                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 07-10453
               Plaintiff-Appellant,
               v.                           D.C. No.
                                          CR-06-00657-SI
ALEXANDER BASSIGNANI,
                                            OPINION
              Defendant-Appellee.
                                      
       Appeal from the United States District Court
          for the Northern District of California
      Susan Yvonne Illston, District Judge, Presiding

                 Argued and Submitted
      September 11, 2008—San Francisco, California

                   Filed March 25, 2009

  Before: Diarmuid F. O’Scannlain, Ronald M. Gould, and
              Carlos T. Bea, Circuit Judges.

              Opinion by Judge O’Scannlain;
                  Dissent by Judge Bea




                           3819
3822              UNITED STATES v. BASSIGNANI




                          COUNSEL

Amber S. Rosen, Assistant United States Attorney, argued the
cause for the plaintiff-appellant and filed the briefs; Joseph P.
Russoniello, United States Attorney, and Barbara J. Valliere,
Chief, Appellate Section, were on the briefs.

Stephen Shaiken, San Francisco, argued the cause for the
defendant-appellee and filed a brief.


                          OPINION

O’SCANNLAIN, Circuit Judge:

  We must decide whether a criminal defendant was “in cus-
tody” when police officers interviewed him for over two
hours in a conference room at his workplace.

                                I

                               A

   In 2005, Yahoo, Inc. reported that “a user with the email
address ‘big_perm2469@yahoo.com’ had uploaded child por-
nographic images to Yahoo sites.” That report caught the
attention of the Sacramento Valley High Tech Crimes Unit,
                     UNITED STATES v. BASSIGNANI                     3823
which launched an investigation. During the ensuing inquiry,
officers discovered that an alternate e-mail address for the
same user was “alex.bassignani@tellabs.com.” Tellabs is a
business located in two locations—on North McDowell Bou-
levard and on South McDowell Boulevard—in Petaluma, Cal-
ifornia.

   Based upon such circumstantial evidence, the investigators
began building a case. Detective James Williams contacted
Tellabs and confirmed that a man named Alex Bassignani
worked there. Tellabs personnel also told Williams that “Bas-
signani had access to a desktop computer with internet access;
and that . . . Bassignani had installed on a work computer . . .
software called ‘Window Washer,’ which can be set to delete
and overwrite Internet-browsing history and other information
on a computer hard drive.”

  Using the information provided by Tellabs, investigators
obtained a warrant to search Bassignani’s workspace. The
warrant also permitted officers to search Bassignani’s resi-
dence, vehicle, and person. Officers were authorized to seize
computer software and any images of child pornography.1
Although Bassignani worked at the South McDowell Boule-
vard site, the warrant only authorized officers to search the
North McDowell Boulevard location.

   On February 23, 2006, Detective Williams and three other
officers served the search warrant at the North McDowell Tel-
labs location. They were informed of the mistake and went
  1
    More specifically, the warrant authorized officers to search (1) “[t]he
workspace belonging to/under the control of Alexander Bassignani,
located within a Business known as Tellabs located at, 1465 North
McDowell Blvd., Petaluma, California,” (emphasis omitted) (2) Bassig-
nani’s residence, (3) the vehicle found to be registered to Bassignani and
his wife, “including containers of any kind within the vehicle,” (4) “[a]ny
vehicle in the immediate vicinity of 1465 North McDowell Blvd, Peta-
luma, California, that is in the custody or control of Alexander Bassig-
nani,” (emphasis omitted) and (6) Bassignani’s person.
3824                UNITED STATES v. BASSIGNANI
immediately to the South McDowell site. After they arrived,
Sasha King, Tellabs’ Human Resources Manager, guided
them to Bassignani’s work station, where she reported the fol-
lowing encounter: “Detective [Williams] approached Bassig-
nani and asked him to remove himself from the computer.
Bassignani was hesitant, so Detective Williams reiterated the
request a few times more before Bassignani complied. Bassig-
nani was then instructed to follow me as Detective Williams
remained at Bassignani’s side.”2 The officers were in plain
clothes and no weapons were visible. One officer stayed
behind to remove the hard drive on Bassignani’s computer.

   King then led Bassignani and Williams to a Tellabs confer-
ence room where two officers were already waiting. King
entered the conference room first, and stepped to the side to
allow Bassignani to enter. Bassignani chose a chair on the left
side of the table, and Williams sat down across from him. The
two officers who accompanied Williams departed to search
Bassignani’s car, and closed the conference room door behind
them.3 The parties dispute whether the officers frisked Bassig-
nani before allowing him into the conference room.

