          United States Court of Appeals
                     For the First Circuit


No. 10-2372

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        JAKE C. CROOKER,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Michael A. Ponsor, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
                Stahl and Lipez, Circuit Judges.



     Rebecca A. Jacobstein for appellant.

     Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.



                          July 27, 2012
               LIPEZ, Circuit Judge.        Jake Crooker was charged with

possession of firearms and ammunition by an unlawful user of a

controlled substance, in violation of 18 U.S.C. § 922(g)(3), and

possession of marijuana, in violation of 21 U.S.C. § 844.             After a

jury trial, Crooker was convicted of possession of marijuana and

fined $4000.       He now appeals the district court's denial of his

motion to suppress statements and evidence recovered during the

July     15,    2004,   search   of   62    Joseph   Avenue   in   Westfield,

Massachusetts, where he resided with his parents and brothers.

Crooker argues that the search warrant was not supported by

probable cause and was a defective general warrant that did not

state with particularity the items to be seized.               Moreover, he

alleges that the agents executing the warrant exceeded its scope.

He also argues that the statements admitted against him were made

during custodial interrogations without the benefit of Miranda

warnings.      We affirm.

                                      I.

               When reviewing the denial of a motion to suppress, we

rehearse the facts as supportably found by the court below,

including any inferences drawn by the court from the discerned

facts.    United States v. Pontoo, 666 F.3d 20, 24 (1st Cir. 2011).

Here, we draw from the district court's bench decision, issued

after a hearing on Crooker's motion to suppress, as well as the




                                      -2-
affidavit     supporting    the     search    warrant       and   other    hearing

testimony.

A.    Factual Background

             The relevant series of events was triggered by an ongoing

Federal Bureau of Investigation ("FBI") investigation of Crooker's

uncle, Michael Crooker.1       The application and affidavit in support

of a warrant to search the buildings and grounds of 62 Joseph

Avenue, Crooker's residence, were submitted by FBI Special Agent

Richard Winfield.       The documents primarily described the FBI's

evidence against Michael, who does not live at 62 Joseph Avenue.

The evidence suggested that Michael was involved in the unlawful

manufacture,    storage,      and   interstate     shipping       of    explosives,

biological toxins, and weapons.         Although Michael did not live at

62 Joseph Avenue, Winfield's affidavit stated that the FBI had

reason to believe that Michael had buried ricin near a stump in his

brother Stephen's (and Crooker's) backyard at 62 Joseph Avenue.2

The warrant application included an attachment detailing the items

the   government   sought     to    seize    during   the    search,      including

specified    firearms   and    evidence      of   explosives      and    biological




       1
       Because many of the parties share a last name, first names
will be used. Any use of "Crooker" alone refers to Jake Crooker.
Crooker's father is Stephen Crooker, and his uncles are Michael and
Peter Crooker.
       2
       Ricin is a deadly toxin derived from castor beans. A few
grains, if injected, inhaled, or ingested, can kill an adult.

                                       -3-
weapons violations, as well as evidence related to those violations

stored on one or more computers.

          On July 14, 2004, a warrant was issued to search the

grounds and residence at 62 Joseph Avenue for

          evidence, fruits or instrumentalities of the
          manufacturing of explosive materials without a
          license, in violation of Title 18, United
          States Code, Section 842(a)(1); shipping,
          transporting or receiving any explosive
          materials in interstate commerce, in violation
          of Title 18, United States Code, Section
          842(i);   illegal    storage   of    explosive
          materials, in violation of Title 18, United
          States Code, Section 842(j); and possession
          and manufacture of biological weapons in
          violation of Title 18, United States Code,
          Section 175.

The warrant did not incorporate the affidavit or the list of items

to be seized.      Thus, the warrant did not authorize seizure of

firearms, ammunition, drugs, or drug paraphernalia.     See Groh v.

Ramirez, 540 U.S. 551, 557-58 (2004) (stating that a warrant

authorizes only the seizure of items described with particularity

on the face of the warrant or in documents explicitly incorporated

in the warrant).

