questions.” Ibid. (citing United States v. Swanson,

341 F.3d 524, 529 (6th Cir. 2003)).



                                                 B

       The location of Saylor’s interview produces the closest question of law in this case.

Saylor was interviewed in his home, which is the type of suspect-friendly environment that

typically does “not [give] rise to the kind of custodial situation that necessitates Miranda

warnings.” Id. at 466 (quoting United States v. Salvo, 133 F.3d 943, 950 (6th Cir. 1998)).

Saylor’s home, however, was a halfway house under the authority of the Kentucky Department

of Corrections and subject to that department’s policies and procedures. See 501 Ky. Admin.

Regs. 6:020 § 25.6 (defining “Community Service Centers” as including “jails, halfway houses,

and residential treatment facilities that house state inmates and parolees”). Saylor argues that

these regulations worked to limit his freedom of movement, transforming his home from

“a secure redoubt from the cares of the world” into something more akin to a police interrogation

room. Panak, 552 F.3d at 465.

       Although some of these regulations appear quite limiting, it is unclear how many (if any)

applied to a probationer like Saylor. For instance, Saylor uses a portion of his brief to highlight a

provision in the Kentucky Corrections Policies and Procedures that prohibits escape from a

community center, such as a halfway house. Appellant’s Br. at 14; see also 501 Ky. Admin.

Regs. 6:020 § 25.6.II.K. The text of the policy, however, plainly limits its application to inmates

residing in a community center. Probationers, like Saylor, would presumably be afforded far

greater freedom of movement.           Saylor would have been subject to the Conditions of




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No. 16-6085, United States v. Saylor


Supervision,1 a set of policies applicable to probationers and parolees that is promulgated by the

Kentucky Department of Corrections. These include subjection to a warrantless search if the

probation officer has reasonable suspicion that the probationer possesses contraband and a

requirement that the probationer inform his supervising officer within 72 hours if questioned by

any law-enforcement official. Although these factors certainly contribute to the creation of the

kind of police-dominated atmosphere that triggers Miranda protections, it cannot be the case that

an individual’s home is transformed into a custodial environment by virtue of the fact that the

individual is a probationer. In any event, none of the regulations applicable to Saylor rendered

him unable to leave the halfway house at the time that the search warrant was executed, and he

was generally free to do so when he pleased. In sum, under the circumstances presented, the fact

that Saylor’s residence was a halfway house does not make it the kind of “inherently

intimidating” environment that would have made him feel “constrained or intimidated.” Salvo,

133 F.3d at 950–51 (holding interviews in a dormitory computer room and a Burger King

parking lot chosen by a defendant to be noncustodial).

       Saylor also points to the Ninth Circuit’s decision in United States v. Craighead, 539 F.3d

1073 (9th Cir. 2008), which the magistrate judge cited in light of the limited case law dealing

with facts similar to those of this case. There, the Ninth Circuit confronted a set of facts rather

similar to our own: eight law-enforcement officers executed a search warrant in conjunction with

a child-pornography investigation and interviewed the suspect in his home. Id. at 1078–79.

Although the officers informed him that he was not under arrest and that any statement he made

would be voluntary, the Ninth Circuit held that a custodial interrogation had occurred and that

Miranda warnings were required. Id. at 1089. The Ninth Circuit’s opinion carries limited force


1
 Available at
http://corrections.ky.gov/depts/Probation%20and%20Parole/Pages/InformationforOffenders.aspx
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No. 16-6085, United States v. Saylor


here because it relies on a four-factor test to distinguish custodial from non-custodial

interrogations that, although cited, see e.g., Panak, 552 F.3d at 466, has not been imported into

the law of our circuit.2

        In any event, this case can be distinguished from Craighead on its facts. The Ninth

Circuit relied heavily on the number of law-enforcement officers who were dispatched to secure

Craighead’s home. Id. at 1084–85. Although the execution of Saylor’s search warrant involved

an even greater number of officers, Saylor lived in a halfway house alongside a dozen other

convicted felons. Craighead, who lived alone, was far more likely than Saylor to “feel that his

home was dominated by law enforcement agents and that they had come prepared for a

confrontation.”    Id. at 1085.    The Ninth Circuit also noted that Craighead was physically

restrained by virtue of the fact that his interview took place in a closed-door storage room, with

an agent “block[ing] Craighead’s exit from the room” throughout the interview. Id. at 1086.

