                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 15-1137
                       ___________________________

                            United States of America

                      lllllllllllllllllllll Plaintiff - Appellant

                                          v.

  Anthony Laurita, also known as the user of IP Address 108.32.11.73 between
                 November 20, 2012 and November 27, 2012

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                   Appeal from United States District Court
                     for the District of Nebraska - Omaha
                                ____________

                         Submitted: November 19, 2015
                              Filed: May 4, 2016
                                ____________

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
                              ____________

RILEY, Chief Judge.

     Following the execution of a search warrant at a home in Uniontown,
Pennsylvania, Federal Bureau of Investigation (FBI) investigators questioned
Anthony Laurita at a telemarketing firm where he worked. Laurita successfully
moved to suppress his statements from that interview. The United States appeals.
Having jurisdiction under 18 U.S.C. § 3731, we reverse the district court’s
suppression order.

I.     BACKGROUND
       On April 9, 2013, acting on lead from the Omaha, Nebraska, division of the
FBI, federal agents executed a search warrant at a home in Uniontown, Pennsylvania,
searching for evidence of child pornography. The home belonged to Anthony
Laurita’s grandmother. Although Laurita had been living at his grandmother’s
residence, only Laurita’s grandmother was home when the agents conducted the
search. During the search, agents seized a desktop computer and, in pursuit of a
second computer, Special Agent Patrick Howley contacted Laurita’s uncle, who told
him Laurita was at work at Teletech, a telemarketing firm. After finishing the search,
Special Agent Howley and Brian King, an FBI computer scientist, went to Teletech
to talk to Laurita.

      Around 2:00 p.m. that day, Special Agent Howley and King, neither of whom
were wearing anything that would outwardly associate them with the FBI, arrived at
Teletech, located in a former anchor store of a mall in Uniontown. Without
disclosing the nature of their investigation, Special Agent Howley asked a security
employee at the front entrance of Teletech if he and King could have a short
conversation with Laurita. The security employee directed Special Agent Howley
and King to go outside, walk around the building, and re-enter through the rear
entrance where human resources was located. Upon doing so, Special Agent Howley
and King were directed to a small, rectangular conference room in the human
resources area of Teletech. Inside the room was an oval-shaped table surrounded by
four or five chairs. Next to the door was a narrow glass window.

      Meanwhile, Laurita’s supervisor approached Laurita, who was on a call with
a customer, and handed him a note asking Laurita to come see him after the call.
Afterward, Laurita found his supervisor who, according to Laurita, told him, “‘I’m

                                         -2-
going to need you to come with me,’” and then escorted Laurita to human resources,
which was a “closed door area.” Once they entered the human resources area,
Laurita’s supervisor left, and Laurita met Special Agent Howley and King.

       Special Agent Howley and King had waited only a few minutes before Laurita
arrived. Special Agent Howley introduced himself and King to Laurita and they each
showed Laurita their credentials. Special Agent Howley told Laurita they would “just
like to talk to [him].” By Laurita’s account, Laurita sat at the narrow end of the oval
table, and Special Agent Howley and King sat on the left and right sides of him two
to three feet away. The door was closed.

       Special Agent Howley first apologized for coming to Laurita’s place of
employment and told Laurita they would need “only . . . maybe 10 or 15 minutes of
his time . . . so that he could get back to work.” Special Agent Howley explained a
federal search warrant had been executed in Laurita’s grandmother’s home, relating
to someone in the home viewing child pornography on the Internet. Special Agent
Howley told Laurita he understood Laurita had a girlfriend with two young children,
and his “concern” was whether Laurita had “ever act[ed] on the interests being
shown” in the child pornography “on her two young children.” According to Special
Agent Howley, Laurita “absolutely denied” that he had acted on those interests and
stated “he only viewed it,” “felt bad about it,” and knew “he need[ed] to seek help.”

