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

No. 06-3953
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

DENNIS THOMPSON,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
       No. 04 CR 847—Joan Humphrey Lefkow, Judge.
                         ____________
     ARGUED MAY 25, 2007—DECIDED AUGUST 7, 2007
                    ____________


  Before BAUER, CUDAHY, and FLAUM, Circuit Judges.
   BAUER, Circuit Judge. On October 20, 1999, Dennis
Thompson robbed a branch of the LaSalle National Bank
in Peru, Illinois, taking $64,761 in cash. Nearly five years
later, on September 22, 2004, FBI Special Agents Timothy
Eley and Dan Lee arrived at Thompson’s home to inter-
view him about the robbery. Ultimately, Thompson
confessed twice to robbing the LaSalle National Bank:
first to Agents Eley and Lee at his home, and later to
Agents Randy Ray and Mike Dalide at the FBI’s Rockford,
Illinois office.
  On October 14, 2004, Thompson was charged in an
indictment with aggravated bank robbery (count one), in
2                                              No. 06-3953

violation of 18 U.S.C. §§ 2113(a) and (d), and use of a
firearm in furtherance of a crime of violence (count two),
in violation of 18 U.S.C. § 924(c)(1)(A). He filed a motion
to suppress the September 22 and 23, 2004 statements
that he gave to the FBI agents. The district court held an
evidentiary hearing on Thompson’s motion on March 2,
2006 and issued an opinion denying the motion on March
21, 2006. Thompson entered a conditional plea of guilty to
both counts in the indictment, reserving the right to
appeal the denial of his motion to suppress. On October 20,
2006, the district court sentenced Thompson to a total of
148 months’ imprisonment. Thompson filed a timely
notice of appeal on October 26, 2006.
  Thompson’s appeal challenges the district court’s denial
of his motion to suppress on two grounds: (1) the first
interrogation was custodial and he was not given proper
warnings under Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and (2) the agents
deliberately subjected him to a two-step interrogation in
order to evade Miranda, in violation of Missouri v. Seibert,
542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).
When reviewing the denial of a motion to suppress, we
review the district court’s factual findings for clear error
and questions of law de novo. United States v. Parker, 469
F.3d 1074, 1077 (7th Cir. 2006) (citing United States v.
Grap, 403 F.3d 439, 443 (7th Cir. 2005)). Because the
resolution of a motion to suppress is a fact-specific in-
quiry, we give deference to credibility determinations of
the district court judge, who had the opportunity to listen
to testimony and observe the witnesses at the suppression
hearing. Id. (citing United States v. Marshall, 157 F.3d
477, 481 (7th Cir. 1998)).
  The district court judge credited the testimony of Agents
Eley and Lee regarding their encounter with Thompson on
September 22, 2004. They testified that they had arrived
at Thompson’s home on that date to interview Thompson
No. 06-3953                                                 3

about the robbery of the LaSalle National Bank. The
agents identified themselves to Thompson, showed their
photo identification to him, and asked him if he was
willing to speak with them. Thompson agreed, inviting the
agents into his living room. Once inside and while every-
one remained standing, the agents questioned Thompson
about his background. Thompson answered the agents’
questions but gave the agents his alias, David James
Fowler, and an alias birth date. He denied that he was
involved in the bank robbery until the agents showed him
a sketch of the robbery suspect and called him by his
given name, Dennis. Thompson testified at the suppres-
sion hearing that, at that point, he realized that the
agents knew his identity.
  The agents questioned Thompson from that point
forward while sitting in the living room. Thompson
testified that he sat on the couch while the agents sat
in chairs to the left and right of him, approximately four
or five feet away. Even when they leaned forward, at no
point did the agents come within two feet of his face.
Neither agent physically touched Thompson in a threaten-
ing or intimidating manner. During the interview, Thomp-
son asked to get a glass of water from the kitchen and,
later, his Bible from a walk-in closet in the living room.
Agent Eley agreed to Thompson’s requests but followed
him on both occasions at a distance of about five to six feet,
keeping Thompson in view at all times.
  Over the next few hours, the agents told Thompson that
criminal defendants who cooperate with the authorities
receive lighter punishments. They also mentioned the
possibility that Thompson might be released from jail on
bond in order to dispose of his personal possessions.
Eventually, Thompson confessed to the robbery in detail.
Agent Eley prepared a written confession that Thompson
reviewed and signed. The agents then left Thompson’s
4                                               No. 06-3953

home without arresting him. Two other agents stood watch
over Thompson’s home approximately 100 yards away.
  Early the next morning, Thompson left his home
dressed in athletic clothing to go for a jog. FBI Agents
Randy Ray and Mike Dalide were conducting surveillance
of Thompson’s building. They had received instructions to
take Thompson into custody if he left his residence. When
Thompson attempted to leave, the agents arrested him,
eventually bringing him to the FBI’s Rockford, Illinois
office. Neither Agent Ray nor Agent Dalide knew that
Thompson had confessed the previous night to committing
the bank robbery. They placed Thompson in an interview
room and advised him of his Miranda rights, which
Thompson waived. Thompson then gave a second confes-
sion to the October 20, 1999 robbery of the LaSalle Na-
tional Bank.
  In his appeal, Thompson ignores certain findings of the
district court and instead offers again his version of the
events on September 22 and 23, 2004, which the district
court rejected. The district court judge specifically declined
to credit Thompson’s claim that Agent Eley placed his
hand on his firearm in a threatening manner before
Thompson was allowed to move into the kitchen. She found
that the agents did not motion to or otherwise identify
their weapons at any point during the interview. The
judge also rejected Thompson’s claim that he had con-
fessed to Agents Eley and Lee in exchange for promises
that Thompson could spend the night in his home and that
he would not be arrested until the following afternoon or
evening. She found further that the agents did not in-
struct Thompson to remain in his home and that Thomp-
son was not aware that agents were posted outside his
home during the late evening hours of September 22, 2004
and the early morning hours of September 23, 2004.
Thompson does not argue that these findings were clearly
erroneous or otherwise challenge the district court’s
No. 06-3953                                               5

