F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O V A N ’ Z S M I T H ,

Petitioner-Appellant
,

v

.

K E N C L A R K , W arden, Respondent-Appellee

. N o. 14-15162

D.C. No. 2:11-cv-03312- MCE-GGH

ORDER

F iled October 22, 2015

B efore: Consuelo M. Callahan, Milan D. Smith, J r., and Paul J . W atford, Circuit J udg es.

Order; Dissent by

J udg e F letcher; Concurrence by

J udg e Callahan and J udg e M. SmithS M I T H V

. C L A R K 2

SUMMARY *

Habeas Corpus

The panel filed an order rejecting a su a s ponte en banc call in a case in which th e panel affirmed California state p r i soner J ovan’z Smith’s h abeas corpus petition convictio n for assault on a child causing death.

Dissenting from the denial o f rehearing en banc, J udg e W. F letcher wrote that the California Court of A p peal’s conclusion that Smith was no t “ in custody ” u n der Miranda rested on a misreading of California v. Beheler
, 463 U.S. 11 2 1 ( 1 983) (per curiam) – i.e.
, that Beheler establishes a brig ht-li n e r u le that a suspect who h as been told repeatedly that he is “not under arrest” is not “i n c u s t o d y ” under M i r a n da

. J u dg e F letcher w rote that this is not the law, a n d that a police officer cannot remove an interr og ation from Miranda ’s reach simply by reciting mag ic words.

Concurring in the denial of reheari n g en banc, J udg e s Callahan and M. Smith d isag ree d with the J udg e W. F letcher’s c haracteriz ation o f the state appellate court’s decision, description o f the c ircumstances surrounding Smith’s interview, and leg al conclusions.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S M I T H V

. C L A R K 3

ORDER

A sua sponte call f

or a vote on rehearing this case en banc was made b y an a ctive judg e of this court. The call failed to

r e c eive a majority of the votes of the nonrecused act i v e j u d ges. F ed. R. App. P. 35. T he sua sponte en banc c a l l i s rejected. J udg e F letcher’s dissent f rom denial of rehearing en banc an d J udg e Callahan and J udg e Smith’s concurrence in denial of rehearing en banc are filed concurrently with this Order.

W

. F L ETCHER, Circuit J udg e, dissenting from the denial o f rehearing en banc:

I n this case, a 16-y ear-old h ig h school student nam ed J ovan’z Smith was taken to a police station and subjected to f o u r hours o f interrog ation in a small, windowless roo m

. Smith was not read his Miranda rig hts. F our hours later, still without his Miranda warning s, he c o n fessed. The only question before this court is w hether Smith was “in custody ” under Miranda when he confessed.

The California Court of Appeal concluded that Smith was not “in cust o d y .” I t relied e x clusively on the “fact” that, in the words o f the court , h e “ w a s told three times that he was not under arrest and was free t o g o.” See People v. Smith
, No. A125912, 2010 W L 4233298, at *3 (Cal. Ct. App. O c t. 27, 2010) (unpublished). I n an unpublished disposition, a three-judg e panel of this court denied h is petition for a writ o f habeas corpus, concluding that the Court of Appeal’s opinion, while suspect, was neither “contrary to, ” n o r involved “an unreasonable application of, c learly established F ederal law.”S M I T H V

. C L A R K 4

28 U.S.C. § 2254(d)(1). Smith v. Clark
, No. 14-15162, 2015 W L 2119461, at *2 (9th Cir. May 7, 2015).

I disag ree. Smith was clearly “in c ustody ” u nder Miranda

. The California Court o f A ppeal’s conclusion to the contrary rested on a misr ea d i ng of California v. Beheler
, 463 U.S. 1 121 (1983) (per curiam). I n the Court of Appeal’s reading
, Beheler establishes a brig ht- l ine rule that a suspect who has been told repeatedly that he is “not under a rrest” is
not “ in custody ” under Miranda

. Bu t t h i s is n ot the law. A police officer cannot remov e a n interrog ation from Miranda ’s reach simply by reciting mag ic words. W e sh o u ld have

c o r r ected the Court of Appeal’s e rror. Smith’s conviction, and many others, hangin the balance.

I respectfully dissent from our decision not to rehear this case en banc.

I . B ackg round

A. Smith

J ovan’z Smith was 16 y ears old w hen he was taken from his classroom and broug h t to the Vallejo Police Department for questioning

. Over the n e x t f our hours, he was interrog ated in a small windowless room by a team of three police officers about the choking death of his daug h ter. The officers took his cell phone and did not return it; they evaded his questions about whether h e was free to leave, at one point clearly imply ing that he could n ot leave as long as o f ficers still had questions; they arrang ed for his daug hter’s maternal
g randmother to c ome to the station to question and b erate him; they administered a lie detector test, which they told him he failed; a fter the l i e d et ector test, they repeatedly told himS M I T H V

. C L A R K 5

that he was ly ing; t hey then told him, “You can’t leave this

room ly ing .” Smith confessed o nly after he had been told that he could not leave the room ly i ng

. After he c onfessed, the officers read him his M

iranda rig hts. Smith then repeated the confession he had just g iven.

The California Court of Appeal’s decision that Smith was not in “custody ” for the purposes of M iranda v. Arizona
, 374 U.S. 436 (196 6 )
, t u rned on the “fact” that Smith, according to the Court of Appeal
, “was told three times that he was not under arrest and was free to g o .” Smith
, 2010 W L 4233298, a t *3. This misstates the record: Sm i t h wa s told only once, a t the beg inning of the i n t er rog ation, that he was “free to g o.”

Smith was, h owever, told th r e e times that he was “ not under arrest.” The first time was at Smi t h ’ s h ig h school, when a u niformed Vallejo p olice officer told him he w as “ not under arrest” but that an investig ator wanted to speak to him. Smith ag reed to accompany the officer t o the Vallejo Police Department. They drove to the p olice station in a patrol car, with the o fficer in the front and Smith in the b ack. A ccording
to the officer, they

had a “friendly conversation” on the way to the station. Once at the station, the officer placed Smith in an interview room. I

t was roug hly

2:30 PM.

The second time was in the interview room, a t the beg inning of Smith’s interrog a tion, when Detective Sharon F ong entered the room, introduced herself, and told Smith he

was “not u n d e r arrest” and w as “free to leave a t any time.” I t was roug hly

2:33 PM.

F ong and Smith spoke f

o r about twenty minutes, during which time Smith offered the f irst of several ex p lanationsS M I T H V

. C L A R K 6

about what happened to his 18-month-old daug hter, T. Smith told F o ng he had accidentally left baby wipes on T.’s b ed. He said that h e turned aw ay , a nd when he turned back, T. was “turning purple” and “throwi n g u p b lood.” He said that the doctors later told him that T. had swallowed a baby wipe.