   Before the interview began, Williams told Bassignani that
he was “not under arrest. You’re not being arrested. You’ll
walk out of here when we’re done.” He did not, however, ever
tell Bassignani explicitly that he was free to leave. In addition,
in an attempt to “ ‘make things easier for everybody’ with
regard to executing the search warrant at defendant’s house,”
Williams asked Bassignani “whether [his] wife was home,
whether [he] had any dogs or guns, and where [his] house
keys were.” Williams also requested Bassignani’s car keys,
  2
     The parties dispute whether Williams “instructed” Bassignani to go to
the conference room. Williams claims that he told Bassignani “that it
would be best if we could go to a conference room so that we [could have]
some privacy.”
   3
     The parties dispute whether the conference room door was locked. The
district court did not make a factual finding on that point.
                    UNITED STATES v. BASSIGNANI                     3825
saying that without them officers would have to break into
Bassignani’s vehicle to execute the search warrant.4 Bassig-
nani resisted for a few minutes, but then told Williams that the
keys were in his lunch pail.

   Williams then questioned Bassignani about his alleged
involvement in possessing and uploading images of child por-
nography. Williams’ tone was calm and measured throughout.
For the most part, Bassignani participated actively, saying that
“I understand what you’re doing. I understand what you’re
saying. I’m more than happy to go with you through the pro-
cess.” Bassignani admitted to possessing and uploading child
pornography. Meanwhile, officers discovered the components
of the “Window Washers” program in Bassignani’s lunch pail
and vehicle parked in the South McDowell Tellabs parking
lot. Other officers also uncovered evidence of images of child
pornography on Bassignani’s home computer.

   Not all of the interrogation, however, was completely civil.
Bassignani said to Williams at one point: “I don’t want you
to get mad again, because you make that face . . . I understand
that you’re doing your job, but I just needed at the beginning
to slow you down for just a second, you know, I don’t want
you to get mad, to start threatening and this and that, I want
to steer clear of that.” In addition, near the end of the inter-
view, Williams told Bassignani that “the big thing is, it’s your
laptop . . . I’m not going to lie to you . . . we’ve got your
email connected to the images, it’s a done thing.”

   Also near the end of the interrogation, Bassignani asked:
“[A]t what point in this game do I need to get a lawyer?” Wil-
liams replied: “Me? I’d wait until you get arrested, but that’s
  4
   Detective Williams incorrectly represented to Bassignani that the war-
rant permitted officers to search Bassignani’s car parked outside the Tel-
labs site at South McDowell Boulevard. In fact, the warrant only
authorized officers to search vehicles in the immediate vicinity of the
North McDowell Boulevard Tellabs site.
3826              UNITED STATES v. BASSIGNANI
me. Like I said at the beginning, you’re not under arrest,
you’re going to walk out of here.” Williams also told Bassig-
nani that he was “more than welcome to walk right out and
call [a lawyer].” After Williams announced that the interview
was finished, Bassignani prolonged it by asking questions for
approximately ten additional minutes. After about two and a
half hours, Bassignani walked out of the conference room
without being arrested. The government concedes that Bassig-
nani was not given the Miranda warnings.

                               B

  A grand jury indicted Bassignani on one count of distribut-
ing images of child pornography and one count of possessing
images of child pornography. Bassignani faces five to twenty
years in prison for the first count and up to ten years on the
second count. See 18 U.S.C. § 2252(b)(1)-(2).

   In a pretrial motion filed in the United States District Court
for the Northern District of California, Bassignani moved to
suppress his statements during the interrogation, the Window
Washers program found in his lunch pail and car, and the evi-
dence found on the Tellabs computers. He challenged the
admissibility of his statements on the ground that he was “in
custody” for Miranda purposes and had not been given the
four required warnings. He also argued that the evidence
found in his car and on the Tellabs computer should be sup-
pressed based on the mistaken address contained in the war-
rant.

