                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0240n.06

                                                    No. 11-6402

                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                                                                                       FILED
UNITED STATES OF AMERICA,                                   )
                                                                                                   Mar 07, 2013
                                                            )                              DEBORAH S. HUNT, Clerk
         Plaintiff-Appellant,                               )
                                                            )
v.                                                          )    ON APPEAL FROM THE UNITED
                                                            )    STATES DISTRICT COURT FOR THE
JEREMY SETH TUMMINS,                                        )    MIDDLE DISTRICT OF TENNESSEE
                                                            )
         Defendant-Appellee.                                )




         Before: MARTIN and BOGGS, Circuit Judges; COLLIER, District Judge.*

         BOYCE F. MARTIN, JR., Circuit Judge. Two county law-enforcement officers came to

Jeremy Tummins’ home to execute a search warrant for child pornography. He let them in and they

questioned him, without Miranda warnings, for two hours. Almost from the start, in response to the

questioning, Tummins made several incriminating remarks, and at the end of the encounter he signed

an inculpatory statement. He then moved to suppress the statements, and the district court granted

the motion. The government appealed. Because Tummins was never in custody for Miranda

purposes, the district court erred in granting the motion to suppress. We REVERSE.

         County sheriff’s officers Levasseur and Patterson executed a search warrant at Tummins’

home for computers containing child pornography. The officers arrived at Tummins’ home in an



         *
          The Honorable Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
No. 11-6402
United States v. Jeremy Seth Tummins

unmarked vehicle. They wore plain clothes, with their pistols visibly holstered at their hips. They

did not draw their pistols while at Tummins’ home, however, nor did they display or use their

handcuffs. Tummins answered the door; Levasseur introduced him and Patterson as being from the

sheriff’s office and asked if they could come inside and talk with Tummins for a minute. They told

Tummins they were from the Cyber Crime Unit and that they wanted to know how he connected to

the internet. Tummins agreed to show the officers his internet connection and led them upstairs to

look at his cable modem.

       Levasseur then told Tummins that he had identified an IP address connected to some shared

child-pornography files, which Levasseur said that he downloaded to confirm they were child

pornography. Levasseur added that the IP address was associated with Tummins’ house, so he had

come with a search warrant. Shortly afterwards, Levasseur asked Tummins if he had ever

downloaded any child pornography, and Tummins answered that he had. Over the course of the next

two hours, Tummins admitted several more times that he had downloaded child pornography.

Tummins’ wife was present for much of this time and even participated in the conversation. The

officers never physically restrained Tummins’ movement in any way. At the end of the encounter,

Tummins signed an inculpatory statement.

       After the interrogation, a federal grand jury returned an indictment against Tummins,

charging him with receiving child pornography in violation of 18 U.S.C. sections 2252A(a)(2)(A)

and 2252A(b) and possessing child pornography, in violation of 18 U.S.C. sections 2252A(a)(5)(B)

and 2252A(b). Tummins moved to suppress the oral and written statements he made to the officers.

The district court held an evidentiary hearing at which Patterson testified and at which the transcript

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United States v. Jeremy Seth Tummins

of the entire encounter between the officers and Tummins, of which the officers had made an audio

recording, was entered into evidence. Levasseur, the officer who did most of the questioning, did

not testify. The district court granted Tummins’ motion to suppress with a thirty-six-page

memorandum. The government moved the district court to reconsider its order; the district court

granted the motion but reaffirmed its previous order. The government timely appealed.

       We have jurisdiction to consider the government’s appeal of the district court’s suppression

order. 18 U.S.C. § 3731. Whether a defendant was in custody is a mixed question of law and fact

subject to de novo review. United States v. Crossley, 224 F.3d 847, 860 (6th Cir. 2000). We must

review the district court’s factual findings for clear error and its legal conclusions de novo. United

States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009) (citing United States v. Ellis, 497 F.3d 606, 611

(6th Cir. 2007)). We must draw all factual inferences in favor of upholding the district court’s

suppression order. Id. at 465, (citing United States v. Dillard, 438 F.3d 675, 680 (6th Cir. 2006)).

