                    NONPRECEDENTIAL DISPOSITION
                      To be cited only in accordance with
                              Fed. R. App. P. 32.1




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                             Argued October 3, 2007
                            Decided November 8, 2007

                                      Before

                    Hon. JOHN L. COFFEY, Circuit Judge

                    Hon. KENNETH F. RIPPLE, Circuit Judge

                    Hon. MICHAEL S. KANNE, Circuit Judge

No. 06-4281

UNITED STATES OF AMERICA,                      Appeal from the United States District
          Plaintiff-Appellee,                  Court for the Southern District of Indiana,
                                               Terre Haute Division
      v.
                                               No. 05 CR 9
KENNETH L. HARLAN,
         Defendant-Appellant.                  Larry J. McKinney,
                                               Chief Judge.

                                    ORDER

       Kenneth Harlan pleaded guilty to selling and conspiring to sell
methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. In his plea agreement, Harlan
reserved the right to contest on appeal the denial of his motion to suppress
statements made to an officer prior to his arrest. Harlan now exercises that right.
Because the district court correctly determined Harlan did not make the statements
in the context of a custodial interrogation, we affirm.

      In the morning of April 25, 2005, three officers working for the Drug
Enforcement Administration entered the furniture store Harlan owned in Terre
Haute, Indiana. Detective Dennis Holt identified himself as an officer, and told
Harlan that they would like to speak to him. Detective Holt testified that he asked
Harlan if he was expecting anyone and if he wanted to close the shop. Harlan
No. 06-4281                                                                      Page 2

stated that he was expecting a delivery, and the decision was made to leave.
Harlan testified that he believed he did not have a choice whether to leave with the
officers.

       Detective Holt suggested that they take his car because they could all fit in it.
Harlan did not object to this suggestion. Harlan and the officers then left in
Detective Holt’s vehicle and proceeded to a side street in a nearby residential area.
While Holt was driving, the officers told Harlan that he was the subject of an
investigation and that purchases of methamphetamine had been made from him.

       Detective Holt testified that after he parked the car along the side of the
street, Harlan was told that there was no arrest warrant for him, that he was not
being arrested, and that he would not be taken to jail. Holt did not say who told
Harlan these things. According to Holt, Harlan was informed that when the
conversation ended, he would be dropped off wherever he wanted. Harlan testified
that no one told him that he was not under arrest or that he would be dropped off.

       The detectives then questioned Harlan for approximately 45 minutes. After
about 30 minutes, Harlan agreed to cooperate with police and gave them
information about his methamphetamine business. When the questioning ended,
the officers dropped Harlan off about three blocks from his business.

       Prior to trial, Harlan moved to suppress the statements he gave during the
April 25 questioning. He argued, as relevant here, that the questioning constituted
a custodial interrogation and that, because it was not preceded by Miranda
warnings, the government’s use of the statements would violate his Fifth and Sixth
Amendment rights. Following a hearing, the district court denied the motion to
suppress. In denying the motion, the district court credited Holt’s testimony that
Harlan was told he was not under arrest over Harlan’s testimony to the contrary.
The district court weighed that testimony heavily in determining that Harlan was
not in custody and that no Miranda warnings were required. Other factors the
court considered establishing Harlan was not in custody were that Harlan
consented to speak to the officers, the interrogation took place in public, and there
was no threat of weapons or physical force. After the district court denied the
motion, Harlan changed his pleas to guilty, but reserved the right to appeal the
denial of his motion to suppress.

       Harlan argues on appeal that the district court erred when it concluded that,
as a matter of law, the April 25 interrogation was not custodial. As part of that
argument, Harlan contends that the district court committed clear error in its
factual finding that Harlan had been told he was not under arrest. In reviewing a
district court’s decision on a motion to suppress, we review questions of law de novo
No. 06-4281                                                                     Page 3

and questions of fact for clear error. United States v. Peters, 435 F.3d 746, 750 (7th
Cir. 2006).