       Laurita admitted he had been viewing child pornography at his grandmother’s
residence for approximately the past year. Laurita told the agents he had used an
older computer—which was one of the computers federal agents had seized during
the search—in the upstairs of his grandmother’s residence near his bedroom. Laurita
explained the system on that computer was incompatible with “The Onion Router”
(Tor) software, which would have enabled him to access child-pornography websites
through a worldwide network and concealed his identity through layers of encryption,
so he accessed the pornography through finding links or connections through other

                                         -3-
websites. At the conclusion of the interview, Special Agent Howley advised Laurita
to continue working and recommended counseling “if he fe[lt] he ha[d] a problem,”
which Special Agent Howley said “would look very favorably in the court’s eyes, [to]
be proactive to address this.” Special Agent Howley gave Laurita his business card,
they shook hands, and Laurita exited the conference room and returned to work.

      The entire conversation lasted no more than twenty minutes. Special Agent
Howley never told Laurita he was under arrest, and Laurita was not arrested at the
conclusion of the interview. Special Agent Howley never raised his voice, and,
according to Laurita, had a “very nice demeanor,” and was “soft-spoken” and “very
conversational.” Although Special Agent Howley primarily conducted the interview,
Laurita said King “was a little bit more aggressive with his body language and . . .
would scoff at some things.”

       On October 20, 2013, a federal grand jury charged Laurita with knowingly
receiving or attempting to receive child pornography through interstate commerce in
violation of 18 U.S.C. §§ 2252A(a)(2), (b)(1), and accessing with intent to view
material containing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
Laurita moved to suppress the statement he made to Special Agent Howley and King
during the interview at Teletech. Laurita claimed Special Agent Howley and King
subjected him to a custodial interrogation and failed to issue a Miranda warning as
a procedural safeguard of his rights secured by the Fifth Amendment to the U.S.
Constitution. See Miranda v. Arizona, 384 U.S. 436 (1966).

       A United States magistrate judge conducted an evidentiary hearing. The
magistrate judge recommended the district court deny Laurita’s motion, finding
Laurita was not in custody because “[a] ‘reasonable person’ in Laurita’s position
would have felt free to leave the room prior to or during the interview.” The district
court did not adopt the magistrate judge’s findings and recommendation. Evaluating,
what it called, the “six nonexclusive factors” of custody outlined in United States v.

                                         -4-
Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990), the district court found the investigators
subjected Laurita to a custodial interrogation without giving a Miranda warning. The
district court granted Laurita’s motion to suppress, and the government appeals.

II.   DISCUSSION
      “On review of a motion to suppress, we review the district court’s factual
findings for clear error and review its legal conclusions de novo.” United States v.
Brooks, 715 F.3d 1069, 1075 (8th Cir. 2013).

       The rule under Miranda prevents the government from using statements
“stemming from custodial interrogation of the defendant,” unless the government has
used “procedural safeguards effective to secure the privilege against
self-incrimination.” Miranda, 384 U.S. at 444; see Thompson v. Keohane, 516 U.S.
99, 107 (1995) (explaining “suspects interrogated while in police custody must be
told that they have a right to remain silent, that anything they say may be used against
them in court, and that they are entitled to the presence of an attorney, either retained
or appointed, at the interrogation”). “Although the circumstances of each case must
certainly influence a determination of whether a suspect is ‘in custody’ for purposes
of receiving Miranda protection, the ultimate inquiry is simply whether there is a
‘formal arrest or restraint on freedom of movement’ of the degree associated with a
formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)
(quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)).

       To determine whether a suspect was in custody, we ask “whether, given the
totality of the circumstances, a reasonable person would have felt at liberty to
terminate the interrogation and leave or cause the agents to leave.” United States v.
Vinton, 631 F.3d 476, 481 (8th Cir. 2011). We have set forth six non-exclusive
indicia of custody:




                                          -5-
      (1) whether the suspect was informed at the time of questioning that the
      questioning was voluntary, that the suspect was free to leave or request
      the officers to do so, or that the suspect was not considered under arrest;
      (2) whether the suspect possessed unrestrained freedom of movement
      during questioning; (3) whether the suspect initiated contact with
      authorities or voluntarily acquiesced to official requests to respond to
      questions; (4) whether strong arm tactics or deceptive stratagems were
      employed during questioning; (5) whether the atmosphere of the
      questioning was police dominated; [and], (6) whether the suspect was
      placed under arrest at the termination of the questioning.