   The district court reviewed “the totality of the circum-
stances surrounding the interrogation” and concluded that
“the defendant was in custody for Miranda purposes.”
Accordingly, it granted Bassignani’s motion to suppress the
statements and the evidence found in the lunch pail. The dis-
trict court denied the motion to suppress the evidence
obtained from Bassignani’s Tellabs computer and in his car.
                  UNITED STATES v. BASSIGNANI                3827
   The United States timely appealed, challenging the district
court’s determination that Bassignani was “in custody” for
Miranda purposes. The government also contended that the
district court erred by not explicitly putting the burden of
proof on Bassignani to show that he was in custody. The gov-
ernment did not challenge the district court’s suppression of
the evidence found in Bassignani’s lunch pail.

                                II

   Before determining whether Bassignani was in custody for
Miranda purposes, we must resolve two disputed threshold
issues: the appropriate standard of review and the burden of
proof.

                                A

   Bassignani claims that the government is challenging the
district court’s “factual determinations,” findings which
should be reviewed for “clear error.” In response, the United
States contends that “[w]hile it is true that factual findings are
reviewed for clear error, whether a person is in custody is
reviewed de novo.”

   We agree with the government’s interpretation of the stan-
dard of review. Although it has been a subject of some confu-
sion in the past, it is now clear that a district court’s “in
custody” determination is a “mixed question of law and fact
warranting de novo review.” United States v. Kim, 292 F.3d
969, 973 (9th Cir. 2002). However, “[t]he factual findings
underlying the district court’s decision . . . are reviewed for
clear error.” Id. These factual findings include “scene- and
action-setting questions,” as well as “the circumstances sur-
rounding the interrogation.” Thompson v. Keohane, 516 U.S.
99, 112 (1995).

                                B

  Though the district court did not explicitly address the bur-
den of proof, the government contends that the district court
3828                 UNITED STATES v. BASSIGNANI
erred “to the extent it placed the burden [of proof] on the gov-
ernment” to prove that Bassignani was not in custody.

   [1] Once again, we agree with the government. “The bur-
den of production and persuasion rests on the person seeking
to suppress evidence.” United States v. Smith, 783 F.2d 648,
650 (6th Cir. 1986); United States v. Arboleda, 633 F.2d 985,
989 (2d Cir. 1980). Although we have not previously
addressed whether this principle applies to custody determina-
tions, we see no reason to deviate from the general rule.
Accordingly, we join the Fifth Circuit in concluding that the
defendant has “the burden of proving that he was under arrest
or in custody.” United States v. Davis, 792 F.2d 1299, 1309
(5th Cir. 1986).5

                                    III

   Keeping the appropriate standard of review and the burden
of proof in mind, we turn to the question whether Bassignani
established that he was “in custody” when Detective Williams
interrogated him.

   [2] Before interrogating a suspect, police officers generally
must give the four warnings that Miranda requires. But “[a]n
officer’s obligation to give a suspect Miranda warnings
before interrogation extends only to those instances where the
individual is ‘in custody.’ ” Kim, 292 F.3d at 973 (internal
citation omitted).
  5
    Bassignani cites Miranda v. Arizona for the proposition that “a heavy
burden rests on the government to demonstrate that the defendant know-
ingly and intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel.” 384 U.S. 436, 475 (1966). Bas-
signani’s reliance on that language is misplaced. This case does not
involve a waiver of the privilege against self-incrimination or a waiver of
a defendant’s right to appointed counsel; it involves only the question
whether the interrogation was a custodial one.
                  UNITED STATES v. BASSIGNANI               3829
   “To determine whether an individual was in custody, a
court must, after examining all of the circumstances surround-
ing the interrogation, decide whether there [was] a formal
arrest or restraint on freedom of movement of the degree asso-
ciated with a formal arrest.” Id. (internal quotation marks and
citation omitted) (alteration in original). The court must “ex-
amine the totality of the circumstances surrounding the inter-
rogation.” United States v. Craighead, 539 F.3d 1073, 1082
(9th Cir. 2008). A defendant is in custody if a “reasonable
innocent person in such circumstances would conclude that
after brief questioning he or she would not be free to leave.”
United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981).
The custody determination is objective and is not based upon
“the subjective views of the officers or the individual being
questioned.” Kim, 292 F.3d at 973.

   [3] We have identified five factors relevant to the custody
determination: “(1) the language used to summon the individ-
ual; (2) the extent to which the defendant is confronted with
evidence of guilt; (3) the physical surroundings of the interro-
gation; (4) the duration of the detention; and (5) the degree of
pressure applied to detain the individual.” Id. at 974. (internal
quotation marks and citation omitted). These considerations
are not exhaustive; “[o]ther factors may also be pertinent to,
and even dispositive of, the ultimate determination whether a
reasonable person would have believed he could freely walk
away from the interrogators.” Id. Guided by these factors, we
turn to the circumstances surrounding Bassignani’s interroga-
tion.