Here, however, Saylor was interviewed in an open-door kitchen without the presence of an

armed guard. Although his interviewers were seated across the table from him, they were not

positioned in such a way that for Saylor “to get to the room’s only door, he ‘would have either

had to have moved the police detective or asked him to move.’” Ibid. In addition, agents

requested Saylor’s permission to ask him questions, and he agreed, waiting patiently in the

kitchen until investigators were ready to proceed. Craighead, by contrast, was simply directed to

the storage room where the interview took place. Id. at 1078. Under these circumstances, even

if we apply the four-factor Craighead test, we would not find that Saylor could succeed in



2
  The Ninth Circuit’s four-factor test looks at “(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 the statements were made.” Id.
at 1084.

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No. 16-6085, United States v. Saylor


showing that his interrogation gave rise to the kind of police-dominated atmosphere that triggers

Miranda protections.

                                                C

       The second factor we consider is the length and manner of questioning. This factor also

weighs against Saylor. It is undisputed that the agents interviewed Saylor for a period of fifteen

to thirty minutes, well within the window of time that we traditionally consider to be a non-

custodial interview.   See Panak, 552 F.3d at 467 (less-than-an-hour interview was non-

custodial); United States v. Mahan, 190 F.3d 416, 420, 422 (6th Cir. 1999) (hour-and-a-half

interview was non-custodial). Nor do the facts suggest that the interviewing agents employed a

hostile or threatening tone with Saylor. On the contrary, Saylor admits that the interview was

relatively conversational. See Appellant’s Br. at 21.

       Saylor instead argues that the fact that he was confronted with incriminating evidence

makes his interview custodial, again pointing to a Ninth Circuit case, United States v. Brobst,

558 F.3d 982 (9th Cir. 2009). In Brobst, the Ninth Circuit applied a five-factor test to determine

whether an individual was in custody for the purposes of Miranda:

       Factors relevant to whether an accused is “in custody” include the following:
       (1) the language used to summon the individual; (2) the extent to which the
       defendant is confronted with evidence of guilt; (3) the physical surroundings of
       the interrogation; (4) the duration of the detention; and (5) the degree of pressure
       applied to detain the individual.

Id. at 995. The Ninth Circuit concluded that, because the defendant in that case was immediately

confronted with evidence that he was involved in the distribution of child pornography, he was

more likely to feel that he was in police custody. With Brobst, as with Craighead, the Ninth

Circuit’s approach to Miranda does not have an exact parallel in our case law. We have never

held, for example, that a noncustodial conversation may be transformed into a custodial


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No. 16-6085, United States v. Saylor


interrogation simply by virtue of the fact that police confronted the defendant with evidence of

guilt.

         On the contrary, we have found interviews to be noncustodial even when the defendant

has been made aware of evidence suggesting his guilt. See Salvo, 133 F.3d at 952 (holding the

interview to be noncustodial even though “the agents told Salvo they knew about Brandon, the

boy he wanted to seduce, and Brian, the person he communicated with via [incriminating] e-

mail”). Because “[i]t is well-settled that in order to impact upon the custody determination, the

communication of [incriminating evidence] must somehow relate to the suspect’s freedom of

action,” ibid., “[e]ven a clear statement from the officer that the person under interrogation is the

prime suspect is not in itself, dispositive of the custody issue, for some suspects are free to come

and go until the police decide to make an arrest,” ibid. (quoting Stansbury, 511 U.S. at 325).

