                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2848
                                   ___________

United States of America,               *
                                        *
                   Appellant,           * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Arkansas.
                                        *
W. J. B. Axsom, II,                     *
                                        *
                   Appellee.            *
                                        *
                                   ___________

                             Submitted: December 11, 2001

                                 Filed: May 6, 2002
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
                         ___________

RILEY, Circuit Judge.

      W.J.B. Axsom, II (Axsom) filed a motion to suppress inculpatory statements
made during a police interrogation conducted in his home. The district court granted
the defendant's motion to suppress. The government appeals, and we reverse.
I.     BACKGROUND
       On March 3, 1999, at approximately 6:45 a.m., federal agents executed a search
warrant on Axsom's residence seeking evidence of child pornography. When the
federal agents knocked and announced their presence, Axsom arrived at the door
wearing only a towel. Under the direction of FBI Special Agent Jill Hill (Hill), nine
federal agents and other employees entered Axsom's house. Upon entering, agents
observed dogs inside the residence and directed Axsom to secure the dogs outside.
The agents also observed numerous firearms and knives inside the residence,
including fifteen shotguns and rifles lying on a kitchen table, another loaded firearm,
three Samurai swords, and dozens of display knives and other guns hanging on the
walls.

       Once the dogs and weapons were secured, Hill and Customs Service Agent
Robert Mensinger (Mensinger) directed Axsom to sit down. Hill explained to Axsom
that she had a search warrant to search the residence for the presence of child
pornography. She informed him that he was not under arrest1 and that she was
interested in speaking with him, if he would like to speak with her. Axsom told Hill
he was willing to talk with her. Before commencing the interview, federal agents
escorted Axsom to the bedroom to dress.

       After dressing, Axsom returned to the living room, sat down on an easy chair
and smoked his pipe. Hill and Mensinger sat on a sofa located across from Axsom.
Intermittently, over the course of the next hour, Hill and Mensinger interviewed
Axsom. At the beginning of the questioning, Axsom stood up to get a drink.
Mensinger told Axsom to "hold on just a minute" and asked him what he needed.
When Axsom explained he had a dry mouth, Mensinger directed another agent to
bring Axsom a glass of water.

      1
       Axsom did not recall the agent telling him he was not under arrest although
he did not deny she may have made that statement.

                                         -2-
       During the interview, Hill asked Axsom if he lived alone, how long he had
owned his computer, what his password was, the name of his Internet service
provider, how long he had subscribed to the provider, and for what purposes he used
the Internet.2 Axsom provided the requested information and gave Hill his password.
Hill also asked Axsom whether he had downloaded child pornographic images off the
Internet into his computer, if he visited news groups and chat rooms on the Internet,
and, if so, which ones. Axsom admitted to Hill that he had downloaded child
pornography. He did not identify news groups by names, but instead told Hill he
enjoyed news groups on certain subjects, including preteens, high heels, nylons,
screen savers, and cartoon sounds.

      Mensinger asked Axsom whether he had downloaded or transmitted child
pornography, and whether he had received foreign manufactured pornography.
Axsom replied that he had received some pornography with foreign language script,
which he believed had been manufactured abroad. Mensinger also asked Axsom
whether he was molesting children. Axsom denied ever doing so. Axsom expressed
his need to use the bathroom, and Mensinger escorted him for security reasons.

        Execution of the search warrant took approximately two hours. After the
interview, and while the agents continued their search, Axsom moved about his
residence, answered the telephone, and continued to smoke his pipe. The agents' only
concern with Axsom's movements was Axsom obtaining any of the numerous
weapons spread throughout the house. Axsom volunteered to show agents which of
his two computers contained pornography and offered to show Mensinger his
Samurai sword collection.




      2
      Mensinger testified that an FBI computer specialist secured the computer and
asked Axsom several questions concerning the computer, including questions about
hookups, encryption devices and booby traps.

                                         -3-
         During the search, agents discovered a small quantity of marijuana inside the
house and contacted the local sheriff's office. Two sheriff officers arrived during the
search and issued Axsom a citation. When the search ended at 8:45 a.m., the federal
agents departed without arresting Axsom. Several hours later, Axsom phoned the
Customs Service office and left a recorded voice message for Agent Mensinger's
supervisor commending Mensinger and the FBI for having done "a really professional
job" . . . "in a real professional manner." In the same recording, Axsom also said "I
done something that was illegal."

       Following his indictment, Axsom moved to suppress inculpatory statements
made during the interview. Axsom claimed he had been the subject of a custodial
interrogation and had not been given a Miranda warning. The district court
conducted a suppression hearing and granted the motion to suppress. The district
court concluded that the balance of the six factors outlined in United States v. Griffin,
922 F.2d 1343, 1349 (8th Cir. 1990), weighed in favor of suppression. The
government filed a motion for reconsideration which the district court denied. This
appeal followed.