   [4] We begin with the first Kim factor: “the language used
to summon the [defendant].” Where we have found an interro-
gation non-custodial, we have emphasized that the defendant
“agreed to accompany” officers to the police station or to an
interrogation room. See United States v. Crawford, 372 F.3d
1048, 1059 (9th Cir. 2004) (en banc); see also United States
v. Norris, 428 F.3d 907, 912 (9th Cir. 2005). Here, the district
court found that the detectives, after approaching Bassignani
3830                 UNITED STATES v. BASSIGNANI
from behind and asking him to “remove himself from the
computer,” “instructed” Bassignani to go to the conference
room.6 An “instruction” is short of an “order,” but it is plain
that Bassignani did not voluntarily “agree to accompany” the
officers to the conference room. We agree with the district
court that the first Kim factor weighs in favor of finding that
Bassignani was in custody.

   We turn to the second Kim factor: “the extent to which the
defendant was confronted with evidence of guilt.” We have
found a defendant in custody when the interrogator adopts an
aggressive, coercive, and deceptive tone.7 In United States v.
Beraun-Panez, 812 F.2d 578, 579 (9th Cir. 1987), for exam-
ple, “[t]he officers demanded to know why [Beraun-Panez]
was lying and said they knew the truth. They told him that
witnesses had placed him at the scene, even though their two
witnesses had in fact stated only that they had seen a tan
truck, like that Beraun-Panez used, within several miles of
[the site of the alleged crime].” See also United States v.
Wauneka, 770 F.2d 1434, 1439 (9th Cir. 1985) (“The ques-
tioning progressed for over an hour and turned accusatory—
Wauneka was told that he supplied information that only a
perpetrator would know, that he matched the description of
the rapist, and that he had better tell the truth.”). In contrast,
  6
     To be sure, the parties dispute whether Williams “instructed” Bassig-
nani to accompany him to the conference room. The government contends
that “the court simply chose Ms. King’s version” without “holding a hear-
ing to question any of the witnesses or evaluate their credibility.” But we
review underlying factual findings for “clear error.” See Kim, 292 F.3d at
973. The district court’s finding on this point is amply supported by Ms.
King’s affidavit.
   7
     We have recently, however, found a custodial interrogation even
though “the officers did not make any threats or promises to induce [the
defendant] to speak.” Craighead, 539 F.3d at 1079. Craighead, however,
is distinguishable. It involved eight armed police officers from three dif-
ferent agencies who entered and searched Craighead’s home. “[S]ome
. . . unholstered their firearms in Craighead’s presence.” Id at 1078. The
officers also “directed” the defendant to an unfurnished storage room at
the back of his house, where one officer blocked the exit. Id.
                      UNITED STATES v. BASSIGNANI                          3831
we have found a defendant not in custody when the officers
“did not attempt to challenge [the defendant’s] statements
with other ‘known facts’ suggesting his guilt, they merely
asked [him] about the allegations.” Norris, 428 F.3d at 913
(citation omitted).

   [5] Here, nearly the entire two and a half hour interview
was conducted in an open, friendly tone. Bassignani partici-
pated actively. The conversation was plainly consensual.
Indeed, a review of the entire recording of the interrogation
creates the unmistakable impression that Bassignani was
behaving strategically; he was probing to find out how much
the officers knew. He said: “I’m trying to save my own ass
here. I mean let’s be honest. I’m trying to get as minimal
impact of this as possible.” We defer to the district court’s
view that “Williams repeatedly interrogated [Bassignani]
about his use of the big_perm2469@yahoo.com account and
specific images of child pornography associated with that
account.” The recording of the interrogation, however, shows
that with a single exception, the questioning was not confron-
tational as it was in Beraun-Panez and in Wauneka.8 As in
Norris, Williams “merely asked” about the allegations.
Accordingly, while we defer to the district court’s factual
finding that Bassignani was “extensive[ly] questioned about
evidence of [his] guilt,” we disagree with its legal conclusion
  8
    The district court and the dissent rely heavily on a confrontational
statement Williams made near the end of the interrogation: “[T]he big
thing is, it’s your laptop . . . I’m not going to lie to you . . . we’ve got your
email connected to the images, it’s a done thing.” We accept the district
court’s factual finding that this statement occurred and that it was confron-
tational in nature. It is a separate question, however, whether that state-
ment was legally sufficient to convert the interview into a custodial
interrogation. On that point, we disagree with the district court and with
the dissent. One brief confrontational moment in an otherwise cordial
interview is not determinative in a “totality of the circumstances” analysis.
More importantly, even if Williams’ isolated comment transformed the
interview into a custodial interrogation, Bassignani made his incriminating
statements in the two hours prior to the statement.
3832              UNITED STATES v. BASSIGNANI
that such questioning “weighs in favor of finding that [Bassig-
nani] was in custody.” Rather, we conclude that the second
Kim factor weighs against a finding that the interrogation was
custodial.

