 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 15, 2015                Decided March 4, 2016

                         No. 15-3003

                UNITED STATES OF AMERICA,
                       APPELLANT

                               v.

                 JOSEPH DANIEL HALLFORD,
                         APPELLEE


         Appeal from the United States District Court
                 for the District of Columbia
                    (No. 1:13-cr-00335-1)


     David P. Saybolt, Assistant U.S. Attorney, argued the cause
for appellant. With him on the briefs were Ronald C. Machen,
Jr., U.S. Attorney at the time the brief was filed, Elizabeth
Trosman, Elizabeth H. Danello, and Michael J. Friedman,
Assistant U.S. Attorneys.

    Jonathan S. Jeffress, Assistant Federal Public Defender,
argued the cause for appellee. With him on the brief was A.J.
Kramer, Federal Public Defender.

   Before: BROWN and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
                               2

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

    Opinion dissenting in part and concurring in part filed by
Circuit Judge WILKINS.

     RANDOLPH, Senior Circuit Judge: A federal grand jury
indicted Joseph D. Hallford for firearms offenses. The United
States appeals the district court’s order, issued after an
evidentiary hearing, suppressing Hallford’s statements to agents
of the United States Secret Service, and barring the government
from introducing items – loaded firearms, an incendiary device,
a bullet-proof vest, military grade ammunition and other objects
– recovered from the car he illegally parked near the National
Mall.

    There are two basic questions. Did the seizure and search
of Hallford’s car result from a violation of Hallford’s rights
under the Fifth Amendment Due Process Clause? And was
Hallford in custody within the meaning of Miranda v. Arizona,
384 U.S. 436 (1966), when the agents interviewed him without
giving Miranda warnings, thus rendering his statements
inadmissible?

                               I.

     Hallford left Alabama in his father’s car and drove
overnight to the District of Columbia so that he could be on the
Mall the next afternoon, November 5, 2013, for the “Million
Mask March,” which turned out to be neither a march nor a
million (Hallford estimated that about 100 people attended).
The participants gathered in front of the White House wearing
“Guy Fawkes” masks. Hallford, then 32 years old, arrived at the
gathering wearing such a mask and confronted officers of the
Secret Service, opening his coat to show that he was unarmed,
                                3

and demanding “Shoot me! Shoot me!” There is no evidence
the officers responded to his provocation.

     Later that day, Park Service Rangers encountered Hallford
at the Korean War Memorial, near the Lincoln Memorial. One
of the Park Rangers filled out a “sick person” report stating that
Hallford complained about missing his medication for
hemophilia, that he appeared weak and disoriented, that he had
driven to Washington from Alabama, and that he could not
remember where he had parked his car. Park Rangers called an
ambulance for him but when it arrived Hallford refused to get in,
“stating that he had been in this condition before and would be
alright.” Instead, Hallford took a cab to find his car and, when
he failed to locate it, he had the driver take him to the
emergency room at George Washington Hospital.

     At the hospital, Hallford complained of bleeding as a result
of his hemophilia. He stated that he had driven to the District
from Alabama to participate in the “Million Mask March.” He
told staff members that “he wanted to be shot by the Secret
Service . . . so his parents could own the agency.” He threatened
to “bash the doctor’s head in” if the doctor did not give him pain
medication. He said that if he “didn’t have kids, [he] would
have already killed [him]self.” He also stated that “I would
rather not kill people, I would rather they suffer.” He said that
he wanted to “hurt the government.” Hospital personnel,
understandably concerned about his remarks, decided to transfer
Hallford to United Medical Center for an “involuntary psych
evaluation.” See D.C. CODE §§ 21-521 to -522. A doctor
explained to Hallford the “rationale and need for involuntary
admission.” In the meantime, a member of the hospital’s
security staff called the Secret Service Operations Center to
report that a man named Joseph Hallford had come to the
emergency room, that he was in physical pain and possibly
mentally disturbed, that he said he wanted the Secret Service to
                               4

shoot him, that although he was unpredictable he tended to be
“very calm,” and that he was scheduled to be transferred to
another facility, the United Medical Center, an agency of the
D.C. government, for an “involuntary psych evaluation.”

     The next day, November 6, around 3 p.m., the hospital
transferred Hallford to United Medical Center, a more secure
facility than George Washington Hospital. Before Hallford left,
hospital staff gave him pain medication and a while later he
reported that the pain in his leg had subsided. Also, one of the
nurses again explained to him the civil commitment order and
why it had been issued. Hallford “expressed understanding”
about the reasons for his temporary commitment.

     Hallford’s car – parked in the vicinity of the Lincoln
Memorial – had been attracting the attention of the Park Service.
An officer ticketed the car on November 5 for being illegally
parked. The next morning, November 6, another Park Service
officer placed an “abandoned vehicle” tag on the car,
designating it to be towed. Later that day, still another officer
ticketed the car again for a parking violation.

    While Hallford was in transit to United Medical Center,
Secret Service agents Brian Fox and John Maher arrived at
George Washington Hospital to interview him. The agents were
members of a “protective intelligence squad” charged with
investigating unusual interest in Secret Service “protectees” –
such as the President and Vice President. Agent Fox had
conducted some 200 interviews, about half of which were of
people who had “mental health issues.” After learning that
Hallford had already been transferred, the agents remained at
George Washington Hospital to ask staff members about
Hallford’s statements, his behavior, and his medical condition.
The agents then drove to United Medical Center. After they
                               5

arrived they joined Hallford and several medical staff members.
The group then proceeded to a doctor’s lounge.