Griffin, 922 F.2d at 1349. “The first three . . . factors may be fairly characterized as
mitigating factors,” and the last “three factors may be characterized as coercive
factors.” Id. “These factors, however, are not exclusive, and custody ‘cannot be
resolved merely be counting up the number of factors on each side of the balance and
rendering a decision accordingly.’” United States v. Flores-Sandoval, 474 F.3d 1142,
1147 (8th Cir. 2007) (quoting United States v. Czichray, 378 F.3d 822, 827 (8th Cir.
2004)). In light of the totality of the circumstances here, Laurita was not in custody.

       Beginning with Griffin’s first three factors, in the early stages of their
interview, Special Agent Howley and King contacted Laurita at his workplace to ask
a few questions. Although they did not expressly tell Laurita his participation was
voluntary or that he was free to leave, nothing about the circumstances or the
investigators’ actions indicated otherwise. We note the district court may have placed
undue importance on the first Griffin factor, commenting it “weighs heavily in the
court’s analysis in this case.” We have emphasized that informing a suspect his
participation in questioning is voluntary and that he is free to leave can be an
important mitigating factor. See, e.g., United States v. Elzahabi, 557 F.3d 879, 883,
884 (8th Cir. 2009) (explaining “an express advisement that a suspect is not under
arrest and that his participation is voluntary” is the “‘most obvious and effective
means of demonstrating that a suspect has not been taken into custody’” (quoting
United States v. Brave Heart, 397 F.3d 1035, 1039 (8th Cir. 2005))). As the United

                                          -6-
States suggests, “the opposite inference”—that a suspect not being told he is free to
leave during police questioning is a strong indication he was in custody—does not
necessarily follow, because “the touchstone of our inquiry remains whether [Laurita]
was restrained as though he were under formal arrest.” United States v. Lowen, 647
F.3d 863, 868 (8th Cir. 2011); accord Beheler, 463 U.S. at 1125.

       Next, the district court erred when it found “Laurita’s freedom of movement
was significantly constrained.” None of the actions undertaken by Special Agent
Howley or King restrained Laurita’s freedom of movement to “the degree associated
with formal arrest.” United States v. Williams, 760 F.3d 811, 815 (8th Cir. 2014).
Before, during, and after the interview, neither Special Agent Howley nor King
handcuffed, physically or verbally restrained, or otherwise confined Laurita. Cf.
United States v. Cowan, 674 F.3d 947, 957 (8th Cir. 2012) (concluding where a
suspect “was detained, handcuffed, and patted down while [a detective] questioned
him[,]” the suspect was in custody “because a reasonable person in [his] position
would not have felt free to end the questioning and leave”). Laurita never asked to
move around in the room or leave during the course of the interview. Laurita and
Special Agent Howley disagreed over where Laurita was sitting inside the conference
room, but Laurita had a clear pathway to the door, and, although the door was closed,
there is no evidence it was locked.1 Considering the brief duration of the questioning
and the absence of any evidence of restraint, we have no difficulty concluding Laurita
“possessed unrestrained freedom of movement” during the interview. Griffin, 922
F.2d at 1349.

      While the investigators initiated contact with Laurita, the record fully supports
the magistrate judge’s finding that “Laurita voluntarily agreed to speak with Special

      1
        We find the district court clearly erred when it found Laurita “was told that ‘he
needed’ to accompany [his] supervisor to the locked human resources area of the
office,” when nothing in the record indicates this area was locked, and Laurita only
described it as a “closed door area.”

