                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4044



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellant,

          versus


JOHN W. BEARD,

                                                 Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-03-265)


Argued:   September 30, 2004                 Decided:   January 7, 2005


Before WILLIAMS, TRAXLER, and KING, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: Michael James Elston, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellant. Amy Lee Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellee.     ON BRIEF: Paul J. McNulty,
United States Attorney, Alexandria, Virginia, for Appellant. Frank
W. Dunham, Jr., Federal Public Defender, Alexandria, Virginia; Mary
E. Maguire, Assistant Federal Public Defender, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       The Government appeals the district court’s order granting

John Beard’s motion to suppress statements he made to police

officers.    Because the district court applied the wrong legal test

in determining that Beard was in custody, and because Beard was not

in custody under the correct legal test, we reverse.



                                  I.

       On April 26, 2003, Richmond police received a report of a

domestic disturbance at 1043 Barlen Drive.      Two police officers,

Officers Eugene J. Provost and Tim Degrauwe, responded to the

report.     Officer Provost interviewed Beard’s mother, sister, and

brother, while Officer Degrauwe went inside the house to speak with

Beard.

       Through his interviews, Officer Provost learned that Beard had

threatened his sister with a shotgun.     Officer Provost retrieved

the shotgun from a van parked outside the house. After discovering

that the barrel of the shotgun had been sawed off and was an

illegal length, Officer Provost went inside to talk to Beard.

Officer Provost found Officer Degrauwe and Beard, who was ironing

clothes, in Beard’s bedroom.

       As Officer Provost entered the room, he signaled to Officer

Degrauwe, “we [are] going to end up cuffing [Beard].”   (J.A. at 21,

32.)   There is, however, no evidence that Beard either observed or

                                  2
understood this signal.   Officer Provost then advised Beard of his

“Miranda rights,” (J.A. at 21), but exactly what Officer Provost

said is unclear.    Officer Provost questioned Beard about the

shotgun, and Beard confessed that he was a convicted felon, the gun

was for home protection, and he had accidentally pointed the

shotgun at his sister the night before.     The officers handcuffed

Beard and took him to the police station.   The entire episode, from

the time Officer Provost walked into Beard’s bedroom to the time

the officers handcuffed Beard, happened very quickly.        At the

police station, the officers gave Beard a Rights Waiver Form, but

Beard refused to sign it or to cooperate further.

     On July 22, 2003, a grand jury sitting in the Eastern District

of Virginia charged Beard in a two-count indictment with being a

felon in possession of a firearm in violation of 18 U.S.C.A §

922(g)(1) (West 2002) (Count One) and possessing an unregistered

firearm in violation of 26 U.S.C.A § 5861(d) (West 2002) (Count

Two).   On December 1, 2003, Beard filed a motion to suppress his

confession, arguing that it was taken in violation of Miranda v.

Arizona, 384 U.S. 436 (1966).   On December 12, 2003, the district

court held a hearing on the motion.

     Officer Provost was the only witness who testified at the

hearing.   On the stand, he recounted the events that lead up to

Beard’s arrest. When he discussed whether he informed Beard of his

rights at the house, Officer Provost stated that he had advised


                                 3
Beard of his “constitutional rights,” (J.A. at 21), his “Miranda

rights,” (J.A. at 21), or simply his “rights” (J.A. at 23.)                  The

prosecutor did not ask Officer Provost to clarify exactly what he

had said to Beard, and the district court closed the evidentiary

portion of the hearing.           At argument on the motion, Beard’s

attorney     contended     that   Officer        Provost’s       testimony   was

insufficient for the Government to carry its burden of showing it

complied with Miranda. In response, the Government moved to reopen

the record to allow Officer Provost to testify as to exactly what

he said to Beard, but the district court denied the motion.                  The

district court then granted the motion to suppress, finding that

(1) the defendant was in custody for Miranda purposes, and (2) the

Government    had   not   shown   that       Officer   Provost   complied    with

Miranda:

     Now, the . . . issue was whether or not Mr. Beard was
     under a custodial situation at the time that these
     questions were propounded to him, and it is clear to the
     Court, and I find, that he was not free to leave. And
     that’s the test. As Officer Provost walks into the room
     and gives the signal to Degrauwe, the question you ask is
     at that point in time, [if] Mr. Beard says, “Adios, I’m
     taking off, I’ll see you guys later,” would they let him
     leave?   And the answer is clearly no.     So he was in
     custody at the time.