          Agents from the FBI and the Bureau of Alcohol, Tobacco,

Firearms and Explosives ("ATF") and local police executed the

search warrant on the afternoon of July 15, 2004.   A team of agents

consisting of between four and eight men led by FBI Special Agent

Mark Karangekis (the "entry team") entered and cleared the house.

They were clad in black clothing and FBI attire and ran up the lawn


                                -4-
single file with their weapons drawn.        Karangekis knocked at the

front screen door and announced the agents' purpose. After Crooker

exited the house and chained up one of his dogs at the agents'

request, the entry team went into the house and began clearing it.3

After the house had been cleared, the "search team" led by FBI

Special   Agent   Robert   Lewis   entered   the   house.   Lewis   was

responsible for coordinating the search, taking custody of seized

evidence at the conclusion of the search, and maintaining contact

with the individuals whose house was being searched.

           During the multiple hour search, Lewis and Springfield

Police Officer Ronald Sheehan had a conversation with Crooker in

front of the house.   At the beginning of the interaction, Sheehan

frisked Crooker and seized a cigarette pack that held a bag

containing a green leafy substance.4         The agents did not arrest

Crooker or advise him of his Miranda rights, but instead asked him

to consent to questioning.     The conversation began in the front

yard and, due to the heat, at least some part of the conversation

occurred in Lewis's air-conditioned car.       During the conversation,

Crooker told the agents that there were four safes in the house -



     3
       Karangekis testified that he entered before Crooker removed
the dog and that the rest of the entry team came in after the dog
was secured. The discrepancy does not change our analysis.
     4
       The parties disagree about the location on Crooker's person
of the cigarette pack. Lewis testified that he saw Sheehan take
the pack from Crooker's hand. Crooker testified that Sheehan took
the pack out of his front left jeans pocket.

                                   -5-
Crooker had access to two, which contained his and his mother's

weapons,    and   his   father   had   access   to   the   other   two,   which

contained antique firearms.5       Lewis testified that he knew at the

time of the search that the warrant did not authorize seizure of

firearms or ammunition.      Nevertheless, Lewis asked Crooker to open

the two safes to which Crooker had access, and agents seized

several weapons and ammunition from inside the safes. Lewis stated

that he seized the weapons because he knew that: (1) Stephen

Crooker's prior felony conviction made his possession of weapons

and ammunition unlawful and he was unsure whether Stephen had

access to the items, and (2) Crooker had confessed to using illegal

drugs, making his possession of firearms unlawful.

            Later in the search, ATF Special Agents Michael Curran

and Debora Seifert interacted with Crooker, who was cooperative and

again described the family members' varied access to the four

safes.     Crooker also mentioned that there was an unlocked tackle

box containing ammunition that belonged to him in the living room.6

When Curran asked Crooker if he used drugs, Crooker said that he

occasionally used marijuana and that there was some marijuana

inside the house that belonged to him.          Agents then seized bags of



     5
       Individuals previously convicted of felonies may lawfully
possess "antique firearms" as defined in 18 U.S.C. § 921(a)(16).
     6
       Crooker refers to the box as a tackle box, while the
government calls it a toolbox. The distinction is not relevant,
and we refer to it throughout as a tackle box.

                                       -6-
what appeared to be marijuana from the kitchen and basement.    The

tackle box containing ammunition and a cigarette rolling device was

seized, along with all of its contents.        Curran and Seifert

testified that, although they knew that Crooker had a valid state

license to possess firearms, they considered him a user of illegal

narcotics, and thus it was unlawful for him to possess the weapons

and ammunition.

B.   Procedural History

           After he was indicted, Crooker moved to suppress the

statements he made during the search as well as various physical

evidence seized that day. Crooker argued, among other things, that

Winfield's affidavit failed to establish probable cause for the

issuance of the warrant; the search exceeded the scope of the

warrant; the plain view exception did not apply to seizure of

various pieces of evidence; and he was subject to custodial

interrogation without being advised of his Miranda rights.     After

the district court denied the motion to suppress, Crooker was tried

for unlawful possession of marijuana and possession of firearms and

ammunition while using illegal narcotics.       The jury convicted

Crooker on the marijuana charge and acquitted him of the firearm

charge.   The court imposed a $4000 fine.   Crooker now appeals the

district court's denial of his motion to suppress. In so doing, he

both repeats grounds he argued below and challenges for the first

time the particularity of the warrant.   Although his particularity


                                -7-
claim is presented for the first time on appeal, he argues that the

claim was forfeited - not waived - and thus is entitled to plain

error review.

