FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOVAN’Z SMITH,

Petitioner-Appellant,

v.

KEN CLARK, Warden,

Respondent-Appellee.

No. 14-15162

D.C. No.

2:11-cv-03312-

MCE-GGH

ORDER

Filed October 22, 2015

Before: Consuelo M. Callahan, Milan D. Smith, Jr.,

and Paul J. Watford, Circuit Judges.

Order;

Dissent by Judge Fletcher;

Concurrence by Judge Callahan and Judge M. Smith
2 SMITH V. CLARK

SUMMARY*

Habeas Corpus

The panel filed an order rejecting a sua sponte en banc

call in a case in which the panel affirmed California state

prisoner Jovan’z Smith’s habeas corpus petition conviction

for assault on a child causing death.

Dissenting from the denial of rehearing en banc, Judge W.

Fletcher wrote that the California Court of Appeal’s

conclusion that Smith was not “in custody” under Miranda

rested on a misreading of California v. Beheler, 463 U.S.

1121 (1983) (per curiam) – i.e., that Beheler establishes a

bright-line rule that a suspect who has been told repeatedly

that he is “not under arrest” is not “in custody” under

Miranda. Judge Fletcher wrote that this is not the law, and

that a police officer cannot remove an interrogation from

Miranda’s reach simply by reciting magic words.

Concurring in the denial of rehearing en banc, Judges

Callahan and M. Smith disagreed with the Judge W.

Fletcher’s characterization of the state appellate court’s

decision, description of the circumstances surrounding

Smith’s interview, and legal conclusions. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SMITH V. CLARK 3

ORDER

A sua sponte call for a vote on rehearing this case en banc

was made by an active judge of this court. The call failed to

receive a majority of the votes of the nonrecused active

judges. Fed. R. App. P. 35. The sua sponte en banc call is

rejected. Judge Fletcher’s dissent from denial of rehearing en

banc and Judge Callahan and Judge Smith’s concurrence in

denial of rehearing en banc are filed concurrently with this

Order.

W. FLETCHER, Circuit Judge, dissenting from the denial of

rehearing en banc:

In this case, a 16-year-old high school student named

Jovan’z Smith was taken to a police station and subjected to

four hours of interrogation in a small, windowless room. 

Smith was not read his Miranda rights. Four hours later, still

without his Miranda warnings, he confessed. The only

question before this court is whether Smith was “in custody”

under Miranda when he confessed.

The California Court of Appeal concluded that Smith was

not “in custody.” It relied exclusively on the “fact” that, in

the words of the court, he “was told three times that he was

not under arrest and was free to go.” See People v. Smith,

No. A125912, 2010 WL 4233298, at *3 (Cal. Ct. App. Oct.

27, 2010) (unpublished). In an unpublished disposition, a

three-judge panel of this court denied his petition for a writ of

habeas corpus, concluding that the Court of Appeal’s opinion,

while suspect, was neither “contrary to,” nor involved “an

unreasonable application of, clearly established Federal law.” 
4 SMITH V. CLARK

28 U.S.C. § 2254(d)(1). Smith v. Clark, No. 14-15162, 2015

WL 2119461, at *2 (9th Cir. May 7, 2015).

I disagree. Smith was clearly “in custody” under

Miranda. The California Court of Appeal’s conclusion to the

contrary rested on a misreading of California v. Beheler,

463 U.S. 1121 (1983) (per curiam). In the Court of Appeal’s

reading, Beheler establishes a bright-line rule that a suspect

who has been told repeatedly that he is “not under arrest” is

not “in custody” under Miranda. But this is not the law. A

police officer cannot remove an interrogation from Miranda’s

reach simply by reciting magic words. We should have

corrected the Court of Appeal’s error. Smith’s conviction,

and many others, hang in the balance.

I respectfully dissent from our decision not to rehear this

case en banc.

I. Background

A. Smith

Jovan’z Smith was 16 years old when he was taken from

his classroom and brought to the Vallejo Police Department

for questioning. Over the next four hours, he was

interrogated in a small windowless room by a team of three

police officers about the choking death of his daughter. The

officers took his cell phone and did not return it; they evaded

his questions about whether he was free to leave, at one point

clearly implying that he could not leave as long as officers

still had questions; they arranged for his daughter’s maternal

grandmother to come to the station to question and berate

him; they administered a lie detector test, which they told him

he failed; after the lie detector test, they repeatedly told him
SMITH V. CLARK 5

that he was lying; they then told him, “You can’t leave this

room lying.” Smith confessed only after he had been told that

he could not leave the room lying. After he confessed, the

officers read him his Miranda rights. Smith then repeated the

confession he had just given.

The California Court of Appeal’s decision that Smith was

not in “custody” for the purposes of Miranda v. Arizona,

374 U.S. 436 (1966), turned 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 go.” Smith, 2010 WL

4233298, at *3. This misstates the record: Smith was told

only once, at the beginning of the interrogation, that he was

“free to go.”

Smith was, however, told three times that he was “not

under arrest.” The first time was at Smith’s high school,

when a uniformed Vallejo police officer told him he was “not

under arrest” but that an investigator wanted to speak to him. 

Smith agreed to accompany the officer to the Vallejo Police

Department. They drove to the police station in a patrol car,

with the officer in the front and Smith in the back. According

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. It was roughly 2:30 PM.

The second time was in the interview room, at the

beginning of Smith’s interrogation, when Detective Sharon

Fong entered the room, introduced herself, and told Smith he

was “not under arrest” and was “free to leave at any time.” 

It was roughly 2:33 PM.