                                ***
     Provost indicated that, and I’ll use the exact wording
     from the testimony, he was advised of his constitutional
     rights and in later questioning, referred to advised of
     Miranda rights.    There was an indication to Officer
     Provost that the defendant understood these rights,
     whatever they were. And then there was some discussion.
     And in the course of that discussion, the defendant made
     certain statements. Among them, that he did indeed aim

                                         4
     the shotgun at his sister because he mistook her for
     someone trying to break into the house, and that the gun
     was for home protection.    And I believe that he also
     indicated that he was a convicted felon. . . .

     Now, the problem . . . is that the burden is on the
     government to establish that the particular warnings
     given to the defendant were such that they would
     reasonably convey to a suspect what his actual rights
     are.   And there is no way that I can come to any
     conclusion about that because I don’t know what was said.
     The Court has been clear that you don’t have to have some
     specific language.    It doesn’t have to be talismanic.
     But it is also clear that there must be enough for the
     Court to say that what was said was reasonably calculated
     to convey the message that needed to be conveyed. On
     this record, obviously, I can’t do that.

(J.A. at 32-34 (altered paragraph order).)

     The Government noted a timely appeal, and we have jurisdiction

under 18 U.S.C.A. § 3731 (West 2002 & Supp. 2004) (allowing

interlocutory   appeals   from   district     court   orders   suppressing

evidence if prosecutor makes appropriate certification).



                                  II.

     The   Government   argues   that   the   district   court    erred   in

determining that Beard was in custody for Miranda purposes.1              It

contends that the district court applied the wrong legal test in

determining that Beard was in custody, and that under the correct

test, the facts show Beard was not in custody.                 (Appellant’s


     1
      The Government does not challenge either the district court’s
denial of its motion to reopen the evidence or the district court’s
conclusion that the Government failed to carry its burden of
proving that Beard had received the necessary warnings under
Miranda. (Appellant’s Opening Br. at 3.)

                                   5
Opening Br. at 6-11.)          We review a district court’s factual

findings on a motion to suppress for clear error and its legal

conclusions de novo.        United States v. Parker, 262 F.3d 415, 419

(4th Cir. 2001).

     In Miranda, the Supreme Court found that statements officers

obtain by questioning a suspect in custody are presumptively

compelled because of the inherently coercive nature of custodial

interrogation. 384 U.S. at 457-58. To protect the Fifth Amendment

right against self-incrimination, see U.S. Const. amend. V (“[n]o

person . . . shall be compelled in any criminal case to be a

witness   against     himself”),     such    statements     are     generally

inadmissible     in   the    prosecution’s   case-in-chief        unless    the

government overcomes the presumption by showing that officers first

(1) warned the suspect that (a) he has the right to remain silent,

(b) anything he says can be used against him, (c) he has the right

to an attorney, and (d) if he cannot afford an attorney, one will

be appointed to him, and (2) obtained a waiver of these rights.

See Berkemer v. McCarty, 468 U.S. 420, 429 (1994) (“[I]f the police

take a suspect into custody and then ask him questions without

informing him of [his rights], his responses cannot be introduced

into evidence to establish his guilt.”); Miranda, 384 U.S. at 444

(listing warnings).

     Miranda’s    exclusionary     rule   only   applies,   however,       when

officers elicit admissions by questioning a suspect who is “in


                                     6
custody.”      Oregon v. Mathiason, 429 U.S. 492, 495 (1977).             In this

context, custody is a flexible concept, which does not require a

defendant actually be handcuffed or behind bars. See Texas v.

Orozco, 394 U.S. 324, 326-27 (1969) (holding that under certain

circumstances, suspect can be in custody under Miranda in his own

home).      Rather, a suspect is in custody for Miranda purposes when,

as in Miranda itself, the circumstances of the interrogation

“exert[ ] upon a [suspect] pressures that . . . impair his free

exercise of his privilege against self-incrimination,”                Berkemer,

468 U.S. at 437, or, in other words, when the “suspect’s freedom of

action is curtailed to a ‘degree associated with formal arrest.’”