                                        II.

A.   Motion to Suppress Tangible Evidence

             In support of his appeal, Crooker argues that (1) the

warrant was not properly supported by probable cause, (2) the

agents executing the search exceeded the scope of the warrant, and

(3) the warrant lacked the particularity required by the Fourth

Amendment.        When reviewing a denial of a motion to suppress, we

review the district court's factual findings for clear error, and

its legal conclusions (for example, that a given set of facts

constituted probable cause) de novo.             United States v. McMullin,

568 F.3d 1, 5 (1st Cir. 2009).            "A clear error exists only if,

after considering all of the evidence, we are left with a definite

and firm conviction that a mistake has been made," and "we will

uphold a district court's decision to deny a suppression motion

provided that any reasonable view of the evidence supports the

decision."        Id. (quoting United States v. Woodbury, 511 F.3d 93,

96-97 (1st Cir. 2007)) (internal quotation marks omitted).

             1.    Probable Cause for the Issuance of the Warrant

             As    he   did   below,   Crooker   argues   that   "[t]here   was

absolutely no probable cause to believe that evidence of a crime

would be found in the residence at 62 Joseph Avenue," and that


                                        -8-
there was no nexus between the residence and the crimes committed

by his uncle Michael.   As Crooker puts it, "[t]he only and tenuous

link to 62 Joseph Avenue, that Michael Crooker hid a handful of

ricin by a stump in the backyard, came from an untrustworthy

jailhouse informant with prior convictions for fraud."      Crooker

argues that this information was insufficient to provide a reason

to believe that there was contraband related to explosives or

biological agents in his backyard.    Moreover, he argues that even

if there were reason to believe contraband might be found in the

backyard, there was no reason to believe contraband would be found

inside the house.

           In response to the government's evidence, the district

court concluded in a bench decision that the warrant was supported

by probable cause. In so doing, the court relied on information in

the Winfield affidavit, noting that it had been clearly shown that

Michael was "involved in the production of explosives and very

dangerous materials" and various evidence tied those materials to

Crooker's house.    For example, a prisoner at the Hampden County

Correctional Facility ("CI-2")7 told agents that Michael told him

that a handful of ricin was buried near a tree stump in Crooker's

yard.8   The court noted that although CI-2's word alone would be


     7
       Our use of "CI-1" and "CI-2" corresponds with the parties'
use of those labels in their briefs.
     8
      Michael was arrested on June 23, 2004, pursuant to a warrant
and imprisoned in the Hampden County Correctional Facility. On

                                -9-
unreliable, much of the information he provided was corroborated by

Special Agent Winfield.9   The district court also relied on a phone

call between Stephen and Michael that was described in the Winfield

affidavit.10   During that call, Stephen and Michael discussed "R"

and how to use Michael's "R" as a plea negotiating tool.11     Agent

Winfield believed "R" to be a reference to ricin.    From this phone

call, the court found that "it was clear that the two of them were

speaking to some extent in code, which suggests that they had

information that they did not want others to easily understand, and

that the material was of sufficient importance and potency that it

was a bargaining chip in the negotiations with the government."

