                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



               United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                              Argued December 17, 2019
                               Decided January 6, 2020

                                        Before

                        KENNETH F. RIPPLE, Circuit Judge

                        DIANE S. SYKES, Circuit Judge

                        AMY J. ST. EVE, Circuit Judge

No. 19‐1354

UNITED STATES OF AMERICA,                               Appeal from the United States District
     Plaintiff‐Appellee,                                Court for the Southern District of Indiana.

      v.                                                No. 1:16CR00219‐001

RICKY D. CLARK,                                         Jane Magnus‐Stinson,
     Defendant‐Appellant.                               Chief Judge.


                                       ORDER

       Ricky Clark was charged with multiple counts related to possession of child
pornography and coercion, enticement, and sexual exploitation of three minor victims.
He moved to suppress evidence obtained during an interview at his home after he
asked for an attorney but then indicated that he was “willing to talk” to detectives.
Clark argued that the encounter was custodial, so his statements and the other evidence
obtained after he requested counsel must be excluded. The district court concluded that
the interrogation was not custodial and denied the motion. Clark pleaded guilty,
reserving the right to appeal the suppression ruling. We affirm.
No. 19‐1354                                                                         Page 2

                                      I. Background

       Acting on tips about illegal online activities, Detectives Kurt Spivey and Ginger
Marshall went to Clark’s home to question him. The detectives wore plain clothes,
concealed their guns, and did not bring handcuffs into the house. Clark’s mother
answered the door, and she and Clark invited the detectives inside. Detective Spivey
told Clark that he did not have to speak with them. When Clark agreed to answer the
detectives’ questions, Detective Spivey warned him that the subject was sensitive and
asked if Clark wished to speak in private. Clark declined, saying that he wanted his
mother present, and she remained.

        Soon after the detectives began questioning Clark about his online activities with
minors, he asked for an attorney. Clark said, “I think I need a lawyer or something. I’m
really scared. I don’t know what’s going on here.” After his mother told him to calm
down, the police acknowledged his right to counsel and his option to talk to them
without one, and he agreed to do so:

      Marshall: Obviously we’re talking about something that you think has happened
                because ‐‐

      Clark:     I think there might have been some girls that may have lied about their
                 age or something at some point.
      …

      Spivey: You do have the right to an attorney.

      Clark:    Okay.

      Spivey: Okay? That’s fine if you want to do that, or you can talk to us now and
              we can start working this out.

      Clark:    I want a ‐‐ I want an attorney to talk to. I’m just scared. I don’t know
                exactly what’s going on.

      Spivey: Right, I understand.

      Clark:    You’re confusing me.
No. 19‐1354                                                                         Page 3

      Spivey:    Right. And we’re trying to make sure that you understand what your
                 rights are.

      Clark:     Yeah.

      Spivey:    So, okay, that is one of your rights and ‐‐ and you can do that, but like I
                 said, we’re here, we’re ready to talk about this; if you want to talk
                 about it, we can continue.

      Clark:     I’m ‐‐ I’m willing to talk about it.

       After Clark said that he was “willing to talk,” he admitted that he had received
and deleted photos of underage girls. The detectives then asked Clark to consent to a
search of his cell phone and laptop. Clark declined, stating, “I don’t want to incriminate
myself.” The detectives continued to press for Clark’s phone, and he again refused,
repeating, “I don’t want to incriminate myself anymore.” The detectives advised Clark
that he could either turn over his devices or they would get a search warrant. Clark
worried aloud that he had photos of underage girls on his phone in his deleted files.

       Near the end of the interview, which lasted under an hour, Clark walked to his
bedroom, and both detectives followed him. In his bedroom Clark gave them one
phone, and they noticed another phone. Clark picked up the second phone and tried to
destroy it; a scuffle ensued between Clark and Detective Spivey. Clark was then
arrested, and the detectives obtained a search warrant for the residence.

       Clark was charged by superseding indictment with 27 counts related to the
receipt and possession of child pornography and coercion, enticement, and sexual
exploitation of three minor victims. Clark moved to suppress the statements he made to
Detectives Spivey and Marshall during the home encounter and the evidence obtained
as a result. He argued that because the interrogation was custodial and he had asked for
a lawyer, the rule of Miranda v. Arizona, 384 U.S. 436 (1965), required suppression of the
statements and evidence that the police obtained. The district court, Judge Lawrence
presiding, denied the motion, concluding that Clark was not in custody during the
interrogation. The judge relied on the following factors: the interrogation occurred in
Clark’s home; Clark invited the detectives into his home; his mother was present; only
two detectives—in plain clothes and with no weapons revealed—questioned Clark;
Clark was not physically restrained during questioning; the interrogation lasted well
under an hour; and the tone of questioning was not hostile or combative.
No. 19‐1354                                                                           Page 4


       Clark later pleaded guilty to all charges and was sentenced to life in prison. In
his plea agreement, he reserved the right to appeal the denial of his suppression motion.

