                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-30-2004

USA v. Killingsworth
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1659




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                                                                NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                       NO. 04-1659


                           UNITED STATES OF AMERICA
                                    Appellant

                                           v.

                           BENJAMIN KILLINGSWORTH


                   On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                       (D.C. Crim. Action No. 03-cr-00110-2)
                        District Judge: Hon. Edwin M. Kosik


                              Argued December 14, 2004

                    BEFORE: AMBRO, VAN ANTWERPEN and
                          STAPLETON, Circuit Judges

                        (Opinion Filed    December 30, 2004 )




Thomas A. Marino
U.S. Attorney
Theodore B. Smith, III (Argued)
Assistant U.S. Attorney
Office of the U.S. Attorney
Federal Building - 228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
 Attorneys for Appellant
Carl J.B. Poveromo (Argued)
Rinaldi, Roscoe & Poveromo
520 Spruce Street
P.O. Box 826
Scranton, PA 18501
 Attorney for Appellee




                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Because we write only for the parties who are familiar with the facts, we do not

restate them below. The United States (“Appellant”) appeals the suppression of

incriminating statements made by Benjamin Killingsworth (“Appellee”) to law

enforcement officers during an eight minute interaction at Appellee’s home on the

morning of January 23, 2003. The District Court suppressed the statements after

determining that they were the product of custodial interrogation conducted without the

benefit of Miranda warnings. For the reasons set forth below, we reverse.

                                             I.

       In reviewing the District Court’s decision to suppress Defendant/Appellee’s

statements, we review findings of fact for clear error, and exercise plenary review “with

respect to the district court’s determination as to whether the [law enforcement] conduct

found to have occurred constitutes custodial interrogation under all the circumstances of



                                             2
the case.” United States v. Leese, 176 F.3d 740, 741 (3d Cir. 1999).

                                               II.

       Persons subject to custodial interrogation are entitled to receive information

regarding their right to remain silent, their right to speak to an attorney, and their right to

have a lawyer appointed to assist them if they are unable to afford a lawyer prior to any

questioning. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). Determinations of

whether a person was subject to custodial interrogation are made on a case-by-case basis

looking objectively at the totality of the circumstances. Stansbury v. California, 511 U.S.

318, 323 (1994) (noting that “[t]he initial 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”); Leese, 176 F.3d at 743.

       A person is in custody where he/she is either formally arrested or where his/her

freedom of movement is restricted to the “‘degree associated with a formal arrest.’”

Leese, 176 F.3d at 743 (citing California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal

citation omitted)). Where a person has not been arrested, “something must be said or

done by the authorities, either in their manner of approach or in the tone or extent of their

questioning, which indicates they would not have heeded a request to depart or to allow

the suspect to do so.” Steigler v. Anderson, 496 F.2d 793, 799 (3d Cir. 1974). Thus,

“[p]olice officers are not required to administer Miranda warnings to everyone whom

they question.” Oregon v. Mathiason, 429 U.S. 492, 495 (1977). Rather, the obligation



                                               3
to administer Miranda warnings exists only “where there has been such a restriction on a

person’s freedom as to render him ‘in custody.’” Stansbury, 511 U.S. at 322.

       Courts consider a variety of factors when determining if a person was in custody,

including: (1) whether the officers told the suspect he/she was under arrest or free to

leave; (2) the location or physical surroundings of the interrogation; (3) the length of the

interrogation; (4) whether the officers used coercive tactics such as hostile tones of voice,

the display of weapons, or physical restraint of the suspect’s movement; and (5) whether

the suspect voluntarily submitted to questioning. United States v. Czichray, 378 F.3d 822

(8th Cir. 2004); United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001); United

States v. Crossley, 224 F.3d 847, 861 (6th Cir. 2000).

       Here, the District Court erred in determining that Appellee was in custody during

the time the officers were in his home. Examining the totality of the circumstances, the

record does not support a finding that Appellee’s freedom was restrained to the degree

associated with formal arrest. First, the officers made it clear to Appellee that he was not

under arrest. Although the record would provide some support for a finding that, prior to

entering the house, the officers told Appellee they would arrest him if he did not admit

them, once inside and before any questioning, Killingsworth acknowledges that they

explicitly informed him that they had come to solicit his cooperation, not to arrest him.

