                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 STACEY DANIELLA DYER,                          No. 10-15044
        Petitioner-Appellant,
                                                  D.C. No.
                  v.                           1:09-cv-00150-
                                                OWW-SMS
 TINA HORNBECK,
        Respondent-Appellee.                      OPINION


        Appeal from the United States District Court
            for the Eastern District of California
     Oliver W. Wanger, Senior District Judge, Presiding

                 Argued and Submitted
        November 6, 2012—San Francisco, California

                       Filed February 6, 2013

         Before: Robert D. Sack*, Ronald M. Gould,
          and Milan D. Smith, Jr., Circuit Judges.

                   Opinion by Judge Sack;
                Concurrence by Judge M. Smith




 *
   The Honorable Robert D. Sack, Senior Circuit Judge for the U.S. Court
of Appeals for the Second Circuit, sitting by designation.
2                       DYER V . HORNBECK

                           SUMMARY**


                          Habeas Corpus

    Affirming the district court’s denial of a 28 U.S.C. § 2254
habeas corpus petition challenging the admission of
statements Dyer made to police, the panel concluded that
fairminded jurists could disagree as to whether Dyer was “in
custody” when she made certain disputed statements, and that
the state court’s decision therefore was not an unreasonable
application of the Supreme Court’s decision in Miranda v.
Arizona, 384 U.S. 436 (1966), and its progeny.

    Although the panel noted that Dyer’s consent to speak
with police may have been influenced by her limited
detention while officers executed a search warrant at her
home, the panel ultimately concluded that the state court’s
decision was objectively reasonable, where Dyer agreed to
travel with detectives from outside her home to the police
station to answer their questions, detectives permitted Dyer
two unaccompanied breaks to the restroom during the
interrogation, and one of the interviewing detectives told
Dyer at the beginning of the interrogation that she was not
under arrest and was free to leave at any time.

    Concurring in the judgment, Judge M. Smith explained
that had he been sitting on direct appeal in place of the state
court, he would have concluded that Dyer was entitled to
Miranda protections, but applying AEDPA’s highly


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    DYER V . HORNBECK                       3

deferential standard, the state court’s decision was not an
unreasonable application of clearly established Federal law.


                        COUNSEL

Katherine L. Hart, Fresno, California, for Appellant.

William K. Kim, Deputy Attorney General, Fresno,
California, for Appellee.


                         OPINION

SACK, Senior Circuit Judge:

     The petitioner-appellant, Stacey Daniella Dyer, appeals
from the judgment entered on December 15, 2009, in United
States District Court for the Eastern District of California
(Oliver W. Wanger, Judge) denying her 28 U.S.C. § 2254
petition for a writ of habeas corpus. Dyer contends that the
California Court of Appeal unreasonably applied clearly
established Supreme Court precedent when it affirmed the
trial court’s decision to admit as evidence statements made by
Dyer during a station-house interview. She maintains that the
interview was a custodial interrogation under Miranda v.
Arizona, 384 U.S. 436 (1966), and its progeny, and that
because detectives failed to deliver the Miranda warnings
required in such circumstances, her statements should have
been excluded. Because we conclude that fairminded jurists
could disagree as to whether Dyer was “in custody” when she
made the statements in dispute, we affirm the district court’s
denial of Dyer’s application for habeas relief.
4                      DYER V . HORNBECK

                        BACKGROUND1

     On May 19, 2004, a California state jury returned a guilty
verdict against Dyer on charges of first degree felony murder,
second degree robbery, and kidnaping in connection with the
death of 19-year-old D.J. Hunter. The evidence adduced at
trial tended to link Dyer and several other alleged participants
to a chain of events in the early morning of March 22, 2002,
which culminated in Hunter’s killing.

    Hunter’s body was found at approximately 6:00 a.m. He
had been shot three times in the head and placed in the bed of
his own pickup truck, which had been set on fire. A local
business owner found Hunter’s cellular telephone nearby, and
officers retrieved it later that day. Telephone records
revealed a call to Dyer’s apartment, which prompted the
police to obtain a search warrant for her home in Fowler,
California. Officers began executing the warrant at about
10:35 p.m. on March 28, 2002. Dyer was not home at that
time, but she arrived five minutes later. The police officers
locked her in the rear of a patrol car while they completed
their search.

