# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued July 5, 2005

Decided August 26, 2005

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

No. 04-3507

UNITED STATES OF AMERICA,

Plaintiff-Appellee

,

v.

CEDRIC FRANKLIN,

Defendant-Appellant

. Appeal fro m the United States District

Court for the Northern Di strict of

Illinois, Eastern Division.

No. 04 CR 121

James F. Holderman,

Judge

.

O R D E R

Cedric Franklin confessed to a gun crime during questioning by authorities in his

home. The district court denied Franklin’s motion to suppress the oral and written

confessions, finding that the questioni ng was consensual and the statements voluntary.

Franklin entered a conditional guilty plea and now challenges the suppression ruling.

We affirm.

Franklin was charged with making a false statement in the acquisition of a firearm,

18 U.S.C. § 922(a)(6), after he admitted misrepresenting himself as the purchaser of

several guns that he actually bought on behal f of another man. Franklin moved to

suppress his oral and written confessions, claiming that they were obtained during a

custodial interrogation in violation of M iranda and, additionally, were rendered

involuntary when the interviewers falsely implied he would not be arrested if he was

forthcoming. UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 04-3507 Page 2

At the hearing on the motion to suppress, Franklin and two ATF agents testified.

Franklin, a 40-year-old high school graduate with some college experience, testif i ed

that on April 7, 2003, he lived with his mother in her home. At approximately 9:00 or

10:00 a.m., he said, two ATF agents came to the Franklin home with two Chicago police

officers. Franklin told his mother to let them in the house because he assumed they

were there about a domestic dispute. Franklin asked if the investigators were there

about the domestic dispute; they told him no, that they were there to “get some

information about some weapons that were purchased, that I purchased.” According

to Franklin, ATF agent Christopher Labno “instructed” him to go into the kitchen.

Labno, said Franklin, “asked” or “instructed” him to sit with the agent at the table, but

the other investigators remained standing.

Franklin continued that initially he “lied” and said that the guns he bought

were later stolen from him. Then, according to Franklin, Agent Labno “conveyed” that

he knew Franklin was lying, and said that Franklin would “go to jail” if he did not tell

the truth. Franklin added that the agent said that they “couldn’t leave” until Franklin

told them where the guns were.

Franklin testified that the investigators questioned him for approximately two

hou r s, and they did not explain that he was free to refuse to speak with them.

Franklin asked if he was “going to jail” or would be charged with a crime and was told

no. When Franklin began to stand, asking if the investigators wanted him to go

upstairs and retrieve receipts for the guns, he was told no, felt a “slight tap,” and sat

back down. On cross-examination, Franklin conceded that he was not restrained at

any point, and that he used a washroom near the kitchen withou t escort or

interference. After Franklin returned from the washroom, he signed a written

statement that Agent Labno had drafted from his answers during the questioning. The

s tatement included a stipulation that the officers had not made any threats or

promises to Franklin, although Franklin did not reca ll reading that portion of the

statement. Once they had the signature, the investigators departed, leaving Franklin

behind.

The testimony of the two agents differed slightly fr om Franklin’s. Agent Labno

testified that when they arrived at the Franklin home, Ms. Franklin opened the door

and “indicated” that the officers could come into the vestibule. Franklin came to the

vestibule, and Labno told him they were there regarding “some of his property that had

been recovered.” According to Labno, Franklin wanted to know what property, and

Labno asked if there was a place they could sit down and talk; perhaps the kitchen.

Labno testified that Franklin “said yes” and led the way to the kitchen. Once there,

Franklin sat at the table with Labno and the other ATF agent, and Labno produced

ATF forms documenting gun sales to Franklin, who acknowledged his signature on the

forms. Franklin denied that he still had the weapons and asserted that they had been

stolen. After Labno expressed disbelief, Franklin admitted that the guns had not been

stolen, but that he purchased the guns for someone else . As Franklin and LabnoNo. 04-3507 Page 3

talked, Labno wrote a statement reflecting Franklin’s answers. During this time

Franklin asked if

the officers suspected him in any crimes involving the guns he

bought, or if he was under arrest; Labno testi f ied that he answered “no” to both

questions and said he was there to “find out how the guns got from the legitimate

purchase to

be used in the crimes.” Labno acknowledged that he declined the offer

when Franklin proposed going upstairs to collect the receipts but denied preventing

Franklin

from leaving the table. Labno also denied that he or anyone else told

Franklin that he would go to jail if he did not tell the truth, or that the investigators

could not leave until they knew where the guns were. Labno further denied that

Franklin was restrained in any way.