                                          -7-
Agent Howley.” See id. From Laurita’s own account, Special Agent Howley was
conversational and nice, and Laurita seems to have reciprocated by willingly
explaining how he accessed child pornography despite using a computer that was
incompatible with Tor. Cf. United States v. Axsom, 289 F.3d 496, 501-02 (8th Cir.
2002) (deciding that because the suspect “was extremely friendly and cooperative
during the interview” and “offered to show agents which of his two computers
contained child pornography,” the suspect had voluntarily acquiesced to questioning).

      Turning to the aggravating Griffin factors, we find none present.

       First, we disagree with the district court’s conclusion that Special Agent
Howley employed “a ruse or deceptive strategem.” In the opinion of the district
court, when Special Agent Howley inquired whether Laurita had acted on an impulse
depicted in child pornography, Special Agent Howley effectively accused Laurita “of
the heinous crime of child sexual assault,” and Special Agent Howley thereby
manipulated Laurita into admitting he received and viewed “child pornography—a
generally perceived lesser crime.” During the suppression hearing, Special Agent
Howley denied employing a ruse and explained this questioning “was a very
legitimate concern regarding the two young children” of Laurita’s girlfriend. After
listening to Special Agent Howley’s testimony, the magistrate judge concluded there
was “no evidence Special Agent Howley’s questions regarding Laurita’s former
girlfriend’s children were an implied threat as Laurita contends.” Cf. United States
v. Mottl, 946 F.2d 1366, 1370 (8th Cir. 1991) (expressing deference in a “close” case
to the trier of fact “who heard the testimony of the witnesses at the suppression
hearing”).

       If this set of questions was designed to alert Laurita to the gravity of the
situation or even to elicit inculpatory admissions, the questions nonetheless expressly
related to a legitimate concern for the safety of two young children, and the questions
asked were not impermissibly deceptive if at all. Even where, for instance, a police

                                         -8-
officer’s questions contain “an implicit factual assertion” admittedly designed to elicit
a confession, we determined that “kind of deceit would not have acted to prevent a
reasonable person from terminating the interview” and leave or ask the agents to
leave. United States v. Ollie, 442 F.3d 1135, 1138, 1139 (8th Cir. 2006). The use of
deception is irrelevant unless it relates to a reasonable person’s perception of his
freedom to depart. See id.; cf. United States v. Aldridge, 664 F.3d 705, 712 (8th Cir.
2011) (noting we have held the use of deceptive tactics—“falsely implying [officers
had the suspect’s] fingerprints on the weapon”—were “irrelevant to the question of
custody”); United States v. Sheikh, 367 F.3d 756, 760, 762 (8th Cir. 2004)
(concluding police did not employ “strong-arm or deceptive tactics” in a thirty-minute
interview where a detective “may have raised his voice,” accused the suspect of lying,
and told the suspect his statements were “‘bullshit’”); United States v. LeBrun, 363
F.3d 715, 720-21 (8th Cir. 2004) (en banc) (declaring “the purportedly coercive
aspects of [a] particular interview [we]re largely irrelevant to the custody
determination”); Axsom, 289 F.3d at 503 (declining to be “concerned with any moral
or psychological pressures causing [a suspect] to be forthright and helpful to the
agents” because “[o]ur examination only relate[d] to the restraint imposed by the
agents”).

       Moreover, Laurita was not particularly susceptible to deception, as he is in his
thirties, has an associate degree, a professional job, and prior experience being
interviewed by law enforcement relating to a possession of drug paraphernalia charge.
Cf. United States v. Muhlenbruch, 634 F.3d 987, 998 (8th Cir. 2011) (deciding a
confession resulting from a twenty-two minute interview “at the police station” was
voluntary where the suspect was in his late thirties, had prior experience with police
questioning, and was “a relatively intelligent individual”).