    The events of the next six hours, adopted as the factual
findings underlying the Court of Appeal’s decision, were as
follows:


 1
   Except where noted, the following, largely-undisputed facts are drawn
from the California Court of Appeal’s opinion, People v. Lopez et al.,
2007 W L 738787, 2007 Cal. App. Unpub. LEXIS 1978 (Cal. Ct. App.
Mar. 12, 2007). See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted
by an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be correct.”).
            DYER V . HORNBECK                    5

[Detective] Chapman arrived at Dyer’s
apartment after the warrant had been
executed. When he arrived, he found Dyer
seated in the back seat of Deputy Simpso[n]’s
patrol car, which was parked in the alley
outside of Dyer’s apartment. The doors to the
patrol car were closed and Dyer could not
open them from the inside of the back seat.
Chapman could not recall if the car was
unattended at the time he arrived. Chapman
contacted Dyer and told her he was
conducting an investigation.           Neither
Chapman nor his partner, Detective
Rasmussen, was in uniform. They did not
display a firearm to Dyer. Chapman asked
her if she would mind coming to the sheriff’s
Division to speak to “us.” She was agreeable.
Dyer was transported to the Division and her
interview began approximately 30 minutes
later. She was in the patrol car for over an
hour, at the apartment and in transit from her
apartment in Fowler.

Dyer was never handcuffed nor was she told
she was under arrest. At the outset of the
interview, Dyer was told she was not in
custody and she was free to leave. The
interview room was approximately 15 feet by
15 feet. It contained chairs, a table, and a
trash can. Dyer was not under the influence
of drugs at the time of the interview. The
interview lasted 3 hours and 45 minutes. Two
breaks were taken during the interview, one at
1:54 a.m. and one at 3:01 a.m. During the
6                    DYER V . HORNBECK

       first break Dyer got up, left the room, walked
       to the restroom (approximately 30 yards
       away), used the restroom, and returned to the
       interview room. At each break, Dyer said that
       no promises or threats had been made to her.
       For the first hour and a half of the interview,
       Dyer denied all knowledge and involvement.
       She later admitted that she had some contact
       with D.J. on the evening of the 21st. Dyer
       said she wanted to go home. She was
       arrested.

       During their interview of Dyer, the officers
       told her that they knew “pretty much” where
       she was and what she was doing. They told
       her that people had told them that she was the
       one that killed D.J.

Lopez, 2007 WL 738787, at *9–10, 2007 Cal. App. Unpub.
LEXIS 1978, at *25–27.

    Chapman also testified that although Dyer could have left
the police station during either of the two breaks, by that time
he believed he had probable cause to arrest her, and indeed
would have had she attempted to leave. Testimony of
Detective Mark Chapman, Transcript of Miranda Hearing,
March 19, 2004, Petitioner’s Excerpts of Record (“E.R.”),
vol. I, ex. 3, at 1776–77.

    Before trial, Dyer moved to suppress her statements to the
police. Based largely upon what the trial court saw as Dyer’s
apparent willingness to accompany the detectives to the
station, and upon the detectives’ indication at the beginning
of the interview that she was neither under arrest nor in
                         DYER V . HORNBECK                                  7

trouble, the trial court denied the motion. Trial Court Ruling
on Miranda Issue, March 25, 2004, E.R. vol. I, ex. 4, at
3001–05. At trial, the prosecution introduced lengthy
excerpts of Dyer’s interview. The prosecution argued that her
statements tended to place her with Hunter on the morning of
the murder, and that her tone of voice suggested evasion and
lack of remorse. Closing Statement of Dennis Peterson,
Deputy District Attorney, Trial Tr., May 17, 2004, E.R. vol.
I, ex. 5, at 9287, 9290–92.

    The jury found Dyer guilty of first degree felony murder,
second degree robbery, and kidnaping, and the court
sentenced her on June 17, 2004, to life imprisonment without
the possibility of parole. On March 12, 2007, her direct
appeal was denied on the merits by the California Court of
Appeal, Fifth Appellate District, and on June 20, 2007, the
California Supreme Court summarily denied her petition for
review. Dyer’s attempts to obtain habeas relief in the
California state courts were similarly unsuccessful. On
December 22, 2008, she timely filed this habeas petition
under 28 U.S.C. § 2254 in the United States District Court for
the Eastern District of California. The district court adopted
the findings and recommendation of Magistrate Judge Sandra
M. Snyder on December 14, 2009, which recommended that
the petition be denied and that a certificate of appealability
not issue. Dyer v. Hornbeek [sic]2, 2009 WL 3273284, 2009