Fong and Smith spoke for about twenty minutes, during

which time Smith offered the first of several explanations
6 SMITH V. CLARK

about what happened to his 18-month-old daughter, T. Smith

told Fong he had accidentally left baby wipes on T.’s bed. He

said that he turned away, and when he turned back, T. was

“turning purple” and “throwing up blood.” 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

Mustard, entered the interview room. Over the next half

hour, Mustard asked increasingly hostile questions. He asked

Smith how many children he had. He asked Smith how many

girlfriends he had. He told Smith, “Honesty is a huge issue

right here. . . . So be real honest with me.” He expressed

skepticism that T. would have swallowed the babywipes, and

noted that “we will figure that out . . . forensically.” He said,

“[S]ometimes we get caught up in the moment and we do

something that we regret and we feel bad for.” He suggested

that Smith confess, and told Smith that if he did not, and it

later came out that he had lied, “people are gonna look at you

and judge you as a cold-hearted son-of-a-bitch.” When

Mustard left the room, he took Smith’s cell phone.

Around 4:10 PM, Mustard returned with T.’s maternal

grandmother, N. N. began to cry almost immediately. 

Mustard told Smith, “You can look at me and you can tell me

whatever story you want to tell me, [but] that’s blood to that

lady.” He told Smith again that he did not believe his story:

I told you this earlier and I tell you again, you

gotta do the right thing, man, ‘cause if you

want to be a good person, if you want people

to think you’re a good person, if something

bad happened, an accident happened and this

wasn’t something that’s cold . . . A lotta

things runnin’ through your mind right now,
SMITH V. CLARK 7

I know that. I told you if the truth comes out

today I can help you. If it comes out

tomorrow or the next day or next week I can’t

help you. Today, the truth.

He asked: “Can you look that lady in the eye and tell her you

didn’t do that?” N. then told Smith that her granddaughter,

T., was brain-dead.

Around 4:50 PM, after N. and Mustard had left, Detective

Frank Pucci arrived to conduct a lie detector test. As Pucci

set up the test, Smith asked, “After this, will I be able to go

home?” Pucci responded, “You know what, what I don’t

know is, are you and Detective Mustard done talking?” 

Smith replied, “I don’t know.” Pucci said, “Okay, um, yeah. 

You understand you’re not under arrest, okay? We’re just

trying to gather all the facts.” Pucci ended the exchange by

saying, “So there may be some questions with Detective

Mustard, I don’t know. Alright?” This was the third and

final time Smith was told that he was “not under arrest.” It

was roughly 4:55 PM.

The interrogation continued for another hour and a half. 

During the lie detector test, Pucci asked Smith whether he

had put the baby wipe in T’s mouth. Smith said that he had

not. After the test, Pucci left the interview room. When

Pucci returned with Mustard, he told Smith that he had failed

the test. The officers told Smith to “be honest,” and not to

“lie to [him]self.” Smith changed his story somewhat, stating

that he had seen T. choking on the baby wipe and had reached

in to take it out. He maintained, however, that he had not

intentionally hurt her.
8 SMITH V. CLARK

The officers insisted that Smith was lying. Pucci asked,

“Jovan’z, it didn’t happen like that, did it?” Smith said it had. 

Pucci said, “I hear what you’re saying. But it didn’t happen

like that.” Smith repeatedly insisted that it had, reiterating

that he had gotten up to change the channel on the television

and had turned around to find T. choking. Finally, Pucci told

him: “Don’t lie, man. You can’t leave this room lying, bro.” 

It was 6:10 PM.

Twenty minutes later, after he had been told “you can’t

leave this room lying,” Smith confessed. He told his

interrogators that he had pushed the baby wipes into T.’s

mouth in a moment of anger. Mustard suggested that they

take a break, and that Smith “write that little girl a letter” and

tell her that he was sorry. Shortly thereafter, the officers

brought Smith a slice of pizza, the first food he had been

given since he arrived at the station. Around 8:30 PM, in a

different room in the station, the officers finally read Smith

his Miranda warnings. In response to questions, Smith

repeated the confession he had given earlier. It had been six

hours since he was first brought to the police station.

Smith was prosecuted for murder and assault of a child

causing death. He moved to suppress his statements as

obtained in violation of Miranda, but the motion was denied. 

The jury watched a tape of his pre-Miranda interrogation. 

The jury hung on the murder charge but convicted him of the

assault charge, and Smith was sentenced to 25 years to life in

state prison.

B. Beheler

What happened to Smith in the police station is not

unusual. As Professor Charles Weisselberg has extensively
SMITH V. CLARK 9

documented, police officers in California are specifically

instructed to inform suspects that they are “not under arrest”

in order to “ma[k]e certain that the interrogation w[ill] be

seen as non-custodial.” Charles D. Weisselberg, Mourning

Miranda, 96 Cal. L. Rev. 1519, 1542–44 (2008). This is

known as a “Beheler admonishment,” after California v.

Beheler, 463 U.S. 1121 (1983) (per curiam). The defendant

in Beheler, who gave 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 says the magic 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 play a major role in instructional

material produced by the California Commission on Peace

Officer Standards and Training (“POST”). As Weisselberg

documents, one set of POST training materials describe

Beheler as “a wonderful case for use.” Weisselberg, supra,

at 1542. Another POST course dramatizes the use of Beheler

admonishments on a suspect in connection with “the full

toolkit of interrogation tactics,” including confrontation and

minimization techniques (the use of sympathy and

justifications to induce a confession). Id. at 1544. The same

POST course features a debate between experts on whether,

if a suspect attempts to exercise his right to leave the

interview, the police should allow him to do so. Id.