The fact that the officers informed Appellee that he would be arrested at some future

point for his drug purchases did not transform the conversation into a custodial



                                              4
interrogation. “It is appropriate for an investigator to advise a suspect of the potential

course and consequences of a criminal investigation. Suspects frequently confront

difficult decisions about whether to defend against potential criminal charges or to pursue

resolutions that may ameliorate certain unpleasant consequences.” Czichray, 378 F.3d at

829. Although a discussion of future arrest and criminal penalties might indicate a degree

of coercion, “some degree of coercion is part and parcel of the interrogation process and

[] the coercive aspects of a police interview are largely irrelevant to the custody

determination except where a reasonable person would perceive the coercion as

restricting his or her freedom to depart.” Id. Here, a reasonable person would not have

understood this level of coercion as restricting his/her ability to terminate the questioning.

       Second, the fact that the incident took place in Appellee’s home undermines a

claim that he was in custody. In United States v. Czichray, the Eighth Circuit Court of

Appeals noted that “[w]hen a person is questioned ‘on his own turf,’ we have observed

repeatedly that the surroundings were ‘not indicative of the type of inherently coercive

setting that normally accompanies a custodial interrogation.’” 378 F.3d at 826. We agree

that “an interrogation in familiar surroundings such as one’s home softens the hard

aspects of police interrogation and moderates a suspect’s sense of being held in custody.”

Id.

       Third, the length of the conversation does not indicate a custodial situation. The

entire incident took less than ten minutes and included periods of time during which the



                                              5
Appellee left the room to make a phone call, asked the officers questions and ultimately

rejected their proposal that he cooperate. Given that courts have found interrogations

lasting anywhere from one and one-half to seven hours to be non-custodial, see Beckwith

v. United States, 425 U.S. 341, 342-45 (1976) (three hours); United States v. Wolk, 337

F.3d 997, 1006-07 (8th Cir. 2003) (an hour and twenty minutes); Czichray, 378 F.3d at

825 (seven hours); Leese, 176 F.3d at 744-45 (one hour), we are not persuaded that, in the

absence of the use of physical force, an actual arrest or some other strong indication of

restricted freedom, a reasonably objective person would believe himself to be in custody.

       Fourth, the record does not support a finding that the agents used coercive tactics

such as a harsh tone of voice, display of weapons or physical restraint during the

interrogation. The agents did not physically restrain Appellee and permitted him to leave

the room to make a phone call in another area of the house. Although the agents told

Appellee not to make the call and repeatedly asked him to end it, such discouragement is

not probative of whether the Appellee was free to end his interview entirely. Even

assuming that a reasonable person in Appellee’s position would have felt he could not

make a phone call, “he still retained two viable options: conduct an uninterrupted

interview with the agents or terminate the interview. . . . [P]lacing certain ground rules on

an interview does not preclude a reasonable person from foregoing the interview

altogether.” Czichray, 378 F.3d at 828.

       Finally, we are satisfied that the Appellee voluntarily engaged in the questioning.



                                             6
After the officers entered Appellee’s home, Appellee readily answered questions and

asked many of his own. Appellee continued to speak with the agents while he was on the

phone with another person. Nothing indicates that the incident involved the type of

physical intimidation or psychological coercion which would render Appellee’s

statements involuntary. See Arizona v. Fulminate, 499 U.S. 279 (1999); Schneckloth v.

Bustamente, 412 U.S. 218, 225 (1972). Additionally, Appellee admits that he never told

the agents to leave nor asked to leave himself until he terminated the interview by

informing the agents that he did not want to cooperate.1

       In short, the incident at issue was an attempt by law enforcement agents to further

their investigation by soliciting Appellee’s aid. As such, the agents suggested to Appellee

that there was a benefit to helping them, tried to keep him from communicating their offer

to others, and explained the consequences of a decision not to help them. However, the

record does not show the use of physical force or restraint, verbal intimidation, the

display of weapons, a lengthy interrogation, or other circumstances indicative of a

custodial interrogation. Therefore, the District Court erred and we will reverse its

decision to suppress Appellee’s statements.



   1
    The District Court’s opinion states that Appellee asked the agents to leave.
Specifically, the District Court wrote: “we conclude that the agents’ intrusion at 8:30
a.m., knowing the defendant was a target, under threat of eventual arrest – excited and
experiencing reluctance to converse while asking that the agents leave – created a
situation tantamount to custody.” App. at 5. To the extent that this statement is a factual
finding, we find it to be clearly erroneous as it has no record support. See United States v.
Pelullo, 173 F.3d 131, 135 (3d Cir. 1999).

                                              7
                                           III.

       The District Court’s order granting Appellee’s motion to suppress will be reversed,

and this matter will be remanded for further proceedings consistent with this opinion.




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