                                                                                 PUBLISH

                       UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                       SEPTEMBER 07, 2000
                                        No. 99-14778
                                                                        THOMAS K. KAHN
                                                                             CLERK
                         D.C. Docket No. 99-00023-CR-WDO-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellant,

       versus

TIMOTHY PAUL MUEGGE,

                                                                  Defendant-Appellee.



                      Appeal from the United States District Court
                          for the Middle District of Georgia


                                   (September 7, 2000)


Before EDMONDSON and BIRCH, Circuit Judges, and SHAPIRO*, District
Judge.



________________
* Honorable Norma L. Shapiro, U.S. District Judge for the Eastern District of Pennsylvania,
sitting by designation.
PER CURIAM:

      This is an appeal from a decision granting defendant's motion to suppress.

This court has jurisdiction under 28 U.S.C. § 3731.

      Appellee Timothy Paul Muegge ("Muegge") was charged with two counts of

possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(A) and

(B). The district court granted Muegge's motion to suppress testimony elicited

during an August 25, 1998 interrogation and evidence obtained as a result. The

United States timely appeals that decision and the subsequent denial of its motion

for reconsideration. We reverse.

      Muegge was a civilian employee at the Robins Air Force Base in Warner

Robins, Georgia. In August, 1998, the Air Force Office of Special Investigations

("OSI") investigated reports that base employees were using a government

computer to view child pornography. Then OSI Counter Intelligence Division

Chief Christina Simpers ("Simpers") conducted the investigation with the

assistance of, among others, Special Agent Scott Auerbach ("Auerbach"), an expert

in the forensic analysis of computers. OSI surveillance using a closed circuit

television and a video capture device revealed individuals looking at sexually

explicit adult material on that computer. Auerbach testified that a picture of

Muegge using the computer was never captured, but the OSI decided to interview


                                          2
Muegge after interviewing another individual.

      At the request of the OSI, Muegge's supervisor directed him to appear for

questioning at the OSI detachment building on August 25, 1998. Muegge went to

the detachment building alone at the appointed time. The building was a secure

site, locked at all times. Muegge was admitted by one of the two persons

interviewing him; the door to the interview room was kept closed when not in use.

After the interview lasting approximately two and one half hours, Muegge was in

the interview room an additional half hour during which time he made a statement

reduced to writing and signed by him. Muegge, as all visitors to the OSI, was

escorted the entire time he was inside the building. Muegge left the building twice

during the interview for cigarette breaks; he was accompanied by at least one OSI

agent, who did not smoke.

      At the suppression hearing, both OSI interviewers testified they told Muegge

he did not have to answer their questions and was free to leave. Muegge testified

that he did not remember whether he was so informed, but Simpers testified that

Muegge had acknowledged he understood the instruction.

      During the interview, Muegge admitted, both verbally and in writing, that he

viewed pornography, including a site with child pornography in the form of

thumbnail photographs, on the government computer. He also admitted viewing


                                         3
pornography on his home computer. Muegge executed a form consenting to the

search of his private residence. A later search of his home computer revealed

numerous sexually explicit images, some of which are the subject of Count II of

the indictment. He was not arrested until April 28, 1999, over eight months after

the interview.

      Muegge was not read Miranda warnings before or during the interview. He

was given an interview form with a statement of Miranda rights, but a line was

drawn through the statement with the word "non-custodial" written on the form by

Simpers. Muegge initialed the line in three places. The time on this interview

sheet is 15:30. The government acknowledges the interview began at 13:10 and

ended at 15:30; Muegge concluded his written statement at 16:00; this is consistent

with the testimony that this form was given to Muegge after the oral interview but

prior to his written statement.

      Muegge, filing a motion to suppress, argued his interview statements were

given while in custody without prior Miranda warnings. The district court,

assuming Auerbach told Muegge he was free to leave, nevertheless found that the

interrogation was custodial.

      The issue is whether the district court erred in finding that Muegge's

interview was a custodial interrogation requiring Miranda warnings. In reviewing


                                         4
a motion to suppress, the district court's findings of fact will be upheld unless

clearly erroneous, but the application of the law to those facts is subject to de novo

review. See United States v. Adams, 1 F.3d 1566, 1575 (11th Cir. 1993). The

appellate court should construe the facts in the light most favorable to the party

who prevailed below. See United States v. Alexander, 835 F.2d 1406, 1408 (11th

Cir. 1988) (affirming district court's denial of motion to suppress evidence seized

in a warrantless search) (citing United States v. Baron-Mantilla, 743 F.2d 868, 870

(11th Cir. 1994) (affirming denial of motion to suppress; "we view the evidence

adduced at the suppression hearing in the light most favorable to the

government.").

       A person taken into custody must be advised of his right to remain silent and

his right to counsel prior to any interrogation. Miranda v. Arizona, 384 U.S. 436

(1965). The government concedes Muegge was not advised of these rights prior to

questioning, but such advice was required only if the interrogation was custodial in

nature.1

       Even if a person has not been arrested, advice of Miranda rights is required


   1
    The interview form that was marked by the agents as "non-custodial" and initialed by
Muegge is irrelevant to our analysis. A reasonable man might not have understood the
significance of the word "non-custodial." It is also clear from the record that Muegge was not
given this form until after the oral interview had concluded; Muegge could not waive his
Miranda rights after the fact.

