                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1480
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the District
      v.                                * of Minnesota.
                                        *
Robert Kilroy Galceran,                 *      [PUBLISHED]
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: August 20, 2002

                                  Filed: August 27, 2002
                                   ___________

Before HANSEN, Chief Judge, FAGG and BYE, Circuit Judges.
                              ___________

PER CURIAM.

       Robert Kilroy Galceran gave a statement to police implicating himself in a
series of robberies. After his indictment, Galceran moved to suppress the statement,
asserting he had been the subject of a custodial interrogation and had not been given
the warning required by Miranda v. Arizona, 384 U.S. 436, 444 (1966) (when person
is taken into custody for questioning, person must be advised of right against self-
incrimination and right to attorney). The district court* concluded Galceran was not

      *
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
in custody when he gave the statement, and thus no Miranda warning was required.
The district court denied Galceran’s motion to suppress, and Galceran conditionally
pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a) and
§ 2. Galceran now appeals the denial of his motion asserting he was in custody when
he gave the statement. We affirm.

      During the investigation of a series of robberies, a police officer left his
business card with Galceran’s girlfriend and asked her to have Galceran call him.
Galceran called the officer and told him that he knew about the robberies and that a
man named “John” was involved. Galceran called the officer again three days later,
and expressed concern about being arrested. The officer told Galceran he did not
know of any arrest warrants issued for him. The officer also told Galceran he was not
comfortable discussing the investigation over the phone, and asked Galceran if he
would meet him to discuss the case in person. The officer assured Galceran he was
not under arrest, would not be arrested that day, and the officer was simply trying to
gather information about the robberies. Galceran agreed to come to the police station
and met the officer there later the same day.

        When Galceran arrived at the station, the officer asked Galceran to join him in
the roll call room, an interior room with no windows, two doors, dry erase boards, no
clock, and a large conference table and chairs. The officer asked Galceran whether
he wanted food or drink or to use the restroom. After he declined, Galceran and the
officer sat down at the conference table and began the interview. Another officer
joined them about fifteen minutes later. One officer was seated at the head of the
table, with Galceran on one side and the other officer on the other side. The officers
were dressed in street clothes, but had their weapons with them. Both officers
testified they did not consider Galceran to be in custody and thus did not read him his
Miranda rights. The interview lasted about an hour and a half. During the course of
the interview, Galceran detailed his and his partner’s roles in a number of robberies.
The entire interview was recorded on tape, except for about two minutes when the


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tape ran out. At the end of the interview, Galceran signed a statement indicating he
did not feel coerced or threatened during the interview. Galceran then left the police
station without being arrested.

       When reviewing whether Galceran’s interrogation was custodial, “we uphold
findings of historical fact unless clearly erroneous, but we apply the controlling legal
standard to the historical facts” independently. United States v. Axsom, 289 F.3d
496, 500 (8th Cir. 2002). A person is not in custody for Miranda purposes unless the
person’s “freedom of action is curtailed to a ‘degree associated with formal arrest.’”
Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting California v. Beheler, 463
U.S. 1121, 1125 (1983)). We measure Miranda’s custody requirement objectively,
evaluating “how a reasonable [person] in the suspect’s position would have
understood [the] situation.” Id. at 442. For the purpose of this evaluation, a
reasonable person “does not have a guilty state of mind [or] . . . peculiar mental or
emotional conditions that are not apparent to the questioning officer.” United States
v. Hudson, 210 F.3d 1184, 1190 (10th Cir. 2000). We have identified several factors
relevant to the custody evaluation, including: (1) whether the suspect was informed
that the suspect was free to leave or that the suspect was not 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 police used strong-arm tactics
or deceptive strategies during questioning; (5) whether the atmosphere of the
questioning was police-dominated; and (6) whether the suspect was arrested at the
end of the questioning. United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990).
This list is not exhaustive, and no one factor is necessarily dispositive. Id.

       Having examined the totality of the circumstances, we agree with the district
court that Galceran was not in custody during the questioning. Galceran was
repeatedly told, both before coming to the police station and during the questioning,
that he would not be arrested that day. Galceran acknowledges that at the start of the

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questioning, the officers told him he was free to leave and was not under arrest.
Galceran argues the interrogation became custodial when he later asked to leave and
the agents told him he had to finish answering their questions. We think Galceran
mischaracterizes the conversation. After the officer stated, “I’m not planning on
arresting you today,” Galceran responded, “But if I tell you what I know you’re gonna
arrest me.” The officer then reiterated, “You’re walking out of here.” Galceran
stated, “I wanna go, he told me I could.” After the officers explained a few more
times that there would be no arrest that day and that “after we’re done you can go and
you can talk to Terry [the drug treatment director] and you can go,” Galceran was
finally convinced that he would not be arrested at the interview’s conclusion, and he
readily agreed to tell the officers his story “from the beginning . . . everything . . . you
don’t even have to ask questions.” The exchange merely reflects Galceran’s concern
that he would be arrested following the interview, instead of being allowed to leave
to enter his preferred drug treatment center. Further, Galceran’s movements were not
restricted during the interview as if he were under arrest. Thus, the first and second
factors indicate Galceran was not in custody.