   Next, we address the third Kim factor: the physical sur-
roundings of the interrogation. We have held that an interro-
gation conducted in familiar surroundings weighs against a
finding that the defendant was in custody. United States v.
Eide, 875 F.2d 1429, 1437 (9th Cir. 1989). However, we have
also noted that “isolating the defendant from the outside
world . . . largely neutralizes the familiarity of the location as
a factor affirmatively undermining a finding of coercion.”
Kim, 292 F.3d at 977.

    Kim is instructive. In that case, Kim, who spoke only lim-
ited English, and her husband arrived at their own store to
find it crawling with police officers. Id. at 971. They
approached the door, which was locked. Id. Officers allowed
Kim inside, but locked her husband out. Her husband waited
outside for three hours. Id. We noted that “the police . . . tem-
porarily took over complete control of Kim’s store, creating
a ‘police-dominated atmosphere,’ in which the police kept
Kim physically isolated from two family members who could
have provided both moral support and, given her limited
English, a more complete understanding of the overall situa-
tion.” Id. at 977 (emphasis added). We reasoned that “the fact
that she was familiar with the location of the interview, con-
sidered in isolation, might weigh in favor of concluding that
she was not ‘in custody’ during the questioning.” Id. But we
nevertheless concluded that “under all the circumstances here
. . . a reasonable person would not have felt free to leave.” Id.

   [6] Here, Bassignani was interviewed at a conference room
within his workplace—plainly a familiar environment. There
is no finding that the officers prevented anyone from coming
or going during the interview. Indeed, several officers and
King went in and out of the room. Nothing in the record or
                  UNITED STATES v. BASSIGNANI              3833
in the recording of the interrogation indicates that Bassignani
was “isolat[ed] . . . from the outside world,” id., or prevented
from contacting others. Unlike Kim, it seems that Bassignani
had a “complete understanding of the overall situation.” Id.
We therefore conclude that Kim is distinguishable.

   The district court thought that “a workplace is certainly a
more comfortable and familiar environment than a police sta-
tion,” but that “the surroundings were nevertheless somewhat
coercive as defendant was brought to an enclosed conference
room by a Human Resources manager and two to three police
officers for lengthy questioning.” The district court’s conclu-
sion on this point improperly collapses three separate parts of
the Kim analysis into one. The first Kim factor relates to the
manner in which the defendant went to the interrogation room
and the fourth Kim factor deals with the length of the interro-
gation. In addition, the recording of the interrogation plainly
reveals that the Human Resources manager was present only
for a time and that the other officers went in and out of the
conference room during the interview. Accordingly, although
we accept the district court’s factual finding that Bassignani
“was brought to an enclosed conference room” at his work-
place, we are persuaded that the physical surroundings of the
interrogation suggest that Bassignani was not in custody.

   [7] Turning to the fourth Kim factor: the duration of the
detention, our precedents suggest that a two-and-a-half hour
interrogation is at the high end. We have found a defendant
not in custody when he was interrogated for “more than one
hour,” Crawford, 372 F.3d at 1052, and “approximately 45
minutes.” Norris, 428 F.3d at 911. In contrast, we have found
a defendant in custody when she was interrogated for 45 to 90
minutes. Kim, 292 F.3d at 972. We therefore agree with the
district court that the lengthy interrogation weighs in favor of
finding that Bassignani was in custody. We note, however,
that this was not a “marathon session designed to force a con-
fession,” Davis v. Allbrooks, 778 F.2d 168, 171 (4th Cir.
1985), and we therefore accord less weight to this factor.
3834                 UNITED STATES v. BASSIGNANI
   [8] Finally, we address the fifth Kim factor: the degree of
pressure used to detain the defendant. We have consistently
held that a defendant is not in custody when officers tell him
that he is not under arrest and is free to leave at any time. See
Crawford, 372 F.3d at 1060 (“Perhaps most significant for
resolving the question of custody, Defendant was expressly
told that he was not under arrest . . .” ); Norris, 428 F.3d at
912 (“[Norris] was told that his cooperation was voluntary
and that he was free to terminate the interview at any time.
Norris was also told that he was not under arrest and he was
never restrained in any way.”). Other courts agree. See, e.g.,
United States v. Leese, 176 F.3d 740, 744 (3d Cir. 1999)
(“Not only was Leese told that she was not under arrest before
the questioning began, but she was specifically informed that
when the questioning was concluded the inspectors would be
returning to Harrisburg and she would not be going with
them.”).