Around 2:55 PM, a second police officer, Detective Eric Mustar d
, e n tered the interview r oom. Over the nex t half hour, Mustard asked increasing ly hostile questions. He asked Smith how many children h e had. He asked Smith how many g irlfriends h e h ad. He tol d S m i t h
, “ Honesty is a h u g e issue rig h t h e r e

. . . . So be real h o nest with me.” He ex pressed skepticism that T. would have swallowed the baby wipes, a nd noted that “we will fig ure that out

. . . forensically .” He said, “[ S] ometimes we g e t caug ht up in the moment and we do something that we reg ret and we feel bad for.” He sug g ested that Smith confess, and told Smith that if he d id not, and it later came out that he had lied, “people are g onna look at y ou and judg e y ou as a cold-hearted son-of-a-bitch. ” W h en Mustard left the room, he took Smith’s cell phone.

Around 4:10 PM, Mustard r eturned with T.’s maternal
g ra n d m other, N. N. b eg an to cry almost immediately

. Mustard told Smith, “ You can look at me and y ou can tell me whatever story

y o u want to tell me, [ but] that’s blood to that lady .” He told Smith ag ain that he did not believe his story :

I told y ou this earlier and I tell y ou ag ain, y ou g otta do the rig ht thing
, man , ‘ c a use if y ou want to be a g ood p erson, if y ou want people
to think y ou’re a g ood p erson, if something bad h appened, an accident happened and this wasn’t something that’s c old

. . . A lotta thing s runnin’ throug h y our mind rig ht now,S M I T H V

. C L A R K 7

I know that. I told y ou if the truth comes out t o d a y I can help y ou. I f it comes o u t tomorrow o r the nex t day or nex t week I can’t help y ou. Today
, the truth.

He a sked: “Can y ou look that lady in the ey e and tell her y ou didn’t do that? ” N. then told Smith that her g randdaug hter, T., was brain-dead.

Around 4:50 PM, after N. and Mustard had left, Detective F rank Pucci arrived to conduct a lie detector test. As Pucci
set up the test, Smith as k e d
, “ A f t e r this, will I be a

ble to g o h o m e ? ” Pucci responded, “ Y ou know what, what I don’t know is, ar e y ou and Detective Mustard done talking ? ” Smith r eplied, “I don’t know.” Pucci said, “Okay
, um, y eah. You understand y ou’re not under arr e s t , okay ? W e ’re just try ing t o ga t h er all the facts.” Pucci ended the ex chang e b y say ing
, “ So there may b e some questions w i t h Detective Mustard, I don’t know. Alrig ht? ” Thi s was the third a nd final time Smith was told that he was “not unde r ar rest.” I t was roug hly

4:55 PM.

The interrog ation continued for another hour and a h a l f. During the lie detector test, Pucc i asked Smith whether he had p ut the baby wipe in T ’s mouth. Smith said that he h ad
not. A fter the test, Pucci left t h e interview room. W h en Pucci returned with Mustard, he told Smith that he had failed the test. The officers told Smith to “be honest,” a n d not to “lie to [him] self.” Smith chang ed his story somewhat, stating that he had seen T

. choking on the baby w ipe and had reached in to t a k e it out. He maintained, however, that he had not intentionally

hurt her.S M I T H V

. C L A R K 8

The officers insiste d t h at Smith w as ly ing

. Pucci asked, “J ovan’z
, it didn’t h appen like that, did it? ” Smith said it had. Pucci said, “I hear w hat y ou’re say ing

. B ut it didn’t happen like that.” Smith repeatedly insisted that it had
, reiterating that he h ad g otten up to c hang e the c hannel on the television and had turned around to find T

. choking

. F inally
, Pucci told him: “Don’t lie, man. Y ou can’t leave this room ly ing
, bro.” I t was 6:10 PM.

T w enty minutes later, after he had been told “y o u ca n ’ t leave this room ly ing ,” Smith confe s s ed. He told his interrog ators that he had pushed the baby wipes into T

. ’s mouth in a moment of a ng er. Mustard sug g ested that they take a break, and that Smith “write that little g irl a letter” a nd tell her that h e was s o r r y

. Shortly thereafter, the officers broug ht Smith a slice of piz z a, the first f o o d he h ad been
g iven since h e arrived at the station. Around 8:30 PM, i n a different ro o m i n the station, the officers finally read Smith his Miranda warning s. I n response to questions, Smith repeated the confession he had g iven earlier. I t had been six hours since he was first broug h t to the police station.

Smith w as prosecuted f

o r m urder and assault o f a child causing death. He moved to suppress his statements a s obtained in violation of Miranda
, but the motion was denied. The jury watched a tape of his pre- Miranda in t e r r o gation. The jury hung on the murder charg e but convicted him of the assault charg e, and Smith was sentenced to 2 5 y ears to life in state prison.

B

. Beheler

W h at happened to Smith in the police station is not unusual. As Professor C h arles W eisselberg has ex tensivelyS M I T H V

. C L A R K 9

d ocumented, police officers in California are specificall y instructed to inform suspects that they are “not under arrest” in orde r t o “ma[ k] e certain that the interrog ation w[ ill] be

seen as non-custodial.” C harles D

. W eisselberg
, Mourning Miranda, 96 Cal. L

. Rev. 15 1 9, 1 542–44 (2008). T h is is known as a “ B e heler admonishment,” after California v

. Beheler
, 463 U.S. 1121 (1983) (per curiam). The defendant in Beheler
, who g ave an inculpatory statement to the police, had been “specifically told that he was not under arrest.” Id.
at 1122. The California police academies have interpreted Beheler to mean that, if a police officer say s the mag ic words, telling a suspect that he is “ not under arrest,” the suspect will not be found to have been in “custody ” under Miranda

.

Beheler admonishments p lay a major role in instructional material produced by the Ca lifornia Commission on Peace Officer Standards and Training (“ POST”). As W eisselberg documents, one set of POST training mate rials d escribe Beheler as “ a wonderful case for use.” W e i s s e l berg
, supra , at 1542. Another POST c ourse dramatiz es the use of Beheler

a d m o nishments on a suspect in c onnection with “the f u l l toolkit of interrog ation tactics,” i ncluding confrontation a nd minimiz ation techniques (the use of sy mpathy a

nd justifications to induce a confession). Id. at 1544. T h e same POST course f

eatures a debate between ex pert s on w hether, if a suspect a ttempts to ex ercise his rig ht to leave the interview, the police should allow him to do so. I d.

The use of Beheler admonishments is not limited to California. Cases from the f ederal co u rts, and over 31 state courts, d emonstrate the use of similar tactics nationwide. Id.
at 1545 nn.140–41; see, e.g. , United States v. McCar t y , 4 75 F .3d 39, 46 (1st Cir. 2007); United States v. Le B r u n , 363 F .3d 715, 718 (8th Cir. 2 0 0 4 ); F itzpatrick v. State
,S M I T H V

. C L A R K 10

900 So. 2d 495, 510 ( Fl a

. 2 0 0 5); State v. Munoz
, 972 P.2d 847, 85 6 (N

. M. 1998); State v. Hobson
, 6 48 A.2d 1369, 1370–72 (R.I

. 1994); State v. Bronson
, 496 N .W .2d 8 8 2, 889 (Neb. 1993). An F B I pu b l i ca t ion from the 1980s similarly instructs federal ag ents to in form suspects that they are not under arrest, “thus neg ating the need for the [ Miranda ] warning

. ” See Charles E. Riley I I I
, F i n e t u ning Miranda Policies
, F B I L aw Enforceme n t B u ll. 23, 24–25 ( 1985); see also W eisselberg
, supra , at 1546 nn.145–46.