The use of Beheler admonishments is not limited to

California. Cases from the federal courts, and over 31 state

courts, demonstrate the use of similar tactics nationwide. Id.

at 1545 nn.140–41; see, e.g., United States v. McCarty,

475 F.3d 39, 46 (1st Cir. 2007); United States v. LeBrun,

363 F.3d 715, 718 (8th Cir. 2004); Fitzpatrick v. State,
10 SMITH V. CLARK

900 So. 2d 495, 510 (Fla. 2005); State v. Munoz, 972 P.2d

847, 856 (N.M. 1998); State v. Hobson, 648 A.2d 1369,

1370–72 (R.I. 1994); State v. Bronson, 496 N.W.2d 882, 889

(Neb. 1993). An FBI publication from the 1980s similarly

instructs federal agents to inform suspects that they are not

under arrest, “thus negating the need for the [Miranda]

warning.” See Charles E. Riley III, Finetuning Miranda

Policies, FBI Law Enforcement Bull. 23, 24–25 (1985); see

also Weisselberg, supra, at 1546 nn.145–46.

As Weisselberg notes, the use of Beheler admonishments

is clearly strategic in nature. Beheler admonishments help

police officers (falsely) convey to suspects that they are not

under suspicion, therebyenhancing the effectiveness of “soft”

tactics, such as minimization, that induce confessions. But

they also have an even more powerful effect. As interpreted

by the police and California state courts, they serve as

virtually conclusive evidence that a suspect was not in

“custody” during an interrogation, and therefore that no

Miranda warnings were required. In other words, they permit

police officers to remove confessions from Miranda’s reach.

Sometimes, it will not be possible to determine whether

police officers used Beheler admonishments strategically. In

this case, however, it is easy. At 3 PM, Detective Mustard

entered the interview room to take over Smith’s interrogation. 

Before he asked Smith any questions, however, Mustard

turned to Detective Fong and asked, “Are you Beheler-ing

here?” Fong answered, “Yes.”

C. Smith

Smith appealed his conviction to the California Court of

Appeal. His sole argument was that the videotape should
SMITH V. CLARK 11

have been suppressed because it was obtained in violation of

Miranda because he had been in custody when he first

confessed. The Court of Appeal denied his claim. It held that

“the trial court’s ruling was well supported.” Smith, 2010

WL 4233298, at *3. It explained:

The record here indicates that appellant was

told three times that he was not under arrest

and that he was free to go. The first occurred

when appellant was at school. Officer

Barrientos told appellant he was not under

arrest and he asked appellant whether he was

willing to answer some questions at the police

station. The second time occurred when

Detective Fong began interviewing appellant

at the police station. Fong told appellant that

he was not under arrest and that he was free to

terminate the interview and leave at any time. 

The third time occurred when Detective Pucci

came into the interview room to give

appellant a voice stress test. Appellant asked

Pucci whether he could leave after the test. 

Pucci said he did not know, but he then went

on to tell appellant yet again that he was not

under arrest. We think a reasonable person

who is told repeatedly that he is not under

arrest and that he is free to go would

understand that he is not under arrest and

that he is free to go. We conclude the trial

court ruled correctly.

Id. (emphasis added).
12 SMITH V. CLARK

On federal habeas review, the magistrate judge concluded

Smith’s was a “close case.” Smith v. Clark, No.

2:11-CV-3312, 2013 WL 4409717, at *1 (E.D. Cal. Aug. 15,

2013). It concluded that if Smith’s age were taken into

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 Harrington v. Richter, 562 U.S. 86, 101

(2011). Id. at *1. Because J.D.B. postdated the Court of

Appeal’s decision, however, the magistrate judge concluded

that the Court of Appeal did not err in not factoring Smith’s

age into its analysis, and that, absent consideration of Smith’s

age, the court’s decision was not “unreasonable” under

§ 2254(d). Id. at *26. The district court approved the

magistrate judge’s recommendation that habeas be denied,

but it certified for appeal the question whether the

interrogation was custodial.

A three-judge panel affirmed the denial of Smith’s

petition, relying in large part on the rationale of the

magistrate judge. See Smith, 2015 WL 2119461, at *2. 

Judge Watford concurred. See id. at *3–6 (Watford, J.,

concurring). He wrote that he found the denial of Smith’s

motion to suppress “troubling.” Id. at *3. Despite his

“misgivings,” however, Judge Watford felt “compelled to

affirm under AEDPA.” Id. at *6.

II. Discussion

As this case illustrates, the California courts — and the

California police academies — have misread Beheler. They

interpret it as creating a bright-line rule that a suspect who

has been told repeatedly that he is “not under arrest” is not “in

custody” under Miranda. But Beheler does not stand for such
SMITH V. CLARK 13

a rule, nor could it. It has never been the law that a police

officer can insulate an otherwise clearly custodial

interrogation from Miranda’s reach simply by telling a

suspect that he or she is “not under arrest.” Because Smith’s

conviction rests on the Court of Appeal’s erroneous

understanding of what it means to be “in custody” under

Miranda, we should have granted his petition for a writ of

habeas corpus.

Under AEDPA, we may grant a petition for a writ of

habeas corpus only if the state court judgment was “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court.” See 28 U.S.C. § 2254(d)(1). We “look to the last

reasoned state court adjudication on the merits of [Smith’s]

Miranda claim, which was the decision of the California

Court of Appeal.” Thompson v. Runnels, 705 F.3d 1089,

1096 (9th Cir. 2013). There is no question that the Court of

Appeal’s judgment was “contrary to” the law set forth by the

Supreme Court in a long line of cases ranging from Howes v.

Fields, 132 S. Ct. 1181 (2012), to Yarborough v. Alvarado,

541 U.S. 652 (2004), to Thompson v. Keohane, 516 U.S. 99

(1995), to Beheler itself.