Id. at 440 (quoting California v. Beheler, 463 U.S. 1121, 1125

(1983)).

      Because the Miranda Court was concerned with coercion, a

reviewing court determines whether a suspect is in “custody” by

first examining the totality of the circumstances surrounding the

limitations      on   the   suspect’s   freedom      as   the   suspect   himself

perceived them.       See Thompson v. Keohane, 516 U.S. 99, 112 (1995);

Berkemer, 468 U.S. at 437-38. Second, a reviewing court must focus

not on how the suspect actually interpreted these facts, but rather

on what a reasonable person in the suspect’s position would have

thought knowing the facts available to him. See Thompson, 516 U.S.

at   112;    Stansbury      v.   California,   511   U.S.   318,   323    (1994).

Therefore, “[a] policeman’s unarticulated plan has no bearing on


                                        7
the question whether a suspect was ‘in custody’ at a particular

time; the only relevant inquiry is how a reasonable man in the

suspect’s position would have understood his situation.” Berkemer,

468 U.S. at 441.

     In holding that Beard was in custody under Miranda, the

district court found that

     [Beard] was not free to leave. And that’s the test. As
     Officer Provost walk[ed] into the room and g[ave] the
     signal to Degrauwe, the question you ask is at that point
     in time, [if] Mr. Beard says, “Adios, I’m taking off,
     I’ll see you guys later,” would they let him leave? And
     the answer is clearly no.

(J.A. at 34.)     The district court’s test asked what the officers

would have done if Beard had attempted to leave his bedroom; it

neither focused on the circumstances as Beard perceived them nor

examined the conclusions a reasonable man would draw therefrom.

Cf. Thompson, 516 U.S. at 112. The district court therefore erred.

     Applying the correct test, we conclude that Beard was not in

“custody.”2    The facts here are similar to those in Parker, 262

F.3d at 417.    In Parker, federal officers came to Parker’s home and

met with her and her family for approximately 20 minutes in the

kitchen of the house.    Id. at 418.   The officers then requested to

interview Parker in private, and her aunt pointed out a spare



     2
      The ultimate issue of whether Beard was in custody under
Miranda is one that we may decide. See Thompson v. Keohane, 516
U.S. 99, 112 (1995) (holding that Miranda custodial determination
is a legal question qualifying it for “mixed question of law and
fact” review under 28 U.S.C. § 2254(d)).

                                   8
bedroom.   Id.   During the 30-minute bedroom interview, Parker’s

aunt twice entered the room to speak with her.   Id.    Parker did not

leave the room during the interview, and at some point the officers

informed her that she was not under arrest.       Id.    The officers

testified, however, they would not have allowed Parker to leave the

house had she attempted to do so.     Id.   On these facts, we found

that the defendant was not in “custody”:

     [Parker] was not handcuffed or otherwise restrained, and
     the agents did not draw their weapons in her presence.
     She was also in her own home during the questioning, and
     one of her relatives, at the relative’s request, entered
     the interview room on two occasions during the
     questioning. She was not forced to enter the room with
     the officers, and she was never told that she was not
     free to leave.

     The fact that one of the agents testified at the
     suppression hearing that they likely would have arrested
     Parker had she attempted to end the interview and leave
     the house does not successfully undercut the holding of
     the district court that Parker was not under the
     functional equivalent of arrest during questioning.
     Custody determinations do not depend on the subjective
     views of . . . the interrogating law enforcement officers
     . . . . The agent’s unarticulated views at the time [a
     suspect] was being questioned is of little weight. The
     relevant inquiry is how a reasonable man would have
     understood the suspect’s position at the time.

Id. at 419 (citations omitted).

     Like Parker, Beard was not handcuffed or otherwise restrained.

In addition, there is no evidence that the officers drew their

weapons in Beard’s presence or were antagonistic toward him. Beard

was in his own house, even his own room, and was never told that he

was not free to leave.   Finally, there is no evidence that Beard


                                  9
saw or understood Officer Provost’s signal to Officer Degrauwe.