        To determine whether an individual was in custody for Miranda purposes, we must examine

all of the circumstances surrounding the interrogation, but we must ultimately determine whether

the law enforcement officers restrained the suspect’s freedom of movement to the degree associated

with a formal arrest. Stansbury v. California, 511 U.S. 318, 322 (1994) (citing California v. Behler,

463 U.S. 1121, 1125 (1983) (per curiam) (rest of citation omitted)). Law-enforcement officers may

pressure a suspect to speak without necessarily putting the suspect in custody for Miranda purposes;

or, as we have put it, “[t]he question in the end is not whether the individual felt pressure to speak

to the officers but whether she was forced to stay with them.” Panak, 552 F.3d at 471 (emphasis in

the original). While the record in this case could support a finding that Levasseur and Patterson

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United States v. Jeremy Seth Tummins

pressured Tummins to speak to them, the record could not support a finding that they forced

Tummins to stay with them.

       Here, neither Levasseur nor Patterson forced Tummins to remain with them such that

Tummins was in custody to the extent associated with a formal arrest. Indeed, Levasseur’s and

Patterson’s conduct resembles that of other officers in encounters with suspects that we found not

to be custodial. See, e.g., United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999) (agent never

made any show of force or brandished a firearm or handcuffs, or any other equipment ordinarily

associated with formal arrest or custody); Crossley, 224 F.3d at 862 (agent never brandished a

firearm); Panak, 552 F.3d at 467 (investigators did not brandish firearms nor handcuffs); United

States v. Hinojosa, 606 F.3d 875, 883 (6th Cir. 2010) (officers did not put the suspect in handcuffs

or otherwise restrain his freedom). While their pistols were visibly holstered at their hips, neither

Levasseur nor Patterson brandished them, nor did they display handcuffs or handcuff Tummins.

They never restrained Tummins’ freedom of movement to the degree associated with a formal arrest.

It is also significant that the entire encounter took place in Tummins’ home. See United States v.

Panak, 552 F.3d 462, 465-66 (6th Cir. 2009) (noting that when police question a suspect in a

residence, the encounter often will not rise to the kind of custodial situation that necessitates

Miranda warnings).

       Moreover, whether an officer explicitly tells the suspect that he or she is not under arrest is

an important part of the analysis of whether a suspect is in custody. United States v. Swanson, 341

F.3d 524, 530 (6th Cir. 2003) (citing United States v. Salvo, 113 F.3d 943, 951 (6th Cir. 1998)).

Where an officer tells a suspect that he or she is not under arrest, we have tended to find that the

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United States v. Jeremy Seth Tummins

suspect was not in custody. See, e.g., Salvo, 133 F.3d at 946 (suspect not in custody where, at the

beginning of the encounter, one of the agents told the suspect that he was not under arrest, that he

was free to leave at any time, and that he did not have to talk to them); Coomer v. Yukins, 533 F.3d

477, 487 (6th Cir. 2008) (suspect not in custody because officer told the suspect that she was not

under arrest and that the police would leave if she asked them).

       Here, Levasseur did tell Tummins that he was not under arrest, telling him “[y]ou are not

under arrest right now. I’m not here for you, I’m here for your computer, okay?” Later, Levasseur

again emphasized Tummins was not under arrest, saying “[l]ike I told you, you’re not under arrest.

I didn’t come here to get you. I come [sic] here to get your computer.” These facts further show that

the officers did not force Tummins to stay with them.

       Because the record before us does not show that the officers forced Tummins to stay with

them, he was not in custody so as to require the officers to comply with Miranda. Consequently, the

district court erred in suppressing his statements. Therefore, we REVERSE the district court’s

judgment.




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