  2
      The district court opinion appeared to refer to the respondent as
“Hornbeek” in the case caption, and “Hornbeak” in the appearance of
counsel, see Dyer, 2009 W L 3273284, at *1, 2009 U.S. Dist. LEXIS
94834, at *1, E.R. vol. II, ex. 30, at 1, but we are confident that the proper
spelling is “Hornbeck,” see e.g., Potter v. Hornbeck, 133 S. Ct. 120
(2012).
8                   DYER V . HORNBECK

U.S. Dist. LEXIS 94834 (E.D. Cal. Oct. 9, 2009). Dyer
sought a certificate of appealability from this Court, which we
granted on July 18, 2011.

                       DISCUSSION

    A. Standard of Review

    We review a district court’s decision to grant or deny
habeas relief de novo. Bailey v. Hill, 599 F.3d 976, 978 (9th
Cir. 2010).

    Dyer’s petition for habeas corpus relief is governed by
section 2254 of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Pursuant to 28 U.S.C. § 2254(d),
as amended by AEDPA, a federal court may not grant an
application for a writ of habeas corpus “with respect to any
claim that was adjudicated on the merits in State court
proceedings” unless the state court’s decision was “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States,” id. § 2254(d)(1), or was “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” id.
§ 2254(d)(2). “In applying these standards of review, we
look to the last reasoned decision in the state court system,”
Collins v. Runnels, 603 F.3d 1127, 1130 (9th Cir. 2010)
(quotation marks omitted), which in this case is the March 12,
2007 opinion of the California Court of Appeal.
                     DYER V . HORNBECK                        9

   B. Merits

    We granted a certificate of appealability to allow us to
review Dyer’s claim that “the trial court violated [her]
constitutional right against self-incrimination and right to
counsel by denying the motion to suppress [her] statements
to the police.” Dyer argues that the state court’s decision
with respect to this issue was an unreasonable application of
the Supreme Court’s seminal decision in Miranda v. Arizona,
384 U.S. 436 (1966), and its progeny.

     In Miranda, the Supreme Court established that “the
prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-
incrimination,” id. at 444, a requirement commonly satisfied
by delivery to the defendant of the familiar “Miranda
warnings.” But “[a]n officer’s obligation to administer
Miranda warnings attaches . . . ‘only where there has been
such a restriction on a person’s freedom as to render him in
custody.’” Stansbury v. California, 511 U.S. 318, 322 (1994)
(per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492,
495 (1977) (per curiam)). The Court of Appeal affirmed the
trial court’s finding that Dyer was not “in custody” at the time
she made the relevant statements, and that Miranda therefore
did not apply.

    “In determining whether an individual was in custody, a
court must examine all of the circumstances surrounding the
interrogation, but ‘the ultimate inquiry is simply whether
there [was] a formal arrest or restraint on freedom of
movement’ of the degree associated with formal arrest.’”
Stansbury, 511 U.S. at 322 (quoting California v. Beheler,
10                  DYER V . HORNBECK

463 U.S. 1121, 1125 (1983) (per curiam)). The question is an
objective one, which we have glossed as whether a
“reasonable innocent person in such circumstances” would
understand that she could refuse to answer officers’ questions
and leave. United States v. Booth, 669 F.2d 1231, 1235 (9th
Cir. 1981); see United States v. Kim, 292 F.3d 969, 978 (9th
Cir. 2002). “[W]hether a suspect is ‘in custody’ . . . presents
a mixed question of law and fact,” Thompson v. Keohane, 516
U.S. 99, 102 (1995), “calling for independent review in
federal court,” id.

     The respondent’s argument that Dyer was not in custody
emphasizes three aspects of her encounter with the police:
first, that Dyer agreed to travel with detectives from outside
of her home in Fowler to the police station and to answer
their questions; second, that detectives permitted Dyer two
unaccompanied breaks to the restroom during the
interrogation; and third, that one of the interviewing
detectives said to Dyer, at the beginning of the interrogation,
“And you understand that you’re not in any trouble, you’re
not under arrest, and that you’re free to leave at any time?”
The respondent argues that a reasonable innocent person in
these circumstances would have believed that she was free to
stop answering the detectives’ questions and go home. Both
state courts rested their decisions, in large part, on these
factors.

