                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-1323
                                     ___________

United States of America,            *
                                     *
                 Appellee,           *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * District of North Dakota.
Randal A. Hanson, also known as      *
Randy Hanson,                        *
                                     *
                Appellant.           *
                                ___________

                              Submitted: October 17, 2000

                                   Filed: January 29, 2001
                                    ___________

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

HEANEY, Circuit Judge.

       On April 4, 1998, appellant Randal Hanson broke into the Fargo Women’s
Health Organization and attempted to start a fire in the clinic with the use of kerosene.
Hanson was later convicted of violating 18 U.S.C. § 844(i) (1998), attempted arson of
a property used in interstate commerce. He has been in federal prison since October
5, 1999. The issues before us are whether Hanson was in custody when he was
interrogated by federal agents about the attempted arson, and whether the trial judge
erred in failing to instruct the jury on a lesser included offense. We hold that Hanson
was in custody, and reverse his conviction because his confession is inadmissible
against him. For that reason we need not reach the second issue.


                                    I. BACKGROUND


        On December 10, 1998, the Fargo Office of the Bureau of Alcohol, Tobacco,
and Firearms received an anonymous letter stating that Hanson had been seen cleaning
blood off the sidewalk near the clinic on the morning of April 5, 1998. On January 15,
1999, federal agents Erickson and Rutter went to Hanson's residence. The agents
explained that they were investigating recent vandalism at the abortion clinic and
wanted to show Hanson photos of the clinic. The agents did not tell Hanson that he
was the prime suspect in their investigation of the arson attempt that had occurred eight
months earlier.1 Hanson agreed to accompany them to the field office, apparently out
of curiosity.2 He rode in the locked back seat of the agents’ government vehicle3 to
the federal building, and into the underground parking garage. They walked through
an interior stairwell to an isolated room measuring six feet by eight feet,4 where the
agents questioned Hanson for approximately two hours. He was with the agents for at
least three hours in total.5 There is no video or audio record of their conversation.



      1
          Suppression Hearing Transcript at 30-31.
      2
          Randal A. Hanson’s Affidavit, p. 30 of the Designated Record.
      3
        There is no dispute in the record as to whether the back seat door was locked.
The only variance in the record is whether it was locked by a child safety mechanism
or an automatic lock that activated once the vehicle was in gear. (Suppression Hearing
Transcript at 35, 72, 78.)
      4
          Jury Trial Transcript, vol. II, at 24-25.
      5
          Suppression Hearing Transcript at 54-55; Jury Trial Transcript, vol. I, at 96.

                                              -2-
       Hanson argues that he was entitled to Miranda warnings when the agents
questioned him in the field station because he was in custody at that time. The United
States argues that Hanson was not in custody and that his statements to the agents are
admissible.

                                   II. DISCUSSION

       We review the district court’s conclusions concerning custody under the “clearly
erroneous” standard. United States v. McKinney, 88 F.3d 551, 553 (8th Cir. 1996)
(citing United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990)). We must affirm
unless the district court’s opinion is unsupported by substantial evidence, is an
erroneous interpretation of applicable law, or the court is left with “a firm and definite
conviction that a mistake has been made.” United States v. Jorgensen, 871 F.2d 725,
728 (8th Cir. 1989).

       Miranda v. Arizona, 384 U.S. 436, 444-45 (1966) established that a person
“must be advised of the right to be free from compulsory self-incrimination, and the
right to the assistance of an attorney, any time that a person is taken into custody for
questioning.” Griffin, 922 F.2d at 1347. Custody occurs not only upon formal arrest,
but also under any other circumstances where the suspect is deprived of his freedom
of movement. California v. Beheler, 463 U.S. 1121, 1125 (1983); McKinney, 88 F.3d
at 554 (citation omitted). In determining whether a suspect is in custody we must
consider the “totality of the circumstances,” United States v. Helmel, 769 F.2d 1306,
1320 (8th Cir. 1985), and “how a reasonable man in the suspect's position would have
understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442 (1984).
Ultimately, however, the determination of custody “depends on the objective
circumstances of the interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned.” Stansbury v. California, 511
U.S. 318, 323 (1994).


                                           -3-
      We will consider the following relevant factors in determining whether Hanson
was in custody while he was interrogated: the length of the interrogation, the suspect’s
freedom to leave the scene, and the place and purpose of the interrogation. McKinney,
88 F.3d at 554. Griffin also identifies factors that are “indicia of custody:”

      (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 strategems were
      employed during questioning; (5) whether the atmosphere of questioning
      was police dominated; or, (6) whether the suspect was placed under arrest
      at the termination of questioning.

Griffin, 922 F.2d at 1349.