II.    DISCUSSION
       A.    Standard of Review
       In Thompson v. Keohane, 516 U.S. 99 (1995), the Supreme Court considered
the question whether a state-court "in custody" determination, for purposes of
Miranda, is a factual finding entitled to a presumption of correctness under 28 U.S.C.
§ 2254(d) or a mixed question of law and fact warranting independent review by the
federal habeas court. Thompson, 516 U.S. at 106. The Court held that an "in
custody" determination requires two discrete inquiries: "first, what were the
circumstances surrounding the interrogation; and second, given those circumstances,
would a reasonable person have felt he or she was not at liberty to terminate the
interrogation and leave." Id. at 112 (footnote omitted). In contrast to the first inquiry,
which is factual, the second inquiry "calls for application of the controlling legal

                                           -4-
standard to the historical facts." Id. This ultimate determination, the Court held,
"presents a 'mixed question of law and fact' qualifying for independent review." Id.

      We first cited Thompson in United States v. McKinney, 88 F.3d 551 (8th Cir.
1996), a case involving a direct appeal of an "in custody" determination. In
McKinney, we suggested that, in light of Thompson, the circuit may need to
reconsider the applicable standard of review. McKinney, 88 F.3d at 554 n.2.
Although we upheld the district court's "in custody" determination utilizing a clearly
erroneous standard, we concluded we would have reached the same result if we had
applied de novo review under Thompson. Id.

      Later, in Evans v. Rogerson, 223 F.3d 869 (8th Cir. 2000), a case brought
pursuant to 28 U.S.C. § 2254, we applied the "two discrete inquiries" test outlined in
Thompson in analyzing an "in custody" determination made by a state court. Id. at
872-73. Since Evans was decided, the circuit has not revisited Thompson. Recently,
in two direct appeals of "in custody" determinations, a clearly erroneous standard of
review was utilized. See United States v. Cates, 251 F.3d 1164, 1166 (8th Cir. 2001);
United States v. Hanson, 237 F.3d 961, 963 (8th Cir. 2001) (citing McKinney, 88
F.3d at 553).

       Seven circuit courts have applied Thompson's standard of independent review
in direct appeals of "in custody" determinations made by district courts. See United
States v. Hayden, 260 F.3d 1062, 1065 (9th Cir. 2001); United States v. Trueber, 238
F.3d 79, 93 (1st Cir. 2001); United States v. Mahan, 190 F.3d 416, 421 (6th Cir.
1999); United States v. Erving L., 147 F.3d 1240, 1244-46 (10th Cir. 1998); United
States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998); United States v. Yusuff, 96 F.3d
987-88 (7th Cir. 1996); United States v. Ali, 86 F.3d 275, 276 (2d Cir. 1996). Before
Thompson was decided, four other circuit courts applied a de novo standard in
reviewing a district court's conclusions of law pertaining to "in-custody" issues. See
United States v. Adams, 1 F.3d 1566, 1575 (11th Cir. 1993); United States v. Collins,

                                         -5-
972 F.2d 1385, 1404-06 (5th Cir. 1992); United States v. Cruz, 910 F.2d 1072, 1077-
78 (3d Cir. 1990); United States v. Baird, 851 F.2d 376, 379 (D.C. Cir. 1988).

       In determining whether Axsom was "in custody," we follow our precedent
established in Evans and join the other circuit courts in applying a de novo standard
of review to all "in custody" determinations, whether appealed directly or brought
collaterally. We reject our earlier cases that applied a clearly erroneous standard of
review because this standard is inconsistent with Thompson. Accordingly, in
reviewing "in custody" determinations, we uphold findings of historical fact unless
clearly erroneous, but we apply the controlling legal standard to the historical facts
utilizing an independent review. Thompson, 516 U.S. at 112; Evans, 223 F.2d at 872.

       B.    The Interrogation
       The rule in Miranda requires that any time a person is taken into custody for
questioning, a law enforcement officer must, prior to questioning, advise the
individual of his right to be free from compulsory self-incrimination and his right to
the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 444 (1966). A custody
determination requires the court to carefully assess "the totality of the circumstances."
Hanson, 237 F.3d at 963. The undisputed facts establish that Hill and Mensinger
were interrogating Axsom. To determine whether the Miranda rule applies, we must
examine whether Axsom's interrogation was custodial.