       Law-enforcement officers violate suspects’ Fifth Amendment rights when
they subject them to custodial interrogations without advising them of their
constitutional rights to remain silent and to have counsel present. Miranda v.
Arizona, 384 U.S. 436, 471 (1966). An interrogation is “custodial” where “a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” Id. at 444. The test is whether, under the circumstances of the
interrogation, a reasonable person would have felt at liberty to terminate the
interrogation and leave. Yarborough v. Alvarado, 541 U.S. 652, 662 (2004);
Thompson v. Keohane, 516 U.S. 99, 112 (1995). In implementing this test, we
consider whether (1) the encounter occurred in a public place; (2) the suspect
consented to speak with the officers; (3) the officers informed the individual he was
not under arrest and was free to leave; (4) the individual was moved to another
area; (5) there was a threatening presence of several officers and a display of
weapons or physical force; (6) the officers deprived the defendant of documents
needed to continue on his way; and (7) the officers’ tone of voice was such that their
requests would likely be obeyed. United States v. Barker, 467 F.3d. 625, 628-29 (7th
Cir. 2006).

      Factor number three–whether officers told the suspect he was under
arrest–weighs heavily in finding no custodial interrogation. If police tell a
reasonable person he is not under arrest, that person will likely not feel his freedom
of movement is restrained to “the degree associated with a formal arrest.”
Yarborough, 541 U.S. at 662 (internal citation omitted).

       Harlan argues that the officers did not tell him he was not under arrest, but
the district court found otherwise after crediting Holt’s testimony to the contrary.
We will not disturb a finding of fact unless it is clearly erroneous. Peters, 435 F.3d
at 750. Because Harlan has not identified any reason why Holt’s testimony should
not have been believed, and because it is plausible that Harlan was told he was not
under arrest, the district court did not clearly err in crediting the officer’s
testimony. See United States v. Burks, 490 F.3d 563, 565 (7th Cir. 2007) (noting
reversal of district court’s factual findings only appropriate where exceedingly
improbable testimony credited); United States v. Briggs, 273 F.3d 737, 740 (7th Cir.
2001) (stating that where district court credits one witness’s plausible testimony
over another, that decision “can almost never be clear error”). The district court’s
finding that Harlan was told he was not under arrest dooms his argument that his
interrogation was not custodial, because the facts here do not so strongly suggest
custody such that a reasonable person would disbelieve the officer’s statement that
Harlan was not under arrest.
No. 06-4281                                                                    Page 4

       Only one factor weighs in Harlan’s favor, and it is not sufficient to overcome
an explicit statement from police that Harlan was not under arrest. It is
undisputed Harlan was moved by the officers. That fact alone, however, cannot
carry the day for Harlan; we have held in other cases that suspects were not in
custody where they were moved. See, e.g., United States v. Wyatt, 179 F.3d 532, 537
(7th Cir. 1999) (taking suspect uncuffed in a squad car to police station not
custodial); United States v. Jones, 21 F.3d 165, 170 (7th Cir. 1994) (transporting
suspect to police headquarters in squad car did not render interrogation custodial).

       All of the other factors weigh against Harlan. He consented to speak with
the officers, and to do so outside the store rather than to remain there. See Booker
v. Ward, 94 F.3d 1052, 1058 (7th Cir. 1996) (stating where suspect voluntarily
agreed to interrogation, that interrogation was not necessarily custodial); United
States v. Betts, 16 F.3d 748, 762 (7th Cir. 1994) (holding interrogation not custodial
where suspect was given a choice of being interviewed in police station or
elsewhere) (abrogated on other grounds by United States v. Mills, 122 F.3d 346 (7th
Cir. 1997)). Although there were three officers, the record does not reflect that they
threatened Harlan in any way or that they brandished weapons; nor did they
handcuff him. See United States v. Thompson, 496 F.3d 807, 811 (7th Cir. 2007)
(stating close proximity of two FBI agents alone was not sufficient to render
interrogation custodial). Finally, the interrogation occurred in a place accessible to
the public. These facts, plus the testimony that Harlan was told he was not under
arrest, suggest a reasonable person would have believed he was free to leave.

                                                                          AFFIRMED