Moreover, according to a former friend of Michael's ("CI-1"),

Michael had recently moved his poisons and explosives lab to

Crooker's grandfather's house.      Michael showed CI-1 the lab,


July 13, 2004, he was indicted for shipping a firearm in interstate
commerce, in violation of 18 U.S.C. § 922(g).
     9
       For example, Winfield verified the addresses and unlisted
phone numbers that CI-2 said Michael had given him for Stephen and
Peter Crooker, so that CI-2 could contact them on Michael's behalf
when CI-2 was released from jail. CI-2 also stated that Michael
told him he had access to a National Car Rental ("NCR") facility in
Connecticut. According to Winfield, by mid-June 2004, Michael had
stolen approximately 27 vehicles from NCR.
     10
       This phone call was recorded by officials at the Hampden
County Correctional Facility where Michael was being held at the
time of the call.
     11
       We do not know how Michael and Stephen   thought that Michael
might use the ricin as a plea negotiating       tool.   The Winfield
affidavit does not elaborate, and the record    does not contain the
full content of the call between Michael and    Stephen.

                                -10-
pointing out where he made and kept explosives.                  Michael also told

CI-1 that he had buried a MAC 10 gun but could not find it and had

buried various gun parts in ammunition cans.                       Michael did not

specify to CI-1 where the MAC 10 or gun parts were buried.                      Also,

according to CI-2, Michael hid ricin in two locations other than

Stephen's backyard.         Based on this evidence, the district court

concluded that "it would have been irresponsible for the government

not to make an effort to recover this very dangerous material from

the location [in] which they had probable cause to believe they

would find it."

             We   agree    with    the     district    court's      analysis.     The

government had specific information from a confidential informant

that ricin was buried in Crooker's backyard, and that Michael hid

various weapons and biological agents in numerous locations and

moved those items around to avoid detection.                 This information was

the backdrop for additional information that the government had

from recorded phone conversations between Michael and Stephen,

notably Michael and Stephen's discussion in coded language about

ricin and its value in Michael's plea negotiations with the

government. In another discussion, Stephen and Michael referred to

unidentified property belonging to Michael, noting that Crooker's

grandfather       had   moved    it   to    an    undisclosed      location.     This

information was supplemented by information from a confidential

informant,    who       stated    that     Michael    kept   his    explosives    lab


                                           -11-
equipment    and       supplies   as    well     as   ammunition   in    Crooker's

grandfather's basement and shed. In light of Stephen and Michael's

secretive conversations about the biological toxin ricin, their

discussion about moving Michael's possessions while Michael was

incarcerated, and information provided by confidential informants -

including information that Michael had buried ricin in Crooker's

backyard, there was probable cause to believe that evidence of the

enumerated crimes would be found at Crooker's house.                 Accordingly,

the district court did not err in denying Crooker's motion to

suppress on probable cause grounds.

            2.     Scope of the Search

            Crooker alleges that the seized tackle box, on which

marijuana residue was found, and its contents, including the seized

ammunition       and    cigarette      rolling    device,   should      have   been

suppressed.12      He argues that the seizure of the tackle box and its

contents was beyond the scope of the warrant because the warrant

only authorized the seizure of evidence related to explosives and

biological weapons.         The warrant did not incorporate the list of

items to be seized submitted with the affidavit.                   Thus, Crooker

argues, any seizure of drugs or drug paraphernalia was unlawful.




     12
        In his motion to suppress, Crooker also argued that the
seized guns should be suppressed because their recovery was beyond
the scope of the warrant. Crooker's claims with respect to the
guns and ammunition are moot on appeal. Crooker was acquitted of
the weapons charge at trial.

                                         -12-
            In the alternative, Crooker argues that, even if some

contents of the tackle box could have been seized under the plain

view exception to the warrant requirement, the agents were required

to separate out the items with immediately apparent evidentiary

value and leave behind those items that were not immediately

identifiable as contraband or evidence of a crime.                Specifically,

he argues that the agents should have removed the loose ammunition

and rolling device from the tackle box and left the box and the

remainder of its contents in the house.

            The district court concluded that the search and seizure

of the tackle box did not exceed the scope of the warrant.              Because

the warrant authorized the agents to search for evidence of

biological weapons, including small amounts of ricin powder, the

agents could legitimately open every container in the house to find

those items.     The agents opened the tackle box to search for items

covered   by    the   warrant,   and,    once   the   box   was    opened,   the

contraband items not covered by the warrant were in plain view.