Miranda holds that certain warnings are required in the

context of custodial interrogations given “the compulsion

inherent in custodial surroundings.” See 384 U.S. at 458. 

The word “custody” is a “term of art that specifies

circumstances that are thought generally to present a serious

danger of coercion.” Howes, 132 S. Ct. at 1189. In

determining whether a person is in “custody” for purposes of

Miranda, the Supreme Court has held that “[t]wo discrete

inquiries are essential: first, what are the circumstances

surrounding the interrogation; and second, given those
14 SMITH V. CLARK

circumstances, would a reasonable person have felt he or she

was not at liberty to terminate the interrogation and leave.” 

Thompson, 516 U.S. at 112. The “ultimate inquiry” is

whether there was “a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.” Id.

If there is, Miranda warnings are required.

The Supreme Court has repeatedly instructed courts to

“examine ‘all of the circumstances surrounding the

interrogation.’” Fields, 132 S. Ct. at 1189 (quoting Stansbury

v. California, 511 U.S. 318, 322 (1994) (per curiam)). 

Relevant factors include

the location of the questioning, see Maryland

v. Shatzer, 130 S. Ct. 1213, 1223–26 (2010),

its duration, see Berkemer v. McCarty,

468 U.S. 420, 437–38 (1984), statements

made during the interview, see Oregon v.

Mathiason, 429 U.S. 492, 495 (1977) (per

curiam); Alvarado, 541 U.S. at 665;

Stansbury, 511 U.S. at 325, the presence or

absence of physical restraints during the

questioning, see New York v. Quarles,

467 U.S. 649, 655 (1984), and the release of

the interviewee at the end of the questioning,

see Beheler, 463 U.S. at 1122–23.

Fields, 132 S. Ct. at 1189 (citations altered); see also United

States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002).

In this case, virtually all of these factors lead to a

conclusion that Smith was in “custody” under Miranda. 

Smith was interrogated for four hours (and held for nearly

six) before he was read Miranda warnings. He was
SMITH V. CLARK 15

interrogated in a small windowless room in “the bowels” of

the police station. His cell phone was taken from him and not

returned. Although the interrogating officers were friendly at

first, they quickly became hostile. Within an hour they had

all but stated that they suspected him of T.’s death. Smith

finally agreed to take a lie detector test, which the officers

told him that he had failed. When he continued to maintain

his innocence, the officers told him flatly that they did not

believe him: “Jovan’z, it didn’t happen like that,” said one. 

“You can’t leave this room lying, bro,” said the other. No

reasonable person in these circumstances — whether a

sixteen-year-old or a mature adult — would think that he was

free to leave until he told a story that the officers believed.

The Court of Appeal’s contrary conclusion rested entirely

on the “fact” that, in its words, Smith “was told three times

that he was not under arrest and that he was free to go.” As

a preliminarymatter, this misstates the record: Smith was not

told three times that he was “free to go.” He was told only

once, before questioning began, that he was free to go. 

Instead, he was told three times that he was “not under

arrest.” A lay person understands that the statement “you’re

free to go” means precisely that, but a lay person does not

necessarily understand that the statement “you’re not under

arrest” means “you’re free to terminate the interrogation and

leave.”

Further, 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 interrogation under the

circumstances here. The first two admonishments came

early, once at the high school and then before the

interrogation had begun. And the third admonishment could

hardly have put Smith on notice that he was free to leave once
16 SMITH V. CLARK

the interrogation had begun. The third admonishment was

given when Smith asked Detective Pucci whether he could go

home after taking the lie detector test. Judge Watford,

concurring separately in the panel disposition, put it well:

The officer didn’t respond with the only

answer consistent with Smith’s supposed

freedom to leave, which would have been

“yes, of course.” Instead, he told Smith,

“Hey, you know, I don’t know. Are you and

Detective Mustard done talking?” That

response seems pretty clearly to indicate that

Smith wasn’t free to leave whenever he chose

but rather only when Detective Mustard had

finished interrogating him. That the officer

hastily added, “You understand you’re not

under arrest, okay?” doesn’t seem to change

anything.

Smith, 2015 WL 2119461, at *5 (Watford, J., concurring).

Thus, even if I thought the Court of Appeal had applied

the correct standard — and I do not — I would conclude it

had unreasonably applied it. Each of the factors that the

Supreme Court has told us to consider when determining

whether someone is “in custody” under Miranda, except one,

point toward the conclusion that Smith was in custody. And

the admonishments that he was not under arrest were of

basically no use to Smith — two were provided four hours

before he confessed, and the third conveyed the opposite

message that the Court of Appeal interpreted it to convey.

The Supreme Court has instructed lower courts to weigh

all of the circumstances surrounding an interrogation to
SMITH V. CLARK 17

determine whether it was “custodial.” See Howes, 132 S. Ct.

at 1189. But the Court of Appeal brushed aside these

circumstances in favor of a bright-line rule that verbal

admonishments alone are sufficient to assure a reasonable

person that he is “free to go”: “We think a reasonable person

who is told repeatedly that he is not under arrest and that he

is free to go would understand that he is not under arrest and

that he is free to go.” Smith, 2010 WL 4233298, at *3. It

then rejected every argument that Smith made by invoking

the “fact” that he had been told, three times, that he was “not

under arrest” and was “free to go.”

Smith first argued that a California Supreme Court case,

People v. Ochoa, 19 Cal. 4th 353 (1998), supported his claim

that he was “in custody” under Miranda. The Court of

Appeal rejected Smith’s analogy to Ochoa, relying

exclusively on the number of times the police had told Smith

that he was free to go. It wrote: “The situation here is even

more clear than [in] Ochoa because the appellant [Smith] was

told specifically and repeatedly that he was not under arrest

and that he was free to go. Like Ochoa we conclude a

reasonable person in appellant’s position would understand

he was free to go.” Smith, 2010 WL 4233298, at *3

(emphasis added).