                                                 D

         This third factor—whether the defendant possessed unrestrained freedom of movement

during the interview— is also close, but on balance favors the government. It is undisputed that,

unlike the other residents of the halfway house, Saylor was never placed in handcuffs or

otherwise physically restrained. It is also undisputed that Saylor was never told that he could

leave at any time, although he was never told that he had to stay, either. Saylor points to two

instances in which he can make a plausible case that he was restrained: (1) the fifteen minutes

that he spent under watch waiting in the kitchen; and (2) the thirty minutes that he spent seated

across the table from investigators during his interview. Neither proves persuasive.

         During the roughly fifteen minutes that Saylor waited for his interview in the kitchen, he

was monitored by an agent. As Special Agent Riley explained, this was to ensure that “he didn’t

try to get a knife or something out of the kitchen . . . to harm himself or anybody else.”



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No. 16-6085, United States v. Saylor


Moreover, Saylor was monitored to the same or lesser extent that the agents monitored all of the

other residents of the house while the search warrant was being executed: “This is not anybody’s

first search warrant. It’s known that we keep eyes on our individuals that are in a house, whether

it’s male, female, kids, whatever.”        As the district court noted, this is a common-sense

justification that finds some support in our case law. Cf., e.g., INS v. Delgado, 466 U.S. 210, 219

(1984) (holding in the Fourth Amendment seizure context that “[t]he presence of agents by the

exits posed no reasonable threat of detention” to factory workers who were questioned about

their immigration status while on job assignments); Michigan v. Summers, 452 U.S. 692, 705

(1981) (holding that “a warrant to search for contraband founded on probable cause implicitly

carries with it the limited authority to detain the occupants of the premises while a proper search

is conducted”); United States v. Malcolm, 435 F. App’x 417, 421 n.1 (6th Cir. 2011) (holding

that “general security protocols within the ATF office, which required staff escort for non-ATF

visitors” did not place the defendant in custody for the purposes of Miranda).

        During the roughly thirty minutes that Saylor was interviewed, he sat across the kitchen

table from two law-enforcement officers.3 Saylor argues that they positioned themselves in this

way intentionally in order to block his access to the only door leading out of the kitchen.

Saylor’s argument is significantly weakened by the fact that the record seems to reflect that

Saylor had chosen his seat before the officers had even entered the room. One agent testified, “I

believe he was already sitting down when I entered the room.” The officers’ decision to conduct

the interview across the table from Saylor—perhaps the most logical positioning for a

conversation—does not render the interview custodial merely because it also happened to place

them between Saylor and the only available exit. Had the officers intentionally placed Saylor


3
 These were the only two officers in the room. The agent previously posted at the door to the kitchen to
monitor Saylor was no longer present.
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No. 16-6085, United States v. Saylor


there or maneuvered the table in order to box Saylor in, he might have a stronger case. See

Salvo, 133 F.3d at 951 (noting that because “Salvo himself selected the locations for the

interviews,” it indicated that he “felt comfortable” in those places and that thus the interview was

not custodial). As the facts stand, however, it does not appear that the officers restrained

Saylor’s movement in any significant way while they conducted the interview.

                                                 E

       The final factor asks whether Saylor was told that he did not need to answer the officers’

questions. It is undisputed that the officers did not do so. Although this factor cuts against the

government, it cannot alone redeem Saylor’s cause. “[W]e have never held that [this instruction]

is a necessary condition (as opposed to a frequently sufficient condition) before officers may

question an individual in a non-custodial setting.” Panak, 552 F.3d at 467. After all, “[i]t would

be strange . . . to say that a telltale sign of whether an individual must be Mirandized is whether

the officer gave the individual one of the Miranda warnings.” Ibid.

       In light of the four factors listed above—the location of the interview, the length and

manner of questioning, whether Saylor possessed unrestrained freedom of movement, and

whether Saylor was told he need not answer the questions—a reasonable person in Saylor’s

position would not have believed he was detained to a degree associated with formal arrest.

Thus, he was not “in custody” for the purposes of Miranda, and his motion to suppress was

properly denied.

                                                III

       For these reasons, we AFFIRM the decision of the district court to deny Saylor’s motion

to suppress.




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