                                       II. Discussion

       As a matter of long‐established Fifth Amendment law, before police officers may
question a suspect in custody, they must warn the suspect that he may remain silent
and that he has the right to an attorney; if the suspect asks for an attorney, questioning
must cease. See Miranda, 384 U.S. at 444–45. Clark argues that he was in custody during
the interrogation at his home; therefore, the detectives violated the Miranda rule. We
review de novo the district court’s conclusion that Clark was not in custody.
See United States v. Patterson, 826 F.3d 450, 454–55 (7th Cir. 2016).

        To decide whether a suspect is in custody, we consider all the circumstances of
the interrogation to assess whether a reasonable person in the suspect’s position would
have felt free to leave. See Howes v. Fields, 565 U.S. 499, 509 (2012). The following factors
are relevant: the location and duration of the questioning, the suspect’s statements, and
the use of physical restraints. See id. In addition, we consider whether the suspect
consented to questioning, whether the police told the suspect that he was not under
arrest, how many officers were present, whether they displayed force, and whether
their tone likely demanded obedience. See Patterson, 826 F.3d at 455.

        Clark argues that the district judge failed to analyze three factors that in his view
establish that he was in custody during the interrogation: (1) the detectives did not tell
him that he was not under arrest; rather, they told him that he had a right to counsel
and then “ignored” his request for one; (2) he admitted to serious crimes (receiving
photos of underage girls) early in the interrogation; and (3) the detectives followed him
to his bedroom at the end of the interview.

       We see no reason to disagree with the judge’s ruling. First, Clark’s request for a
lawyer and the detectives’ advice that he had the right to one did not make the
encounter custodial. When the police advise a suspect that he may have an attorney
without saying whether the suspect is under arrest, that alone “does not convert an
otherwise noncustodial detention into a custodial arrest under Miranda.” Sprosty v.
Buchler, 79 F.3d 635, 642 (7th Cir. 1996). Otherwise the police would be discouraged
from discussing potential legal options with noncustodial suspects. Relying on an out‐
of‐circuit case, Clark argues that when the custodial status of an interrogation is
No. 19‐1354                                                                         Page 5

unclear, “law enforcement officers are not free to give the Miranda warning and then
blatantly ignore a suspect’s attempt to invoke any right thereunder.” United States v.
Bautista, 145 F.3d 1140, 1151 (10th Cir. 1998). We have no need to consider the precise
factual context of the Tenth Circuit’s statement in Bautista because that case does not
help Clark. First, the detectives did not give Clark full Miranda warnings. Second, they
did not “blatantly ignore” his attempt to ask for counsel. Rather, they acknowledged
that he could seek counsel or, alternatively, he could talk to them without counsel.
Clark then decided to do the latter. Third, Bautista does not hold that if the police do
give Miranda warnings and then “ignore” a request for counsel, the encounter is
necessarily custodial. See id. at 1148. It merely held that a court should consider those
facts when analyzing the question of custody, see id., as Judge Lawrence did here.

       Clark also argues that because he admitted to serious crimes early in the
interrogation, he could not have believed that the detectives would let him go rather
than arrest him if he tried to leave. Interrogations often elicit incriminating admissions
without being custodial. See United States v. Ambrose, 668 F.3d 943, 956 (7th Cir. 2012).
Moreover, Clark’s statements were ambiguous. Although he said that he had received
photos from underage girls on his phone, he disclaimed criminal liability by saying that
he had deleted them.

        Finally, Clark points to the fact that the detectives followed him to his bedroom.
But this factor is at most neutral. On the one hand, the home is the most highly
protected zone of privacy, see Kyllo v. United States, 533 U.S. 27, 31 (2001), so a suspect
may not feel free to leave if police confront him there. But the detectives did not force
themselves into Clark’s home or control it once inside. See Sprosty, 79 F.3d at 641–42
(police control over a setting is more important than its familiarity). Clark and his
mother invited them in, his mother remained present at Clark’s request, the two plain‐
clothes officers displayed no weapons, and they told Clark that he did not have to talk
to them. This kind of interrogation in familiar surroundings lasting under an hour
“generally weighs in favor of finding that [the suspect] was not in custody.” United
States v. Borostowski, 775 F.3d 851, 862 (7th Cir. 2014); compare Ambrose, 668 F.3d at 957–
58 (suspect not in custody where two plain‐clothes agents conduct a nonhostile
interview), with Sprosty, 79 F.3d at 642–43 (suspect in custody where four armed officers
questioned him for over three hours in the home while another stood guard over him).

       Because we conclude that Clark was not in custody during his interrogation, we
have no need to address his argument that the judge should have suppressed, as “fruit
of the poisonous tree,” the physical evidence (his phones and their contents) obtained as
No. 19‐1354                                                                        Page 6

a result of his statements. The detectives did not violate the rule of Miranda and Clark
does not argue that the detectives otherwise obtained the phones unlawfully, so no
“poisonous fruit” is present.

       Clark’s last argument is that even if he was not in custody, the judge should have
suppressed his statements as coerced. But at oral argument counsel conceded that this
argument was raised for the first time on appeal, so we do not address it. See United
Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016).

      We AFFIRM the district court’s judgment.