     Hallford took a seat at a table. The agents explained to him
that they were not there to arrest him and that he was not “in
trouble.” Before proceeding, the agents asked if they could
“speak to [him] about those statements” he made at George
Washington Hospital. Hallford said “yes.” (Agent Fox testified
that if Hallford had said “No” they would have left.) The agents
began the interview with general biographical questions, asking
Hallford for his address, date of birth, his marital status and
other personal information. Hallford told them he had been
arrested in Alabama for writing bad checks, that he had been
involuntarily committed before, and that he had abused
prescription drugs. The agents asked him about his statements
at George Washington Hospital. Hallford recounted what had
happened over the past two days and explained that he was
suffering from the effects of his hemophilia.

     When the agents were satisfied that Hallford posed no threat
to any Secret Service protectee, they wound down the interview
with several routine questions from the Secret Service interview
form. One of the questions was whether Hallford owned
firearms. In response, Hallford said he had a .45 caliber
handgun, a 12-gauge shotgun, and two .22 caliber rifles. When
the agents asked where he had these firearms, Hallford said they
were in his home in Alabama. When they asked where in his
home, Hallford considered the question for a moment, possibly
up to a minute, and then admitted that the firearms were in the
car he had driven to the District of Columbia. Saying nothing,
Agent Fox stood up and walked out to make a telephone call.
While he was doing so, Hallford volunteered to Agent Maher
that “there was other stuff in the vehicle that would look bad,”
such as a container of gasoline, bottles of propane and a
Molotov cocktail, or the makings of one. Hallford added that he
                                   6

kept the firearms for self-defense. The agents asked Hallford for
permission to search the car when, and if, they found it and to
review his medical records. Hallford refused both requests. The
agents then ended the interview.

     The interview lasted less than an hour. At the suppression
hearing, Agent Fox testified that during the interview Hallford
“was calm. He was controlled. He was generally nice at times.
He smiled. He – he, you know, made a few jokes here and
there.” Hallford was not handcuffed. He was not physically
restrained. When he mentioned that he had not eaten in days,1
a member of the hospital staff offered him chocolate. The
agents wore casual clothes, spoke in conversational tones, and
did not display their badges or weapons. They did not give
Hallford the standard Miranda warnings. They did not tell him
he was free to end the interview. The door to the doctor’s
lounge was frequently open. Doctors and hospital staff
members came and went during the interview. Outside the
lounge, the hallway doors were operated with key cards.

    Later that evening, police located Hallford’s car on Ohio
Drive just south of Independence Avenue near the Lincoln
Memorial. The police searched the car and discovered
Hallford’s medication; a .45 caliber semi-automatic pistol; two
.22 caliber rifles; a 12-gauge shotgun; copious rounds of
ammunition, some of military grade; a bottle containing
matches, Q-tips coated with a black substance, an assortment of

     1
       It is unclear if Hallford had eaten nothing before his interview.
The staff at George Washington Hospital reported that “Hallford ate
some, but not all, of the hospital-supplied meals . . . on November 5
and 6.” Hallford admitted that he was offered food but claims that he
refused it. He also claimed that he had not slept on the evening of
November 5 while he was at George Washington Hospital. However,
the hospital records indicated that he had periods of uninterrupted
sleep.
                                  7

metal pieces, a live round of ammunition and a rag protruding
from the bottle’s top; a five gallon cannister containing gasoline;
and a bulletproof vest. The firearms were loaded and operable.
Later investigation disclosed that Hallford purchased them a
month earlier. The firearms were not registered in the District
of Columbia.

    The next day, November 7, Dr. Dierich Kaiser, a United
Medical Center psychiatrist, evaluated and treated Hallford. Dr.
Kaiser diagnosed Hallford as having “schizoaffective disorder”2
based on Hallford’s unstable mood changes, paranoid delusions,
and self-destructive behavior. Dr. Kaiser prescribed various
medications and extended Hallford’s commitment. See D.C.
CODE §§ 21-522 to -523.

     Based on Hallford’s statements and the items found in the
car, a judge issued an arrest warrant for him on November 8 and
police arrested him at United Medical Center.3 Local police
informed him of his Miranda rights, which he refused to waive.

     2
         See American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 105-10 (5th ed. 2013).
     3
      A Detention Memorandum by a magistrate judge indicated that
the government “obtained a search warrant for [Hallford’s] cell phone,
which contained pictures of an individual posing wearing a Guy
Fawkes mask with several firearms – including some of the weapons
recovered from [Hallford’s car]. The phone also contained a picture
of another individual in a Guy Fawkes mask photoshopped as looking
in the window of the Oval Office at President Obama with the text
‘05th November soon.’”

     The magistrate judge concluded that Hallford “was prepared to
engage in violence, and the fact that he ultimately did not do so is
insufficient, given the level of planning and apparent focus on death,
to convince me that he does not pose a danger to the community.
Indeed, I am concerned that he may pose a threat to the President.”
                                   8

A federal grand jury indicted him for two violations of federal
law and ten violations of District of Columbia law involving
unlawful possession and interstate transportation of unregistered
firearms, ammunition, and a destructive device. See 26 U.S.C.
§§ 5861(d), 5841, 5845(f), 5871; 18 U.S.C. §§ 922(a)(4),
924(a)(1)(B); D.C. CODE § 22-4504(a)(1), (a-1); D.C. CODE § 7-
2502.01(a); D.C. CODE § 7-2506.01.