As W eisselberg notes, the use of Beheler admonishments is c l early strateg ic in n ature. Beheler admonishments h elp police officers (falsely

) convey to suspects that they a r e n o t under suspicion, thereby e n h ancing the effecti v e ness o f “soft” tactics
, such as minimiz ation, that induce confessions. B ut they also h ave an e v en more powerful effect. As interpreted by the police and California stat e c o u rts, they serve a s virtually conclusive evidence that a s uspect was not in “custody ” d

uring a n interrog ation, a

nd therefore that no Miranda w arning s were r e q uired. I n other words, they p ermit police officers to remove confessions from Miranda ’s reach.

Sometim e s , it w ill not be possible to determine whether police o fficers used Beheler admonishments strateg ically

. I n this case, h owever, it i s e asy

. At 3 PM, Detective Mustard entered the interview r oom to take over Smith’s interrog ation. B efore he asked Smit h any questions, however, Mustard turned to D e tective F ong a n d asked, “Are y ou Beheler -ing here? ” F o ng answered, “Yes.”

C. Smith

Smith appealed his conviction to the California Court of Appeal. His sole arg ument w a s t hat the videotape shouldS M I T H V

. C L A R K 11

have been suppressed because it was obtained in violation o f Miranda because h e had been in c u stody w hen he first confessed. T he Court of Appeal denied his claim. I t held that “the trial court’s r

uling was well supported.” Smith
, 2010 W L 4233298, at *3. I t ex plained:

The record here indicates that appellant was told three times that he w a s n o t under arrest and that he was free to g o. The first occurred when a p p e llant was at school. Officer B a rrientos told a

ppel lant he was not under arrest and he asked appellant whether he was willing to answer some questions at the police station. T h e second time occurred when Detective F ong beg an interviewi n g appellant at the police station. F ong told a ppellant that he w as not under arrest and that h e was free to terminate the interview and leave at any time. The third time o ccurred when Detective Pucci

came into the interview room t o g ive appellant a voice stress test. Appellant asked Pucci whether he c o uld leave after the test. Pucci said he did not know, but he then w ent

on to tell appellant y e t again that he was not under arrest. W

e th i n k a reasonable person who is t o l d repeatedly that he is not under
arrest and that he is f r e e to go would

un d e rstand that he is not under arrest and that he is f

r e e to go. W e conclude the trial court ruled correctly

.

Id. (emphasis added).S M I T H V

. C L A R K 12

On federal habeas review, the mag istrate judg e concluded Smith’s was a “close case.” Smith v

. Clark
, No. 2:11-CV-3312, 2013 W L 4409717, a t *1 (E.D. Cal. Aug

. 15, 2 0 13). I t concluded that if Smith’s ag e were take n i n t o consideration, as required by J.D.B. v. North Carolina
, 131 S. Ct. 2394 ( 2011), the state court’s conclusion that Smith was
not “ in custody ” would be “unreasonable” under 28 U .S.C. § 2254(d ) and H

arrington v. Richter
, 562 U.S. 86, 101 (2011). Id. at *1. B ecause J.D.B. postdated the C o u r t o f Appeal’s decision, however, the mag istrate judg e concluded that the Court of Appeal did not err in not factoring Smith’s
ag e into its a

naly sis, and that, absent consideration of Smith’s
ag e, t h e court’s d ecision w as not “unreasonable” under § 2254(d). Id. at *26. T h e d istrict court approved the
mag istrate judg e’s recommen d a t i on that habeas b e denied, but it certified for appeal th e q uestion whether the interrog ation was custodial.

A three-judg e panel affirmed the deni a l o f Smith’s petition, r ely ing in larg e part on the rational e o f t he
mag istrate judg e. S

e e S mi th
, 2 015 W L 2119461, at *2. J u d g e W atford concurred. See id. at *3–6 (W atford, J
., concurring ). He wrote that he found the denial of Smith’s motion to suppress “troubling .” Id. at *3

. Despite his “misg iving s,” how e v e r, J udg e Watford felt “compelled to affirm under AEDPA.” I d. at *6.

I I . Discussion

As this case illustrates, the California courts

— and the California police academies — have misread Beheler

. They interpre t it as creating a brig ht-line rule that a suspect w ho has been told repeatedly that he is “not under arrest” is not “in custody ” under Miranda

. B ut B eheler does not stand for suchS M I T H V

. C L A R K 13

a rule, nor could it. I t has never bee n the law that a police office r c a n insulate an otherwise clearly custodial interrog ation f

rom M iranda ’s reach simply b y telling a suspect that h e or she is “not under arrest.” B ecause Smith’s conviction rests on the Court of Appeal’s err o n e o us understanding of what it means t o b e “in custody ” under M i randa
, we should have g ranted his petition for a w ri t o f habeas corpus.

Under AEDPA, we may g rant a petition for a w rit o f habeas corpus only if the state court judg ment was “ contrary to, or i n v olved an unreasonable application of, clearly

e s t a blished F e deral law, as determined by the Supreme Court.” See 28 U.S.C. § 2254(d)(1). W e “lo o k to the last

reasone d s t a te court adjudication o n the merits of [ Smith’s] Miranda claim, which was th e decision of the California Court of Appeal.” Thompson v. Ru n nels
, 705 F .3d 1089, 1096 (9th Cir. 2013). There is no question that the Court of Appeal’s judg ment was “contrary to” the law set f orth by the Supreme Court in a long line of c ases r ang ing from Howes v

. Fields
, 132 S. Ct. 1181 (2012), to Y a r borough v

. A lvarado
, 541 U.S. 6 52 (2004), to Thompson v

. Keohane
, 516 U.S. 99 (1995), to Beheler

itself.

Miranda holds tha t c ertain warning s are required in the
contex t of custodial interrog ations g iven “th e compulsion inherent in custodial surroundi n gs

. ” See 384 U.S. at 458. The w ord “custody ” is a “term of art t h at s p ecifies circumstances that are thoug ht g e n erally to present a serious dang er of coercion.” Howes
, 1 3 2 S. Ct. at 1189. I n determining whether a person is in “custody ” for purposes o f Miranda
, the Supreme C o u r t has held that “[ t] wo discrete inquiries are essential: f i r s t, what are the circumstances surrounding the interrog ation; and second, gi v en thoseS M I T H V

. C L A R K 14

circumstances, would a reasonable person have felt he or she

was not at liberty to terminate the interrog ation a n d leave.” Thompson
, 516 U.S. at 1 12. The “ultimate inquiry ” is whether there was “a formal a r rest or r estraint on freedom o f
movement of the deg r ee a ssociated with a formal arrest.” Id. I f there is, Miranda warning s are required.