      Special Agent Howley and King did not use “strong arm tactics.” Griffin, 922
F.2d at 1349, 1351. Whatever tactic the district court discerned, Laurita did not feel
pressured by the investigators, as he described Special Agent Howley as “very nice,”

                                          -9-
“very conversational” and even “soft-spoken.” Laurita expressed remorse for his
actions and also explained to Special Agent Howley and King how he accessed the
child pornography. Cf. United States v. Huether, 673 F.3d 789, 795 (8th Cir. 2012)
(“The record shows [the suspect] freely answering [an officer’s] questions regarding
the allegations of child sexual abuse, and receipt and possession of child
pornography. In fact, [the suspect] became more responsive in answering [those]
questions as the interview progressed. He also cooperated with the officers in
providing access to his laptop.”). We have consistently concluded that methods
which more closely resemble “strong arm tactics,” than those alleged in this case,
such as accusing a suspect of lying or officers’ use of a raised voice, have little
bearing on whether a suspect would have felt free to terminate an interview. Cf.
United States v. Sanchez, 676 F.3d 627, 631 (8th Cir. 2012) (declaring an agent’s
“raised voice and his assertions that [the suspect] was lying were not coercive
interview methods”); Czichray, 378 F.3d at 825, 830 (reasoning statements relating
to a threat to “use the power of the FBI” to interfere with the suspect’s insurance
payments “would have little or no bearing on whether [the suspect’s] freedom of
movement was restrained for purposes of Miranda custody analysis”).

        In determining whether an interview was police dominated, we consider “the
entire context of the questioning, including such considerations as place and length
of the interrogation.” Griffin, 922 F.2d at 1352. This interview lasted no more than
twenty minutes and was conducted by one federal agent and one federal computer
scientist. Cf. Axsom, 289 F.3d at 502 (concluding the district court erred in finding
an interview was police dominated because, although nine federal agents were present
in the suspect’s home where the interview took place, “only two agents conducted the
interview[,]” “[c]ommunication between the agents and [the suspect] consisted of
two-way questioning,” and photographs of the scene “reflect[ed] a more casual scene
than a police dominated, inherently coercive interrogation”); Czichray, 378 F.3d at
825, 830 (ruling a “nearly seven[-]hour[]” interview where agents arrived at the
suspect’s home at 6:30 a.m., demanded he answer the door, instructed the suspect to

                                        -10-
call in sick to work, and told the suspect they would “‘light up his world’” if he did
not cooperate was not custodial). Special Agent Howley and King were visitors to
Teletech and never “took control of the site and the persons present there.” United
States v. Brown, 990 F.2d 397, 400 (8th Cir. 1993). The questioning took place
inside a conference room at Laurita’s “workplace, a location familiar to [Laurita] and
a place where [he] would be comfortable and less threatened.” United States v.
Wallace, 323 F.3d 1109, 1113 (8th Cir. 2003) (stating an interview that took place at
the suspect’s workplace was not police dominated). Special Agent Howley told
Laurita the interview would be short so Laurita could get back to work, and the agent
kept that promise. Considering the context of the interview, it was not police
dominated.

       Although the district court acknowledged “the atmosphere probably could not
be characterized as ‘police-dominated,’” it decided that, because Laurita “was
outnumbered, official credentials were shown to him, he had been ordered to the
interview by a superior, and the conversation occurred in a closed room with the
apparent approval of that supervisor,” “a reasonable person would not have felt free
to leave or to terminate the interview.” We disagree. It is hardly unusual for Special
Agent Howley and King—meeting Laurita for the first time and wearing nothing to
indicate they worked for the FBI—to identify themselves and the purpose of the
meeting. The record indicates Teletech dictated where the interview would take
place. Because the subject matter of the questioning was sensitive, we think it was
wise of Special Agent Howley and King to close the door.