     Hallford moved to suppress his statements to Agents Fox
and Maher. He claimed that his statements “were made
involuntarily and in violation of Miranda.” He further argued
that, because his statements were involuntary, the physical
evidence found in his car “must be suppressed as fruit of the
poisonous tree.” In June 2014, the court held an evidentiary
hearing on the suppression motion. On December 16, 2014, the
district court granted Hallford’s motion to suppress both his
statements and the physical evidence. In an oral bench ruling,
the court found that the Secret Service agents violated Hallford’s
Miranda rights and that his statements were involuntary.4 Two


     4
       The court issued a written opinion on May 6, 2015, repeating its
oral findings and conclusions with a few embellishments. See United
States v. Hallford, 103 F. Supp. 3d 1 (D.D.C. 2015). The government
asks us to disregard the court’s written opinion because it was handed
down four months after the government noted its appeal and two
months after the government filed its opening brief in this court. The
filing of a non-frivolous notice of appeal divests the district court of
jurisdiction “over those aspects of the case involved in the appeal.”
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)
(per curiam); see United States v. DeFries, 129 F.3d 1293, 1302 (D.C.
Cir. 1997) (per curiam). Some courts of appeals have made
exceptions to this rule, see, e.g., In re Mosley, 494 F.3d 1320, 1328
(11th Cir. 2007); In re Silberkraus, 336 F.3d 864, 869 (9th Cir. 2003),
but none of them fit a case in which the written opinion is issued
months after the appellant has filed its brief on appeal, as occurred
here and in United States v. Martin, 520 F.3d 87, 97-98 (1st Cir.
                                    9

days later, the court ordered Hallford – who was then in the D.C.
jail (see note 3 supra) – released on his own recognizance on
condition that he remain in Alabama pending any appeal the
government might bring.

                                   II.

    Before we get to the question whether Miranda required
suppression of Hallford’s statements to the Secret Service
agents, we will discuss whether the district court should have
suppressed the physical evidence found in Hallford’s car.
Hallford’s statements to the agents add very little to the
government’s case.5 The physical evidence is far more
significant. And the government has informed us that the
prosecution could proceed without Hallford’s statements if the
items seized from the car are admissible. Appellant Br. at 24
n.15.




2008). We therefore will disregard the written opinion, which adds
little to the district court’s oral explanation. Still, we do not entirely
foreclose the possibility that in some future case other circumstances
may warrant consideration of a district court’s post-appeal opinion.
     5
       In a memorandum opposing Hallford’s suppression motion, the
government relied on Nix v. Williams, 467 U.S. 431, 448 (1984), to
argue that it would inevitably have discovered the car and its contents
even if Hallford had not made his statements to the agents: the car in
fact had already been discovered (by the Park Service); it had been
ticketed twice and was designated for towing; and once a car is
impounded, an inventory search is undertaken of the passenger
compartment and the trunk. At the suppression hearing, however, the
government declined to submit evidence in support of its inevitable
discovery argument and the parties apparently treated the issue as “off
the table.”
                                  10

     The Supreme Court, adopting a position Judge Friendly
advocated long ago,6 has determined that the fruit-of-the-
poisonous-tree doctrine, see Wong Sun v. United States, 371
U.S. 471, 484-87 (1963), does not apply to statements taken in
violation of the Miranda rules. See Oregon v. Elstad, 470 U.S.
298, 304-09 (1985); United States v. Patane, 542 U.S. 630, 634
(2004) (Thomas, J., joined by Roberts, C.J., and Scalia, J.); id.
at 644-45 (opinion of Kennedy, J., joined by O’Connor, J.,
concurring in the judgment). As Justice Thomas explained in
Patane, 542 U.S. at 636, “the Miranda rule is a prophylactic
employed to protect against violations of the Self-Incrimination
Clause. The Self-Incrimination Clause, however, is not
implicated by the admission into evidence of the physical fruit
of a voluntary statement. Accordingly, there is no justification
for extending the Miranda rule to this context.”7 It follows that
unless the agents, in violation of the Due Process Clause,
coerced Hallford into stating that his car contained a Molotov
cocktail and firearms (which may have accelerated the seizure
of the car and its contents), the items found in the car were
admissible. See Chavez v. Martinez, 538 U.S. 760, 769 (2003)
(plurality opinion).8




     6
     See HENRY J. FRIENDLY, A Postscript on Miranda, in
BENCHMARKS 266, 279-82 (1967).
     7
        The Fifth Amendment’s privilege against self-incrimination
states that “No person . . . shall be compelled in any criminal case to
be a witness against himself . . ..” U.S. CONST. amend. V.
     8
       The plurality opinion in Patane, 542 U.S. at 640, quoted this
statement from Chavez (538 U.S. at 769): “those subjected to coercive
police interrogation have an automatic protection from the use of their
involuntary statements (or evidence derived from their statements) in
any subsequent criminal trial.”
                                    11

     In determining whether the agents coerced Hallford into
making these incriminating statements, a court must consider
“the characteristics of the accused and the details of the
interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973).9 The ultimate question is whether Hallford’s “will” was
“overborne and his capacity for self-determination critically
impaired” as a result of the agents’ conduct. Id. at 225-26
(quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)).
The district court’s determination that the agents violated
Hallford’s Due Process rights rested on three critical findings of
fact. The government argues that each of these findings
constituted clear error. See United States v. Reed, 522 F.3d 354,
358 (D.C. Cir. 2008).