       Third, Galceran voluntarily acquiesced to official requests to respond to
questions. Although the officers wanted to speak with Galceran and told his
girlfriend so, Galceran telephoned the officers to indicate he wanted to speak with
them. Galceran called again three days later, and voluntarily drove to the police
station to talk. Further, before going to the police station, Galceran told his mother
and his girlfriend that he was going to turn himself in and tell the officers what had
happened. During the interview, Galceran indicated he was participating voluntarily,
stating, “There’s no threats or promises, just . . . a hope . . . that if I did this it would
maybe give me leniency and mercy with the judge.”

      Fourth, the district court found there was “no indication that the authorities
coerced [Galceran] in any way,” or otherwise used unlawful coercive interrogation
techniques. This finding is not clearly erroneous. Galceran reads much into the fact

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that one of the officers got called away to handle another matter for a few minutes,the
tape recorder shut off during that time, and the remaining officer continued
questioning. Nothing supports Galceran’s contention that the officer intentionally
turned off the tape recorder to strong-arm Galceran while the other officer was out of
the room. Instead, the record shows the officer had not used the particular type of
tape recorder before, realized it had shut off, switched tapes, then tried to restate for
the record everything that had been discussed while the tape was off. Further,
although the officers had weapons, they “did not adopt a threatening posture toward
[Galceran], display their weapons, or make a physical show of force during the
questioning.” Axsom, 289 F.3d at 502.

       Fifth, the interview’s setting was not police dominated, even though the
interview took place at a police station. The interview was not held in the station’s
holding cell area normally used for custodial interrogations, Galceran voluntarily
agreed to appear for questioning at the station, and the ninety-eight minute length of
the interview does not indicate police domination. E.g., United States v. Mottl, 946
F.2d 1366, 1367-68 (8th Cir. 1991). Miranda warnings need not be imposed simply
because the questioning takes place in a police station. Oregon v. Mathiason, 429
U.S. 492, 495 (1977).

       Sixth, Galceran was not arrested at the interview’s conclusion. Indeed,
Galceran voluntarily returned to meet with the same officers on other occasions to
discuss other crimes. Lack of arrest is a “very important” factor weighing against
custody. United States v. Sutera, 933 F.2d 641, 647 (8th Cir. 1991). In sum, the
evidence shows Galceran was not in custody “or otherwise deprived of his freedom
of action in any significant way.” Mathiason, 429 U.S. at 495. Galceran came
voluntarily to the police station, was repeatedly informed he was not under arrest, and
left the police station without hindrance at the interview’s conclusion. Id.




                                          -5-
       Galceran next contends his incriminating statements must be suppressed
because they were involuntary and obtained in violation of his due process rights.
According to Galceran, he was mentally ill and told the officers he was suicidal and
had been hearing voices. Although mental condition is relevant to a suspect’s
susceptibility to police coercion, coercive police activity is a necessary predicate to
a finding that a confession was not voluntary within the meaning of the Due Process
Clause. Colorado v. Connelly, 479 U.S. 157, 165-67 (1986. Here, there is no
evidence of coercive police activity, so Galceran’s due process claim fails. Even if
police were coercive, Galceran failed to show he suffered from a mental illness at the
time of the interview that, when combined with coercion, produced a confession that
was not a product of his own free intellect. Townsend v. Sain, 372 U.S. 293, 308
(1963). Indeed, the Government’s evidence shows Galceran was rational and freely
gave his statement. One officer testified Galceran was responsive in answering
questions, knew where he was, what was going on, and what was happening, and
provided details about the crimes. The officer’s conclusion that Galceran was of
rational mind during the interview is consistent with a psychiatrist’s conclusion seven
months later that Galceran was not then mentally ill. Because we conclude
Galceran’s statement was voluntary, we reject his related argument that his
involuntary incriminating statements must be suppressed because they were
inadmissible under 18 U.S.C. § 3501 (stating confessions are admissible in evidence
if voluntarily given).

       In sum, Galceran was not in custody when he gave incriminating statements,
police did not coerce him, and the statements were voluntary. Thus, the district court
properly denied Galceran’s motion to suppress.




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A true copy.

      Attest:

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




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