                                                5
if there is a restraint on freedom of movement "of the degree associated with a

formal arrest." Minnesota v. Murphy, 465 U.S. 420, 430, reh'g denied, 466 U.S.

956 (1984). The test is objective; "[t]he only relevant inquiry is how a reasonable

man in the suspect's position would have understood his situation." Berkemer v.

McCarty, 468 U.S. 420, 442 (1984). The fact that an investigation has focused on

a suspect does not necessarily trigger the need for Miranda warnings. See United

States v. Phillips, 812 F.2d 1355, 1360 (11th Cir. 1987). "[I]n order for a court to

conclude that a suspect is in custody, it must be evident that, under the totality of

the circumstances, a reasonable man in the suspect's position would feel a restraint

on his freedom of movement fairly characterized as that 'degree associated with a

formal arrest' to such extent that he would not feel free to leave." Id. (citations

omitted). "[U]nder the objective standard, the reasonable person from whose

perspective 'custody' is defined is a reasonable innocent person." United States v.

Moya, 74 F.3d 1117, 1119 (11th Cir. 1996) (emphasis added).

      Muegge was a suspect in the investigation prior to his interview, but he was

not the only suspect. His status as a suspect, and the "coercive environment" that

exists in virtually every interview by a police officer of a crime suspect, did not

automatically create a custodial situation. See Phillips, 812 F.2d at 1360-61

(interview of suspect by police officers in station not custodial).


                                           6
      Both Simpers and Auerbach testified at the suppression hearing that Muegge

was told he was free to leave at any time and did not have to answer any questions.

Muegge testified he did not remember that, but he also stated he "was very

apprehensive and nervous [and] there's a lot about [the interview] that's vague."

(R2 at 64.) The district court did not make any finding of fact whether Muegge

was told he was free to leave, but merely assumed Auerbach so advised him. Any

finding of fact to the contrary would have been clearly erroneous, because there

was no finding of lack of credibility of the two OSI agents who testified

consistently that they advised Muegge he was free to leave and Muegge was

uncertain what he was told. Therefore, we may consider that Muegge was so

advised in determining whether the interrogation was custodial by an objective

standard, i.e., whether a reasonable innocent individual in those circumstances

would feel free to leave.

      The trial judge erroneously gave undue weight to the fact that Muegge's

supervisor ordered him to report for the interview. Muegge's supervisor did

instruct him to report to the OSI detachment, but such an order, absent other

coercive elements, did not constitute the type of restraint on Muegge's freedom

associated with a formal arrest. See United States v. Mahan, 190 F.3d 416, 421

(6th Cir. 1999) (defendant not in custody despite being summoned to interview by


                                          7
work supervisor); United States v. Leese, 176 F.3d 740 (3d Cir. 1999) (postal

employee interview not custodial despite postmaster's order to speak with postal

inspectors in the postmaster's office); United States v. Baird, 851 F.2d 376, 380

(D.C. Cir. 1988) (Coast Guard officer's interview not custodial despite order by his

superior officer to appear for an interview with a Treasury Department

investigator). Muegge's supervisor simply instructed him to attend the interview.

There is no evidence this instruction was accompanied by any explicit or implicit

threat to Muegge's employment status.

       The finding that Muegge's interrogation was custodial is an application of

law to the facts subject to de novo review. The key inquiry in determining if

interrogation was custodial is whether an innocent individual in that situation

would feel free to leave, see Phillips, 812 F.2d at 1350; Moya, 74 F.3d at 1119. If

the individual being questioned were innocent, and was told directly he might

leave, in the absence of evidence to the contrary the interrogation was non-

custodial as a matter of law. There may be situations where the restraints placed

on a suspect's freedom are so extensive that telling the suspect he was free to leave

could not cure the custodial aspect of the interview, but that is not the case here.

      Muegge was questioned in a secure facility, but that does not necessarily

make the interrogation custodial. In Phillips, one of the defendants, suspected of


                                           8
illegal firearm sales, was asked by a police officer to come to the police station,

accompanied by other officers. See Phillips, 812 F.2d at 1357. The defendant

went to the station but was not placed under arrest, handcuffed or locked in a room.

See id. The officers never told the defendant he was free to leave, even though one

testified that he was in fact free to leave at any time. See id. This court found the

Phillips interrogation was non-custodial. See id. at 1362. Like the defendant in

Phillips, Muegge was interrogated in a secure facility but never placed under arrest

or physically restrained in any significant way. Muegge's freedom was arguably

less restricted than Phillips because it is assumed he was explicitly told he could

leave at any time.

      Several other characteristics of Muegge's interrogation made it non-

custodial. Although he was told to report to the OSI detachment, Muegge came

and left on his own. Muegge was given a beverage and two cigarette breaks.

Muegge was escorted during the breaks, but Auerbach testified that all visitors to

the OSI detachment were accompanied by escorts while they were inside the

building. Although the facility was locked, Simpers testified no key was needed to

leave. Muegge left immediately after the interview and was not arrested until more

than eight months later.

      Under the totality of the circumstances, an innocent individual in Muegge's


                                           9
position who was told he was free to stop answering questions and leave at any

time would have actually felt free to do so. A reasonable man would not have felt

a restraint on his freedom of movement of the "degree associated with a formal

arrest." Phillips, 812 F.2d at 1360. Muegge was not in custody during his

questioning. The order granting Muegge's motion to suppress testimony elicited

during the August 25, 1998 interrogation, and evidence derived therefrom, is

REVERSED.




                                        10
