FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-10453

Plaintiff-Appellant, D.C. No.

v. CR-06-00657-SI

ALEXANDER BASSIGNANI,  ORDER

Defendant-Appellee. AMENDING

OPINION AND

AMENDED

OPINION 

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

Amended August 6, 2009

Before: Diarmuid F. O’Scannlain, Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain;

Dissent by Judge Bea

10423
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. 

ORDER

The opinion filed in this case on March 25, 2009, is

amended as follows:

At page 3824 of the slip opinion, line 17, delete <who

accompanied Williams>.

At page 3827 of the slip opinion, lines 9-11, replace <two

disputed threshold issues: the appropriate standard of review

and the burden of proof. A> with <a disputed threshold issue:

the appropriate standard of review.>

At pages 3827-28 of the slip opinion, delete the two paragraphs that form Section II.B, beginning with <Though the

district court did not explicitly address the burden of proof>

10426 UNITED STATES v. BASSIGNANI
At page 3828 of the slip opinion, lines 14-15, replace

<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”> with <Keeping the

appropriate standard of review in mind, we turn to the question whether Bassignani was “in custody”>

At page 3835 of the slip opinion, lines 10-15, replace <that

Bassignani has met his burden of showing> with <that the

facts as determined by the district court show>

II

The panel has voted to deny the petition for rehearing en

banc. Judges O’Scannlain and Gould voted to deny the petition for rehearing en banc. Judge Bea voted to grant the petition for rehearing en banc. The full court has been advised of

the petition for rehearing en banc and no active judge has

requested a vote on whether to rehear the matter en banc. Fed.

R. App. P. 35.

The petition for rehearing en banc is DENIED. No further

petitions for rehearing or rehearing en banc may be filed.

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a criminal defendant was “in custody” 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 porUNITED STATES v. BASSIGNANI 10427
nographic images to Yahoo sites.” That report caught the

attention of the Sacramento Valley High Tech Crimes Unit,

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 Boulevard and on South McDowell Boulevard—in Petaluma, California. 

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 “Bassignani 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 residence, vehicle, and person. Officers were authorized to seize

computer software and any images of child pornography.1

Although Bassignani worked at the South McDowell Boulevard site, the warrant only authorized officers to search the

North McDowell Boulevard location. 

1More 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) Bassignani’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, Petaluma, California, that is in the custody or control of Alexander Bassignani,” (emphasis omitted) and (6) Bassignani’s person. 

10428 UNITED STATES v. BASSIGNANI
On February 23, 2006, Detective Williams and three other

officers served the search warrant at the North McDowell Tellabs location. They were informed of the mistake and went

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 following encounter: “Detective [Williams] approached Bassignani 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. Bassignani 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 conference 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 departed to search Bassignani’s car, and closed

the conference room door behind them.3 The parties dispute

whether the officers frisked Bassignani 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,”

2The 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.” 

3The 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 10429
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,

saying that without them officers would have to break into

Bassignani’s vehicle to execute the search warrant.4 Bassignani 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 pornography. 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 process.” 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 interview, 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.” 

4Detective Williams incorrectly represented to Bassignani that the warrant permitted officers to search Bassignani’s car parked outside the Tellabs 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. 

10430 UNITED STATES v. BASSIGNANI
Also near the end of the interrogation, Bassignani asked:

“[A]t what point in this game do I need to get a lawyer?” Williams replied: “Me? I’d wait until you get arrested, but that’s

me. Like I said at the beginning, you’re not under arrest,

you’re going to walk out of here.” Williams also told Bassignani 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 Bassignani was not given the Miranda warnings.

B

A grand jury indicted Bassignani on one count of distributing 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 evidence 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 suppressed based on the mistaken address contained in the warrant. 

The district court reviewed “the totality of the circumstances 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 disUNITED STATES v. BASSIGNANI 10431
trict court denied the motion to suppress the evidence

obtained from Bassignani’s Tellabs computer and in his car.

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 government 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 a disputed threshold

issue: the appropriate standard of review.

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 standard of review. Although it has been a subject of some confusion 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 surrounding the interrogation.” Thompson v. Keohane, 516 U.S.

99, 112 (1995).

III

Keeping the appropriate standard of review in mind, we

turn to the question whether Bassignani was “in custody”

when Detective Williams interrogated him. 

10432 UNITED STATES v. BASSIGNANI
[1] 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). 

“To determine whether an individual was in custody, 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.” Id. (internal quotation marks and

citation omitted) (alteration in original). The court must “examine the totality of the circumstances surrounding the interrogation.” 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. 

[2] We have identified five factors relevant to the custody

determination: “(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with

evidence of guilt; (3) the physical surroundings of the interrogation; (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 interrogation. 