     For the reasons carefully spelled out by Judge Smith in
his concurrence, we are troubled by this conclusion. The
notion that Dyer’s trip to the police station was fully
voluntary is questionable, because at the time she agreed to
join the officers, she had been detained in a locked squad car
for twenty minutes while detectives searched her home. True
enough, as the respondent and the Court of Appeal have
                        DYER V . HORNBECK                             11

explained, the fact that detectives were executing a search
warrant provided an independent legal justification for that
detention, at least insofar as the Fourth Amendment is
concerned, see Michigan v. Summers, 452 U.S. 692, 705
(1981), and that justification no longer existed by the time the
detectives sought Dyer’s consent to interview her at the
station. It rather strains our imagination, however, to think
that the reasonable innocent person is likely to have the sort
of facility with Supreme Court jurisprudence needed to
understand that principle. Cf. Kim, 292 F.3d at 976–77
(explaining that “whether an individual detained during the
execution of a search warrant has been unreasonably seized
for Fourth Amendment purposes and whether that individual
is ‘in custody’ for Miranda purposes are two different
issues”).

    As to the other factors -- the unaccompanied breaks and
the pre-interview assurance that Dyer was not in trouble -- we
do not deny their relevance. But we also acknowledge other
aspects of the interrogation -- its four-hour duration, the time
of night at which it was conducted, the distance between the
police station and Dyer’s home, and the extent to which Dyer
was confronted with evidence of her own guilt -- on the other
side of the scale. See id. at 974 (identifying factors relevant
to custody determination).

    Despite our doubts, however, we are bound by AEDPA’s
exacting requirements. What section 2254(d)(1) says, as
relevant here,3 is that habeas relief is appropriate only to


 3
    Insofar as Dyer argues that the Court of Appeal’s decision was either
“contrary to” Supreme Court precedent, 28 U.S.C. § 2254(d)(1), or that it
rested on an “unreasonable determination of the facts,” id. § 2254(d)(2),
those arguments are without merit. The Court of Appeal correctly
12                      DYER V . HORNBECK

remedy a state court’s “unreasonable application of” clearly
established Supreme Court precedent. We are thus required
to affirm the district court’s denial of Dyer’s petition, unless
the state court’s decision in the matter was “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 131
S. Ct. 770, 786–87 (2011). We conclude that Dyer cannot
satisfy that standard.

    We think that a fairminded jurist could, on this record,
find that Dyer was not in custody, because many presumably
fairminded jurists have indeed so found on facts similar to
these. Although “only Supreme Court holdings are binding
on state courts,” Rodgers v. Marshall, 678 F.3d 1149, 1155
(9th Cir. 2012), “[c]ircuit precedent may provide persuasive
authority for purposes of determining whether a state court
decision is an ‘unreasonable application’ of Supreme Court
precedent.” Id. (quotation marks omitted). And there is
authority -- from the Supreme Court, this Court, and from
other circuits -- that treats the combination of factors relied
upon by the respondent as precluding a finding that Dyer was
in custody.

   In Oregon v. Mathiason, 429 U.S. 492 (1977), for
example, the Supreme Court explained that the suspect “came
voluntarily to the police station, where he was immediately


identified the governing legal principles, and its decision does not
contradict a Supreme Court holding on “materially indistinguishable”
facts. Moses v. Payne, 555 F.3d 742, 751 (9th Cir. 2008). Nor has Dyer
presented “clear and convincing” evidence rebutting the presumption of
correctness that attaches to the state court’s determinations of the facts.
See 28 U.S.C. § 2254(e)(1).
                     DYER V . HORNBECK                         13

informed that he was not under arrest” in finding that he was
not in custody. Id. at 495. We reasoned similarly in this
Court’s en banc opinion in United States v. Crawford, 372
F.3d 1048, 1059–60 (9th Cir. 2004) (en banc). There, we
noted that the “[d]efendant agreed to go to the FBI office,”
and we explicitly labeled as “most significant for resolving
the question of custody” the fact that the “[d]efendant was
expressly told that he was not under arrest.” Id. We rejected
the defendant’s argument, which is not unlike Dyer’s, that
“because [the suspect] was detained during [a] parole search
and officers had entered his bedroom with weapons drawn,
his later questioning at the FBI office amounted to custodial
interrogation.” Id. at 1059.