The Supr e m e C ourt has repeatedly instructed courts to “ex a mine ‘all of the circumstances surrounding the interrog ation.’” Fields
, 132 S. Ct. at 1 189 (quoting Stansbury

v. California
, 511 U.S. 318, 3 22 (1994) (per curiam)). Relevant factors include

the location o f the questioning
, see Maryland

v. Shatzer
, 130 S. Ct. 1213, 1223–26 (2010), its duration
, s ee Berkemer v. McCarty
, 468 U

. S. 420, 437–38 (1984), statements made during the interview, see O r e g o n v

. Mathiason
, 429 U.S. 492, 49 5 ( 1977) (per curiam); Alvarado
, 541 U.S. at 665; Stansbury
, 511 U.S. at 325, the p r esence o r absence of p hy sical restraints during t h e questioning
, s e e New Y ork v. Quarles
, 467 U.S. 649, 655 ( 1984), a n d t h e release o f the interviewee at the end of the questioning
, see Beheler , 463 U.S. at 1122–23.

Fields
, 132 S. Ct. at 1 189 (citations altered); see also United States v. Kim , 292 F .3d 969, 974 (9th Cir. 2002).

I n this case, v irtually al l o f these factors lead to a conclusion t h a t Smith was in “custody ” under Miranda

. Smith was interrog ated f o r four hours (and held for nearly six ) before h e w a s r ead Miranda warning s. He wasS M I T H V

. C L A R K 15

interrog ated in a small windowless room in “the bowels” o f the police station. His cell phone was taken from him and not returned. Althoug h the interrog ating officers were friendly at fi r s t, they q

uickly became hostile. Within an hour they h ad all but stated that they suspected him of T.’s death. Sm i th finally a g reed to take a lie detector test, which the of f i ce rs told h im that he ha d fa i l ed. W hen he continued to maintain his innoc en ce, the officers told him flatly that they did not be l i e ve him: “J ovan’z
, it didn’t happen like that,” said one. “You can’t l eave this r oom ly ing
, bro,” said the other. No reasonable p erson in these c i rcumstances — w hether a six teen-y ear-old or a mature adult

— w ould think that he was free to leave until he told a story that the officers believed.

The Court of Appeal’s c o n trary conclusion r ested entirely

on the “fact” t h a t , in its words, Smith “was told three times that h e wa s n ot under arrest and that h e was free to g o.” A s

a preliminary matter, this misstates the record: Smith was not told three times that he was “free to g o.” He w a s t o ld only
once, b efore questioning beg an, that he was free to g o. I nstead, he was told three times that he was “not under arrest.” A lay

person understands that the statement “y ou’re free to g o” means precisely th a t , b u t a lay person does not necessarily u nderstand that the statement “y ou’re not under arrest” means “y ou’re free to terminate the interrog ation a nd leave.”

F urther, the officers’ three statements that Smith was “ not under arrest” would not lead a reasonable person to feel that he was free to terminate the i n terrog ation under the cir c u m s t ances here. T h e first two a dmonishments came early
, once a t the hig h school a nd then before the interrog ation had beg un. A nd the third admonishment could hardly h a ve p ut Smith on notice that he was free to leave onceS M I T H V

. C L A R K 16

the interrog ation had b eg un. The third a d m o n i s hment was g iven when Smith a sked Detective Pucci whether he could g o home after taking the lie detector test. J udg e W a t f o r d, concurring

separately

in the panel disposition, put it well:

The officer didn’t r espond with t he only

answer c onsistent with Smith’s supposed freedom to leave, whi c h would have been

“ y e s , of course.” I nstead, he told Smith, “Hey
, y ou know, I d on’t know. A r e y o u a nd Detecti ve Mustard done talking ? ” That
response seems pretty c l early to indicate that Smith wasn’t free to leave whenever he chose but rather only when Detective M u stard h ad finished interrog ating h im. That the officer has t i l y added, “You understand y ou’re not und e r arrest, okay ? ” doesn’t seem to chang e any thing

.

Smith , 2015 W L 2119461, at *5 (W atford, J ., concurring )

.

Th us, even if I thoug ht the Court of Appeal had a pplied the correct standard

— and I do not — I wo u l d conclude it had unreasonably a

pplied it. Each o f the factors that the Supreme Court has told u s to consid e r w hen d etermining whether someone is “in c ustody ” under M iranda
, ex cept one, point toward the conclusion that Smith was in custody

. A nd th e admonishments that he was not under arrest were o f basically no use to Smith — two were provided four hours before he confes s e d, and the third convey ed the opposite
messag e that the Court of Appeal interpreted it to convey

.

The Supreme Court has instructed lower courts to weig h all of the circumstances sur r o u n ding an interrog ation toS M I T H V

. C L A R K 17

determine w hether it was “ custodial.” See Howes
, 132 S. Ct.
at 1189

. B ut the Court of Appeal brushed aside these circumstances in f

avor of a brig ht-line rule th a t v erbal admonishments alone are sufficient to assure a reasonable
person that he is “free to g o”: “W e think a reasonable person who is told repeatedly that he is not under arrest and t h at h e is free to g o would u nderstand that he is not under arrest a nd that h e is f

ree t o g o.” Smith
, 2010 W L 4233298, at *3. I t then reje c t e d every arg ument that Smith made by invoking the “fact” that he had been told, three times, that he was “ not under arrest” and was “free to g o.”

Smith first arg u ed that a California Supreme Court case, People v

. Ochoa
, 19 Cal. 4th 353 (1998), supported h is claim that h e was “in cu s t o d y ” u nder Miranda

. The Court o f Ap p e al rejected Smith’s analog y to Ochoa
, rely ing

ex c lusively on the number of times the police had told Smith that he w a s f

re e t o g o. I t wrote: “The situation here is even

more c lear than [ in] Ochoa b ecause the appellant [ Smith] was told specifically and repeatedly that he was not under arrest and that he was fre e to go

. L ike Ochoa we conclude a reasonable person in appellant’s pos ition would understand he was free to g o.” Smith
, 2010 W L 4 233298, at * 3 (emphasis added).

Smith n ex t arg ued that he was “in custody ” because (1) he

was taken to the police station in a p atrol car and (2) he was interrog ated for over four h ours at the station. The Court o f Appeal dismissed both facts as irrelevant on the g round that Smith had been t o l d t h r e e times that he w as “ not under arrest.” I t wrote: “W hile appellant rode to the police station in a patrol car, he did so o nly after ag reeing to do so and after b e i ng told specifically that he was not under arrest .” Id. (emphasis added). The c ourt ex p lained that “[ a] ny coercionS M I T H V

. C L A R K 18

that mig ht otherwise have been presen t d u e t o the leng th o f the questioning was lessened by the fact that at three different points during that questioning
, appellant was told that he was not under arrest .” Id. (emphasis added).

