                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 10-1443

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

M ICHAEL S. S LAIGHT,
                                            Defendant-Appellant.


           Appeal from the United States District Court
               for the Central District of Illinois.
           No. 09-CR-40030—Michael M. Mihm, Judge.



    A RGUED A UGUST 4, 2010—D ECIDED S EPTEMBER 2, 2010




 Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.
  P OSNER, Circuit Judge. The defendant pleaded guilty
to receipt and possession of child pornography shipped
in interstate or foreign commerce, subject to a right to
appeal the denial of his motion to suppress incrim-
inating statements that he had made when questioned
by federal officers at a police station. He received a man-
datory minimum sentence of 15 years by reason of a
previous conviction for aggravated sexual abuse of a
2                                               No. 10-1443

child under 13 years of age. 18 U.S.C. § 2252A(b)(1); United
States v. Gross, 437 F.3d 691, 692 (7th Cir. 2006).
  The Miranda rule forbids questioning a person who is
in custody unless he is first told that he has certain
rights, such as a right to remain silent. If the rule is vio-
lated, the answers to the questions asked him are inad-
missible in evidence. Police sometimes are restive
under the restraints imposed by the rule and seek to
circumvent it by avoiding the appearance of custody, see,
e.g., Thompson v. Keohane, 516 U.S. 99, 102-03 (1995); United
States v. Garcia, 376 F.3d 648 (7th Cir. 2004), since the
rule does not apply to noncustodial interrogations.
“Police recast what would otherwise be a custodial inter-
rogation as a non-custodial interview by telling the
suspect that he is not under arrest and that he is free
to leave—sometimes even after detectives have trans-
ported the suspect to the stationhouse with the express
purpose of questioning him inside the interrogation
room and eliciting incriminating information.” Richard A.
Leo, “Questioning the Relevance of Miranda in the
Twenty-First Century,” 99 Mich. L. Rev. 1000, 1017
(2001). (That is this case.) One police manual advises
that “if . . . the subject appears to be uncooperative and
not likely to waive [his Miranda rights], consider taking
the coerciveness (i.e., the ‘custody’) out of the inter-
rogation by simply informing him that he is not under
arrest . . . , when practical to do so under the circum-
stances, and interview the subject without a Miranda
admonishment and waiver.” Quoted in Charles D.
Weisselberg, “Mourning Miranda,” 96 Cal. L. Rev. 1519,
1542-43 (2008). Professor Weisselberg points out that
No. 10-1443                                              3

Miranda is underinclusive because it ignores pre-arrest
interactions between police and a suspect that may influ-
ence the suspect’s willingness to talk. Id. at 1545.
“[I]nterrogation is part of a seamless sequence of events,
and there are strategic considerations that govern every
step in that sequence, beginning with initial contacts
with suspects.” Id. at 1547-48; see also Yale Kamisar,
“On the Fortieth Anniversary of the Miranda Case: Why
We Needed It, How We Got It—And What Happened
to It,” 5 Ohio St. J. Crim. L. 163, 187-88 (2007).
  In the present case, federal law enforcement officers in
Rock Island, Illinois, assisted by local police, made inge-
nious, pertinacious, but ultimately (as it seems to us)
transparent efforts to disguise a custodial interrogation
as noncustodial.
  Searching pornographic peer-to-peer sites on the
Internet, federal agents discovered that Michael Slaight
of Rock Island had downloaded child pornography to
his computer in violation of federal law. They obtained a
warrant to seize and search the computer, which they
assumed correctly was in his home. They could easily
have obtained an arrest warrant as well—they had
ample probable cause to believe he had violated federal
law. But had they arrested him they would have had to
give him the Miranda warnings before questioning him;
and the assistant U.S. attorney who argued for the gov-
ernment on appeal acknowledged forthrightly that the
officers wanted to question Slaight without giving him
the warnings. The particular admission that they wanted
to extract from him was that no one besides himself had
4                                              No. 10-1443