  [9] Here, as in Crawford, Norris, and Leese, Williams did
not pressure Bassignani to confess or to stay in the conference
room. Although Williams never explicitly said that Bassig-
nani was free to leave, Williams did emphasize in the first two
minutes of the interview that Bassignani was not under arrest
and would not be arrested. Near the end of the interrogation
Williams confirmed that point, saying: “Like I said at the
beginning, you’re not under arrest.”9 In addition, Bassignani
was never physically restrained.
  9
    Williams told Bassignani: “You’ll walk out of here when we’re done,”
a statement the district court thought “implied” that Bassignani was not
free to leave. Based upon our own review of the recording of the interro-
gation, we believe that that statement proves the opposite point. Williams
was reassuring Bassignani that he was not under arrest; he was not imply-
ing that Bassignani was confined to the conference room. However, even
if we treat the district court’s conclusion on this point as a factual finding
entitled to deference, we note that Williams suggested that Bassignani was
free to leave when he said that Bassignani was “more than welcome to
walk right out and call [a lawyer].”
                  UNITED STATES v. BASSIGNANI               3835
   [10] While we recognize that this is a close case, it is sig-
nificant that Bassignani was not “confronted with evidence of
his guilt,” that the interview took place in familiar surround-
ings, and that the officers did not pressure Bassignani to con-
fess. The second, third, and fifth Kim factors therefore
strongly suggest that the interrogation was not custodial. To
be sure, Bassignani did not voluntarily accompany the offi-
cers to the conference room, and the interrogation was
lengthy. We are persuaded, however, that the overall tenor of
the interrogation was not coercive. Therefore, we do not
think, based on a review of the totality of the circumstances,
that Bassignani has met his burden of showing a “restraint on
freedom of movement of the degree associated with a formal
arrest.” Kim, 292 F.3d at 973 (internal quotation marks and
citations omitted). A “reasonable innocent person in [Bassig-
nani’s circumstances] would conclude that after brief ques-
tioning he or she would . . . be free to leave.” Booth, 669 F.2d
at 1235. Accordingly, we are satisfied that the interrogation
was not custodial.

                               IV

   The dissent suggests that we have discarded the district
court’s factual determinations, essentially assuming the role
of appellate factfinder. See Dissent at 3836-40. We do no such
thing. We do not “say the district court committed clear error”
in any of its factual determinations, as the dissent implies.
Dissent at 3839. Rather, we accept the district court’s findings
of fact, but we disagree with the district court and with the
dissent that those facts establish, as a matter of law, that Bas-
signani was “in custody” during the interview. In contrast to
the underlying factual determinations, we must decide the
legal issue — whether Bassignani was in custody — de novo.
That is the bifurcated analytical framework required by the
Supreme Court and by our precedent. See Keohane, 516 U.S.
at 112-13; Kim, 292 F.3d at 973.

  By contrast, in the dissent’s view, “we must determine
whether the district court committed clear error when it deter-
3836              UNITED STATES v. BASSIGNANI
mined Bassignani was ‘in custody.’ ” Dissent at 3837. This
approach effectively bars de novo review of the district
court’s legal conclusion that Bassignani was in custody. It
also confuses the distinction our precedent has drawn, in the
Fourth Amendment area, between issues of fact and questions
of law. Some areas of Fourth Amendment jurisprudence, of
course, call for clear error review both of the district court’s
underlying factual determinations and of its final conclusion.
See, e.g., United States v. Enslin, 327 F.3d 788, 792 (9th Cir.
2003) (“Whether consent to search is voluntary depends upon
the totality of the circumstances and is a question of fact that
we review for clear error.”). But the question whether a defen-
dant was in custody during an interrogation is not one of
them.