F inally
, Smith arg ued that he was “in custody ” because he had asked several times whether h e could leave. I n p articular, he pointed to the conversation he had w ith Detecti v e P u cci reproduced above. I n this conversation, Smith asked Pucci if he could l e a v e after he had f inished the lie detector test. Pu c ci r esponded, “Hey
, y ou know, I don’t know. Are y ou and Detective Mustard done talking ? ” I n other words, Pucci
sug g ested to Smith that he was not f r ee to le a v e

. Bu t the Court of Appeal dismissed the relevance of this ex chang e on the same g round it dismissed Smith’s other arg uments: “Pucci then went on to tell appellant that he was n o t u n der
arrest

. W

e think a reasonable person who is told that he is
not under arrest would understand that he is not in custody. ” Id. at *4 (emphasis added).

The Court of Appeal, in other w or d s, dismissed every sing le one o f Smith’s arg uments as to why he wa s “ in

c ustody ” under Miranda on the same g round. I t held t h at

none o f his arg uments was persuasive in lig ht of the f act that Smith had been told repeatedly that he was not under arrest. This is not the law. A police officer cannot t ra n sform a

c l e a r l y custodial interrog ation into a non-cust o d i al interrog ation simply b y telling a suspect that he is “ not under arrest.” Such a rule would render Miranda a dead letter.

The California courts ( and the California police academies) have interpreted California v

. Beheler
, 463 U.S. 1 121, as authoriz ing such a rule. B u t Beheler does n o such thing

. I n Beheler
, the defe n d a n t h a d g one to the policeS M I T H V

. C L A R K 19

s t a t ion voluntarily “althoug h the police specifically told [ him] that he was not under arrest.” 4 63 U.S. at 1122. He spoke to police officers for 30 minutes a n d t hen returned home. Id. He later c halleng ed his statement as obtained in violation o f Miranda
, a

nd the California Court of Appeal a gr e ed,

c o n c l uding that B eheler had b een “in custody ” d uring the interview. Id. at 1123. The Supreme Court reversed. I t h eld that the case was indisting uishable from M athiason
, 4 29 U.S. 492, in which a defendant had voluntarily g one to the police station a nd g iven a short interview. Id. at 112 3

– 2 4

. The Court did n ot rely on — indeed, did not even mention, e x cept in its initial discussion of the facts — the fact that B eheler had been told he was not under arrest.

The brig ht-line rule on which the Court of Appeal relied in this case finds no support in Beheler
, n o r i n any other Supreme Court case. The cases that tell us what it means to be “in custody ” u nder Miranda instruct us to conside r all o f the relevant circumstances in making that determination. See F i e l d s , 1 32 S. Ct. at 1189; Alvarado
, 541 U.S. at 663; Thompson
, 516 U.S. at 112. And B e h e ler
, rather than announcing o r a p p ly ing a n ew rule, applied the same “totality -of-the-circumstances” r ule described in these later

cases. See 463 U.S. at 1125. B ec a use the Court of Appeal “applie[ d] a rule that contradicts the g overning law set forth in [ Supreme Court] c ases,” its judg ment was “ c o n t r ary to” clearly established f

ederal law, see W

illiams v. Taylor
, 52 9 U .S. 362, 405 (2000), and Smith’s petition f or a w rit o f habeas corpus should have been g ranted.

Mir a n d a r ests on the proposition that “custody ” is an objective circumstance, so m e t h ing that courts can identify after the fact by looking at a r elatively small number o f fix ed indicia. B ut the rule applied b y the Court of Appeal a llowsS M I T H V

. C L A R K 20

police to render these indicia irrelevant. Under the Court o f Appeal’s misreading o f B eheler
, “custody ” is no long er an objecti v e inquiry

. Police o fficers can e asily manufacture a finding that a suspect is not in “custody ” — and t h e r e b y evade Miranda — even when e v e r y coercive factor we associate with custodi al interrog a tion is present, and even when (as here) the suspect clearly d oes n ot feel free to leave. All th e y n eed to do is say the mag ic words: “You’re not under arrest.”

B y permitting Smith’s conviction to stand, we effectively allow the police to r e move unwarned co n f e ssions from Miranda ’s reach by r eciting a few short words

. N othing in M i r anda
, in Beheler
, or in any other c ase sanctions such a n unwise and unfair result.

* * *

T his is a close case only b ecause we are review i n g t h e decision of the Court o f A ppeal o n habeas, under the deferential standard required by AEDPA. I f this case h ad

come to us o n direct review, it w o u l d be easy

. I reg r et that

our c ourt has declined to r ehear this case e n b a n c , but I

u n derstand, g iven its procedural posture, my colleag ue s ’ reluctance to do so.

I t may be that the only w ay to put a stop to “ Beheler -ing
, ”

as practiced by the police in California and as tolerated by the California state c ourts, will be to seek dire c t review by the United States Supreme Court. I have little doubt what the Court’s answer will b e if the q uestion is presented on direct rather than o n collateral review. The sooner we g e t that answer the better.S M I T H V

. C L A R K 21

CAL L A HAN, Circuit J udg e, and M. SMI TH, Circuit J udg e , concurring

in the denial of rehearing en banc:

W i th all due respect to o ur dissenting colleag ue, we disag ree with his charac t e r iz ation of the state appellate

c o u r t ’ s d e c i s i o n , description o f the c ircumstances surro u n d i n g J ovan’z Smith’s interview, a nd leg al conclusions. O ut o f fairness to all concerned, including the California jurists w ho reviewed Smith’s case on appeal, we offer this co n c u rrence in response to his dissent.

I.

I n this c ase, the Miranda inquiry arises within the c ontex t of habeas review under the A ntiterrorism and Effective Death Penalty A ct of 1996 ( AEDPA). “An o f f i c er’s oblig ation to g ive a suspect Miranda warning s before interrog ation ex te n d s only to those instances where the individual is ‘in custody .’” United S tates v

. Kim, 292 F

. 3d 969, 973 (9th Ci r. 2 0 0 2 ). I n determining whether a suspect is in custod y , “[ t] wo discrete inquiries a

re essential.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). First, a c ourt must determine “what

. . . circumstances surround[ ed] t h e interrog ation.” Id. Second,

a court must decide whether “a rea s onable person [ in those circumstances would] have felt he or she was not at liberty to terminate the interrog ation a nd l e a v e .” Id. “The c ustody determination is obj e c tive and is not based upon ‘the subjective v i e ws of the officers or the individual being questioned.’” U

nited States v. Bassignani
, 575 F .3d 879, 883 (9th Cir. 2 009); see a lso S tansbury v. California, 511 U.S. 318, 323 (19 9 4 )

. Courts have identified numerous circumstances to b e pertinent i n a ssessing the c ustody question. See Howes v. Fields
, 132 S. Ct. 1181, 1189 ( 2 012); Kim , 292 F

. 3d at 974.S M I T H V

. C L A R K 22

On direct appeals, Miranda claims present mix ed questions of law and fact that w e r eview de novo. United States v

. Cazares
, 788 F .3d 956, 979 (9th Cir. 2015). I n this
case, h owever, we are b ound by A EDPA. See Y arborough v

. Alvarado
, 541 U.S. 652, 665 (2004) (applying AEDPA on habeas rev i e w of a challeng e b ased on Miranda ). AEDPA authoriz es the g rant of a state prisoner’s petition for a writ o f habeas corpus when the r elevant state-court decision was (1) “ contrary to, or involved an unreasonable application of, clearly established F e dera l law, as determined by the Supreme Court” or (2) “based on an unreasonable determination of the facts in lig ht of the e v i d e nce presented in the State court proceeding .” 28 U.S.C. § 2 2 5 4 (d)

. The Court must “look to the last reasoned state court a djudication

on the merits of [ Smit h ’s ] Miranda claim, which was the decision o f the California Court of A p p e al.” Thompson v

. Runnels , 705 F .3d 1089, 1096 (9th Cir. 2013).