       The "task of defining 'custody' is a slippery one." Oregon v. Elstad, 470 U.S.
298, 309 (1985). This case is no exception and presents a close question. See United
States v. Mottl, 946 F.2d 1366, 1369 (8th Cir. 1991). Custody occurs when a suspect
is deprived of his freedom of action in any significant manner. Griffin, 922 F.2d at
1347 (citing Miranda, 384 U.S. at 444 and Berkemer v. McCarty, 468 U.S. 420, 429
(1984)). In deciding whether a person was "in custody," we must examine both the
presence and extent of physical and psychological restraints placed upon the person's
liberty during the interrogation "in light of whether a 'reasonable person in the

                                          -6-
suspect's position would have understood his situation' to be one of custody." Griffin,
922 F.2d at 1347 (quoting Berkemer, 468 U.S. at 442). Thus, if Axsom believed his
freedom of action had been restrained to a "degree associated with formal arrest" and
his "belief was reasonable from an objective viewpoint," then Axsom was "held in
custody during the interrogation." Id. at 1347 (citations omitted).

      In Griffin, we outlined six common indicia of custody which tend either to
mitigate or aggravate the atmosphere of custodial interrogation. The indicia are:

      (1) whether the suspect was informed at the time of questioning that the
      questioning was voluntary, that the suspect was free to leave or request
      the officers to do so, or that the suspect was not considered under arrest;
      (2) whether the suspect possessed unrestrained freedom of movement
      during questioning; (3) whether the suspect initiated contact with
      authorities or voluntarily acquiesced to official requests to respond to
      questions; (4) whether strong arm tactics or deceptive stratagems were
      employed during questioning; (5) whether the atmosphere of the
      questioning was police dominated; or, (6) whether the suspect was
      placed under arrest at the termination of the questioning.

Id. at 1349.

       The first three indicia are mitigating factors which, if present, mitigate against
the existence of custody at the time of questioning. Conversely, the last three indicia
are aggravating factors which, if present, aggravate the existence of custody. We
have emphasized these six indicia of custody are representative and are not exclusive.
A finding of custody does not require the factual circumstances of a case to present
all indicia; and a particularly strong showing of one factor may compensate for a
lesser or non-existent showing of another factor. Id.

      Guided by these principles, we review de novo the district court's application
of the Griffin factors to this case. The district court found the absence of any

                                          -7-
mitigating factors and a particularly strong showing of one aggravating indicium –
a police-dominated atmosphere. Based on these findings, the district court concluded
the indicia, when balanced, weighed in favor of finding that Axsom's belief that he
was in custody was objectively reasonable under the totality of the circumstances.

       The district court found the agents failed to inform the defendant (1) he was not
under arrest; (2) the questioning was voluntary; (3) he was free to leave; or (4) he
could reject the agents' request to answer questions. During the suppression hearing,
Hill and Mensinger testified that Hill told Axsom, before questioning him, that he
was not under arrest. Axsom's testimony did not deny this fact. Axsom explained
"I'm not saying [Hill] did not say that. I'm just saying the words did not register with
me." Furthermore, both Hill and Mensinger testified that Hill told Axsom, before
questioning him, that she would like to talk with him, if he was willing to talk with
her. Axsom's testimony did not dispute this fact. Therefore, we conclude the district
court's factual findings that Axsom was not advised he was not under arrest and the
questioning was voluntary were clearly erroneous. We further conclude the court
erred in not finding the presence of the first mitigating factor.

       The district court found the second mitigating factor did not exist because
federal agents restrained Axsom's freedom of movement. In support of its finding,
the district court noted agents escorted Axsom into the bedroom to dress and to use
the bathroom. The record establishes that before the interview commenced, a male
agent escorted Axsom into the bedroom to obtain clothing while a search of the room
was in progress. Mensinger later escorted Axsom to the bathroom, which was located
a short distance from a Samurai sword collection. During the questioning, Axsom
attempted to obtain a drink, but Mensinger stopped him and directed another agent
to bring Axsom a glass of water. Because Axsom was not permitted to move about
at will during the interview, we cannot say the district court erred in finding that the
second mitigating factor was absent.



                                          -8-
       In considering the third mitigating factor, the district court correctly found that
Axsom did not initiate or arrange for the questioning. However, the court failed to
analyze the disjunctive prong of the third mitigating factor – whether the defendant
voluntarily acquiesced to requests by federal agents to answer questions.3 At the
suppression hearing, Axsom testified that he would have answered any questions
asked by the interrogating agents because he believed it was in his own best interest
to appear friendly to the agents and to cooperate with their investigation. Axsom's
conduct during the interview further supports a finding of voluntary acquiescence.
Axsom was extremely friendly and cooperative during the interview. He offered to
show agents which of his two computers contained child pornography, the target he
shot to obtain his concealed handgun license, and his Samurai sword collection. We,
therefore, find the historical facts establish the presence of the third mitigating factor.