      The district court overemphasized the involvement of Laurita’s supervisor.
Even though the supervisor escorted Laurita to the human resources area, he was not
an FBI actor or agent, and saying to Laurita, “‘I’m going to need you to come with
me,’” “was not an act of the FBI agents and is irrelevant in determining whether
[Laurita] was in custody.” United States v. Goudreau, 854 F.2d 1097, 1098 (8th Cir.
1988) (reasoning the fact that the suspect’s “supervisor had instructed him to meet

                                        -11-
with the agents at the appointed time, which [the suspect] interpreted to be an order,”
was “irrelevant in determining whether [the suspect] was in custody”); see also
United States v. Dockery, 736 F.2d 1232, 1233, 1234 (8th Cir. 1984) (en banc)
(distinguishing “‘workers’ voluntary obligations to their employers’”—where a
suspect’s employer summoned her to an interview with the FBI in a “small, vacant
office” where she worked—from actions taken by law enforcement (quoting INS v.
Delgado, 466 U.S. 210, 218 (1984) (explaining “when people are at work their
freedom to move about has been meaningfully restricted, not by the actions of law
enforcement officials, but by the workers’ voluntary obligations to their
employers”))). Once Laurita and his supervisor arrived at the human resources area,
the supervisor left. Laurita’s supervisor never threatened Laurita, pressured him into
answering the investigators’ questions, or even commented to Laurita about the
interview. There is no indication the supervisor had any knowledge of the nature of
the investigation. It was “simply of no moment” that Laurita was “summoned to the
interview by one of his supervisors at work” because such act did not “even remotely
constitute[] a restraint on the freedom of movement to the degree associated with
formal arrest.” United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999).
Consequently, the supervisor’s involvement did not “tip[] the balance in favor of
custody,” as the district court believed.

       Lastly, at the conclusion of the brief interview, Laurita was not arrested.
Special Agent Howley thanked Laurita for his time, giving Laurita the agent’s
business card. They shook hands, and Laurita returned to work. Cf. United States
v. Diaz, 736 F.3d 1143, 1149 (8th Cir. 2013) (highlighting that, rather than arresting
a suspect at the conclusion of questioning, officers “instead thanked [the suspect],
encouraged him to continue his cooperation, and ‘wished [him] a good trip’”).
Although Special Agent Howley advised Laurita that counseling or treatment would
look favorable to the court, which Laurita argues implied further action would be
taken against Laurita, these comments have no bearing on whether Laurita was
restrained at that time or would have felt free to leave the interview. See Czichray,

                                         -12-
378 F.3d at 829 (“It is appropriate for an investigator to advise a suspect of the
potential course and consequences of a criminal investigation. . . . But the
presentation of [such] information . . . does not tend to restrain a person’s freedom of
movement such that he should be deemed in custody.”). Instead, Special Agent
Howley’s encouragement to seek treatment reflects the conversational, cooperative
tone of the interview.

       Weighing the totality of the circumstances, we agree with the magistrate
judge’s recommended finding that a reasonable person in Laurita’s position would
have felt free to terminate or leave the interview with Special Agent Howley and
King. See Diaz, 736 F.3d at 1149 (holding an interview was not custodial where
officers did not inform the suspect “‘he was free to leave,’” but the suspect was “calm
and cooperative throughout the interview, and there [was] no evidence the officers
ever surrounded [the suspect], used coercive tactics, or restrained [the suspect’s]
freedom of movement in any way”). Laurita was not subjected to a custodial
interrogation.

III. CONCLUSION
     We reverse the district court’s order granting Laurita’s motion to suppress and
remand for further proceedings consistent with this opinion.

KELLY, Circuit Judge, dissenting.

      The district court in this case concluded, based on the evidence presented at the
suppression hearing before the magistrate judge, that under the totality of
circumstances a reasonable person in Laurita’s position would not have felt free to
terminate the interview with FBI Special Agent Howley and FBI computer scientist
King. I agree that this is a close case on the issue of custody. But I disagree with the
court’s conclusion that certain of the district court’s factual findings were clearly



                                         -13-
erroneous and its suggestion that the district court placed undue weight on the first
Griffin factor. As a result, I respectfully dissent.