After approximately one hour, Fr anklin excused himself to use the washroom.

When Franklin returned, said Labno, he read over the written statement the agent

had been preparing, made corrections, and signed the form.

The second ATF agent, Mirko Mar tinovich, corroborated Labno’s testimony.

Martinovich testified that Franklin was not touched or restrained, nor was he told he

would be jailed if he did not tell the truth or that the officers couldn’t leave until they

knew where the guns were.

The district court denied the motion, ruling that Miranda warnings were unnecessary because Franklin was never in police custody during the interview. The

court explained that under the “totality of the circumstances,” including being

questioned in the kitchen and giving “consent,” as Franklin had done, a reasonable

person would not have believ e d his freedom was restrained, especially since the officers

told him he was not under arrest. In addition, the district court found that Franklin’s

statements were voluntary. In denying the motion to suppress, the court did not make

explicit credibility findings.

Franklin was convicted and sentenced to six months’ incarceration and two years’

supervised release.

Franklin challenges the denial of his motion to suppress, arguing that he was in

custody and his statements were involuntary.

A suspect is in custody and entitled to Miranda warnings if restrained to a degree

associated with a formal arrest. U nited States v. Abdulla

, 294 F.3d 830, 834 (7th Cir.

2002). Whether the degree of restraint is akin to formal arrest is determined under

the totality of circumstances as measured by how a reasonable person would have

understood the situation. O chana v. Flores

, 347 F.3d 266, 270 (7th Cir. 2003). Factors

in evaluating the totality of circumstances include whether the authorities: (1) exerted

control over the environment, (2) engaged in prolonged, c oercive, and accusatory

questioning, (3) used subterfuge to induce self-incrimination, (4) physically restrained

or otherwise significantly curtailed the suspect’s freedom of movement, or, (5) whether,No. 04-3507 Page 4

and to what extent, the suspect was led to reasonably believe that he could interrupt

the questioning. Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996); United States

v. Griffin , 922 F.2d 1343, 1349 (8th Cir. 1990).

In denying the motion to suppress, the district court did not explicitly resolve any

disputed facts, stating instead his ultimate conclusion that under the totality of the

circumstances, including Franklin’s consent to be interviewed and the location of the

questioning, a reasonable person would not have believed that he was in custody. We

conclude tha t the district court applied the relevant standards—“totality of

circumstances” an d “reasonable person”—and infer either that the district court

discredited Franklin’s version of disputed events or concluded that the circumstances

described by Franklin did not amount to a custodial interrogation. S ee United States

v. Bell

, 969 F.2d 257, 259 (7th Cir. 1992). The questioning took place in Franklin’s

home, and, although familiar surroundings do not preclude a custodial situation, see Sprosty, 79 F.3d at 641-42, the police exert less control over a private home than in a police station or vehicle, and other factors demonstrate that Franklin had control of the

en v ironment: he invited them inside his home and used the restroom without restraint.

S ee United States v. Beckwith , 425 U.S. 341, 347-48 (1976) (relaxed interview in

suspect’s home did not implicate Miranda ); see also United States v. Kontny

, 238 F.3d

815, 817 (7th Cir. 2001). Moreover, custody is less likely where a suspect voluntarily

acquiesces to questions, as Franklin did here. See Griffin

, 922 F.2d at 1351. Finally,

there is no indication that Franklin was restrained in any way. See id . at 1350 (lack

of restraint indicates absence of custody).

Franklin’s second argument is that police officers impermissibly used psychological

ploys and deceptive tactics, including accusing him of lying, telling him they could not

leave until they knew what happened to the guns, and promising that he would not be

arrested if he told the truth; allegations that the agents denied. Officers are free to

confront a suspect about his lies, or even mislead a suspect during an interview, so long

as the defendant can still make a rational decision. S ee United States v. Ceballos

, 302

F.3d 679, 694 -95 (7th Cir. 2002). Statements induced by false promises of leniency

may be inadmissible. See United States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998).

But, again, while the district court made no explicit findings of fact or credibility

determinations, this court can infer that the dis trict court accepted the agents’

testimony, see United States v. Toro-Pelaez

, 1 07 F.3d 819, 825-26 (10th Cir. 1997),

that no promise of leniency was made.

AFFIRMED.