            We agree.     In general, "any container situated within

residential premises which are the subject of a validly-issued

warrant may be searched if it is reasonable to believe that the

container   could     conceal    items   of   the   kind    portrayed   in   the

warrant."      United States v. Rogers, 521 F.3d 5, 9-10 (1st Cir.

2008) (quoting United States v. Gray, 814 F.2d 49, 51 (1st Cir.

1987)) (internal quotation mark omitted). The warrant in this case


                                     -13-
permitted agents to search for items as small as grains of powder.

Thus, the agents had a right to search the tackle box.                       While

lawfully searching the tackle box, agents saw what they believed to

be contraband and evidence of a crime - ammunition and a cigarette

rolling device.

             A law enforcement agent may, without a warrant, seize an

object in plain view so long as he or she has (1) lawfully reached

the vantage point from which he sees the object, (2) has a right of

access to the object itself, and (3) has probable cause to support

his seizure of that object. United States v. Paneto, 661 F.3d 709,

713 (1st Cir. 2011).          In this case, the agents satisfied the first

requirement - lawfully reaching the vantage point from which they

saw the ammunition and rolling device - because they were in the

house pursuant to a warrant supported by probable cause.                Second,

as discussed, the warrant permitted agents to search for items as

small as grains of powder.            Thus, the agents had a right to access

and open the tackle box.         Once inside the tackle box - recognizing

that both Jake and Stephen Crooker were unable to lawfully possess

ammunition      -    the   officers     had   probable   cause   to   seize    the

ammunition, satisfying the third plain view requirement. Moreover,

the   rolling       device,   which    agents   believed   was   used   to    roll

marijuana cigarettes, was in plain view within the tackle box and

its value as evidence of illegal activity was immediately apparent.




                                         -14-
Thus, the ammunition and rolling device were properly seized

pursuant to the plain view doctrine.

             With regard to Crooker's alternative argument, we need

not decide whether the agents acted reasonably in seizing the

entire tackle box instead of separating out the loose ammunition

and rolling device and leaving the tackle box behind.     The only

item of evidentiary value that resulted from the seizure of the

tackle box was trace marijuana residue.    The government presented

a wealth of other evidence supporting its allegation that Crooker

possessed marijuana, including (1) three bags of leafy green

substance recovered from different areas of the house, (2) the

cigarette rolling device, (3) a bag of leafy green substance

recovered from a cigarette pack on Crooker's person, and, most

notably, (4) Crooker's confession that he used and possessed

marijuana.     Ignoring the residue completely, the evidence was

sufficient to demonstrate that Crooker possessed marijuana.   Thus,

even if it was impermissible for agents to seize the entire tackle

box and later examine it for residue, admission of that residue was

harmless error. See United States v. Jiménez, 419 F.3d 34, 42 (1st

Cir. 2005) (finding harmless error where erroneously admitted

evidence "pales in light of the other evidence introduced at

trial," including defendant's confession to the charged offense).




                                 -15-
            3.     The Warrant's Particularity

            Crooker argues for the first time on appeal that the

warrant lacked sufficient particularity to satisfy the requirements

of the Fourth Amendment because it did not specifically describe

the things to be seized. Instead, it only permitted the seizure of

"evidence, fruits, or instrumentalities" of violations of four

enumerated statutory provisions.            Although he failed to timely

raise this objection prior to trial pursuant to Federal Rule of

Criminal Procedure 12(b)(3)(C), Crooker claims that the language in

Rule 12(e) stating that "[a] party waives any Rule 12(b)(3)

defense, objection, or request not raised by the deadline" means

that such arguments are forfeited, not waived.           See Fed. R. Crim.

P. 12(e).    Hence, he says he is entitled to plain error review of

his particularity argument.

