                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3613
                                  ___________

United States of America,              *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
Shirley Wallace,                       *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: March 11, 2003

                                 Filed: March 31, 2003
                                  ___________

Before HANSEN, Chief Judge, RILEY and MELLOY, Circuit Judges.
                              ___________

RILEY, Circuit Judge.

       Shirley Wallace (Wallace) filed a motion to suppress inculpatory statements
made during a police interrogation conducted at her place of employment. The
district court granted her motion to suppress. The government appeals, and we
reverse.

I.    BACKGROUND
      On March 24, 1999, at approximately 9:00 a.m., federal agents executed a
search warrant on Patient Transfer Service, Inc. (PTS), a private company which
provides ambulance services. PTS was under investigation for submitting fraudulent
Medicare and Medicaid claims. Wallace was PTS’s office manager.

       During the execution of the search warrant, nine federal agents were dressed
in business suits and carried their weapons concealed. After entering the two-story
office building, the agents, in loud and authoritative voices, directed the employees
to move away from their desks. At that time, Wallace was in the business office she
shared with four other employees. Wallace initially moved away from her desk, but
then asked if the employees could save their computer work, which the agents said
they could do. The agents instructed the employees to report to the front office area.

        The agents secured the site to prevent destruction of evidence and to account
for all of the people in the building. The employees were told not to leave until they
were interviewed or talked to someone. Seventeen employees were found in the
building and interviewed. Although the search lasted from 9:00 a.m. until
approximately 2:30 p.m., employees were allowed to use the restrooms without
permission, leave for lunch, go outdoors to smoke, complete ambulance services, and
return to their duties after their interviews. Agents did not monitor or block the doors
to the front office. Wallace and other employees were able to move freely between
the front office and the business office. Two employees left for lunch on their own,
with PTS pagers in case the agents needed them. These two employees went
shopping and then picked up their lunch, at which time they were paged back to the
offices.

      Special Agent Sharon Dawkins (Agent Dawkins), an eleven-year veteran of the
FBI, initiated Wallace’s interview by telling Wallace to come into the employee
lounge. Agent Dawkins had boxes and paperwork set up in the employee lounge,
because she was also the evidence custodian. Agent Dawkins interviewed only two
employees that day. Other agents interviewed other employees in the main office area
and other rooms. Agent Dawkins and Wallace were alone in the lounge during the

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interview, which lasted ten to fifteen minutes. The lounge contained a couch, chairs,
a television and bathrooms. Wallace told Agent Dawkins she was upset by the initial
entry of the other agents. After Agent Dawkins explained the reasons for such an
entry, Wallace seemed fine and was calm.

       Agent Dawkins used a preprinted questionnaire and asked Wallace general
questions about her job duties and about PTS billing practices. Wallace explained
she was familiar with Medicare billing, and Medicare required a patient to be bed-
confined to qualify for ambulance service. Wallace answered in a cordial and
cooperative manner. After the interview, Agent Dawkins told Wallace she could
leave. Wallace went back to the main office, then to her office where she sat in her
chair watching the search and assisting agents by opening her drawers. Wallace ate
the lunch she brought from home in the ambulance bay area. Wallace testified “there
was no thought you could leave,” but she said she would have stayed, in any event,
because she was the office manager.

       Wallace was not advised of her Miranda rights, was not told she was free to
leave, and was not told she did not have to participate in the interviews.1 The agents
did not know Wallace’s title at PTS or who the PTS office manager was before the
questioning. Wallace answered the same general employment and billing
questionnaire as did the other employees. Wallace was not a suspect.

      We should note the search and questioning occurred on the one-year
anniversary of a public school shooting, to which a PTS ambulance had responded.




      1
       Agent Dawkins testified the agents normally tell the employees in these
business searches that they are free to leave after they are congregated; however, she
did not know if the lead agent made that statement on this occasion.

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Memorials commemorating the earlier shooting were scheduled, and the PTS
employees were emotionally charged before the search began.2

       Wallace moved to suppress her statements made during the interview. Wallace
claimed she had been the subject of a custodial interrogation without benefit of
Miranda warnings. After a suppression hearing, the district court granted the motion
to suppress, concluding the balance of the six indicia outlined in United States v.
Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990), weighed in favor of suppression.
Before trial of Wallace and her co-defendants, the government appealed the
suppression order. We have jurisdiction pursuant to 18 U.S.C. § 3731, which
provides for an appeal of an order granting a motion to suppress before trial.

II.    DISCUSSION
       The initial rounding up and temporary detention of employees are justified
under the Fourth Amendment when executing a search warrant founded on probable
cause. See Michigan v. Summers, 452 U.S. 692, 705 (1981) (holding “a warrant to
search . . . founded on probable cause implicitly carries with it the limited authority
to detain the occupants of the premises while a proper search is conducted”). “[T]he
intrusiveness of detaining an occupant of the premises being searched [is] outweighed
by the law enforcement interests in: (1) preventing flight; (2) minimizing the risk of
harm to the officers; and (3) conducting an orderly search.” United States v.
Reinholz, 245 F.3d 765, 778 (8th Cir. 2001) (citing Summers, 452 U.S. at 701-03).
Wallace does not dispute that the initial detention was justified, but argues the
number of agents and manner and tone of the detention created a custodial
atmosphere to her questioning.