       In applying the non-exclusive Griffin factors to determine whether Laurita was
in custody, the district court found that Laurita’s freedom of movement was
significantly constrained during the interview and that Agent Howley used a
deceptive stratagem in conducting the interview. The court also found that, while
Laurita was not arrested at the end of the interview, Agent Howley “strongly
intimated that there would be criminal repercussions.” On clear error review, we
must affirm the district court’s factual findings unless they are “unsupported by
substantial evidence” or “we are left with a firm and definite conviction that a mistake
has been made.” Griffin, 922 F.2d at 1348. The district court’s credibility
determinations, made after a hearing on the merits of a motion to suppress, are
“virtually unassailable on appeal.” United States v. Schwarte, 645 F.3d 1022, 1028
(8th Cir. 2011).

       The district court’s finding that Laurita’s freedom of movement was restricted
during the interview was based on the facts that Laurita had been escorted to the
interview by his supervisor, that the interview took place in a separate, “closed-door”
area of the office, that the interview took place in a small conference room with the
door closed, and that Laurita was outnumbered by Agent Howley and King. In
addition, though testimony differed on this point, Laurita said that Agent Howley was
seated between Laurita and the door to the conference room. Laurita did not attempt
to move around the room during the interview, but there is no evidence that he would
have felt free to do so, and it is not clear that there was anywhere for him to go if he
had wanted to move. Cf. Williams, 760 F.3d at 815 (finding no custody where
Williams was “permitted to get a glass of water and to move unsupervised through
his home”). At a minimum, Laurita’s freedom of movement during the interview was
unclear. See Sanchez, 676 F.3d at 631 (finding that it was “unclear whether
[defendant’s] freedom of movement was restrained” where she was not handcuffed,

                                         -14-
but “the interview was conducted in a small, closed room by two law enforcement
officers”). Given this record, the district court’s finding that Laurita’s freedom of
movement was significantly constrained was not clearly erroneous.

       The district court’s reliance on the fact that Laurita’s supervisor instructed
Laurita to accompany him and escorted him to the interview does warrant careful
attention. The supervisor’s orders were not attributable to the FBI, and therefore only
carried the weight associated with Laurita’s obligations to his employer. See
Dockery, 736 F.2d at 1234. But that weight may nevertheless be significant; and the
instructions of a manager or supervisor with meaningful control over an employee’s
livelihood could, as a practical matter, affect a reasonable person’s perception of his
freedom to leave or terminate an interview he was instructed to attend. Cf. id.
(finding no custody where defendant’s employer instructed her to meet with FBI
agents, but defendant was advised of her right to refuse to answer questions and
initiated a second interview); Goudreau, 854 F.2d at 1098 (finding no custody where
defendant’s supervisor instructed him to meet with FBI agents, but defendant was
advised that he was free to leave at any time). This factor is not dispositive, and the
district court did not treat it as such. Rather, coupled with other substantial evidence
in the record, the district court’s finding regarding the role of the supervisor’s
involvement supported the conclusion that Laurita’s freedom of movement was
significantly constrained.

       The district court’s finding that Agent Howley had used a deceptive stratagem
was also supported by the evidence presented. We have held that the use of deceptive
tactics in an interview is not relevant to the custody determination unless the
deception would affect a reasonable person’s perception of his ability to leave or
terminate the interview. Ollie, 442 F.3d at 1139 (holding that falsely implying that
forensic evidence incriminated defendant was not the type of deceptive stratagem that
would affect defendant’s perception of his ability to terminate the interview);
Aldridge, 664 F.3d at 712 (same, citing Ollie); LeBrun, 363 F.3d at 720–21 (holding