     The first of these findings was, in the words of the district
court, that Hallford “was summoned by agents for an interview,
not asked if he would submit to an interview.” The record
shows otherwise. Before beginning the interview, Agent Fox
asked Hallford, “can we speak to you about [your] statements .
. .?” Hallford said “yes.” Hallford defends the district court’s
finding on the ground that his agreeing to let the agents “speak
to” him did not mean he consented to speak to them. Appellee
Br. at 31. This is clever but not cogent. Hallford must have
understood the agents to be requesting his permission to engage
in a conversation. Not only did the agents tell him they wanted
to “find out” about his statements, but also Hallford answered

     9
       We hesitate to put this in terms of the “totality of the
circumstances,” a phrase that appears in some opinions dealing with
the sort of issues confronting us in this case. Sometimes these
opinions treat the “totality” phrase as if it were a “test,” which it is not.
The phrase itself is “non-descriptive.” United States v. Prandy-Binet,
5 F.3d 558, 559 (D.C. Cir. 1993) (on pet. for reh’g). It tells us nothing
about which circumstances are even relevant (surely, not all
circumstances matter), and it reveals nothing about the probative value
of any particular circumstance.
                                12

their questions. There was no evidence that the agents were
coercive or overbearing in asking his permission. The district
court’s finding was clearly erroneous.

     The district court also found that the agents “did not know
and hadn’t even tried to find out [Hallford’s] mental and
physical well-being, notwithstanding the fact that they knew he
was suffering from a mental disorder, extreme anxiety, and
serious physical ailments.” The court added that the agents
“didn’t even attempt to appreciate the nature of his hemophilic
condition” and the “severe pain” he was experiencing. There is
evidence that Hallford was in pain when he took himself to the
George Washington Hospital emergency room on November 5,
but there is no evidence supporting the district court’s apparent
assumption that Hallford was still in pain, severe or otherwise,
by the time the agents interviewed him on the afternoon of
November 6 at United Medical Center. Before he was
transferred, staff at George Washington Hospital administered
pain medicine to him; thereafter, Hallford told the doctors and
nurses that the pain in his leg had subsided. So what evidentiary
support is there for the district court’s conclusion that the agents
failed to “appreciate” Hallford’s pain during the interview? We
see none. During his interview Hallford said nothing and
exhibited nothing that would support the court’s finding. All
indications are to the contrary. As to the court’s finding that the
agents were remiss in attempting to learn about Hallford’s
condition, there is abundant evidence to the contrary. The
agents did, in fact, ask and learn numerous details about
Hallford’s condition. After discovering that he had already been
transferred to United Medical Center, the agents stayed at
George Washington Hospital to ask staff members about
Hallford. The agents learned that when he arrived at the
emergency room his leg was bleeding, that he suffered from a
blood disorder, that he had abused antidepressants, that he had
expressed paranoid delusions about the government, and that the
                                    13

hospital staff determined that he should be involuntarily
committed because he appeared to pose a “danger to [himself]
or others . . ..”10 Later, at United Medical Center, the agents
observed Hallford's condition first hand. Far from “not
know[ing]” or “tr[ying] to find out [Hallford’s] mental and
physical well-being,” the agents diligently inquired into, and
learned a great deal about, both. The district court clearly erred
in its finding of fact.

     Third, the district court found that the agents deceived
Hallford and “snooker[ed him] into an admission of gun
possession . . ..” Significant police deception may bear on
whether a statement or confession has been coerced, see Lynumn
v. Illinois, 372 U.S. 528, 534 (1963), but the agents here
engaged in neither deception nor trickery. When they began the
interview, the agents asked Hallford if he would answer
questions “about [his] statements” to the staff at George
Washington Hospital and “in reference to [those] statements . .
..” As the interview concluded, the agents followed Secret
Service protocol, asking generic questions they ask every
interviewee. One of the questions was about Hallford’s
ownership of firearms. This amounted to deception, according
to the district court. We do not see why. If the agents already
knew, or even just suspected, that Hallford’s car contained
firearms, there is no explaining why they did not put out an alert
to find his car before their interview even began. But there is no

     10
         District of Columbia law permits a “physician or qualified
psychologist . . . who has reason to believe that a person is mentally
ill and, because of the illness, is likely to injure himself or others if he
is not immediately detained,” to, “without a warrant, take the person
into custody, transport him to a public or private hospital . . . and make
application for his admission thereto for purposes of emergency
observation and diagnosis” for up to 48 hours. D.C. CODE § 21-521.
Detention may be extended for up to an additional seven days by court
order. See id. at § 21-522 to -523.
                                  14

evidence whatsoever that the agents believed, or had any reason
to believe, that Hallford owned firearms, much less that he had
any with him in the District. There is no evidentiary basis for
the district court’s clearly erroneous finding of deception and
trickery.