findings of fact. In light of the district court’s careful
consideration of the conflicting testimony and the defer-
ence that we give to its factual determinations, we accept
the district court’s findings of fact for our de novo con-
sideration of whether Thompson’s first interrogation was
custodial and whether the two interrogations violated
Miranda.
  We turn now to Thompson’s contention that the inter-
rogation conducted by Agents Eley and Lee at his home
was custodial and therefore in violation of Miranda. Under
Miranda, a suspect interrogated by law enforcement
officers while in custody must be notified of his constitu-
tional rights to counsel and against self-incrimination.
Miranda, 384 U.S. at 444. Before Miranda warnings are
required, however, “the suspect must be both ‘in custody’
and subjected to ‘interrogation. . . .’” United States v.
Barker, 467 F.3d 625, 628 (7th Cir. 2006) (citing United
States v. Abdulla, 294 F.3d 830, 834 (7th Cir. 2002)).
  A suspect is “in custody” for Miranda purposes when
there is “questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.”
Barker, 467 F.3d at 628 (quoting Miranda, 384 U.S. at
444). “Custody ‘implies a situation in which the suspect
knows he is speaking with a government agent and does
not feel free to end the conversation; the essential element
of a custodial interrogation is coercion.’” United States v.
Salyers, 160 F.3d 1152, 1159 (7th Cir. 1998) (quoting
United States v. Martin, 63 F.3d 1422, 1429 (7th Cir.
1995)).
  The inquiry into whether a suspect is in custody is
objective: we look to the totality of the circumstances
and consider whether a reasonable person would have
believed that he or she was free to leave. Barker, 467 F.3d
at 628 (citing United States v. Lennick, 917 F.2d 974, 977
6                                               No. 06-3953

(7th Cir. 1990)). We consider such factors as whether the
encounter occurred in a public place; whether the suspect
consented to speak with the officers; whether the officers
informed the individual that he was not under arrest and
was free to leave; whether the individual was moved to
another area; whether there was a threatening presence
of several officers and a display of weapons or physical
force; and whether the officers’ tone of voice was such
that their requests were likely to be obeyed. Id. at 629.
  Considering the totality of the circumstances present
here, a reasonable person would not have believed that he
was in custody. Thompson invited the agents into his
home and agreed to be questioned. See Beckwith v. United
States, 425 U.S. 341, 347-48, 96 S. Ct. 1612, 48 L. Ed. 2d
1 (1976) (relaxed, three-hour interview in suspect’s home
did not implicate Miranda). While Thompson’s living
room is small, requiring Thompson and the agents to sit
within a few feet of one another, the close proximity of the
agents alone, in these circumstances, is insufficient to
render a suspect “in custody.”
  Additionally, the agents did not raise their voices or
display their weapons in an intimidating manner, nor did
they physically restrain Thompson in any way. See United
States v. Griffin, 922 F.2d 1343, 1350-51 (7th Cir. 1990)
(“The bare fact of physical restraint does not itself
invoke Miranda, only that restraint which is of a degree
associated with formal arrest.”) (internal citations and
quotations omitted). Agent Eley followed Thompson when
Thompson went to get a glass of water and his Bible,
activities that are not inherently private and that do not
establish a custodial situation by the mere presence of a
law enforcement officer. Cf. United States v. Madoch, 149
F.3d 596, 601 (7th Cir. 1998) (presence of agent in bath-
room while getting dressed and pumping breast milk
sufficient to establish that suspect was “in custody”). There
No. 06-3953                                                7

is also no evidence of coercion or subterfuge. The district
court did not believe Thompson’s claim that the agents
had promised Thompson anything in exchange for his
confession, and the agents testified that the interview was
calm and that they did not raise their voices when speak-
ing with Thompson. Thompson was not arrested at the
conclusion of the interview, and his own actions the
following morning of leaving his home dressed in athletic
apparel to go jogging suggest that Thompson himself did
not believe that he was in custody. Thus, we are in agree-
ment with the district court’s finding that Thompson was
not “in custody” during the September 22 interview and
denial of Thompson’s motion to suppress the September
22 confession.
  In light of our finding that Thompson was not “in cus-
tody” during the first interview, his second challenge, the
contention that his September 23, 2004 confession was the
result of an impermissible, two-step interrogation process
designed to circumvent and undermine Miranda, also
fails. In Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601,
159 L. Ed. 2d 643 (2004), on which Thompson relies, the
Supreme Court invalidated the “question first” police
protocol for custodial interrogation in which the police
first question a suspect who is in custody until the sus-
pect gives a confession without giving the suspect
Miranda warnings. 542 U.S. at 604-05. Only after the
suspect confesses would the police give the Miranda
warnings and then repeat the questions until the suspect
gives the incriminating answers that he or she had
provided earlier. 542 U.S. at 606. In this case, Miranda
warnings before the first confession were not required
because Thompson’s first interview was not custodial;
Seibert therefore does not apply. Accordingly, the dis-
trict court properly denied Thompson’s motion to sup-
press his September 23, 2004 statement.
  For the foregoing reasons, the judgment of the district
court is AFFIRMED.
8                                        No. 06-3953

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—8-7-07