                               V

   [11] The district court’s order suppressing Bassignani’s
statements made during the interrogation is REVERSED and
this case is REMANDED for further proceedings.



BEA, Circuit Judge, dissenting:

   Were the standard of review for factual determinations in
this case de novo, I might join my colleagues. However, while
the standard of review for a district court’s “in custody” deter-
mination is a mixed question of law and fact warranting de
novo review, we review the factual findings underlying the
district court’s decision for clear error. United States v. Kim,
292 F.3d 969, 973 (9th Cir. 2002). After setting forth the five
prong test for determining if a person was “in custody” when
he made incriminating statements, the Kim court itself
reviewed the district court’s findings in that case on each of
the five prongs for clear error, not de novo:

    The district court’s factual findings are not clearly
    erroneous, as they are supported by testimony in the
                  UNITED STATES v. BASSIGNANI              3837
    record that the judge determined was credible. After
    reviewing the factual findings under all of the cir-
    cumstances . . . we conclude that Kim was “in custo-
    dy” for Miranda purposes because a reasonable
    person in Kim’s circumstances would not have felt
    free to leave.

Kim, 292 F.3d at 974.

   A police officer is required to read a person his Miranda
rights before conducting an interrogation if the person is “in
custody.” “To determine whether an individual was in cus-
tody, a court must, after examining all of the circumstances
surrounding the interrogation, decide whether there [was] a
formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.” Kim, 292 F.3d at 973
(internal quotation marks and citation omitted) (alteration in
original). Here, the State concedes it did not read Bassignani
the Miranda warnings before he confessed. Thus, we must
determine whether the district court committed clear error
when it determined Bassignani was “in custody.”

   “A finding of fact is clearly erroneous when the evidence
in the record supports the finding but ‘the reviewing court is
left with a definite and firm conviction that a mistake has
been committed.’ ” Burlington N., Inc. v. Weyerhaeuser, 719
F.2d 304, 307 (9th Cir. 1983).

   Here, both the majority and the district court employ the
analysis in Kim. The district court analyzed and weighed each
of the five factors to determine whether Bassignani was in
custody for purposes of Miranda v. Arizona, 384 U.S. 436
(1966). United States v. Bassignani, 2007 WL 2406868, *4-6
(N.D. Cal.). The district court also correctly acknowledged
the Kim factors are not exhaustive and that the “in custody”
determination rests upon an objective inquiry of the totality of
the circumstances. Id. at *4.
3838               UNITED STATES v. BASSIGNANI
   After reviewing the parties’ declarations and listening to
the entire interrogation of Bassignani (as did I), the district
court determined that Bassignani was in custody for Miranda
purposes. Bassignani, at *5-6. The district court based its con-
clusion on the following factual findings applied to the Kim
factors:

  First, the district court found Bassignani did not voluntarily
approach or accompany the officers. On this we all agree. Ms.
King, the Tellabs Human Resource manager, stated in her
declaration that Detective Williams and another officer
approached Bassignani’s workspace and instructed Bassig-
nani to follow Ms. King and the police officers to an enclosed
conference room. Thus, this factor weighs in favor of Bassig-
nani’s claim he was in custody.

   Second, the district court found Bassignani was confronted
with evidence of his guilt. The majority disagrees. The evi-
dence supports the district court’s finding that this confronta-
tion took place: The taped interrogation showed that during
questioning, Detective Williams repeatedly confronted Bas-
signani with evidence of his guilt, including, inter alia, stat-
ing, “it’s your laptop1 . . . I’m not going to lie to you . . .
we’ve got your email connected to the [child pornography]
images, it’s a done thing.” The police so told Bassignani after
their search of his residence had uncovered a laptop computer
with child pornography on the hard drive. Bassignani there-
fore knew the police had found incriminating evidence at his
house. The majority finds this evidence insufficient to turn an
“otherwise cordial interview” into a confrontation. Maj. Op.
at 3831 n. 8. Here, the district court’s finding that Bassignani
was confronted by the police with evidence of his guilt is
plausible. Regardless the “tone” of voice used to confront
Bassignani with this evidence—which the district court also
heard—the content of the conversation makes this case much
closer to United States v. Beraun-Panez, 812 F.3d 578, 579
  1
   Bassignani has denied he owned or possessed a laptop computer.
                  UNITED STATES v. BASSIGNANI                3839
(9th Cir. 1987); it provided sufficient evidence for the district
court’s finding.

