                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           NOV 17 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 14-50317

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00765-PA-1

 v.
                                                 MEMORANDUM*
RIO YOUNG,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                      Argued and Submitted October 22, 2015
                               Pasadena, California

Before: KOZINSKI, IKUTA, and OWENS, Circuit Judges.

      1. Young’s first set of statements made in his home should not be

suppressed because Young was not in “custody” under the meaning of Miranda.

In the context of at-home interrogations, the “benchmark” for determining whether




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
a suspect is in custody is whether the home has become a “police-dominated

atmosphere.” United States v. Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008).

      Young’s home had not become a police-dominated atmosphere. Although

the fact that many officers forcefully entered Young’s residence at 6 a.m weighs in

favor of finding custody, the totality of the circumstances demonstrates that Young

was not in custody. Unlike in Craighead, where a detective had his back to the

closed door and blocking the suspect’s only route out of the storage room, id. at

1086, Young was not similarly restrained. The district court found that the door

connecting the garage to the main portion of the house remained open and

unblocked during the entire interview. Additionally, unlike in Craighead, a

reasonable person in Young’s position would not have felt that he was being

isolated from those who could provide moral support. See id. at 1087. Young was

not moved to the garage to isolate him, but because the rest of the house was too

cluttered to arrange three chairs in one area. Moreover, unlike in Craighead, 539

F.3d at 1087, United States v. Kim, 292 F.3d 969, 971, 977 (9th Cir. 2002), and

United States v. Beraun-Panez, 812 F.2d 578, 581-82 (9th Cir. 1987), where the

police unilaterally imposed the isolation between the suspect and those who could

have provided support, Young voluntarily agreed to be interviewed separately from

his mother.


                                          2
      It is also significant that Young was told at least twice, including once at the

outset of the interview, that he was not under arrest and that he was free to leave.

See Craighead, 539 F.3d at 1087. Here, the recording confirms that a reasonable

person in Young’s position would have understood he could take advantage of

these admonitions. The tone of the interview was non-confrontational, and the

district court found that Young was not frightened or intimidated. See United

States v. Bassignani, 575 F.3d 879, 884-85 (9th Cir. 2009) (relying on a recording

to determine that the interview was conducted in an “open, friendly tone,” and the

suspect “participated actively”).

      Because a reasonable person in Young’s position would have felt free to

terminate the interview and leave the garage, the district court correctly denied

Young’s motion to suppress his at-home statements.

      2. Young’s first set of statements were also voluntary. Based on the

“totality of the circumstances,” Young’s will was not “overborne” by the agents.

United States v. Jenkins, 938 F.2d 934, 938 (9th Cir. 1991). Young was an

intelligent 20-year-old adult who was attending community college and was

knowledgeable about computers. See United States v. Preston, 751 F.3d 1008,

1009, 1020 (9th Cir. 2014) (en banc) (finding age and intellectual ability of suspect

important in voluntariness determination). He was responsive throughout the


                                           3
interview. See Doody v. Ryan, 649 F.3d 986, 994, 1011 (9th Cir. 2011). Although

the initial entry into the house was forceful, all agents kept their weapons holstered

and did not physically touch Young again after the protective sweep was complete.

Additionally, they did not attempt to intimidate or threaten him. There was

therefore no “implicit threat of . . . repetition” of any prior physical contact.

Jenkins, 938 F.2d at 940. Because the district court properly determined that

Young’s statements were voluntary, it properly denied Young’s motion to suppress

his second set of statements. See Oregon v. Elstad, 470 U.S. 298, 314 (1985).

      3. Nor did Missouri v. Seibert, 542 U.S. 600 (2004), require the district

court to suppress the second set of statements. A subsequent administration of

Miranda warnings will not “remove the conditions that preclude[] admission of

[an] earlier statement,” Elstad, 470 U.S. at 314, if a “two-step interrogation

technique was used in a calculated way to undermine the Miranda warnings,”

Seibert, 542 U.S. at 622 (Kennedy, J., concurring). As the facts here bear no

similarity to the two-step interrogation process found impermissible in Seibert, the

district court did not err in denying Young’s motion to suppress the statements

made subsequent to the polygraph examination.

      AFFIRMED.




                                            4