                                         -15-
that use of deceptive tactics, including falsely telling defendant that there was
significant evidence against him and various other psychological ploys, was irrelevant
to the custody determination). Though not all deceptive stratagems may bear on
custody, the specific inclusion of “strong arm tactics or deceptive stratagems” in the
Griffin factors establishes that deceptive stratagems can in fact affect the custody
determination. Griffin, 922 F.2d at 1349. Here, the district court found that no
reasonable person in Laurita’s position would believe that he was free to leave or
terminate the interview without responding to Agent Howley’s questions about child
abuse. The deceptive nature of this question arises from the fact that Agent Howley
had no jurisdiction to act on Laurita’s response, regardless of his legitimate concern
for the children with whom Laurita had contact. This, in combination with the
pressure imposed by this extremely serious and weighted question, could have
contributed to a reasonable person’s perception that he was no longer free to leave or
terminate the interview.

       I also disagree with the court’s suggestion that the district court gave undue
weight to the first Griffin factor: whether Laurita was informed that he was free to
leave the interview or refuse to answer questions. It is appropriate for a court to give
significant weight to whether a person was advised of his right to terminate an
interview or refuse to answer questions in determining his custody status. Williams,
760 F.3d at 814 (“We have long regarded these admonitions as weighty in the custody
analysis.”) (quoting United States v. Perrin, 659 F.3d 718, 721 (8th Cir. 2011)).
Though the presence or absence of such an advisory is only one relevant factor, it
may be “powerful evidence” of how a reasonable person would perceive his freedom
to end the encounter. See Czichray, 378 F.3d at 826. Moreover, the presence or
absence of an advisory may affect the weight of the other factors relevant to custody:
where there is no advisory, other factors may need to more clearly indicate absence
of custody. See, e.g., Diaz, 736 F.3d at 1147 (no custody where suspect was not told
he was free to leave, but where he was approached by law enforcement outside in a
parking lot and voluntarily entered the officers’ car after they questioned him); United

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States v. Thomas, 664 F.3d 217, 222 (8th Cir. 2011) (no custody where suspect was
not told interrogation was voluntary, but where he had requested to speak to law
enforcement and interrogation took place in his mother’s home); United States v.
Wallace, 323 F.3d 1109, 1110–11 (8th Cir. 2003) (no custody where suspect was not
told she could leave, but where she was not the target of the investigation and was
questioned by a single agent in an employee lounge). I note that in LeBrun and
Aldridge (as well as in Sheikh, 367 F.3d at 762), cases in which the court upheld the
district court’s determinations that the defendants were not in custody, the defendants
were all advised of their right to leave the interview or refuse to answer questions.
Aldridge, 664 F.3d at 712; LeBrun, 363 F.3d at 722; cf. Ollie, 442 F.3d at 1138
(finding custody where defendant was advised that he was not under arrest, but not
of his right to terminate the interview). Here, the district court found that Laurita’s
freedom of movement during the interview was significantly restricted, that Laurita
did not initiate the interview, that a deceptive stratagem was employed during the
interview, that it was strongly implied that there would be criminal consequences of
the interview, and that Laurita was not advised of his right to terminate the interview
or refuse to answer questions.2 These findings were not clearly erroneous, and the


      2
        In addition, I disagree with the court’s conclusions that Laurita voluntarily
acquiesced to interrogation, that the interrogation took place in a location where
Laurita felt comfortable and unthreatened, and that Laurita was not especially
susceptible to deceptive tactics. The record supports the district court’s specific
finding that “Laurita’s conduct reveals little more than an absence of resistance” to
questioning. Also supported by the record are the district court’s findings that the
interview took place in a separate, closed-door area of the office and that there was
no evidence that Laurita was familiar, much less comfortable, with the location.
Finally, the district court made no specific findings as to Laurita’s particular
susceptibility to deception.          A general description of his personal
circumstances—including his associate’s degree in graphic design, citation for
possession of drug paraphernalia four years prior, and semi-skilled job—without
more is insufficient to support a conclusion that he was insusceptible to expert
interrogation by an FBI agent.

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district court did not err in concluding that Laurita was in custody. I would affirm the
district court’s order granting Laurita’s motion to suppress.
                          ______________________________




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