            In United States v. Walker, 665 F.3d 212, 227-28 (1st

Cir. 2011), where there was a failure to challenge a defect in an

indictment under Rule 12(b)(3)(B), we rejected the argument that

the waiver language in Rule 12(e) means forfeiture: "Rule 12(e)

says what it means and means what it says" when it states that a

12(b)(3) defense not raised before trial is waived.               Walker, 665

F.3d   at   228.     Crooker   argues   that   the   difference    between   a

defective    indictment    and   a   ground    for   suppression     warrants

different treatment of the distinct 12(b)(3) claims under Rule

12(e). He cites language from Walker in support of this position:


                                     -16-
              [T]he matters that fall within the compass of
              Rule 12(b)(3) (and thus Rule 12(e)) are
              normally    correctable   before    trial   if
              seasonably brought to the attention of the
              district court and the government. It strikes
              us as manifestly unfair for a defendant to sit
              silently by, take his chances with the jury,
              and then be allowed to ambush the prosecution
              through a post-trial attack. Accordingly, we
              join the majority view and hold that a failure
              to challenge a defect in an indictment before
              trial, as required by Rule 12(b)(3), results
              in an unreviewable waiver of that challenge
              pursuant to Rule 12(e).

Walker, 665 F.3d at 228.

              Unlike a defective indictment, Crooker asserts, the

government cannot fix suppression matters prior to trial.                  Here,

for example, the government could not correct any particularity

defects in the warrant. Moreover, Crooker says that he did not sit

silently by and later ambush the prosecution.             Instead, he filed a

pre-trial motion to suppress, albeit on other grounds.                 He insists

that "[a]lthough the government may not always have the incentive

to present all of the facts if an issue is not raised below, if an

issue   can    be   resolved   on    the   record    before    this   Court,   the

government is not prejudiced by the initial failure to raise the

issue and review for plain error is warranted."

              The government argues that it could indeed be prejudiced

by a defendant's failure to timely raise a ground for suppression.

If   appellate      review   of     that   omitted    ground    is    successful,

convictions may be vacated even though the government may have had

other evidence of guilt that, with proper notice, could have been

                                       -17-
introduced at trial.     Furthermore, the timely presentation of

suppression claims to the district court allows full development of

the factual record and permits the government to appeal any adverse

suppression decision prior to trial.

           We agree with the government's position.   There is the

potential for both unfairness to the government and needless

inefficiency in the trial process if defendants are not required,

at the risk of waiver, to raise all of their grounds in pursuing a

motion to suppress.   Hence, the reasoning of Walker on the import

of the waiver language of Rule 12(e) applies as well to the failure

to include a particular ground in a motion to suppress. Of course,

as we noted in Walker, defendants are not without recourse.   If a

defendant can show "good cause" for failing to timely raise a

12(b)(3) challenge, that challenge "may be entertained by the

district court and reviewed on appeal."   Walker, 665 F.3d at 228;

see also Fed. R. Crim. P. 12(e).

           Crooker argues that his trial counsel's failure to raise

the particularity issue in the motion to suppress amounted to

ineffective assistance of counsel, which in turn constituted good

cause.   We need not decide whether the government is correct that

a defendant must bring his good cause argument to the attention of

the district court before having it reviewed by this court.   Even

assuming arguendo that a good cause argument can be raised for the

first time on appeal, and further assuming that a successful


                               -18-
ineffective assistance of counsel claim could constitute good

cause, we would not be able to review Crooker's ineffective

assistance     of   counsel      claim    because      the    record     here    is

insufficiently developed.         See, e.g., United States v. Rodriguez,

675 F.3d 48, 56 (1st Cir. 2012) ("It is only in exceptional cases

when there are no 'critical' facts in dispute and the record has

been sufficiently developed that we will address an ineffective

assistance of counsel claim on direct appeal.").

B. Motion to Suppress Crooker's Statements

             "A person need not be under arrest for Miranda rights to

arise[, b]ut he must be in 'custody.'"              United States v. Guerrier,

669 F.3d 1, 6 (1st Cir. 2011) (internal citation omitted); see also

Miranda v. Arizona, 384 U.S. 436 (1966).               To determine whether a

person was in custody for Miranda purposes, the district court

looks   to    the   circumstances       surrounding     the     questioning     and

determines "whether those circumstances would cause a reasonable

person to . . . underst[and] his situation to be comparable to a

formal arrest."     Guerrier, 669 F.3d at 6.           "Several factors guide

this    analysis,    including      '(without        limitation)       where    the

questioning    occurred,    the    number      of   officers,    the   degree   of

physical     restraint,    and    the    duration     and    character    of    the

interrogation.'"      Id. (quoting United States v. Teemer, 394 F.3d

59, 66 (1st Cir. 2005)).          We review a district court's factual

determinations about the circumstances surrounding the questioning


                                        -19-
for clear error, and its legal conclusion about a reasonable

person's understanding of those circumstances de novo.           United

States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011).