had access to his computer. That possibility was the
one chink in an otherwise airtight case.
  At 7:45 a.m. one morning in March, nine (possibly ten)
federal and local officers arrived at Slaight’s home. They
knocked on the door and when no one responded they
forced it open with a battering ram and entered the
house with drawn guns, including assault rifles. (As the
judge put it at the suppression hearing, “I’m sure they
were yelling at him, small house, all that, but it’s also
true that later on the guns were holstered . . . . There is
something that is almost inevitably intimidating about
the environment at that time.”) They found Slaight in
the house, together with a woman, whom they had not
known about; they had assumed he lived alone. They
testified at the suppression hearing that they had
planned to interview him at his house. We find that
hard to believe (the judge made no finding). They had
already reserved a tiny windowless interview room at
the police station for interviewing him. At the suppres-
sion hearing they gave implausible reasons, as we are
about to see, for not interviewing him at his home, and
false testimony about his being free to leave the tiny
room. The federal courthouse was only two blocks
from the police station and had interview rooms,
and the investigation of Slaight was federal although
local police assisted, but the law enforcement team
undoubtedly wanted the questioning to take place in
the more intimidating environment of a police station.
The government argues that the interview rooms in
the courthouse may not have had the kind of nifty audio-
visual equipment that had been installed in the police
No. 10-1443                                             5

station’s interview room. But the argument belies the
officers’ testimony that they would have been happy
to interview Slaight in his home had it not been for
reasons (discussed in the next paragraph) that are unre-
lated to the fact that it was not equipped with such
equipment.
  They testified that the windows of the house were
covered with garbage bags and other materials and as
a result there was very little natural light in the house.
But the house had electricity and the officers gave no
reason why an interview, unlike painting a landscape,
requires natural rather than artificial light. They also
testified that the house “had a strong smell of cats”—a
risible reason for unwillingness to conduct an inter-
view; police smell much worse things in the line of duty.
It is true that cat allergies can be serious; a common
allergic reaction to a cat is an asthmatic attack; and one
officer actually testified that he and another officer are
allergic to cats. But apparently not seriously so, for his
response to the smell of the resident cat was merely to
open a door to air out the house, and the government
does not suggest that fear of allergic reactions was one
of the reasons for not wanting to interview Slaight in
his home.
  The officers testified that they wanted to interview the
woman they had found in the house as well as Slaight,
and, since it was a small house, though the dimensions
are not in the record and it had two bedrooms as well
as a living room, they were afraid that the interview of
each occupant would be audible to the other. But that
6                                                No. 10-1443

would have been unlikely had each been interviewed at
the same time in a different bedroom, since the bed-
rooms were separated by the living room. Or the police
could have asked one of the two to sit in one of their
vehicles while the other was interviewed, and then
switch places. After two of the officers escorted Slaight
from the house two other officers interviewed the room-
mate in the house, despite the lack of natural light and
the cat smell and the further fact offered as a reason
for wanting to take Slaight to the police station for inter-
viewing that there was only one chair in the living room.
  The officers did not command Slaight to come with
them to the police station. They merely told him they’d
prefer to interview him there. They even offered to let
him drive himself to the police station—yet they knew
that his driving license had been suspended, so there
was little danger he would accept the invitation. Anyway
he didn’t have a car.
  He went with two of the officers in their car and
found himself in the tiny interview room in the police
station. We don’t know whether the police station—the
main police station of Rock Island, a town of 35,000—has
any larger interview rooms. The room’s dimensions
are not in the record (we’ve previously noted with dis-
pleasure lawyers’ indifference to exact measurements,
e.g., St. Margaret Mercy Healthcare Centers v. NLRB, 519
F.3d 373, 375 (7th Cir. 2008); Coffey v. Northeastern Illinois
Regional Commuter R.R (METRA), 479 F.3d 472, 478 (7th Cir.
2007)), but the surveillance video of the interrogation
makes clear that the room was minute. One officer
No. 10-1443                                               7

testified that it was eight feet by eight feet, another that
it was five by seven. The two officers, both large men,
plus Slaight and a desk and three chairs, pretty much
filled up the room. The judge was critical: “I would
strongly suggest that that room should never, ever be
used to take voluntary statements. Frankly, I have been
knocking around this stuff for over 40 years. That’s the
smallest interrogation room I’ve ever seen.” The door
of the room was closed throughout the interview and,
as we said, the room has no windows.
  The police repeatedly told Straight that he was free to
leave, although they didn’t offer to drive him home; his
home was close by but we don’t know how close
by—whether it was within walking distance and if not
whether he had money for a cab. To leave the interview
room he would have had to brush by one of the officers,
whose seat was so close to the door that the officer
might have had to move his chair to allow Slaight to
exit without touching him. (“Officer, may I please
squeeze by you?”) Slaight knew the police had him
nailed so far as illegal possession of computer images was
concerned, and he couldn’t have believed they would
actually let him go. After being told by the officer inter-
viewing him that he was not in custody and was there-
fore free to leave, Slaight said that he had no choice but
to remain because they were going to arrest him any-
way. The officer did not demur. The judge criticized him
for not responding to Slaight “Now wait a minute. You’ve
just told me that you had no choice. Let’s talk about
that. We need to clarify that.” The judge said that
Slaight “might as well have said ‘I did not come down
8                                               No. 10-1443