Smith next argued that he was “in custody” because (1) he

was taken to the police station in a patrol car and (2) he was

interrogated for over four hours at the station. The Court of

Appeal dismissed both facts as irrelevant on the ground that

Smith had been told three times that he was “not under

arrest.” It wrote: “While appellant rode to the police station

in a patrol car, he did so only after agreeing to do so and after

being told specifically that he was not under arrest.” Id.

(emphasis added). The court explained that “[a]ny coercion
18 SMITH V. CLARK

that might otherwise have been present due to the length of

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).

Finally, Smith argued that he was “in custody” because he

had asked several times whether he could leave. In particular,

he pointed to the conversation he had with Detective Pucci

reproduced above. In this conversation, Smith asked Pucci if

he could leave after he had finished the lie detector test. 

Pucci responded, “Hey, you know, I don’t know. Are you

and Detective Mustard done talking?” In other words, Pucci

suggested to Smith that he was not free to leave. But the

Court of Appeal dismissed the relevance of this exchange on

the same ground it dismissed Smith’s other arguments:

“Pucci then went on to tell appellant that he was not under

arrest. We 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 words, dismissed every

single one of Smith’s arguments as to why he was “in

custody” under Miranda on the same ground. It held that

none of his arguments was persuasive in light of the fact that

Smith had been told repeatedly that he was not under arrest. 

This is not the law. A police officer cannot transform a

clearly custodial interrogation into a non-custodial

interrogation simply by 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.

1121, as authorizing such a rule. But Beheler does no such

thing. In Beheler, the defendant had gone to the police
SMITH V. CLARK 19

station voluntarily“although the police specificallytold [him]

that he was not under arrest.” 463 U.S. at 1122. He spoke to

police officers for 30 minutes and then returned home. Id.

He later challenged his statement as obtained in violation of

Miranda, and the California Court of Appeal agreed,

concluding that Beheler had been “in custody” during the

interview. Id. at 1123. The Supreme Court reversed. It held

that the case was indistinguishable from Mathiason, 429 U.S.

492, in which a defendant had voluntarily gone to the police

station and given a short interview. Id. at 1123–24. The

Court did not rely on — indeed, did not even mention, except

in its initial discussion of the facts — the fact that Beheler

had been told he was not under arrest.

The bright-line rule on which the Court of Appeal relied

in this case finds no support in Beheler, nor in any other

Supreme Court case. The cases that tell us what it means to

be “in custody” under Miranda instruct us to consider all of

the relevant circumstances in making that determination. See

Fields, 132 S. Ct. at 1189; Alvarado, 541 U.S. at 663;

Thompson, 516 U.S. at 112. And Beheler, rather than

announcing or applying a new rule, applied the same

“totality-of-the-circumstances” rule described in these later

cases. See 463 U.S. at 1125. Because the Court of Appeal

“applie[d] a rule that contradicts the governing law set forth

in [Supreme Court] cases,” its judgment was “contrary to”

clearly established federal law, see Williams v. Taylor,

529 U.S. 362, 405 (2000), and Smith’s petition for a writ of

habeas corpus should have been granted.

Miranda rests on the proposition that “custody” is an

objective circumstance, something that courts can identify

after the fact by looking at a relatively small number of fixed

indicia. But the rule applied by the Court of Appeal allows
20 SMITH V. CLARK

police to render these indicia irrelevant. Under the Court of

Appeal’s misreading of Beheler, “custody” is no longer an

objective inquiry. Police officers can easily manufacture a

finding that a suspect is not in “custody” — and thereby

evade Miranda — even when every coercive factor we

associate with custodial interrogation is present, and even

when (as here) the suspect clearly does not feel free to leave. 

All they need to do is say the magic words: “You’re not

under arrest.”

By permitting Smith’s conviction to stand, we effectively

allow the police to remove unwarned confessions from

Miranda’s reach by reciting a few short words. Nothing in

Miranda, in Beheler, or in any other case sanctions such an

unwise and unfair result.

* * *

This is a close case only because we are reviewing the

decision of the Court of Appeal on habeas, under the

deferential standard required by AEDPA. If this case had

come to us on direct review, it would be easy. I regret that

our court has declined to rehear this case en banc, but I

understand, given its procedural posture, my colleagues’

reluctance to do so.

It may be that the only way to put a stop to “Beheler-ing,”

as practiced by the police in California and as tolerated by the

California state courts, will be to seek direct review by the

United States Supreme Court. I have little doubt what the

Court’s answer will be if the question is presented on direct

rather than on collateral review. The sooner we get that

answer the better.
SMITH V. CLARK 21

CALLAHAN, Circuit Judge, and M. SMITH, Circuit Judge,

concurring in the denial of rehearing en banc:

With all due respect to our dissenting colleague, we

disagree with his characterization of the state appellate

court’s decision, description of the circumstances surrounding

Jovan’z Smith’s interview, and legal conclusions. Out of

fairness to all concerned, including the California jurists who

reviewed Smith’s case on appeal, we offer this concurrence

in response to his dissent.

I.

In this case, the Miranda inquiry arises within the context

of habeas review under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). “An officer’s obligation to

give a suspect Miranda warnings before interrogation extends

only to those instances where the individual is ‘in custody.’” 