          Crooker alleges that law enforcement agents failed to

advise him of his Miranda rights, but nevertheless subjected him to

a series of custodial interrogations on the day of the search.

Crooker argues that he was interrogated on more than one occasion

and that, under the totality of the circumstances, a reasonable

person in his situation would not have felt free to leave.          He

notes   that   the   environment     was   "police-dominated,"     with

approximately thirty officers present during the execution of the

search warrant, some of whom "forced [him] outside, at gunpoint,

and searched him."   He claims that he was escorted and followed by

agents and that soon after being searched by the entry team, he was

again frisked by other agents.     He adds that the fact that he asked

agents if he could leave illustrates that a reasonable person in

those circumstances would not have felt free to leave.      Moreover,

he points to the testimony of Agent Curran, who stated that at the

time of the search, he was unsure if Crooker was free to leave.

Because he was subjected to custodial interrogations without the

benefit of Miranda warnings, Crooker insists that the statements

admitted against him should have been suppressed.

          The district court disagreed.     It found that the agents'

interactions with Crooker were consensual – the officers asked


                                 -20-
Crooker if they could talk to him and noted that there was "no

testimony that there were any weapons drawn, any shouting, any use

of profanity."    The court found that Crooker freely walked around

the property and that the officers were "fairly calm and polite and

accommodating." The district court determined that "[t]here was no

evidence that there was any imposition of any custody on Mr. Jake

Crooker at the time of the conversations.          This was simply not a

custodial   interrogation,    Miranda     didn't   apply,   and    Mr.   Jake

Crooker's statements were all perfectly voluntary and knowing and

intelligent."

            Our review leads to the same conclusion.            Crooker was

questioned in familiar surroundings where, in general, questioning

tends to be significantly less intimidating than questioning in

unfamiliar locations.      See Hughes, 640 F.3d at 435-36 ("Though

questioning in a suspect's dwelling may at times comprise a

custodial interrogation, such a location generally presents a less

intimidating atmosphere than, say, a police station." (internal

citation omitted)).    Although there were numerous officers on the

property, those officers holstered their guns after the entry team

cleared the house and left them holstered throughout the afternoon-

long search.     Cf. id. at 436 (finding no custody where visible

weapons remained holstered throughout visit to suspect's home).

Moreover, although those officers were present inside and around

Crooker's    house,   no   more   than    two   agents   were     in   direct


                                   -21-
conversation      with       Crooker    at    one    time.       Crooker    was   never

physically      restrained,      and,    in    fact,     moved    freely    about   his

property throughout the search, even leaving the property for some

time after he was questioned.                See id. (finding no custody where

there was no "meaningful physical restraint" and any police escort

was not so pervasive and close "as to intrude upon any intimate

moment    or    private       activity").           By   all   accounts,    Crooker's

interactions with the agents were cooperative and relatively brief.

See Guerrier, 669 F.3d at 6 (finding no custody where interview

atmosphere was "relatively calm and nonthreatening" and interview

lasted approximately 20-25 minutes, "a relatively short time").

               Given   the    familiarity      of    the     surroundings    in   which

Crooker was questioned, the calm and peaceable nature of the

conversations between Crooker and agents, and the lack of physical

restraint or show of force during questioning, we conclude that

Crooker was not in custody for Miranda purposes. Thus, the agents'

failure   to     advise      Crooker    of    his    Miranda     rights    was    not   a

constitutional violation, and the district court did not err by

denying Crooker's motion to suppress his statements.

               Affirmed.




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