here voluntarily,’ ” and “when someone says something
like that, the investigating officer has to stop and make
a record, which was possible here because of the
videotape, and clear that up. That wasn’t done.”
  The interview lasted an hour. The interviewing
officer plied Slaight with questions, and admitted at the
suppression hearing that his goal was to get Slaight to
incriminate himself. He wasn’t trying to determine
whether Slaight had committed a crime; he knew he
had; he just wanted to tie up a possible loose end. Asked
by Slaight’s lawyer whether “the more you keep the
guy talking, as you’ve been trained, the more you
can guide and draw from that statements, admissions,
inferences, anything that may tend to incriminate him,
correct?,” the officer answered: “Correct.”
  Toward the end of the interview Slaight asked to be
permitted to leave the room to smoke a cigarette. The
request was refused; and later when the officers left
the room for forty minutes to find out what had been
discovered in Slaight’s computer they locked him in.
They denied this, but admitted that the door was locked
when they returned. Yet at the suppression hearing one
of the officers testified that had Slaight told the officers
that he wanted to leave, buy a plane ticket, and fly to
Guatemala, they would have let him go even though
they had enough evidence to arrest him. The district
judge said: “I find that impossible to believe.” We don’t
believe it either.
  After the officers returned to the interview room they
gave Slaight the Miranda warnings, as they had been
No. 10-1443                                                9

told to do by the assistant U.S. attorney directing the
investigation. Slaight promptly clammed up—too late.
   Custody for Miranda purposes is a state of mind. When
police create a situation in which a suspect reasonably
does not believe that he is free to escape their clutches,
he is in custody and, regardless of their intentions
(not that there’s any doubt about what those intentions
were in this case), entitled to the Miranda warnings.
Yarborough v. Alvarado, 541 U.S. 652, 662 (2004); Thompson
v. Keohane, supra, 516 U.S. at 112; United States v. Stewart,
536 F.3d 714, 720 (7th Cir. 2008). That is what the police
in this case did. They made a show of force by arriving
at Slaight’s house en masse. Though he has a criminal
record not limited to child sexual abuse and receipt of
child pornography, none of his crimes was of a character
to make police think him a menace to them; they
were crimes such as driving under the influence, shop-
lifting, disorderly conduct, and substance abuse. None
involved weapons. Yet nine officers drove up to the
house, broke in with a battering arm, strode in with
pistols and assault rifles at the ready, and when they
found him naked in his bed ordered him, in an “authorita-
tive tone” and guns pointed at him, to put his hands up.
  We are not disposed to question the safety measures
that police employ when entering a house to serve a
search warrant. The measures taken in this instance seem
excessive, but we withhold judgment. What is undeniable
is that the presence of overwhelming armed force in
the small house could not have failed to intimidate the
occupants. The police could have searched the house
10                                           No. 10-1443

thoroughly and taken the computer and left. They
could have arrested Slaight—they had ample probable
cause. But they had been careful not to procure an
arrest warrant. Instead of leaving the house or arresting
him they asked him whether he would “consent to a
voluntary interview with us,” and immediately followed
up the request by asking him “if he would be willing
to follow us to the Rock Island Police Department” for
the interview. They didn’t want to conduct the
interview in his home because he would be in familiar
surroundings and feel less compulsion to answer
questions put to him, so they persuaded him to come to
the police station and arranged to interview him in the
claustrophobic setting of a windowless room the size of
a bathroom. Since he knew they knew he’d violated
federal law, he could not have believed they would let
him go rather than arrest him if he tried to leave; they
had the goods on him. Anyone in his situation would
have thought himself in custody.
  Despite having serious concerns about the coercive
nature of the interrogation and having disbelieved a key
bit of testimony by the government witness (the testi-
mony that Slaight was free to leave the interview room
regardless of his destination), the district judge con-
cluded that Slaight had not been in custody until after
he made the incriminating statements. The judge relied
on the fact that the officers had repeatedly told Slaight
that he was not under arrest and was free to leave, and
that they had behaved politely toward him after entering
the house and satisfying themselves that they were in
No. 10-1443                                              11