     With these findings corrected, we cannot accept the district
court’s conclusion that Hallford’s statements about the items in
his car resulted from a “substantial element of coercive police
conduct.” Colorado v. Connelly, 479 U.S. 157, 164 (1986).
Hallford agreed to the interview. The agents did not pressure
him to do so in any way. The interview lasted less than an hour.
The setting was not, as in Miranda for example, see 384 U.S. at
448-58, in a police-dominated atmosphere. The agents asked
straightforward questions in conversational tones, the hospital
staff offered him food, and, in general, the agents “treat[ed] him
nicely,” according to a defense-retained psychiatrist who
evaluated Hallford six months later. See United States v.
Hughes, 640 F.3d 428, 438 (1st Cir. 2011). The agents made no
threats or promises to Hallford and he was deprived of no
essentials. See Culombe, 367 U.S. at 602. The district court
mentioned that “the agents never did anything to dispel
[Hallford’s] belief . . . that the interview was required, and that
if he was going to leave that hospital, he would need their
blessing.” This of course assumes that Hallford had such a
belief, which the district court said may be “true or not.”11
Nothing the agents did or said would have caused Hallford to
entertain such a belief, if in fact he entertained it. And nothing
Hallford did or said suggested to the agents that he was thinking

     11
        Dr. John S. O’Brien II, a psychiatrist the defense retained to
evaluate Hallford six months after the interview, testified that in his
“opinion” Hallford thought the agents “were his ticket out [of United
Medical Center].” One wonders how this statement qualifies as a
medical diagnosis or a medical opinion. As stated in the text, the
district court did not accept Dr. O’Brien’s opinion as fact.
                                  15

they were his ticket out of the hospital.12 The agents were
generally aware of Hallford’s physical and mental condition
before they interviewed him. The district court stated that
Hallford arrived at George Washington Hospital in “severe
pain” but neglected to mention that there was no evidence he
was still in pain when the agents interviewed him a day later.
Hallford did have psychiatric problems. Even so, “a defendant’s
mental condition, by itself and apart from its relation to official
coercion,” cannot “dispose of the inquiry into constitutional
‘voluntariness.’” Connelly, 479 U.S. at 164. The federal
charges in this case related to the Molotov cocktail found in the
car, yet Hallford’s statement to the agents about this was
unsolicited. That is, Hallford volunteered the information when
no question was pending. And there is strong evidence that
Hallford’s will was not “overborne.” Schneckloth, 412 U.S. at
226. As the interview concluded, Hallford refused the agents’
request that he consent to a search of the car and he refused to
permit the agents to examine his medical records.

     In short, we believe the government carried its burden of
proving by a preponderance of the evidence that Hallford’s
statements were voluntary within the meaning of the Due
Process Clause. See Lego v. Twomey, 404 U.S. 477, 489 (1972).

     12
        All indications are that Hallford “perceive[d] this detention as
imposed only for purposes of a medical examination, not a police
interrogation.” Wilson v. Coon, 808 F.2d 688, 690 (8th Cir. 1987); see
also United States v. Jamison, 509 F.3d 623, 629-32 (4th Cir. 2007).
It was the decision of the George Washington medical staff to commit
him. A doctor, and later a nurse, explained this to him. He said he
understood. He was transported from George Washington Hospital to
United Medical Center by medical staff in an ambulance. In these
circumstances, it is hard to see why during the interview Hallford
would have had “reason to think that the listeners have official power
over him . . ..” Howes v. Fields, 132 S. Ct. 1181, 1191 (2012)
(quoting Illinois v. Perkins, 496 U.S. 292, 297 (1990)).
                               16

It follows that the district court erred in suppressing physical
evidence derived from his statements.

                               IV.

      This brings us to the district court’s finding that Hallford
was “in [Miranda] custody” when the agents interviewed him.
Because we have rejected the critical factual underpinnings for
the district court’s Miranda finding, we do not believe the
record is sufficient for us to decide the issue. Determining
“whether a defendant was in custody for purposes of Miranda”
is a “fact intensive” inquiry. United States v. Bautista, 145 F.3d
1140, 1146 (10th Cir. 1998); see Thompson v. Keohane, 516
U.S. 99, 118 (1995) (Thomas, J., dissenting) (“The Miranda
custody inquiry . . . requires . . . any number of fact-intensive,
close calls.” (internal quotation marks omitted)). Rather than
attempting to weigh the evidence, we remand the case to the
district court to determine whether Hallford was in Miranda
custody. See, e.g., United States v. Chase, 179 F. App’x 57, 58
(D.C. Cir. 2006) (remanding to consider whether a “[Miranda]
interrogation took place”).

     The district court found that Hallford was “not asked if he
would submit to an interview” and then focused on the
conditions of Hallford’s involuntary commitment to conclude
that his “freedom of movement” was sufficiently “restrain[ed]”
to implicate Miranda. See Howes v. Fields, 132 S. Ct. 1181,
1189 (2012). As to the court’s factual finding, we have already
held that it was clearly erroneous. As to Hallford’s involuntary
commitment, this was “simply the first step in the analysis, not
the last.” Id. Not all mandatory hospitalizations are tantamount
to Miranda custody. See, e.g., Reinert v. Larkins, 379 F.3d 76,
86 (3d Cir. 2004) (holding that a suspect was not in custody
even though he was interrogated in an ambulance and was
“never told that he was free to leave or free not to answer
                                17

questions”); United States v. Martin, 781 F.2d 671, 673 (9th Cir.
1985) (holding that a suspect was not in custody even though
“questioning . . . took place at the hospital” and he was “not free
to leave”). Indeed, “not all police questioning is coercive,” and
in many interrogations “there will be nothing that could fairly be
called compulsion . . ..” HENRY FRIENDLY, A Postscript on
Miranda, in BENCHMARKS at 274. On remand, the district court
should take care to answer “the additional question whether the
relevant environment present[ed] the same inherently coercive
pressures as the type of station house questioning at issue in
Miranda.” Howes, 132 S. Ct. at 1190.