United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002). In

determining whether a suspect is in custody, “[t]wo discrete

inquiries are essential.” Thompson v. Keohane, 516 U.S. 99,

112 (1995). First, a court must determine “what . . .

circumstances surround[ed] the interrogation.” Id. Second,

a court must decide whether “a reasonable person [in those

circumstances would] have felt he or she was not at liberty to

terminate the interrogation and leave.” Id. “The custody

determination is objective and is not based upon ‘the

subjective views of the officers or the individual being

questioned.’” United States v. Bassignani, 575 F.3d 879, 883

(9th Cir. 2009); see also Stansbury v. California, 511 U.S.

318, 323 (1994). Courts have identified numerous

circumstances to be pertinent in assessing the custody

question. See Howes v. Fields, 132 S. Ct. 1181, 1189 (2012);

Kim, 292 F.3d at 974.
22 SMITH V. CLARK

On direct appeals, Miranda claims present mixed

questions of law and fact that we review de novo. United

States v. Cazares, 788 F.3d 956, 979 (9th Cir. 2015). In this

case, however, we are bound by AEDPA. See Yarborough v.

Alvarado, 541 U.S. 652, 665 (2004) (applying AEDPA on

habeas review of a challenge based on Miranda). AEDPA

authorizes the grant of a state prisoner’s petition for a writ of

habeas corpus when the relevant state-court decision was

(1) “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court” or (2) “based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d). The

Court must “look to the last reasoned state court adjudication

on the merits of [Smith’s] Miranda claim, which was the

decision of the California Court of Appeal.” Thompson v.

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

A state court decision is “contrary to” federal law within

the meaning of § 2254(d)(1) if “the state court arrives at a

conclusion opposite to that reached by [the Supreme] Court

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

are materially indistinguishable from a relevant Supreme

Court precedent and arrives at a result opposite to [the

Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405

(2000). “Thus, the ‘contrary to’ prong requires a direct and

irreconcilable conflict with Supreme Court precedent.” 

Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014).

A state court decision is an “unreasonable application” of

Supreme Court precedent within the meaning of § 2254(d)(1)

if “the state court identifies the correct governing legal rule

from [the Supreme] Court’s cases but unreasonably applies it

to the facts of the particular state prisoner’s case,” or “the
SMITH V. CLARK 23

state court either unreasonably extends a legal principle from

[Supreme Court] precedent to a new context where it should

not apply or unreasonably refuses to extend that principle to

a new context where it should apply.” Williams, 529 U.S. at

407. The Supreme Court has repeatedlyemphasized that “‘an

unreasonable application of federal law is different from an

incorrect application of federal law.’” Harrington v. Richter,

131 S. Ct. 770, 785 (2011). “The deferential standard

imposed under AEDPA cloaks a state court’s determination

with reasonableness, so long as ‘fairminded jurists could

disagree’ as to whether a claim lacks merit.” Murray,

745 F.3d at 998 (quoting Alvarado, 541 U.S. at 664). Thus,

“a habeas court must determine what arguments or theories

supported or . . . could have supported[] the state court’s

decision; and then it must ask whether it is possible

fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision

of [the Supreme] Court.” Harrington, 131 S. Ct. at 786.

Importantly, state courts are given even “more leeway” in

cases like this one, where the rule applied is general in nature,

requiring a case-by-case assessment based on the totality of

the circumstances. Alvarado, 541 U.S. at 664. Emphasizing

the stringency of § 2254(d)(1), the Supreme Court has

cautioned that “even a strong case for relief does not mean

the state court’s contrary conclusion was unreasonable.” 

Harrington, 131 S. Ct. at 786; see also Lockyer v. Andrade,

538 U.S. 63, 75 (2003).

II.

Our dissenting colleague believes that habeas relief

should have been granted for two reasons, which we address

in turn.
24 SMITH V. CLARK

A.

The dissent’s primary concern is that the state appellate

court applied “a bright-line rule that a suspect who has been

told repeatedly that he is ‘not under arrest’ is not ‘in custody’

under Miranda.” The dissent broadlystates that all California

courts apply this bright-line rule rather than the “totality-ofthe-circumstances” test required by Miranda and its progeny.

We disagree with the dissent’s characterization of the

state appellate court’s decision. While the court placed great

weight on the fact that Smith was repeatedly told he was not

under arrest, as the Supreme Court and we have done in

similar cases, it did not impose a “bright-line rule.” Nowhere

in its decision does the state appellate court set out a legal

standard that is contrary to the totality-of-circumstances test. 

Rather, it correctly recites the two-part custody test: “First,

what were the circumstances surrounding the interrogation,

and second, given those circumstances, would a reasonable

person have felt he was not at liberty to terminate the

interview and leave.” People v. Smith, No. A125912, 2010

WL 4233298, at *2 (Cal. Ct. App. Oct. 27, 2010)

(unpublished).

Nor does the state appellate court’s application of the

custody test belie a different standard. The state appellate

court’s decision set the stage of the interview and referenced

the video footage. The court mentioned several factors that

are indicative of custody, including how Smith was

summoned and brought to the police station, the removal of

Smith’s backpack and phone, aspects of the interview’s

surroundings, the duration of the questioning, and some

statements made during the interrogation. Other

circumstances that were not mentioned by the state appellate
SMITH V. CLARK 25

court may also weigh in favor of the view that Smith was in

custody, but a court is not required to list each such

circumstance in its unpublished decision. See Taylor v.

Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (“[S]tate courts

are not required to address every jot and tittle of proof

suggested to them, nor need they ‘make detailed findings

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

circumstances in order to deem the interview non-custodial. 

The Supreme Court did not do so after mentioning numerous

coercive circumstances in its brief per curiam decision

reversing the California appellate court in California v.