UNITED STATES v. BASSIGNANI 10433
[3] We begin with the first Kim factor: “the language used

to summon the [defendant].” Where we have found an interrogation 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

from behind and asking him to “remove himself from the

computer,” “instructed” Bassignani to go to the conference

room.5 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.6 In United States v.

Beraun-Panez, 812 F.2d 578, 579 (9th Cir. 1987), for example, “[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

5To be sure, the parties dispute whether Williams “instructed” Bassignani to accompany him to the conference room. The government contends

that “the court simply chose Ms. King’s version” without “holding a hearing 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. 

6We 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 different 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.

10434 UNITED STATES v. BASSIGNANI
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 questioning 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,

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).

[4] Here, nearly the entire two and a half hour interview

was conducted in an open, friendly tone. Bassignani participated 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 confrontational as it was in Beraun-Panez and in Wauneka.

7

 As in

7The 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 confrontational in nature. It is a separate question, however, whether that statement was legally sufficient to convert the interview into a custodial

interrogation. On that point, we disagree with the district court and with

UNITED STATES v. BASSIGNANI 10435
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

that such questioning “weighs in favor of finding that [Bassignani] 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 surroundings of the interrogation. We have held that an interrogation 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 limited 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 . . . temporarily 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 situation.” Id. at 977 (emphasis added). We reasoned that “the fact

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. 

10436 UNITED STATES v. BASSIGNANI
that she was familiar with the location of the interview, considered 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.

[5] 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

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 station,” 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 conclusion 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 interrogation. 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 workplace, we are persuaded that the physical surroundings of the

interrogation suggest that Bassignani was not in custody. 

[6] Turning to the fourth Kim factor: the duration of the

detention, our precedents suggest that a two-and-a-half hour

UNITED STATES v. BASSIGNANI 10437
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 confession,” Davis v. Allbrooks, 778 F.2d 168, 171 (4th Cir.

1985), and we therefore accord less weight to this factor. 

[7] 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.”).

[8] 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 Bassignani 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

10438 UNITED STATES v. BASSIGNANI
beginning, you’re not under arrest.”

8

 In addition, Bassignani

was never physically restrained. 

[9] While we recognize that this is a close case, it is significant that Bassignani was not “confronted with evidence of his

guilt,” that the interview took place in familiar surroundings,

and that the officers did not pressure Bassignani to confess.

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 officers 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 the facts as

determined by the district court show 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 [Bassignani’s circumstances] would conclude that after brief questioning 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 10441-45. We do no

8Williams 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 interrogation, we believe that that statement proves the opposite point. Williams

was reassuring Bassignani that he was not under arrest; he was not implying 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 10439
such thing. We do not “say the district court committed clear

error” in any of its factual determinations, as the dissent

implies. Dissent at 10443. 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 Bassignani 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 determined Bassignani was ‘in custody.’ ” Dissent at 10441. 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 defendant was in custody during an interrogation is not one of

them. 

V

[10] The district court’s order suppressing Bassignani’s

statements made during the interrogation is REVERSED and

this case is REMANDED for further proceedings. 

10440 UNITED STATES v. BASSIGNANI
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” determination 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

record that the judge determined was credible. After

reviewing the factual findings under all of the circumstances . . . we conclude that Kim was “in custody” 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 custody, 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.” 

UNITED STATES v. BASSIGNANI 10441
“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. 

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 conclusion 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 Bassignani to follow Ms. King and the police officers to an enclosed

conference room. Thus, this factor weighs in favor of Bassignani’s claim he was in custody. 

Second, the district court found Bassignani was confronted

with evidence of his guilt. The majority disagrees. The evidence supports the district court’s finding that this confrontation took place: The taped interrogation showed that during

questioning, Detective Williams repeatedly confronted Bassignani with evidence of his guilt, including, inter alia, stat10442 UNITED STATES v. BASSIGNANI
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 therefore 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 10436 n. 7. 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

(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 statements 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 district court’s finding, we cannot say the district court committed clear error. This finding required the district court to

examine exactly what the police said to Bassignani and how

1Bassignani has denied he owned or possessed a laptop computer. 

UNITED STATES v. BASSIGNANI 10443
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 findings are plausible in light of the record viewed in its

entirety . . . even if it is convinced it would have found differently.” 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

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 circumstances a reasonable would not have believed he could freely

10444 UNITED STATES v. BASSIGNANI
walk away from the interrogation at any time, but would

instead have thought he had to stay until the police were finished questioning him. Kim, 292 F.3d at 974. The majority

disagreed. Here again, the record contains evidence that supports the district court’s finding. Detective Williams’s statement 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

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 conference 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 findings 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

10439. 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.

UNITED STATES v. BASSIGNANI 10445