                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 28 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   17-10210

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00079-KJD-PAL-1
 v.

BRYON QUACKENBUSH,                              MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                       Argued and Submitted June 13, 2018
                            San Francisco, California

Before: SCHROEDER, EBEL,** and OWENS, Circuit Judges.

      Defendant Bryon Quackenbush appeals the district court’s denial of his

motion to suppress statements he made during a law enforcement interview in his

apartment. As the parties are familiar with the facts, we do not recount them here.

We affirm.


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable David M. Ebel, United States Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
      The Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), adopted

procedural safeguards to guarantee that suspects are advised of certain rights

before a “custodial interrogation.” Id. at 444-45. A defendant is “in custody” for

Miranda purposes if “in light of ‘the objective circumstances of the interrogation,’

a ‘reasonable person [would] have felt he or she was not at liberty to terminate the

interrogation and leave.’” Howes v. Fields, 565 U.S. 499, 509 (2012) (citations

omitted) (alteration in original).

      In United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008), we identified

four relevant considerations in determining whether an interrogation at a

defendant’s home was custodial: “(1) the number of law enforcement personnel

and whether they were armed; (2) whether the suspect was at any point restrained,

either by physical force or by threats; (3) whether the suspect was isolated from

others; and (4) whether the suspect was informed that he was free to leave or

terminate the interview, and the context in which any such statements were made.”

Id. at 1084. While we concluded in Craighead that the defendant was in custody

during an interrogation at his home, this case differs from Craighead in at least

four material respects:

      First, the interview environment in this case did not have the military

undertone present in Craighead. The defendant in Craighead was a member of the

military—as were many of the officers who came to question him, and he was


                                          2
living on an Air Force base, increasing the likelihood that he would not feel free to

leave during questioning. See id. at 1078. Quackenbush was not a member of the

military, and neither were the law enforcement agents who were present during his

interview.

      Second, the number and appearance of the officers involved in the

questioning here made the interview less imposing than the one in Craighead.

There were fewer officers involved in the interview in this case. Compare

Craighead, 539 F.3d at 1085. The officers wore plain clothes rather than uniforms

or tactical gear. And the officers’ firearms were concealed and not drawn, whereas

officers involved in the interview in Craighead unholstered their weapons at

various points. Indeed, the magistrate judge and district court credited testimony

from Special Agent Nicholas Bugni that the interactions in this case were low-

intensity throughout the arrest of Quackenbush’s roommate and later interview.

      Third, Quackenbush was far less isolated than the defendant in Craighead.

The defendant in Craighead was interviewed in a dark storage room at the back of

his house. Id. at 1087. He was separated from his supervisor who had specifically

come with the search and interview teams to offer emotional support to the

defendant. Id. The door to the storage room was closed. Id. at 1086. And an

armed officer wearing a “raid vest” stood blocking the closed door. Id. Here,

Quackenbush was interviewed in the dining room, in view of his apartment’s open


                                          3
front door. And there is no evidence that anyone was barred from entering the

apartment.

      Fourth, the statements from law enforcement that the defendant did not need

to answer questions were clearer here than they were in Craighead. The district

court and magistrate judge found that Bugni told Quackenbush he was not under

arrest, was free to leave, and did not need to answer questions.1 “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. Bassignani, 575

F.3d 879, 886 (9th Cir. 2009). We observed in Craighead that although the

defendant was told he was free to go, the circumstances of the interview and

number of different agencies involved in the search of his home left the defendant

justifiably concerned that the one officer who told him that he was not under arrest

and that his statements were voluntary did not speak for the other officers.

Craighead, 539 F.3d at 1088-89. There was no such cause for concern here.

      Given the totality of the circumstances, Quackenbush was not in custody

during his interview with Bugni. Therefore, no Miranda warnings were needed,




      1
         While Quackenbush testified at an evidentiary hearing that Bugni told him
he was free to remain silent only by following his roommate to jail, Bugni
repeatedly denied that he had conditioned the statement that Quackenbush did not
need to answer questions. There was no clear error in the magistrate judge’s and
district court’s decisions to credit Bugni’s testimony on this issue.

                                          4
and the district court correctly denied Quackenbush’s motion to suppress. See

Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam).

      AFFIRMED.




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