    The case law contains many other examples of courts
relying on similar factors to conclude that a suspect was not
in custody. See, e.g., Beheler, 463 U.S. at 1122 (noting that
the defendant “voluntarily agreed to accompany police to the
station house”); Bains v. Cambra, 204 F.3d 964, 972 (9th Cir.
2000) (relying, in context of a § 2254 petition, on fact that
petitioner “either . . . himself suggested that his questioning
by the police continue at the police station or he simply chose
not to object when the police suggested [it]”); United States
v. Bassignani, 575 F.3d 879, 886 (9th Cir. 2009) (“We have
consistently held that a defendant is not in custody when
officers tell him that he is not under arrest and is free to leave
at any time.”); United States v. Norris, 428 F.3d 907, 912 (9th
Cir. 2005) (“[The suspect] was told that his cooperation was
voluntary and that he was free to terminate the interview at
any time.”); United States v. LeBrun, 363 F.3d 715, 722 (8th
Cir. 2004) (en banc) (“[T]he defendant was not in custody
because, among other things, the officers told him that he was
free to leave and that he would not be arrested . . . .”).
14                  DYER V . HORNBECK

    Our independent consideration of other factors relevant to
the custody determination confirms that the result reached by
the Court of Appeal was objectively reasonable. The
principal circumstances relied upon by Dyer in arguing that
she was in custody were mitigated somewhat by still other
aspects of her encounter.

    One such consideration is the physical surroundings of the
interrogation. See Kim, 292 F.3d at 974. It is true that Dyer’s
interrogation took place in a police station, which is, of
course, precisely the sort of setting the Supreme Court had in
mind when it decided Miranda. But the Supreme Court has
since “explicitly recognized that Miranda warnings are not
required simply because the questioning takes place in the
station house . . . .” Beheler, 463 U.S. at 1125 (quotation
marks omitted). It seems to us to follow that circumstances
may soften the police station’s inherently intimidating
atmosphere, or at least that detectives may take steps so as
not to amplify it. That was arguably so here. Dyer was
interviewed in a nondescript, fifteen-by-fifteen foot room --
small, but not oppressively so -- in what appears to have been
a public-facing area of the station house. The Court of
Appeal noted that during a break, Dyer “got up, left the room,
walked to the restroom (approximately 30 yards away), used
the restroom, and returned to the interview room,” Lopez,
2007 WL 738787, at *9, 2007 Cal. App. Unpub. LEXIS
1978, at *26, and Detective Chapman testified that she could
have exited the station from there, Testimony of Detective
Mark Chapman, Transcript of Miranda Hearing, March 19,
2004, E.R., vol. I, ex. 3, at 1776–77. So it is not as though
Dyer was locked in the bowels of the station house, with no
idea which way was out. Indeed, nothing in the record
suggests that the detectives did anything to heighten her sense
of seclusion.
                         DYER V . HORNBECK                              15

    Another relevant consideration is the tone of the
interrogation. Bassignani, 575 F.3d at 884. Although “[w]e
have found a defendant in custody when the interrogator
adopts an aggressive, coercive, and deceptive tone,” id., the
Supreme Court has also cautioned generally that “[p]loys to
mislead a suspect or lull him into a false sense of security that
do not rise to the level of compulsion or coercion to speak are
not within Miranda’s concerns,” Illinois v. Perkins, 496 U.S.
292, 297 (1990) (citing Mathiason, 429 U.S. at 495–96). We
do not read the transcript of the interrogation here to suggest
the sort of tone that would communicate to a reasonable
innocent person that her participation was not voluntary. To
be sure, Dyer was sporadically confronted with accusations
and elliptical references to evidence of her guilt.4 But this
tone was not pervasive. More often, the detectives employed
the sort of tactics referred to in Perkins, which work for the
very reason that they cultivate in the suspect a sense of trust
and voluntariness, false though that sense may be. The
transcript also reveals lengthy portions of the interrogation
that took a purely investigatory tone, in addition to repeated
confirmations that detectives had not made threats or
promises to Dyer. See Tr. of Pet’r’s Interview, March 29,
2002, E.R. vol. I, ex. 2, at 35, 49, 51, 77. The tone of the
interview therefore does not weigh as heavily in favor of a
custody determination as Dyer suggests.