       In this case, Hanson agreed to go with the agents away from the familiarity of
his home to the field station to look at photos of “recent vandalism” at the clinic; he did
not know at the time of his consent that the agents were going to question him about
the arson attempt, and therefore did not “voluntarily acquiesce” to the subsequent
interrogation. The United States asserts that this was merely “subtle subterfuge.” We
find that it was “deceptive strategem,” and the first of a series of the agents’ coercive
tactics that indicate that Hanson was in custody.

       Once in the interrogation room, a six foot by eight foot space shut off from the
rest of the office by two closed doors,6 agent Erickson sat across from Hanson at a




      6
          Suppression Hearing Transcript at 39, 85.

                                           -4-
desk, and agent Rutter stood in the corner,7 creating a police-dominated, intimidating
environment. The agents informed Hanson that he was a suspect in the attempted arson
investigation, that he was not under arrest, and that he was free to leave. The agents
then explained that they would drive him home if he so wished. According to the
appellant, Agent Erickson added, “[l]et’s not make this adversarial tit for tat. If you
don't cooperate I guarantee you’ll do federal time in prison . . . . We have enough to
arrest you but we’re not. We know you did it. What we want to know is why.” The
agent denied making the statement.8

       The district court, in its pre-written bench opinion, stated, “[t]he one statement
by the defendant that he would go to federal prison if he would not cooperate alone is
not enough to find Defendant’s confession was involuntary and he was deprived of his
ability to make an unconstrained decision to confess.”9 At the very least, this is a
finding by the district court that the threat was not sufficient to find the appellant's
confession involuntary. That begs the question, however, as to whether the threat,
combined with the other circumstances outlined herein, required a finding that the
confession was involuntary. We think that it did.

       For the following two hours the agents asked Hanson about the attempted arson,
and he described how he had vandalized the clinic eight months earlier by breaking the
window. Not once during the interrogation, even after Hanson offered self-
incriminating statements, did the agents mention his right to counsel. Stansbury held
that “an officer’s evolving but unarticulated suspicions do not affect the objective
circumstances of an interrogation or interview, and thus cannot affect the Miranda
custody inquiry.” 511 U.S. at 324. The Court further explained, however, that “[a]n


      7
          Id. at 84.
      8
          Suppression hearing transcript at 41, 46.
      9
          Appendix to appellant’s brief at 114.

                                            -5-
officer’s knowledge or beliefs may bear upon the custody issue if they are conveyed,
by word or deed, to the individual being questioned . . . . Those beliefs are relevant
only to the extent they would affect how a reasonable person in the position of the
individual being questioned would gauge the breadth of his or her ‘freedom of action.’”
Id. at 325. In this case, the federal agents confirmed their suspicions about Hanson at
the outset of the questioning, yet they kept him in an isolated office for hours, and
threatened time in federal prison if Hanson did not cooperate, diminishing Hanson’s
sense of freedom of action. At the end of the interrogation agent Erickson asked
whether Hanson would write a sworn statement. Only after Hanson had orally
confessed to the attempted arson and agreed to reduce his confession to writing did
agent Erickson read him the Miranda warnings.

        The government cites Oregon v. Mathiason for the proposition that officers are
required to administer Miranda warnings “only where there has been such a restriction
on a person’s freedom as to render him ‘in custody.’” 429 U.S. 492, 495 (1977). In
that case an officer left his card at the burglary suspect's home twenty five days after
the crime with a note asking Mathiason to call because he wanted to “discuss
something with [him].” The following day Mathiason voluntarily called the officer and
agreed to meet him at the state patrol office later that day. He walked two blocks from
his apartment to the office at 5:00 p.m., met the officer in the hallway, and was
informed that he was not under arrest. In a closed room the officer advised Mathiason
that he was a suspect in the burglary, and falsely stated that his fingerprints were found
at the scene. Within five minutes Mathiason stated that he had taken the property. Id.
at 493. The officer advised him of his Miranda rights and taped the confession.
Mathiason left the office at 5:30 and walked home. Id. at 494. The Supreme Court
determined that Mathiason was not in custody when he confessed to the burglary
because his “freedom to depart” was not restricted in any way. “He came voluntarily
to the police station, where he was immediately informed that he was not under arrest.
At the close of a ½-hour interview respondent did in fact leave the police station
without hindrance.” Id. at 495.

                                           -6-
       In this case, the agents appeared at Hanson’s door eight months after the arson
attempt, awakened him, and asked him to accompany them to the field station in their
vehicle to look at photos. Hanson did not initiate contact with the agents as Mathiason
had done. He traveled to the field station in the locked back seat of the government
truck. Once in the isolated office in the field station, Hanson was told that he was a
suspect in the arson attempt, that he was not under arrest, and that he was free to leave.
Unlike Mathiason, however, Hanson was dependent upon the agents to find his way
out of the building and back to his home. Hanson was with the agents for three hours,
significantly longer than the thirty minutes that Mathiason spent with the officer in that
case. The agents wanted a confession from Hanson, and it appears that they
deliberately waited until they had the suspect in an intimidating environment before
they advised him of their true purpose for bringing him to the station. Hanson could not
have believed that he was free to leave.