                                V.

     Accordingly, the district court’s judgment suppressing the
physical evidence found in the car Hallford drove to the District
is reversed and case is remanded for the district court to
reconsider Miranda’s applicability.

                                                      So ordered.
     WILKINS, Circuit Judge, dissenting in part and concurring
in part: I must depart from the Court’s opinion concluding
that three of the District Court’s factual findings were clearly
erroneous, but I agree that the Government has proven that
Hallford’s statements were voluntary under the Fifth
Amendment’s Due Process Clause.

     The Court’s opinion ably lays out the sequence of events
that led to Hallford’s interaction with Secret Service Agents
Fox and Maher (collectively “the agents”), and I need not
repeat that background here. However, the Court’s focus
solely on the evidence that undermines the District Court’s
factual findings represents, in my respectful view, its failure
to adhere to the deferential standard of review we employ
when evaluating a District Court’s factual findings. After all,

       A trial court’s findings of fact are entitled to a
       presumption that they are correct, and we will
       displace them only if (1) the findings are
       “without substantial evidentiary support or . . .
       induced by an erroneous application of the
       law”; or if (2) “on the entire evidence [we are]
       left with the definite and firm conviction that a
       mistake has been committed.”

United States v. Dillon, 738 F.3d 284, 297 (D.C. Cir. 2013)
(alteration in original) (quoting Cuddy v. Cameron, 762 F.2d
119, 124 (D.C. Cir. 1985)). Accordingly, “we may not
reverse a trial court’s factual findings ‘even though convinced
that had [we] been sitting as the trier of fact, [we] would have
weighed the evidence differently.’” Barhoumi v. Obama, 609
F.3d 416, 423 (D.C. Cir. 2010) (quoting Anderson v.
Bessemer City, 470 U.S. 564, 574 (1985)). “In evaluating a
challenge to a district court’s factual findings, ‘we do not
weigh each piece of evidence in isolation, but consider all of
the evidence taken as a whole.’” Id. at 424 (quoting Awad v.
Obama, 608 F.3d 1, 7 (D.C. Cir. 2010)). Considering this
                                  2
deferential standard of review, I cannot conclude that the
District Court clearly erred in finding that the agents
summoned Hallford for an interview, that the agents used
deception in conducting their interview, or that the agents did
not dispel Hallford’s belief that the interview was necessary
for his release. 1

     Take, for instance, the District Court’s finding that
Hallford “was summoned by agents for an interview, not
asked if he would submit to an interview.” A. 685.2
Considering all the evidence, taken as a whole, the District
Court’s finding is not clearly erroneous. The majority relies
on Agent Fox’s asking Hallford if the agents could speak to
him about statements he made at George Washington Hospital
(“GW”). Maj. Op. at 12. However, Agent Fox’s testimony
also reveals that although United Medical Center (“UMC”)
personnel escorted Hallford to the interview, the personnel
did so only upon the agents’ request:

        Q. What did you do when you got to United
        Medical?
        A. We parked out front. We walked in, again,
        to the visitors’ lounge, to the check-in desk,
        and identified ourselves to the clerk at the
        desk.
        Q. What happened?
        A. We identified ourselves. We explained why
        we were there. And they reached out to the
        security department.
1
  I concur with my colleagues that the District Court clearly erred in
finding that the agents did not ascertain Hallford’s physical
condition for the reasons stated in the majority opinion. See Maj.
Op. at 12-13.
2
  The use of “A.” throughout this opinion indicates citation to the
Appendix for Appellant.
                               3
       Q. Did you ask to interview Mr. Hallford?
       A. Yes.
       Q. And did they indicate in any way that they
       were going to try to make that happen?
       A. They told us that they would reach out to
       the security department and -- and that if we
       just waited there, that they would -- someone
       would be there to assist us.

A.196. Thereafter, UMC security officers escorted the agents
to a secure area of the fourth floor of the hospital where they
subsequently entered a hallway. Agent Fox explained their
entry in this manner: “We went into the hallway and, as we
went into the hallway, there was an open door in front of us,
and a hospital staff person was standing there, and then in
walked two or three hospital staff, along with Mr. Hallford.”
A. 197.       The hallway was not patient accessible.
Furthermore, Agent Fox’s testimony suggests that UMC
personnel deferred to the agents because “[t]hey just looked at
[the agents] and said . . . do you want to go in this room right
here? And [the agents] just followed. [The agents] said,
okay.” A. 197. Agent Fox was the last person to enter the
interview room. There was no evidence regarding what
language the UMC personnel used in escorting Hallford to the
interview. Finally, Agent Fox never informed Hallford that
he was free to leave or that he was free to terminate the
interview. Taking all this evidence as a whole, I am not left
with the “definite and firm conviction” that the District Court
erred in concluding that the agents summoned Hallford for an
interview. Dillon, 738 F.3d at 297 (quoting Cuddy, 762 F.2d
at 124).