  4
     Among them: “Other people have said, have told us that you’re the
person that killed him,” Tr. of Pet’r’s Interview, March 29, 2002, E.R. vol.
I, ex. 2, at 34; “I know you’re scared. I can see your, your heart’s pumping
pretty fast right now, and your heart’s not pumping fast because you didn’t
do anything. W e know you did, and it’s okay,” id. at 45; “At 1:51 a.m. on
Friday morning there was a phone call to your residence from D.J.’s
telephone, it’s right here,” id. at 40. See also id. at 13, 29–30, 37.
16                  DYER V . HORNBECK

    Ultimately, we are persuaded that the Court of Appeal’s
understanding of the foregoing principles in the context of
this case, and its conclusion that a reasonable innocent person
in Dyer’s position would have understood herself to be free
to ignore the detectives’ inquiries and leave, are reasonable.
So even if we think that Dyer’s consent to speak with police
may have been influenced by her limited detention while the
search was being executed, or that the force of the detectives’
promise that Dyer was free to leave may have been blunted
by other aspects of the encounter, we cannot reject the Court
of Appeal’s ultimate decision. “[Section] 2254(d)’s highly
deferential standard for evaluating state-court
rulings . . . demands that state-court decisions be given the
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (citations and internal quotation marks omitted).
Giving the Court of Appeal that benefit here, we affirm the
judgment of the district court denying Dyer’s application for
habeas relief under 28 U.S.C. § 2254.

                      CONCLUSION

   For the foregoing reasons, the judgment of the district
court is AFFIRMED.



M. SMITH, Circuit Judge, concurring in the judgment:

    Three California Court of Appeal justices found that
Stacey Dyer was not “in custody” when she was interrogated
for nearly four hours in the dead of night at a police station
located thirty minutes from her home. For the reasons
discussed in this concurrence, were I sitting on direct appeal
in the place of one those justices, I would have decided the
                    DYER V . HORNBECK                      17

custody issue differently. Because the habeas appeal before
us is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, however, I am bound by controlling law
to concur in the judgment denying Dyer’s petition for relief.
See 28 U.S.C. § 2254. Specifically, I am bound to concur in
the judgment because we must apply a “highly deferential
standard for evaluating state-court rulings, which demands
that state-court decisions be given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)
(citation and internal quotation omitted). Moreover, I do not
find that my state colleagues’ conclusion rests on an
“unreasonable application of clearly established Federal law,”
28 U.S.C. § 2254(d)(1), or that the state court’s decision in
this case was “so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Harrington v. Richter, 131 S. Ct. 770 , 786-87 (2011). Still,
I believe Dyer was entitled to the protections afforded by
Miranda v. Arizona, 384 U.S. 436 (1966).

    The State argues otherwise, and contends that Dyer was
not in custody because she: (1) agreed to travel to the police
station to answer questions; (2) was permitted two
unaccompanied breaks to the restroom during a nearly four-
hour-long interrogation; and (3) was told once, at the very
beginning of the interrogation, “And you understand that
you’re not in any trouble, you’re not under arrest, and that
you’re free to leave at any time?” The State puts far too
much weight on each factor, while entirely ignoring the
countervailing factors that support Dyer’s position.
18                  DYER V . HORNBECK

     A. Dyer’s “Voluntary” Cooperation

     The State claims Dyer was not in custody because she
voluntarily agreed to travel to the police station to answer
questions. If Dyer did consent, this fact would be highly
relevant to the custody analysis. See, e.g., Oregon v.
Mathiason, 429 U.S. 492 (1977) (per curiam); California v.
Beheler, 463 U.S. 1121 (1983) (per curiam); but cf. United
States v. Kim, 292 F.3d 969, 975 (9th Cir. 2002) (“Voluntary
initiation of contact with the police cannot be, under any
circumstances, the end of the inquiry into whether a
defendant was ‘in custody’ during [an] encounter.”). But
there is simply no reason to believe Dyer truly consented to
questioning here, where Detective Chapman solicited Dyer
while she was already locked in the back of a police car, and
had been detained there for nearly 30 minutes.