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

If the state appellate court had created and applied a

“bright-line rule” instead of employing the totality-ofcircumstances test, it would have been unnecessary for the

court to have addressed all of these circumstances suggesting

custody. Moreover, the state appellate court did not

uniformly dismiss these circumstances based on the so-called

Beheler admonishments. For example, the court compared

the length of the interview with the length of interviews

previously found not to be custodial by the California

Supreme Court. Smith, 2010 WL 4233298, at *3 (“While the

interview was lengthy (about 3.5 hours to the point where

appellant began making incriminating statements), it was

similar in length to one where our Supreme Court found a

defendant not to be in custody. (Cf. People v. Leonard

(2007) 40 Cal. 4th 1370, 1400 [a defendant who was

questioned for 3.5 hours was not in custody].)”). The state

appellate court also addressed Smith’s argument that his

phone and backpack had been confiscated. The court found

that it was “far from clear whether the police took [the]
26 SMITH V. CLARK

backpack.” Smith, 2010 WL 4233298, at *4. It concluded

that the importance of this circumstance was “minor,”

because, “[i]n any event, . . . nothing . . . would have

prevented [Smith] from simply asking that they be returned.” 

Id. The state appellate court did not deem such coercive

circumstances to be irrelevant in light of the Beheler

admonishments. It found them “lessened by the fact that at

three different points during that questioning, appellant was

told that he was not under arrest.” Id. at *3.

Thus, we disagree with the dissent’s argument that the

custody test employed by the state court was contrary to that

required by clearly established law. The state appellate court

invoked and then applied the totality-of-circumstances

custody test. Indeed, the dissent’s objection that the state

appellate court viewed the Beheler admonishments as

“virtually conclusive evidence” appears to concede that the

court did not apply a “bright line rule.”

Even if we were to agree with the dissent’s

characterization of the state appellate court’s decision, which

we do not, relief must be denied. There is no clearly

established Supreme Court law that a Beheler admonishment

is not due significant weight in the custody test. Rather, the

Supreme Court and our court also “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.” United

States 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 interrogation, and

reminded thereafter, that he was free to leave . . . .”); Beheler,

463 U.S. at 1122; Oregon v. Mathiason, 429 U.S. 492, 495

(1977); United States v. Crawford, 372 F.3d 1048, 1060 (9th

Cir. 2004) (en banc) (“Perhaps most significant for resolving
SMITH V. CLARK 27

the question of custody, Defendant was expressly told that he

was not under arrest . . . .”); Dyer v. Hornbeck, 706 F.3d

1134, 1136–40 (9th Cir. 2013); United States v. Norris,

428 F.3d 907, 912 (9th Cir. 2005).

Indeed, it is common sense to give significant weight to

the fact that a person was repeatedly told that he was not

under arrest in evaluating whether a reasonable person in his

circumstances would have thought himself to be under arrest. 

The dissent paints a picture of California police officers

nefariously gaming the system by telling people that they are

not under arrest. But there is no better way to communicate

that a person is not under arrest than by telling him. As the

panel explained in its memorandum disposition and Judge

Watford elaborated in his concurrence, “[t]his is not to say

that an interrogation begun with a so-called ‘Beheler

advisement’ cannot become custodial as that interrogation

drags on and coercive circumstances accumulate.” Rather,

“on the facts presented, the state appellate court did not

unreasonably conclude that the custodial rubicon had not

been crossed by the time Smith first confessed, and thus the

prophylactic procedural measures adopted by the Supreme

Court in Miranda had not been triggered.”

B.

For the reasons stated in our memorandum disposition,

we also disagree with the dissent’s view that the state court

unreasonably applied the custody test.

We add that other circumstances that were not mentioned

by the state appellate court also weigh against the view that

Smith was in custody. For example, Smith was never

handcuffed. The door to the interview room was unlocked
28 SMITH V. CLARK

and was at times left open, including during the time period

after the lie detector test had been administered. Although

Smith was brought from school to the police station by a

uniformed officer, that officer was a “youth services officer”

who was assigned to Vallejo High School, and thus her

presence was likely neither extraordinary nor particularly

intimidating. The interrogating detectives were dressed in

plain clothes and were courteous and relaxed for the

substantial majority of the interview. Smith left the interview

room once during the pre-Miranda interview, albeit only for

about 1 minute and 20 seconds. Smith was given three breaks

during the pre-Miranda interview, during which he was left

alone in the room for 40, 2, and 20 minutes. While left alone,

Smith can be seen on the videotape practicing for the

interview, which may be interpreted as evidence that Smith

deliberately remained at the station in order to dispel

suspicion of him. Smith signed forms consenting to the lie

detector test and to the search of his room for the clothes he

was wearing at the time of the incident. As the state appellate

court noted, the California Supreme Court has “ruled that

someone who had signed such a statement would understand

that he was not in custody.” Smith, 2010 WL 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 and stated, “If I don’t get

a chance to see you again, good luck to you, and I hope

everything works out for you, alright.” He then handed Smith

his card and stated “You got any questions, concerns about

anything, that’s my desk number there. Alright?” A

reasonable personwould view this interaction as an indication

that Smith was free to leave. At the very least, the state

court’s determination that a reasonable person would feel free

to leave was not objectively unreasonable.
SMITH V. CLARK 29

Furthermore, we cannot agree with the dissent’s statement

of some facts. Most notably, we cannot conclude that the

state appellate court was of the mistaken view that Smith was

told three times that he was “free to go.” We know that

Smith’s second advisement that he was not under arrest was

accompanied by a statement that he was “free to go,” but that

his third advisement that he was not under arrest did not

include such a statement. Although the record does not

indicate exactly what Smith was told when he was

approached at school, the state appellate court opined that

Smith was told that “he was not under arrest and [was] asked

whether he was willing to go to the police station to answer

some questions.” Smith, 2010 WL 4233298, at *1.