    The District Court also found that Hallford “fell into [the
agents’] trap,” A. 688, and that the agents “effectively
snooker[ed] [him] into an admission of gun possession in the
                               4
District of Columbia, after satisfying themselves that he was
no threat to anyone protected by the US Secret Service or any
of its employees,” A. 692. The District Court concluded that
the questions were “calculated to possibly result in a self-
incriminating admission about gun ownership and the
whereabouts of those guns.” A. 688.

    Agent Fox testified that the agents asked Hallford if they
could speak to him about the statements he made while at
GW. The agents planned their questioning around a use of a
standard form that touched on information of interest to the
agents, including weapon ownership. As a result, near the
end of the interview, the agents asked Hallford if he owned
any weapons. The agents’ reliance on a standard form
suggests that they knew in advance that they would ask
questions of Hallford about topics other than the statements
Hallford made at GW. Accordingly, there is substantial
evidence to support the District Court’s finding that the agents
used deception in questioning Hallford.

     Additionally, the District Court also found there was “no
question that the agents never did anything to dispel any
belief on [Hallford’s] part that the interview was required, and
that if he was going to leave that hospital, he would need their
blessing.” A. 690. The majority appears to implicitly reject
this finding by dismissing its import, relying on the District
Court’s equivocation about whether Hallford actually
possessed this belief. See Maj. Op. at 15. However, the
District Court heard testimony from Dr. John O’Brien, who
was tendered without objection as an expert in the field of
forensic psychiatry, and his expert report was admitted by the
court. Dr. O’Brien testified that Hallford “was an individual
who perceived that the Secret Service would help him get out
of the hospital. Obviously he wanted to leave the next day
himself.” A. 482. Dr. O’Brien also testified that Hallford
                               5
“was significantly vulnerable to being seduced into speaking
with him thinking that they were his ticket out,” particularly
in light of “the recurrently and consistently documented
psychiatric symptoms he was exhibiting, his physically
debilitated state and the fact that he had not yet been afforded
appropriate psychiatric treatment.” A. 482-83. Nothing in the
record disputes Dr. O’Brien’s conclusion. The government
did not object to Dr. O’Brien’s testimony at the time it was
proffered, nor does the Government challenge whether
Hallford possessed this belief. There is no evidence in the
record that the agents did anything to dispel such a belief.
Given the evidence as a whole, and the lack of any challenge
by the Government, I cannot conclude that the District
Court’s finding is clearly erroneous.

     Despite my conclusion that three of the District Court’s
findings were not clearly erroneous, I agree with the Court
that Hallford’s statements were voluntary.         Whether a
confession is voluntary is a legal question we review de novo.
United States v. Reed, 522 F.3d 354, 358 (D.C. Cir. 2008).
The Government must prove that Hallford’s confession was
voluntary by a preponderance of the evidence. Lego v.
Twomey, 404 U.S. 477, 489 (1972). Although this is a close
case, I believe the Government has done so here.

     “A confession is inadmissible as a matter of due process
if under the totality of the circumstances it was involuntarily
obtained . . . .” Reed, 522 F.3d at 358-59 (quoting United
States v. Bradshaw, 935 F.2d 295, 299 (D.C. Cir. 1991)).
“Voluntariness turns on whether the ‘defendant’s will was
overborne’ when he gave his statement, and the test for this is
whether the statement was a ‘product of an essentially free
and unconstrained choice by its maker.’” United States v.
Murdock, 667 F.3d 1302, 1305 (D.C. Cir. 2012) (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);
                               6
Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). A
defendant’s mental condition is a relevant factor in
determining whether a confession was voluntary, but “this
fact does not justify a conclusion that a defendant’s mental
condition, by itself and apart from its relation to official
coercion, should ever dispose of the inquiry into
constitutional ‘voluntariness.’” Colorado v. Connelly, 479
U.S. 157, 164 (1986). Accordingly, “coercive police activity
is a necessary predicate to the finding that a confession is not
‘voluntary.’” Id. at 167. Coercive activity includes “trickery,
psychological pressure, or mistreatment.”          Withrow v.
Williams, 507 U.S. 680, 708 (1993) (O’Connor, J., concurring
in part and dissenting in part). Furthermore, whether Miranda
warnings were given is a relevant factor but “does not . . .
dispense with the voluntariness inquiry.” Dickerson v. United
States, 530 U.S. 428, 444 (2000). “Determination of whether
a statement is involuntary ‘requires more than a mere color-
matching of cases.’ It requires careful evaluation of all the
circumstances of the interrogation.” Mincey v. Arizona, 437
U.S. 385, 401 (1978) (quoting Reck v. Pate, 367 U.S. 433,
442 (1961)). Thus, we must consider “both the characteristics
of the accused and the details of the interrogation.”
Dickerson, 530 U.S. at 434 (quoting Schneckcloth, 412 U.S.
at 226). Relevant factors include “the defendant’s age and
education, the length of detention, whether the defendant was
advised of his rights, and the nature of the questioning.”
Murdock, 667 F.3d at 1305-06 (citing Schneckloth, 412 U.S.
at 226).