A state c ourt decision is “contrary to” federal law within the meaning of § 2254(d)(1) if “the state c o u r t arrives at a conclusion opposite to that reached b y [ t he Supreme] Court

on a question of law,” or “the state court confronts facts that

are materially indisting uishable f rom a relevant Su p r e me Court precedent and arrives at a result opposite to [ the Supreme Court] .” W

i lliams v

. Taylor
, 529 U.S. 362, 405 (2000 )

. “ Thus, the ‘contrary to’ prong r equires a direct a nd irreconcilable conflict with Supreme Court precedent.” Murray v. Schriro , 745 F .3d 984, 997 (9th Cir. 2014).

A state court decision is a

n “unreasonable application” o f Supreme Court precedent within the meaning of § 2254(d)(1) if “the state court identifies the c o rrect g overning leg a l rule from [ the Supreme] Court’s cases b ut unreasonably a pplies it
to the f acts of the particular state prisoner’s case , ” o r “theS M I T H V

. C L A R K 23

state court either unreasonably ex tends a leg al principle from [ Supreme Court] precedent to a n ew contex t where it should
not a pply or unreasonably

refuses to ex tend that principle to

a new c ontex t where it should apply

. ” W illiams
, 529 U.S. at 407. The Supreme Court has repeatedly emphasiz ed that “‘an unreasonable a

pplication of federal law is different f rom an incorrect application of federal law.’” Harrington v. Richter
, 131 S. Ct. 770, 7 85 (201 1 ). “The deferential standard imposed u n d e r AEDPA cloaks a state court’s determination with r easonableness, so long a s ‘fairminded jurists could disag ree’ as to whether a claim lacks merit.” Mu rray , 745 F .3d at 998 (quoting A lvarado , 541 U.S. a t 664). Thus, “a habeas court must determine w h at arg uments or theories

s u pported or

. . . could have supported[ ] the state court ’s decision; and then it must ask whether it is possible fairminded jurists could d isag ree t h a t those arg uments o r theories are inconsistent with the hold ing in a prior decision of [ the Supreme] Court.” Harrington , 131 S. Ct. at 786.

I mportantly
, state courts are g iven even “more leeway ” in

cases like this one, where the rule applied is g eneral in nature, requiring a case-by -case assessm e n t based o n the totality o f the circumstances. Alvarado
, 541 U.S. at 664. Emphasiz ing the string ency of § 2254(d) ( 1 )
, the Supreme Court has cautioned that “even a s t r ong case for relief does not mean the state c ourt’s contrary conclusion was u nreasonable.” Harrington
, 131 S. C t

. at 7 86; see also Lockyer v. A n drade
, 538 U.S. 63, 75 (2003).

II.

O u r dissenting colleag u e believes that habeas reli e f should have been g ranted for two reasons, w hich we address in turn.S M I T H V

. C L A R K 24

A.

The dissent’s primary c o ncern is that the state appellate court applied “a brig ht-line rule that a suspect who has been told repeatedly that he is ‘not under arrest’ is not ‘in custody ’ under Miranda .” The dissent broadly states that all California
courts apply this brig ht-line rule rather than the “totality -ofthe-circumstances” test required by Miranda and its prog eny

.

W e disag ree with the dissent’s charact eriz ation of the
state appellate court’s decision. While the court placed g reat weig ht on the fact that Smith was repeatedly told he was not under ar r e s t , a s the Supreme Court and we have done in similar c ases, it did not impose a “brig ht-line rule.” Nowhere in its decision does the state appell a te court set out a leg al standard that is contrary to the totality -of-circumstances test. Rather, it correctly recites the two-part custody t est: “F irst, what were the circumstances surrounding t he interrog ation, and second, g iven those circumstances, would a reasonable
p erson have felt he was not at liberty to termi n a t e t h e interview and leave.” People v. Smith
, N o

. A125912, 2010 W L 4233298, a t * 2 (Cal. Ct. App. Oct. 27, 2 010) (unpublished).

Nor d o es the stat e appellate court’s application of the
custo d y t est belie a d ifferent standard. The state appellate court’s decision set the stag e of the interview and referenced th e v i deo footag e. The court mentioned several f actors that

are indicative of custody
, including how Smith was summoned and broug ht to the p o l i ce station, the removal o f Smith’s backpack a

nd phone, aspects of the interview’s

s u rrounding s, the duration of the questioning
, a nd s o m e

s t a t e m e n t s m a de during the interrog ation. Other circumstances that were not mentioned b y the state appellateS M I T H V

. C L A R K 25

court may also weig h in favor of the view that Smith was in custody
, but a court is not r equired t o l i st each such circumstance in its u npublished decision. See T a y lor v

. Maddox
, 366 F .3d 9 92, 1001 (9th Cir. 2004) (“[ S] tate courts

are n ot required to addr ess every jot and tittle of proof

s u g g e sted to them, nor n eed they ‘make detailed finding s addressing all the evidence before [ them] .’”) (quoting MillerEl v. Cockrell
, 537 U.S. 322, 347 (2003)). Similarly
, the state appellate court was not required to marshal all countervailing circumstan c e s in order to deem the interview n on-custodial. The Supreme Court did not do so after mentioning numerous coerciv e c ircumstances in its brief per curiam decision reversing the California appella t e court in California v

. Beheler , 463 U.S. 1121 (1983).

I f the state appellate cou r t h a d created and applied a “brig ht-line rule” instead of e mp l o y ing the totality -ofcircumstances test, it w ould have been u n n ecessary f or the
court to have addressed all of these circumstances sug g esting custody

. M o reover, the state appellate court did not uniformly dismiss these circumstances based on the so-called Be h e l e r a dmonishments. F or ex ample, the court compared the leng th of the interview with the leng t h of interviews previously f

ound not to be c u s t o d i al by the California Supreme Court. Smith
, 2010 W L 4233298, at *3 (“W hile the interview was leng thy (about 3.5 hours to the p o i n t where appella n t b eg an making incriminating statements), it was similar in l e n gt h to one where our Supreme Court found a defendant n ot to be in custody

. ( Cf. People v. Leonard (2 0 0 7 ) 40 Cal. 4th 1370, 1400 [ a defendant who was questioned for 3.5 hours was n ot in custody ] .)” )

. The state appellate court also a d d r essed Smith’s arg ument that his phone a nd backpack had been confiscated. The court found that it was “far from clear whether the police took [ t h e]S M I T H V

. C L A R K 26

backpack.” Smith
, 2010 W L 4233298, at *4

. I t concluded that th e i m portance o f this circumstance was “minor,” because, “[ i] n any event,

. . . nothing

. . . wo u l d h ave prevented [Smith] from simply asking that they be returned.” Id

. The state appellate c o u r t d id n ot deem such coercive circumstan ces to be irrelevant in lig ht of the Beheler admonishments. I t f

o u nd them “lessened by the fact that at three dif ferent points during that q uestioning
, appellant was told that he was not under arrest.” Id. at *3.