no danger from the occupants. The judge gave no weight
to the other evidence that we have reviewed, evidence
which shows that a “reasonable” person in Slaight’s
position (which just means the average person, as dis-
tinct from someone of abnormal timidity, United States
v. Notorianni, 729 F.2d 520, 522 (7th Cir. 1984)) would
have thought himself under arrest. Suppose he’d told
the officers when they entered his house: “Take my
computer, since you have a warrant to search it, and get
the hell out.” They would have arrested him, for if they
left the house without him he might go into hiding or
leave the state and it might be quite a bother to find him.
  Even without reading the files in his computer, the
officers, and the prosecutor guiding them, knew they
had enough evidence not only to arrest Slaight but to
convict him, once they ascertained that the woman
whom they found in the house didn’t have access to his
computer. At a trial he could, had it not been for his
admitting to the interrogating officer that only he had
access to the computer, have testified that she had access
to it as well—though who would have believed him? It is
very rare for women to collect child pornography. Mark
Motivans & Tracey Kyckelhahn, “Federal Prosecution of
Child Sex Exploitation Offenders, 2006,” Bureau of Justice
Statistics Bulletin 5 (Dec. 2007), http://bjs.ojp.usdoj.gov/
content/pub/pdf/fpcseo06.pdf (visited Aug. 31, 2010) (only
1 percent of those charged with child pornography
crimes are female); Janis Wolak et al., “Child-Pornography
Possessors Arrested in Internet-Related Crimes: Findings
From the National Juvenile Online Victimization Study”
12                                              No. 10-1443

vii, 1-2 (2005), www.unh.edu/ccrc/pdf/jvq/CV81.pdf (vis-
ited Aug. 31, 2010) (less than 1 percent). And Slaight was
a registered sex offender as a result of having been con-
victed for sexual abuse of his 12-year-old niece. He
had every reason to believe he was in custody.
  We do not question the judge’s finding that the officer
sitting in the chair next to the door of the interview
room was not actually blocking it, as Slaight argues,
and that the officers were polite and repeatedly told
Slaight that he was free to terminate the interrogation
and leave. But being polite to a suspect questioned in a
police station and telling him repeatedly that he’s free to
end the questioning and leave do not create a safe harbor
for police who would prefer to give Miranda warnings
after the suspect has confessed rather than before. United
States v. Craighead, 539 F.3d 1079, 1080 (9th Cir. 2008);
United States v. Colonna, 511 F.3d 431, 435 (4th Cir. 2007);
United States v. Bravo, 295 F.3d 1002, 1011 (9th Cir. 2002).
  The government acknowledges as it must that appel-
late review of a judge’s finding that an interrogation
was not custodial is plenary. Thompson v. Keohane, supra,
516 U.S. at 112, 115-16; United States v. Cranley, 350
F.3d 617, 619 (7th Cir. 2003). The facts that we have
recited—none questioned by the district judge—
persuade us that the average person in Slaight’s position
would not have felt free to leave the interview room
even if (a closer question) that average person would
have felt free to refuse the invitation to go to the police
station for an interview. The facts are much like those of
United States v. Craighead, supra, 539 F.3d at 1085-89;
No. 10-1443                                             13

United States v. Colonna, supra, 511 F.3d at 435-36, and
United States v. Mittel-Carey, 493 F.3d 36, 39-40 (1st Cir.
2007), in all of which an ostensibly noncustodial inter-
rogation was held to be custodial. The key facts are the
show of force at Slaight’s home, the protracted ques-
tioning of him in the claustrophobic setting of the police
station’s Lilliputian interview room, and the more
than likelihood that he would be formally placed under
arrest if he tried to leave because the government
already had so much evidence against him. These facts
are incontrovertible and show that the average person
in Slaight’s position would have thought himself in
custody. Any other conclusion would leave Miranda in
tatters.
                                                R EVERSED.




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