    A review of our precedent prevents me from concluding
that Hallford’s statements were involuntary. We have
suggested that “egregious facts [are] necessary to establish
that the statements . . . made during questioning [are]
involuntary.” United States v. Mohammed, 693 F.3d 192, 198
(D.C. Cir. 2012). Statements made where the circumstances
                              7
are less than “egregious” are usually voluntary. For example,
in United States v. Reed, we found a confession voluntary
where the defendant claimed to be suffering withdrawal
symptoms at the time of the interrogation and the police
placed the defendant in a jumpsuit without any underwear.
522 F.3d 354, 358-59 (D.C. Cir. 2008). Likewise, we found a
Miranda waiver voluntary in United States v. Yunis, where
the defendant was questioned over a period of four days,
suffered from seasickness in a “hot and cramped detention
room,” and lacked any familiarity with his Miranda rights
prior to being informed and signing a written waiver. 859
F.2d 953 (D.C. Cir. 1988). In Berghuis v. Thompkins, the
Supreme Court noted that there is nothing “inherently
coercive” about an interrogation that lasts three hours while a
defendant sits in a straight-backed chair to render involuntary
statements given subsequent to a Miranda warning. 560 U.S.
370, 387 (2010).

     Similarly, where the Supreme Court has found statements
involuntary, the circumstances surrounding the interrogation
have been much worse than those here. In Mincey v. Arizona,
the defendant was suffering “unbearable” pain from a gunshot
wound while unable to speak because of a tube in his mouth;
he also could not provide coherent answers to questions, and
he asked for a lawyer repeatedly over the course of a four-
hour interrogation. 437 U.S. at 396-401. In Blackburn v.
Alabama, the defendant endured an eight- to nine-hour
interrogation in a small room surrounded by three police
officers and “was insane and incompetent at the time he
allegedly confessed.” 361 U.S. 199, 204, 207 (1960).
Hallford’s circumstances do not come close to those of
Mincey and Blackburn. Although Hallford was suffering
from mental illness, he was interrogated in the company of
doctors and nurses. His interview lasted less than an hour,
and the agents spoke to Hallford in conversational tones.
                              8
Hallford appeared calm and exhibited no signs of physical or
emotional distress. He provided responsive answers to the
agents’ questions. And the coercive conduct here does not
suggest that the agents “threated or injured [Hallford] during
the interrogation or that he was in any way fearful.”
Berghuis, 560 U.S. at 386.             “Indeed, even where
interrogations of greater duration were held to be improper,
they were accompanied . . . by other facts indicating coercion,
such as an incapacitated and sedated suspect, sleep and food
deprivation, and threats.”       Id. at 387.      While such
circumstances may not be necessary to find a due process
violation, there are no sufficiently analogous circumstances
present here.

     Certainly, the circumstances of this case give me pause,
and although the voluntariness determination is “more than a
mere color-matching of cases,” Mincey, 437 U.S. at 401
(citing Reck, 367 U.S. at 442), precedent must nonetheless
guide our decision-making. This is a problem for Hallford,
because notably absent from his brief are cases where courts
found statements involuntary under sufficiently analogous
facts. While some circumstances here weigh against the
government’s claim that Hallford’s statements were
voluntary, none evoke the kind of egregious conduct or
governmental coercion that has led prior courts to find
statements involuntary. The agents did not inform Hallford of
his Miranda rights, but this failure is not outcome
determinative. See Dickerson, 530 U.S. at 444. Although the
agents misled Hallford about the scope of their questioning,
their misrepresentation was not the type of false promise of
leniency that may render statements involuntary.         See
Murdock, 667 F.3d at 1307. But cf. Colorado v. Spring, 479
U.S. 564, 576-77, 577 n.8 (1987) (reserving the question of
whether an affirmative misrepresentation about the scope of
an interrogation would render a Miranda waiver involuntary).
                                9
The manner in which Hallford was brought to be questioned
is also disconcerting – the hospital staff were acting at the will
of the agents, there is no evidence that the staff asked Hallford
if he wished to meet the agents, and Hallford was suffering
from mental illness – but his mental illness, “by itself and
apart from its relation to official coercion” does not determine
whether his statements were voluntary. Connelly, 479 U.S. at
164. And while Hallford may have believed that the agents
who arrived to question him about his prior statements would
be able to help secure his release if only he would talk to
them, there is no evidence in the record that the agents caused
this belief, only that they benefited from it.

     Finally, and most tellingly, when the agents asked if they
could search Hallford’s car and review his medical records,
Hallford declined. As the government argues, Hallford’s
refusal to consent to these searches undermines any
suggestion that his will was “overborne” at the time he spoke
with the agents. See United States v. Cooper, 499 F.2d 1060,
1064 & n.11 (D.C. Cir. 1974) (concluding statements were
voluntary, in part, because defendant “exercised some of his
rights by refusing to sign [a Miranda waiver] and by
indicating he might decline to answer some questions”); see
also United States v. Khan, 461 F.3d 477, 497 (4th Cir. 2006)
(statements voluntary, in part, because defendant “freely
answered some questions and declined to answer others);
United States v. Graham, 982 F.2d 273, 275 (8th Cir. 1992)
(evidence “not reflective of an overborne will” when
defendant, during a search, “answered some questions” but
“dodged questions about her identity” and “refused officers’
request to search her luggage”); cf. Yunis, 859 F.2d at 963
(noting that courts “look to a defendant’s behavior to
determine the extent of his distress” when determining
whether statements are voluntary). Under the totality of the
circumstances, and in light of this precedent, I conclude that
                             10
the Government has met its burden to prove that Hallford’s
statements were voluntary by a preponderance of the
evidence.

    However, given the majority’s conclusion that the
District Court’s findings were clearly erroneous, I agree that
we should remand the remaining Miranda question back to
the District Court.