Thus, we disag ree with the dissent’s arg ument that the custody test employ ed by the state court was c ontrary to that required by clearly established law. The state appellate court invoked and then applied the totality -of-circumstances custody test. I ndeed
, the dissent’s objection that the state appellate court viewed the Beheler a dmonishments a s “virtually conclusive evidence” appears to conce d e t hat the court did not apply

a “brig h t line rule.”

Even i f w e were to ag ree with the dissent’s characteriz ation of the state appellate c ourt’s decision, which

we do n ot, rel i ef must be d enied. There is n o clearly established Supreme Court law that a Beheler admonishment is not due sig nificant weig ht in the custody test. Rather, the Supreme Court and our court also “have c onsistently held that

a defendant is n ot in custody when officers tell him that he is
not under arrest a n d i s free to leave at any time.” United St a t e s v

. Bassignani
, 575 F .3d 879, 886 (9th Cir. 2009); see also Howes
, 132 S. Ct. at 1185 (“Most important, [ respondent] was told at the outset of the interrog ation, a nd reminded thereafter, that he was free to leave

. . . .”); Beheler
, 463 U.S. at 1122; Oreg o n v. Mathiason
, 429 U.S. 492, 495 (1977); United States v. Crawford
, 372 F .3d 1048, 1 060 (9th Cir. 2004) (en banc) (“Perhaps most sig nificant f or resolvingS M I T H V

. C L A R K 27

the q uestion of custody
, Defendant w as ex pressly told that he

w a s not under arrest

. . . .”); Dyer v. H ornbeck
, 7 06 F

. 3 d 1134, 1136–40 (9t h C i r

. 2013); United States v. Norris
, 428 F .3d 907, 912 (9th Cir. 2005).

I n d e ed, it is c ommon sense to g ive sig nificant weig ht to the fact that a person was r epeatedly told that he was not under arrest in evaluating whether a reasonable person in his circumstances would have thoug ht himself to be under arrest. The dissent paints a picture of California polic e officers nefariously g a ming the sy stem by telling people that they a re not u nder a

rrest. B ut there is no better w ay to communicate
t hat a person is not under arrest than by telling him. A s t h e panel e x plained i n i t s memorandum disposition and J udg e W a tford el a b o rated in his concurrence, “[ t] h is is not to say that a n interrog ation beg un w i th a so-called ‘ Beheler advisement’ cannot b ecome custodial a s t hat interrog ation drag s on a

nd coercive circumstances a ccumulate.” Rather, “on the facts presented, the state appe l l a t e c ourt did not unreasonably conclude that the custodial rubicon had not been crossed by the time Smith first c o n fessed, and thus the
pr ophy lactic procedural measures a dopted b y the Supreme Court in Miranda had not been trig g ered.”

B.

F or the reasons stat e d in our memorandum disposition,

we also disag ree with the dissent’s v iew that the st a t e c o u rt unreasonably applied the custody test.

W e add that other circumstances that were n ot mentioned by the state appellate c ourt also weig h ag ainst the view that S m i t h wa s in custody

. F or e x ample, Smith was never handcuffed. The d oor to the interview room was unlockedS M I T H V

. C L A R K 28

and w as at times l e f

t o p e n, including during the time period after the li e d et e ctor test had b een administered. Althoug h Smith was broug ht f

rom school to the police sta t i o n b y a uniformed officer, that officer was a “y outh services officer” who was assig ned to Vallejo Hig h S c h o ol, and thus her
presence was likely neither ex traordinary nor p a rticularly intimidating

. The i n terrog ating detectives were dressed in plain c lothes and w ere courteous and relax ed f o r the substantial majority of the interview. Smith left the interview

room once during

the pre- M iranda interview, albeit only for about 1 minute and 20 seconds. Smith was g iven three breaks during the pre-

Miranda interview, d

uring which h e was left alone in the room for 40, 2, and 20 minutes. W hile left alone, Smith can be seen on the v ideotape practicing f o r the interview, which may be interpreted as evidence that Smith deliberately r emained at th e s t a t ion in order to dispel suspicion o f him. Smith sig ned forms c onsenting t o the lie detector t e s t a

nd to the search of h is room for the clothes he

was wearing at the time of the incident. A s the state appellate
court noted, the California Supreme Cou r t has “ruled that

someone who h ad sig ned such a statement would understand that he was not in c ustody .” Smith
, 2010 W L 4233298, at *3 (citing People v. Ochoa , 19 Cal. 4th 353, 402 (1998)).

Additionally
, after Detective Pucci administered the lie detector test, he shook Smith’s hand a n d stated, “I f I don’t g et

a chance to see y ou a g ain, go o d luck to y ou, and I hope
every thing w orks out for y o u, alrig h t.” He then handed Smith his card and stated “You g ot any questions, concerns about
any thing
, that’s my d esk num b e r t h e re. Alrig ht? ” A reasonable p erson w o u l d view this interaction a s an indication tha t S m i t h w a s free to leave. At the very least, the state court’s determination that a r easonable person would feel free to leave was not objectively unreasonable.S M I T H V

. C L A R K 29

F urthermore, we c ann o t a g r e e with the dissent’s statement of some facts. Most n otably
, we cannot conclude that the
state appellate court was of the mistaken view that Smith was told three times that he was “free to g o.” We kno w t h at Smith’s second advisement that he was not under arrest was accompanied by a statement that he was “free to g o,” b ut that his third advisement that h e w a s not u nder a rrest did not include such a statement. Althoug h the re c ord does not indicate ex actly what Smi t h w as told when h e was approached a t school, the state appellate court opined that Smith was told that “he was n ot under arrest and [ was] asked whether he was willing to g o to the police station to answer

s ome questions.” Smith
, 2010 W L 4233298, at *1

. 1 Reg ardless of how e a ch ad visement is characteriz ed, this counting ex ercise is of no consequence, as the state appellate
court was not objectively unreasonable in viewing t he three advisements that Smith was “not u n d e r arrest” as h aving
convey ed messag es that Smith was free to g o

.