       Turning to the aggravating factors, the district court made no finding as to
whether Hill and Mensinger employed strong arm tactics or deceptive stratagems
during their questioning. We find the agents did not. Although armed, the agents did
not adopt a threatening posture toward Axsom, display their weapons, or make a
physical show of force during the questioning. Nor did the agents perform any
deceptive stratagems. Axsom testified the agents asked "straightforward questions"
and he gave "straightforward answers." Within hours of the agents' departure from
his home, Axsom phoned the Customs Service office and left a voice recording
commending Mensinger and the FBI for their professionalism. We, therefore, find
the facts fail to establish the presence of the fourth indicium or first aggravating
factor.

     The district court found that the presence of nine agents and specialists in
Axsom's small house established the existence of the fifth indicium – a police


      3
       Axsom acknowledged he knew from watching TV he did not have to answer
the agents' questions.

                                           -9-
dominated atmosphere. The fifth indicium inquires "whether the atmosphere of the
questioning was police dominated." Griffin, 922 F.2d at 1349 (emphasis added).
While nine persons participated in the execution of the search warrant, only two
agents conducted the interview. During the interview, Axsom sat on an easy chair
and smoked his pipe while Hill and Mensinger sat across from him on a small sofa.
Communication between the agents and Axsom consisted of two-way questioning.
The agents asked questions of Axsom, but Axsom also asked the agents questions
about search procedures. Photographs of Axsom and federal agents taken at or near
the time of questioning reflect a more casual scene than a police dominated,
inherently coercive interrogation. When a suspect is interrogated in the comfort and
familiarity of his home, a court is less likely to find the circumstances custodial. See
United States v. Erving L., 147 F.3d 1240, 1247 (10th Cir. 1998) (quoting 1 W.
LaFave, Criminal Procedure § 6.6(e), at 496 (1984 & Supp. 1991)). We, therefore,
find the district court erred in finding the presence of the fifth indicium or second
aggravating factor.

       The district court also failed to document a finding regarding the presence or
absence of the sixth indicium or third aggravating factor. At the termination of the
questioning, agents did not arrest Axsom. Therefore, we find this historical fact fails
to establish the presence of the sixth indicium or third aggravating factor.

        Having reviewed the indicia outlined in Griffin, we find the presence of the
first and third mitigating factors. Although evidence exists to support the district
court's finding that agents restrained Axsom's freedom of action, his freedom was not
restrained to a "degree associated with formal arrest." California v. Beheler, 463 U.S.
1121, 1125 (1983) (per curiam). Axsom was not handcuffed, nor was he confined to
one room. Axsom moved throughout his residence. He secured his dogs outside; he
entered his bedroom to obtain clothing; he sat in the living room; and he used his
bathroom.



                                         -10-
       Given the extensive arsenal of weapons discovered inside Axsom's house, we
find the absence of the second mitigating factor – unrestrained freedom of
movement – much less significant than we otherwise would. Upon entering the
residence, agents confronted immediate threats to their physical security – dogs, rifles
and shotguns, a loaded handgun, a Samurai sword collection, and an extensive array
of other guns and knives hanging from the walls. From an objective viewpoint, a
reasonable person in Axsom's shoes should have realized the agents escorted him not
to restrict his movement, but to protect themselves and the integrity of the search.

       We further find the absence of any aggravating factors outlined in Griffin.
While execution of the search warrant was certainly police-dominated,4 the interview
between the two agents and Axsom was not. The record contains no evidence of
coercive or deceptive conduct by the agents during questioning. Axsom was not
arrested after questioning. Finally, the record establishes no other aggravating
circumstances.

      In evaluating whether Axsom was "in custody," we are not concerned with any
moral or psychological pressures causing Axsom to be forthright and helpful to the
agents. Our examination only relates to the restraint imposed by the agents. Erving
L., 147 F.3d at 1247. Under the relevant circumstances here, a reasonable person
would have felt he was at liberty to terminate the interrogation and walk away or turn
his back on the agents.




      4
       Over a decade ago, we declared in United States v. Mottl that "[g]iven the
FBI's acknowledged record of fairness toward criminal suspects, we see no reason
why the agents elected not to read [the suspect] the Miranda warning." 946 F.2d at
1370-71. The same holds true for the present case. We again urge federal agents not
to view our reversal as a "license to depart from that legacy of fairness." Id. at 1371.


                                         -11-
III.  CONCLUSION
      Because Axsom was not in custody, he was not entitled to Miranda warnings.
Conducting a Thompson independent review, we conclude the district court erred in
suppressing the defendant's statements. We reverse the judgment of the district court
and remand the case for further proceedings consistent with this opinion.

       A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -12-