1

Regardless of how each advisement is characterized, this

counting exercise is of no consequence, as the state appellate

court was not objectively unreasonable in viewing the three

advisements that Smith was “not under arrest” as having

conveyed messages that Smith was free to go.

We also note that Smith and the dissent overstate how

much several factors weigh in favor of the view that Smith’s

pre-warning confession was custodial. Although the prewarning interrogation was long, we cannot conclude on

AEDPA review that it was “a marathon session designed to

force a confession.” Bassignani, 575 F.3d at 886 (quotation

marks omitted); cf. Dyer, 706 F.3d at 1136 (nearly four-hour

nighttime interrogation). While Smith was brought to the

police station in a police car, he joined the officer voluntarily

and had a friendly conversation along the way. See Beheler,

1

 Indeed, the state appellate court’s specific discussions of the first and

third advisements demonstrate that, notwithstanding a prefatory sentence

suggesting otherwise, the court was not under the impression that Smith

was told he was free to go three times.
30 SMITH V. CLARK

463 U.S. at 1122; Mathiason, 429 U.S. at 495 (“He came

voluntarily to the police station . . . .”); Crawford, 372 F.3d

at 1059 (emphasizing that the defendant “agreed to

accompany” the officers). And while the accusatory nature

of an interview is an important circumstance to consider,

Smith’s interrogation did not become custodial simply

because the officers questioned Smith’s veracity, confronted

him with evidence of his guilt, and promised leniency. See

Mathiason, 429 U.S. at 493 (officers told suspect that his

fingerprints had been found at the scene and that “his

truthfulness would possibly be considered by the district

attorney or judge”); Stansbury, 511 U.S. at 325 (telling a

person he is a “prime suspect” does not necessarily mean he

is under arrest because “some suspects are free to come and

go until the police decide to make an arrest”).2Indeed, the

detectives generallyquestioned Smith in a friendly, courteous

tone, and their posture was relaxed. At one point, Smith can

be seen laughing and joking with Detective Pucci about

mutual acquaintances. The officers also permitted Smith to

give narrative answers and “appealed to his interest in telling

the truth and being helpful.” Alvarado, 541 U.S. at 664. A

fairminded jurist could view many statements that Smith

labels as implicit threats and promises as explanations of the

importance of truth and as explaining the differences between

an intentional and a negligent act.

2 The Supreme Court has explained that “[a]ny interview of one

suspected of a crime by a police officer will have coercive aspects to it,

simply by virtue of the fact that the police officer is part of a law

enforcement system which may ultimately cause the suspect to be charged

with a crime. But police officers are not required to administer Miranda

warnings to everyone whom they question.” Mathiason, 429 U.S. at 495.
SMITH V. CLARK 31

We recognize that the state appellate court did not address

Detective Pucci’s comment that Smith could not “leave the

room lying bro.” But the comment appears to have been

directed at Smith’s claim that he changed the channel on the

television to watch cartoons with the baby, which the

detectives said was inaccurate.3 A fairminded jurist could

 

3

 As explained by the district court, the exchange was as follows:

D. MUSTARD: You didn’t change the station.

SMITH: Huh?

D. MUSTARD: You didn’t change the station.

SMITH: I did change the station.

D. MUSTARD: You did not change the station. I

just was at the house and do you

know what channel the TV is on –

BET.

SMITH: She turned – I did turn the station. I

had a remote. I turned it.

D. MUSTARD: You didn’t turn the station Javon’z.

[sic.]

D. PUCCI: Hey . . . 

D. MUSTARD: Don’t lie man.

D. PUCCI: . . . Just . . .

D. MUSTARD: You can’t leave this room lying bro.

D. PUCCI: . . . What happened out there man?

Just tell me did the baby do

something? Was there some
32 SMITH V. CLARK

conclude that a reasonable person would not have interpreted

this statement literally, particularly in the context of the

previous advisements that Smith was not under arrest. 

Instead, the statement could fairly be viewed as an appeal to

the importance of truth.

Additionally, we note that the state appellate court

acknowledged that Detective Pucci’s third advisement that

Smith was not under arrest was less than clear. But the court

concluded that to the extent that Detective Pucci’s advisement

was ambiguous in context, notwithstanding the previous

advisement that Smith was free to go, a reasonable person

would have asked for clarification. Smith did not ask for

clarification and did not seek to leave after the lie detector

test was administered. We cannot conclude that the state

appellate court’s view was objectively unreasonable.

We acknowledge that this is a close case. Perhaps there

are other circumstances, beyond those mentioned by Smith,

the dissent, and the state appellate court, that weigh in favor

of the view that Smith was in custody. But 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 decisions reversing us for

ignoring this rule is long.

4 As the panel, district judge, and

circumstance behind this whole

thing?

SMITH: No.

4

See, e.g., Davis v. Ayala, 135 S. Ct. 2187, 2202 (2015) (faulting us for

having “misunderstood the role of a federal court in a habeas case”);

Harrington, 131 S. Ct. at 785 (reversing us and explaining that “even a

strong case for relief does not mean the state court’s contrary conclusion
SMITH V. CLARK 33

magistrate all agreed, a fairminded jurist could hold, as did

the three judges on the state court of appeal, that Smith was

not in custody when he first confessed to killing the baby. 

That compels a denial of relief under AEDPA.

was unreasonable”); Alvarado, 541 U.S. at 665 (reversing us and

explaining we were “nowhere close to the mark” in concluding that a state

court unreasonably applied the custody test); Lockyer, 538 U.S. at 75

(reversing us for “fail[ing] to give proper deference to state courts by

conflating error (even clear error) with unreasonableness”).