Under these circumstances, we cannot conclude that a reasonable man

in Beard’s position would have believed his freedom of action was

restrained to a “degree associated with formal arrest.”     Beheler,

463 U.S. at 1125.

      Beard attempts to distinguish Parker by noting that (1) Beard

was segregated from the other residents of the house, (2) Officer

Provost was carrying the shotgun when he walked into Beard’s

bedroom, and (3) Beard was never allowed to associate with other

household residents during the interview.3    (Appellant’s Br. at 7-

9.)     These factual differences do not change the outcome in this

case.     First, there is no evidence that the officers affirmatively

segregated Beard from the other residents of the house; in fact,

the testimony indicates that Beard either was ironing clothes in


      3
       Beard also notes that the interview in Parker lasted 30
minutes, while here, the exchange between Beard and Officer Provost
“happened very quickly.” (Appellee’s Br. at 9). But Beard does
not point out, nor do we see, how this factual distinction helps
him. In fact, common sense dictates that, all else being equal, a
long interview is more likely than a short one to create a
custodial situation.
      Beard does not focus on the fact that in Parker officers told
the suspect that she was not under arrest.      While this factual
difference is not irrelevant, we do not find it significant given
the totality of the circumstances, including the facts that, (1)
like in Parker, the officers never told Beard he was under arrest,
see Davis v. Allsbrook, 778 F.2d 168,171-72 (4th Cir. 1985)
(“Though informing a suspect that he is not under arrest is one
factor frequently considered to show lack of custody, it is not a
talismanic factor. Where, as here, the entire context establishes
a lack of custody, failure to inform defendant of his status is not
dispositive.”) (citations omitted), and (2) here, unlike in Parker,
the officers questioned Beard for only a short period of time.

                                   10
his bedroom when the officers arrived or had enough freedom of

movement after their arrival to go into his bedroom and begin

ironing.   These acts are simply inconsistent with a finding of

custody under Miranda.    Second, the fact that Officer Provost

confronted Beard with the shotgun is not sufficient to put him into

“custody.” Cf. Mathiason, 429 U.S. at 495 (holding that interview

at police station during which officers falsely told suspect that

his fingerprints were found at crime scene was not custodial);

Beckwith v. United States, 425 U.S. 341, 347 (1976) (holding that

interview with IRS investigators at home of suspect during which

investigators informed suspect that they were investigating his tax

records was not custodial); Davis v. Allsbrook, 778 F.2d 168, 172

(4th Cir. 1985) (holding that interview at police station where

officers showed suspect pictures of crime scene was not custodial).

Third, there is no suggestion that Beard asked to speak to his

relatives, that his relatives attempted to enter the bedroom, or

that the officers would have prevented such entry.   Beard was not,

therefore, in custody when he gave the incriminating statements.4


     4
       In so holding, we do not discount the possibility that the
giving of Miranda warnings itself can contribute with other
circumstances to put a suspect into “custody.”    See Sprotsy v.
Buchler, 79 F.3d 635, 642 (7th Cir. 1996) (noting that the giving
of Miranda warnings can be a relevant circumstance in determining
whether custody exists); Davis, 778 F.2d at 172 (holding that the
giving of Miranda warnings “by itself” does not create custody).
Even assuming, however, that Officer Provost gave Beard the full
panoply of Miranda warnings, this fact would not, when combined
with the other circumstances of Beard’s confession, be sufficient
to transform what was an otherwise non-custodial situation into a

                                11
                                   III

       We conclude that the district court applied the wrong legal

test   to   decide   whether   Beard    was   in   custody   under   Miranda.

Applying the correct standard, we conclude that Beard was not in

“custody” when he gave the incriminating statements.           We therefore

reverse the district court’s order granting Beard’s motion to

suppress and remand for further proceedings.

                                                     REVERSED AND REMANDED




custodial one. Cf. Sprotsy, 79 F.3d at 642 (“[I]n the context of
a prolonged detention where there is persistent, accusatory
questioning by several officers, the fact that the police observed
certain formalities of a custodial arrest [such as giving the
suspect Miranda warnings] without actually telling [the suspect]
that he was not under arrest does provide some support for an
inference that [the suspect] was in custody for purposes of
Miranda.”) (emphasis added); Davis, 778 F.2d at 112 (noting that
giving of Miranda warnings could create custody where “a
[subsequent] clash of wills over a suspect’s desire to remain
silent would create custody through overbearing police behavior.”).
On the facts of this case, Officer Provost’s warnings, whatever
they were, did not contribute with other circumstances to place
Beard in custody.

                                       12