      2
        The district court said, “I think it was significant that this was the anniversary
of these Westside shootings, so Ms. Wallace and others were emotionally affected by
that. They were predisposed to be vulnerable.” However, this predisposition about
an unrelated matter is not relevant to our inquiry.

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       As a procedural safeguard, an individual must be warned about the rights
encompassed in the privilege against self-incrimination before “an individual is taken
into custody or otherwise deprived of his freedom by the authorities in any significant
way and is subjected to questioning.” Miranda v. Arizona, 384 U.S. 436, 479 (1966).
In determining whether Wallace was “in custody,” “we uphold findings of historical
fact unless clearly erroneous, but we apply the controlling legal standard to the
historical facts utilizing an independent review.” United States v. Axsom, 289 F.3d
496, 500 (8th Cir. 2002) (citing Thompson v. Keohane, 516 U.S. 99, 112 (1995)).

       In Miranda, the Court noted “[g]eneral on-the-scene questioning as to facts
surrounding a crime or other general questioning of citizens in the fact-finding
process is not affected by our holding. It is an act of responsible citizenship for
individuals to give whatever information they may have to aid in law enforcement.
In such situations the compelling atmosphere inherent in the process of in-custody
interrogation is not necessarily present.” Miranda, 384 U.S. at 477-78. “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 suspect’s position would
have understood his situation” to be one of custody.’” Axsom, 289 F.3d at 500
(quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). We have developed a
non-exhaustive list of six common indicia used to determine whether an individual
is in 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;




                                         -5-
      (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.

Griffin, 922 F.2d at 1349.

      The court conducts a balancing of the six indicia. Axsom, 289 F.3d at 501.
“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.” Id. at 500-
01.

       For Wallace, four of the factors are clear, while two require further discussion.
Wallace was not informed the questioning was voluntary, she was free to leave, or she
was not considered under arrest. Additionally, Agent Dawkins, not Wallace, initiated
the questioning; however, the agent did not use strong arm tactics or deceptive
stratagems. The district court found “no criticism of Agent Dawkins’s conduct in the
way she conducted the interview. . . . I did not find that she was overly aggressive
or intimidating.” Wallace was not placed under arrest at the end of the questioning;
in fact, she was not arrested or indicted until over one year later.

      The district court determined Wallace was restrained in her movement because
the agents corralled the employees at the onset of the search. See discussion above.
However, employees freely used the restrooms, went outside to smoke, completed
ambulance services off the premises, went to lunch, including shopping, and, after


                                          -6-
their interviews, returned to their full work duties. Our main focus must be on the
individual’s restraint during the interview. See Axsom, 289 F.3d at 501 (“Axsom was
not permitted to move at will during the interview” as agents escorted him to the
bathroom and retrieved a drink for him). It is difficult to say whether Wallace could
have roamed freely about the employee lounge because the interview lasted only ten
to fifteen minutes. Wallace was not physically restrained either immediately before
or after the interview.

       In determining whether Wallace was restrained, the district court found it
significant the search occurred on the one-year anniversary of certain unrelated
school shootings. The district court found “Ms. Wallace and others were emotionally
affected by that. They were predisposed to be vulnerable.” Therefore, the district
court asked, “Was it objectively reasonable for someone else in Ms. Wallace’s state
of mind to feel [restrained]?”3 The psychological tension on Wallace caused by the
earlier, unrelated shootings does not change her non-custodial questioning into a
custodial encounter. We still evaluate the situation from the perspective of a
reasonable person. An objective, reasonable person test is necessary to avoid (1)
being dependent upon self-serving declarations of agents and of the defendant, and
(2) placing the burden upon the agents to anticipate the frailties and idiosyncracies
of every person whom they question. Berkemer, 468 U.S. 442 & n.35.

       Similar to the second indicium, the fifth indicium is whether the questioning,
not the execution of the search warrant, was police dominated. See Axsom, 289 F.3d
at 502 (two agents conducted questioning while seven agents searched the small
house). Here, only one agent interviewed Wallace in an employee lounge. The entire

      3
       Additionally, in evaluating a co-defendant’s motion to suppress, the district
court found, “There was police domination to a point, but it did not seem to affect
[co-defendant] to the same extent it did Ms. Wallace.” The district court refused to
suppress the statements of two other parties, the owner and the business manager,
who were also at the premises that day.

                                         -7-
event occurred at Wallace’s workplace, a location familiar to Wallace and a place
where she would be comfortable and less threatened. The only police domination
occurred earlier when the agents suddenly entered Wallace’s office and instructed the
employees to move away from their desks and move into the main office area.

       This questioning of Wallace, who was not a target of the investigation, by a
single agent, in an employee lounge, for ten to fifteen minutes, from a pre-printed list
of questions, without any physical restraint, strong arm tactics, or deceptive
strategies, and without being placed under arrest, did not constitute a custodial
interrogation. Under the relevant circumstances here, a reasonable person would not
have felt her situation was one of custody.

III.  CONCLUSION
      Because Wallace was not in custody during her interview, Miranda warnings
were not required. We conclude the district court erred in suppressing Wallace’s
statements. Therefore, we reverse and remand for proceedings consistent with this
opinion.

       A true copy.

             Attest:

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




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