   Further, I disagree with the majority’s assessment that
because Bassignani was trying to assess what the police knew,
it somehow turned this into a friendly chat. The majority
relies on the following remarks by Bassignani: “I’m trying to
save my own ass here. I mean, let’s be honest. I’m trying to
get minimal impact of this as possible.” The majority may
conclude this made it a cordial conversation, but the district
court surely was not clearly erroneous in finding these state-
ments indicated Bassignani knew he was in trouble, he was
trying to limit the damage he was about to suffer, and there
was nothing friendly about the conversation. Rather, it was
plausible for the district court to find the conversation was a
police interrogation and the police were looking for evidence
to convict him, not someone else.

   Because there is evidence in the record to support the dis-
trict court’s finding, we cannot say the district court commit-
ted clear error. This finding required the district court to
examine exactly what the police said to Bassignani and how
a reasonable person would have interpreted such statements,
which is a factual determination. When reviewing for clear
error, “this court will not reverse if the district court’s find-
ings are plausible in light of the record viewed in its
entirety . . . even if it is convinced it would have found differ-
ently.” Katie A., ex rel. Ludin v. Los Angeles County, 481
F.3d 1150, 1155 (9th Cir. 2007) (citation omitted).

   Third, the district court found that the setting was a neutral
factor in the analysis. The majority disagreed and found that
because Bassignani was familiar with the conference room
and because his employment superior, King, left the room, the
surroundings were familiar and this factor should weigh
against Bassignani’s claim he was in custody. The evidence,
however, showed that the location of the interrogation limited
Bassignani’s freedom. Bassignani was instructed to go to the
3840              UNITED STATES v. BASSIGNANI
conference room by the officers and his employer. See first
factor, supra. It was at his place of work, a place where his
freedom of movement was subject to his superior’s orders and
the orders of the police. I agree there is no evidence in the
record that the officers locked the door, as they did in Kim,
but it was not made clear to Bassignani he could leave “at any
time” or that he was free to have anyone else accompany him.
Accordingly, the record does not allow us to hold the district
court’s finding that the setting weighed neither for nor against
a finding Bassignani was in custody was clearly erroneous.

   Fourth, the district court found the tape recording of the
interrogation showed the questioning lasted approximately
two and a half hours, which is at the “high end” of this court’s
precedent for what constitutes an “in custody” determination,
see Kim, 292 F.3d at 977 (finding fifty minutes of questioning
was not a “brief inquiry” but a “full-fledged interrogation”).
On this point, we are all agreed. Thus, the district court was
not clearly erroneous in finding this factor weighed toward
Bassignani’s claim he was in custody.

   Finally, the district court found that under all the circum-
stances a reasonable would not have believed he could freely
walk away from the interrogation at any time, but would
instead have thought he had to stay until the police were fin-
ished questioning him. Kim, 292 F.3d at 974. The majority
disagreed. Here again, the record contains evidence that sup-
ports the district court’s finding. Detective Williams’s state-
ment to Bassignani at the beginning of the interview when he
said, “[y]ou’ll walk out of here when we’re done,” implied
Bassignani was not free to leave at any time, but had to stay
until the officers had finished their work. Bassignani, at *4-6
(emphasis added). The majority looks to Detective Williams’s
statement that Bassignani was not under arrest as a basis upon
which to disagree with the district court’s finding.

  This was a factual finding by the district court based on the
evidence in this particular record. I fail to see how we can
                   UNITED STATES v. BASSIGNANI                 3841
overturn the district court’s finding a reasonable person would
not have thought he was free to leave at any time when he
was instructed to accompany three police officers to the con-
ference room, told he would be free to leave “when we’re
done,” and then confronted more than once with evidence of
his guilt. Again, even though we might have found differently
were we sitting as a trial court, the district court’s factual find-
ings here are plausible in light of the record viewed in its
entirety. Thus, we cannot say the district court has committed
clear error. Katie, 481 F.3d at 1155.

   The majority concedes this is a close case. Maj. Op. at
3835. Factual determinations in close cases are the function
of the trial court, not the court of appeals, and especially not
where our standard of review is for clear error. Clear error
means it is not a close case. Because there is evidence in the
record supporting each of the district court’s factual findings,
I see no way we can say the district court committed clear
error, thus I respectfully dissent.