     The significance of Dyer’s detention in the back of the
patrol car cannot be overstated, as it serves to substantially
distinguish Dyer’s case from those where suspects
unambiguously volunteered to answer questions. See, e.g.,
Mathiason, 429 U.S. at 493; Beheler, 463 U.S. at 1122;
United States v. Crawford, 372 F.3d 1048, 1059 (9th Cir.
2004) (en banc). The defendant in Mathiason, for instance,
agreed to submit to police questioning after the investigating
officer left his business card and a note at the defendant’s
apartment asking the defendant to call him. 429 U.S. at 493.
The next day Mathiason called the officer and agreed to come
to the police station to answer questions. Id. That Mathiason,
unlike Dyer, truly consented to questioning cannot be
denied—he was under no obligation to call the officer, let
alone come to the police station.
                     DYER V . HORNBECK                         19

    Beheler and Crawford are similarly distinguishable: In
both of those cases, the defendant was in his own home when
he agreed to accompany police officers to the station house.
Beheler, 463 U.S. at 1122; Crawford, 372 F.3d at 1051. This
distinction is critical because a suspect is far less likely to be
intimidated or coerced into talking to the police when she is
in the familiar surroundings of her own home. United States
v. Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008) (“The
element of compulsion that concerned the Court in Miranda
is less likely to be present where the suspect is in familiar
surroundings.”) (citation omitted). That suspects like those
in Beheler and Crawford can, at least theoretically, ask the
police to leave their property is highly significant in
evaluating the ultimate voluntariness of their decisions to
cooperate with the authorities. See generally id. at 1083–84
(noting that “courts have generally been much less likely to
find that an interrogation in the suspect’s home [is] custodial
in nature.”) (citations omitted).

    In contrast to the suspects in Mathiason, Beheler and
Crawford, Dyer’s “consent” was obtained while she was
already under total police control. Thus for Dyer, refusing
the police’s invitation would have required more than simply
asking the police to leave or not phoning back, but
affirmatively convincing the police to release her from the
back of the locked squad car. And even then, Dyer may not
have been “free to leave” because the police could have
denied her entry to her apartment until their ongoing search
for evidence was complete. See, e.g., Illinois v. McArthur,
531 U.S. 326, 332 (2001) (holding that the police may
reasonably deny a suspect entry to his own home to prevent
the destruction of evidence). As we have recognized, “[t]o be
‘free’ to leave is a hollow right if the one place the suspect
cannot go is his own home.” Craighead, 539 F.3d at 1083.
20                       DYER V . HORNBECK

A reasonable person in Dyer’s position—already removed
from her home and detained in a locked police vehicle around
11:00 P.M.—would likely have felt that a trip to the police
station was inevitable, and certainly would not have felt free
to refuse the police’s request to talk.

      B. Dyer’s Capacity to Leave

    The State next argues that Miranda warnings were
unnecessary because Dyer was permitted two unaccompanied
breaks to the restroom during her lengthy interrogation.
Specifically, the State argues that because Dyer could have
exited the police station (mid-interview) out of an unlocked
side door, she was not in custody. The State’s argument
misses the mark for several reasons.

    First, there is no evidence that Dyer (or a reasonable
person in Dyer’s position) actually knew she could exit the
station house.1 But even assuming Dyer knew she could
leave, she had nowhere to go—Dyer was questioned between
midnight and 4 a.m., a 30 minute drive from her home, and
without any means of transportation. Although similar in
some ways, Fresno is not Manhattan, where taxis and buses
run all night and residents can reasonably hope to obtain a




  1
       The majority notes that “nothing in the record suggests that the
detectives did anything to heighten [Dyer’s] sense of seclusion.” W hile
true, there is similarly nothing in the record to suggest that Dyer knew she
could easily leave.
                        DYER V . HORNBECK                              21

safe ride home.2 The State’s claim that a female suspect,
under the circumstances here, stranded far from her home in
the dead of night would simply walk out of a police interview
strains credulity, even if the front door was wide open.