W e also no t e t h at Smith and the dissent overstate h ow much several factors weig h in favor of the view that Smith’s pre-warning confession was custodial. Althoug h the prewarning interrog ation was long
, w e c a n n ot conclude on A E D P A review that it was “a marathon session desig ned t o force a confession.” Bassignani , 575 F

. 3d at 886 ( quotation marks omitted); cf. Dyer
, 706 F

. 3d at 1136 (nearly four-hour nig httime interrog a tion). W hile Smith was bro u gh t to the police station in a police car, he joined the officer voluntarily and had a friendly conversation along the way

. See Beheler
,

1 In deed , th e state ap p ellate co u rt’ s sp ecif i c d iscu ssio n s o f th e f

irst an d th ird ad v isem en ts d em o n s trate th at, n o t w ith stan d in g a pref

ato ry sen ten ce

su g g estin g o th erw i s e , t h e co u rt w as n ot u n der th e im

p ressio n th at S m i th

w as to ld h e w as f

ree to g o th ree tim es.S M I T H V

. C L A R K 30

463 U.S. at 1122; Mathiason
, 4 2 9 U .S. at 495 (“He came voluntari l y t o the police station

. . . .”); Crawford
, 372 F .3d
at 1059 (emphasiz ing that the defendant “ag reed to accompany

” the officers). And while the accusatory na ture of an interview is an im p ortant c ircumstance to consider, Smith’s interrog ation did not become custod i a l simply because the officers questioned Smith’s veracity
, confronted him with evidence of his g uilt, and promised leniency

. See Mathiason
, 429 U.S. at 493 (officers told suspect that his fing erprints had been found at the sce n e a nd that “his truthfulness would p ossibly be considered by the district attorney or judg e”); Stansbury, 511 U .S. at 325 (telling a person he is a “prime suspect” does not necessarily mean he i s u n d e r arrest because “some suspects are free to come a n d
g o until the p o lice decide to make an arrest”). 2 I nd e e d
, the detectives g enerally questioned Smith in a friendly
, courteous tone, and their posture was relax ed. At one point, Smith can be seen laug hing and joking with Detecti v e Pucci about mutual acquaintances. The officers also p ermitted Smith to g ive narrative answers and “appealed to his interest in telling the truth and being helpful.” Alvara d o , 541 U.S. at 664. A fa irminded jurist could view many statements that Smith labels as implicit threats and promises as ex planations of the importance of truth and as ex p laining the differences b etween an intentional and a neg lig e n t act.

2 T h e Su

p rem e Co u rt h as ex p lain ed th at “ [a]n y in terv i ew o f on e

su sp ected o f a crim e by a p o lice o f f ice r w ill h av e co erciv e asp ects to it, sim p ly b y v irtu e o f th e f

act th at t h e po lice o f

f icer is p art o f a law

en f o rcem en t sy stem w

h ich m ay u ltim ately cau se th e su sp ect to b e ch arg ed

w ith a crim e. B u t p olice o f f icers are n ot req u ired to ad m in ister Mira n d a

w arn in g s to ev ery o n e w

h om th ey q u estio n .” Ma t

h ia so n , 4 2 9 U.S. at 4 9 5

.S M I T H V

. C L A R K 31

W e recog niz e that the state appellate court did n ot address Detective Pucci’s c om m e n t that Smith could not “leave the

room ly ing b ro.” B u t the c omment appears t o h av e b een directed at Smith’s claim that he chang ed the channel on the television to watch c artoons with t h e baby
, which the detectives said was ina c c urate. 3 A fairminded jurist could

3 A s ex p lain ed b y

th e d istrict co u

rt, th e ex ch an g e w as as f

o l lo w s :

D. MUST A RD: Yo u

d id n ’ t ch an g e th e statio n

.

SMIT H: Hu h ?

D. MUST A RD: Yo u

d id n ’ t ch an g e th e statio n

.

SMIT H: I d id ch an g e th e statio n

.

D. MUST A RD: Yo u d i d n ot ch an g e t h e st a t i o n

. I

j u st w as a t t h e h o u s e an d d o y ou k n o w w h a t c h a n n el th e T V is o n

– B ET

.

SMIT H: Sh e t

u rn ed – I d i d tu rn th e statio n

. I h ad a rem o t e. I tu rn ed it.

D. MUST A RD: Yo u d id n ’ t tu rn th e stati o n J av o n ’ z.

[ sic .]

D. P UCCI: Hey

. . .

D. MUST A RD: Do n ’ t lie m an

.

D. P UCCI: . . . J u st . . .

D. MUST A RD: Yo u

can ’ t leav e th is ro o m ly in g b ro

.

D. P UCCI:

. . . W h at h ap p en ed o u t t h ere m a n ? J u st te l l m e d id th e b ab y d o

s o m e t h i n g ? W a s t h e r e s o m eS M I T H V

. C L A R K 32

conclude that a reasonable person would not have interpreted this stateme n t l i terally
, particularly in the contex t of the previous advisem e n ts that Smith was not u n der arrest. I nstead, the statement could fairly be viewed as an appeal to the importance of truth.

Additionally
, we note that the stat e appellate court acknowledg ed that Detective Pucci’s third advisement that Smith was not under arrest was less than clear. B ut the court concluded that to th e e xt e nt that Detective Pucci’s advisement

was ambig uous in contex t, notwithstanding the p r e vious advisement that Smith was free t o g o, a reasonable person would have asked for clarification. Smith di d n o t ask for clarification and did not seek to leave a fter t h e l i e detector
test was administered. W e cannot c o nclude that the state appellate court’s view was objectively unreasonable.

W e acknowledg e that this is a close c a s e. Perhaps there

are other circumstances, bey ond those m entioned by Smith, the dissent, a

nd the state appellate court, that weig h in favor of the view that Smith was in cus t o d y

. B u t on AEDPA review, “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Harrington
, 131 S. Ct. at 786. The list of de c isions reversing us for ig noring thi s rule is long

. 4 As the panel, district judg e, a nd

circu m stan ce b eh in d th is w h o le th i n g ?

SMIT H: No

.

4 S ee, e.g

. , D a vis v. Aya la
, 1 35 S. Ct. 2 1 8 7
, 22 0 2 (2 0 1 5 ) (f au ltin g u s f

or h av in g “ m isu

n d ersto o d th e ro l e of a f ed eral co u rt in a h ab eas c a se”); Ha rrin g to n , 1 3 1 S

. Ct. at 7 8 5 (rev ersin g u s an d ex p lain in g th at “ ev en a stro n g case f

o r relief d o es n o t m ean th e state co u rt’ s co n trary co n clu sio nS M I T H V

. C L A R K 33

mag istrate all ag reed, a fairminded jurist could hold, as d id the three judg es o n the state court of a ppeal, that S m i t h w a s not in custody when he first c o n f e s sed to killing the baby

. That compels a denial of relief under AEDPA.

w as u n reaso n ab le”); Alva ra d o , 54 1 U.S. a t 6 6 5 (rev ersin g u s an d

ex p lain in g w e w ere “ n o w

h ere clo s e to th e m ark ” in co n clu d in g th at a state

co u rt u n reaso n ab ly ap plied th e cu sto d y test); Lo ckyer
, 5 3 8 U.S

. at 7 5 (rev ersin g u s f

o r “fa i l [ in g ] to g iv e p ro p er d ef eren ce to state co u rts b y

co n f latin g erro r (ev en

clear erro r) w ith

u n reaso n ab len ess”).