       It appears to us that there was a restraint on Hanson’s freedom of movement.
A reasonable person in Hanson’s position would not have believed that he was free to
the leave the field office unhindered by the agents. See Berkemer, 468 U.S. at 442.
Upon consideration of the totality of the circumstances, we find that substantial
evidence and law support the finding that Hanson was in custody when the agents
questioned him, and that he should have received the Miranda warnings. Accordingly,
Hanson’s confession must be suppressed and his conviction is reversed.



BEAM, Circuit Judge, concurring.

       I agree with much of the factual analysis contained in Judge Arnold's dissent.
I do, however, believe, under the totality of the evidence, that Mr. Hanson was in
custody at the time of the interrogation. Accordingly, I concur in the result reached by
Judge Heaney in his opinion for the court.


                                           -7-
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

        In deciding that Mr. Hanson was in custody for Miranda purposes, Judge
Heaney recites as predicate a number of facts that the district court did not find, some
of which were disputed even at the suppression hearing. Because my disagreements
with Judge Heaney's fact-finding are numerous and significant, I set them out in some
detail.

        1. Judge Heaney states as a fact that the room in which Mr. Hanson's
interrogation took place measured six feet by eight feet. In the first place, the only
testimony to this effect occurred at Mr. Hanson's trial, not at the suppression hearing,
so the district court can hardly be faulted for denying the suppression motion when the
testimony on which Judge Heaney now relies was not even before it. Just as important,
the testimony on the size of the room was offered by Mr. Hanson himself, hardly a
disinterested source, and that testimony was not corroborated. There is no finding in
the record as to the size of the room, and Judge Heaney simply accepts a defendant's
own testimony as fact. This is of course entirely unwarranted. Can it be clearly
erroneous not to believe a defendant's testimony? Finally, it strains credulity to believe
that it is possible to get three people, a table, and at least two chairs (perhaps three) in
a room six feet by eight feet.

       2. Judge Heaney states as a fact that during the interrogation "Agent Erickson
sat across from Hanson at a desk, and Agent Rutter stood in the corner, creating a
police-dominated, intimidating environment." Judge Heaney has simply taken the
defendant at his word again, and, in fact, there was testimony from the agents that
Mr. Rutter was not standing but was sitting on the other side of the table from the
defendant.

       3. Judge Heaney seems to think that the district court found that the agents
threatened Mr. Hanson with prison. There was no such finding, and the agents in fact

                                            -8-
vigorously denied that they made any such statement. What the district court actually
found was that Mr. Hanson said that he was threatened, not that he was in fact
threatened. Judge Heaney again decides to believe Mr. Hanson's self-serving statement
in the face of a forceful denial by the police.

       4. Judge Heaney states as a fact that "[n]ot ever during the interrogation, even
after Hanson offered self-incriminating statements, did the agents mention his right to
counsel." That is untrue, as Mr. Hanson himself admits. After Mr. Hanson made his
incriminating oral statement, the agents gave him the warnings that Miranda requires,
and Mr. Hanson then gave a written statement, executed a consent form to have his
blood tested, and submitted to having his fingerprints and palm prints taken. The court
does not address the question of whether the written statement was admissible and
whether the fingerprints, palm prints, and blood sample were not freely given or
inevitably discoverable in any case.

       There is, moreover, uncontroverted proof that cuts against Mr. Hanson's claim
that he was in custody. When asked whether he felt that he "needed to go" to the
federal building with the officers when they arrived at his home, he testified, "No, I was
just curious." He admitted that he was not handcuffed, that there was no "cage" in the
vehicle that transported him to the federal building, that the agents told him that he was
not under arrest and was free to go, and even that he was not nervous during the
interview.

       Under the circumstances, I therefore cannot accede to the court's conclusion that
Mr. Hanson was in custody when he made his oral statement. The fact that a mild sort
of ruse was employed to get Mr. Hanson to accompany the officers to their office and
that the interview occurred in a federal building is not enough, in my view, to support
a conclusion that Mr. Hanson was in custody. The attempt to distinguish Oregon v.
Mathiason, 429 U.S. 492 (1977) (per curiam), is, I think, wholly unsuccessful. Judge
Heaney tries to distinguish that case from the present one partly on the ground that in

                                           -9-
our case the agents awakened Mr. Hanson (not found as a fact by the district court and
not admitted) and drove him to their office. Judge Heaney also says that Mr. Hanson
was dependent on the agents to get back home, but the agents testified that they told
him that they would take him back home if he wished, and the district court made no
finding on the matter. Finally, the record reveals that Mr. Hanson spoke with the
agents for no longer than half an hour before he made his oral confession. Our case is
therefore on all fours with Mathiason in every relevant respect.

         I therefore respectfully dissent from the judgment reversing the district court's
order.

         A true copy.

               Attest:

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




                                           -10-