    More importantly, however, the fact that Dyer
theoretically could have exited the station is largely
irrelevant. Whether Dyer was confined in a labyrinthine
prison or a minimalist station house, the question is not
whether a suspect was theoretically capable of leaving, but
whether a reasonable person in the suspect’s position would
have felt free to leave. Thompson v. Keohane, 516 U.S. 99,
112 (1995). Here, for the reasons already indicated (i.e., the
lateness of the hour, the distance from her home, and her lack
of transportation), Dyer was not free to leave. And if this
conclusion were in any doubt, the fact that Chapman and his
partner had spent nearly two hours accusing Dyer of murder
before she was allowed to take her first break confirms it.
See Kim, 292 F.3d at 974 (finding “the extent to which the
defendant is confronted with evidence of guilt” highly
relevant to the Miranda determination). Before stopping
around 2 a.m., the detectives had already told Dyer, among
other things, that: “people have picked you out of a line-up,
they know it was you”; “you have been implicated in this
crime, and we just need to know the story”; “what they’re
saying is that you guys are responsible for DJ’s death”; “you
were handed the weapon and they told you to do it”; and
“you’ve been implicated as being responsible for the death of


 2
    There is nothing new about considering geography when determining
the appropriate level of constitutional protection. For example in Illinois
v. Wardlow, the Supreme Court found particularly relevant the fact that
the defendant took flight in an “area known for heavy narcotics
trafficking.” 528 U.S. 119, 124 (2000).
22                   DYER V . HORNBECK

D.J., and it’s very serious.” Confronted with such
momentous allegations of guilt, no reasonable person would
have felt free to turn an unaccompanied trip to the restroom
into a full-blown escape attempt.

     C. Advisement Dyer Was Free to Leave

    Finally, the State argues that Dyer was not in custody
because the detectives told her once, before the interview
began, that “you’re not in any trouble, you’re not under
arrest, and that you’re free to leave at any time.” As the
majority properly recognizes, such an advisement is
extremely relevant, and we have previously held that the fact
that the “[d]efendant was expressly told that he was not under
arrest” is “most significant for resolving the question of
custody[.]” Crawford, 372 F.3d at 1059–60. Still, “the mere
recitation of the statement that the suspect is free to leave or
terminate the interview. . .does not render an interrogation
non-custodial per se.” Craighead, 539 F.3d at 1088; see also
United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006)
(“There may be situations where the restraints placed on a
suspect’s freedom are so extensive that telling the suspect he
was free to leave could not cure the custodial aspect of the
interview[.]”) (citation omitted). Rather, to determine
whether Dyer was in custody we must again consider whether
a reasonable suspect would have felt at liberty to terminate
the interview and leave. Craighead, 539 F.3d at 1088.
Again, the answer is no.

     Dyer concedes that Chapman told her that she was “free
to leave,” and the transcript confirms that Dyer acknowledged
                       DYER V . HORNBECK                            23

Chapman’s statement.3 Nevertheless, several facts lead me
to conclude that Dyer could have reasonably believed she was
not free to leave, notwithstanding that Detective Chapman
told her she was. For instance, immediately prior to
Chapman’s advisement, Dyer had been detained in the back
of a police vehicle for roughly one hour in the aggregate, and
had witnessed Sheriff’s Deputies search her home. Thus, by
the time the interview started, Dyer certainly knew that the
police considered her a suspect in a criminal investigation,
and given the night service of the search warrant and the
unusual hour of the interview itself, Dyer surely knew the
crime being investigated was quite serious. See generally
Rodriguez v. Superior Court, 245 Cal. Rptr. 617, 624–25
(Cal. Ct. App. 1988) (describing the heightened standard for
obtaining nighttime service of a search warrant); see also Cal.
Penal Code § 1533. At the very outset of the interrogation
then, Chapman’s assurance that Dyer was “free to leave at
any time” likely rang false.

    But even assuming that a reasonable person in Dyer’s
position would have initially believed that she was free to
leave, there is no reason to suspect that such a belief would
have persisted throughout the entirety of the interview. See,
e.g., Crawford, 372 F.3d at 1061 (holding that a suspect was
not in custody where he was “repeatedly told” that he was not
under arrest and was free to leave) (emphasis added). Within
minutes of telling Dyer she was free to leave, detectives
informed her that “you’ve been implicated by several people
as being involved in this, and that’s why we’re here tonight.”
By the time an hour had elapsed, the police had made at least


  3
      “Q: Ok. And you understand that you’re not in any trouble, you’re
not under arrest, and that you’re free to leave at any time? A: Uh huh
(affirmative).”
24                 DYER V . HORNBECK

20 more references to Dyer’s involvement in D.J. Hunter’s
death. Put simply, well before Dyer made any incriminating
statements, a reasonable person in her position would have
known that, despite Chapman’s earlier assertion, she was not
free to leave. Thus, Dyer was “in custody” and was entitled
to receive Miranda warnings.
