In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-1908

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JAMES CRANLEY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-CR-222—Lynn Adelman, Judge.

____________

ARGUED SEPTEMBER 23, 2003—DECIDED NOVEMBER 19, 2003

____________

Before POSNER, MANION, and EVANS, Circuit Judges.

POSNER, Circuit Judge. James Cranley, indicted for federal

firearms-related offenses, moved to suppress the confession

that he had given to an agent of the federal Bureau of

Alcohol, Tobacco, and Firearms. The district judge granted

the motion, and the government appeals.

Cranley had been convicted in a Wisconsin state court

of misdemeanor theft and had been placed on probation.

Among the terms of his probation was a requirement that he

report to his probation officer “as directed for scheduled or

unscheduled meetings,” and he was also required to

“provide true and correct information verbally and in

writing, in response to inquiries by the [probation] agent.”

A BATF agent traced several guns to Cranley, learned he
2 No. 03-1908

was on probation, and asked Cranley’s probation officer to

arrange a meeting at which the agent could question

Cranley about the guns. She did so, explaining to Cranley

that a BATF agent wanted to talk to him about guns. The

meeting was held in a conference room at a local probation

office with just Cranley, the probation officer, and the agent

present. The room was unlocked, but to leave the probation

office Cranley would have had to have been buzzed out by

a guard. The meeting lasted an hour. The agent wasn’t

satisfied with Cranley’s answers to his questions about the

guns, and he asked the probation officer to arrange another

meeting, in the same room, and she did so. At this meeting,

which differed from the first only in that it lasted a half hour

or hour longer and the probation officer was not present,

Cranley gave a full confession, but was permitted to leave

without being arrested. Prior to either the first or the second

meeting (we do not know which), the probation officer had

reminded him of his duty to answer questions truthfully. He

was not given Miranda warnings at either meeting; nor did

he invoke his Fifth Amendment privilege not to be compelled to incriminate himself.

The district judge ruled that Cranley had not been in

custody and therefore had not been entitled to the Miranda

warnings. But the judge thought that Cranley’s Fifth

Amendment privilege had been infringed because there was

an implicit threat that if he refused to answer the BATF

agent’s questions his probation would be revoked and he

would be sent to prison.

Cranley advances an alternative ground for upholding the

suppression of his confession, namely that he was in custody and therefore was entitled to the Miranda warnings. As

a matter of logic and good sense, it would seem that a

district court’s finding that a defendant was or was not in

custody when he made a statement that the prosecution

wants to use against him must stand unless the finding was
No. 03-1908 3

clearly erroneous. United States v. Humphrey, 34 F.3d 551, 558

(7th Cir. 1994) (concurring opinion). That is the usual scope

of appellate review of applications of a legal standard to the

facts, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-05

(1990); Thomas v. General Motors Acceptance Corp., 288 F.3d

305, 307-08 (7th Cir. 2002); United States v. Frederick, 182 F.3d

496, 499-500 (7th Cir. 1999); Anderson v. Flexel, Inc., 47 F.3d

243, 248 (7th Cir. 1995), and we cannot think of a good

reason for an exception when the legal standard is custody.

Whether a particular set of facts adds up to custody—that

is, to the defendant’s reasonably believing himself unable to

leave without the permission of the police, Stansbury v.

California, 511 U.S. 318, 322-23 (1994) (per curiam); Berkemer

v. McCarty, 468 U.S. 420, 442 (1984); United States v. Scheets,

188 F.3d 829, 841 (7th Cir. 1999)— will vary unpredictably

from case to case, so that the appellate court’s primary duty

of prescribing uniform rules is not engaged by its having to

rule on the existence of custody in a particular case. But we

bow to the weight of contrary authority, e.g., United States

v. Jackson, 189 F.3d 502, 509 (7th Cir. 1999); United States v.

Mancillas, 183 F.3d 682, 701-02 (7th Cir. 1999); United States

v. Salyers, 160 F.3d 1152, 1159 (7th Cir. 1998); United States

v. Yusuff, 96 F.3d 982, 987-88 (7th Cir. 1996), and so give the

district court’s ruling plenary review.

With reluctance, given the coercive atmosphere and the

pressure on Cranley to talk in order to avoid jeopardizing his probation, we accept the district court’s finding that

he was not in custody. We are influenced by the fact that

Cranley’s lawyer failed to tell us (and admitted at argument

that he did not know) the character of the building in which

the probation office in Sturtevant, Wisconsin, is located. If

the office shares the building with the local jail or police

department, or even a courthouse, that is one thing, but if it

shares it with offices unrelated to law enforcement, such as
4 No. 03-1908

the department of motor vehicles or of natural resources,

that is quite another, muting the impression that the

probation service is a branch of the state correctional

authority. In fact it appears from discreet inquiry that the

probation office shares the building with the state’s departments of transportation and natural resources rather than

with law enforcers.

Cranley would have been reluctant to break off an interview by a police officer, but that would have been true if

the BATF agent had accosted him on the street outside. He

could, however, have asked the agent, when the questioning

got hot, “Am I under arrest or am I free to leave?” Had he

done that we would know from the answer whether he was

in custody. His failure to ask, given the location of the

interview and the absence of the usual indications of police

custody, precludes a finding of custody, in light of such

cases as Minnesota v. Murphy, 465 U.S. 420, 433 (1984);

United States v. Humphrey, supra, 34 F.3d at 554: United States

v. Hayden, 260 F.3d 1062, 1066-67 (9th Cir. 2001); United

States v. Howard, 115 F.3d 1151, 1154-55 (4th Cir. 1997);

United States v. Nieblas, 115 F.3d 703, 704-05 (9th Cir. 1997),

and United States v. Ruggles, 70 F.3d 262, 264-65 (2d Cir.

1995), all closely in point. (Only United States v. Byram, 145

F.3d 405, 406, 409 (1st Cir. 1998), tugs in the opposite

direction.) These cases are perhaps not entirely realistic, and

may reflect a subterranean dissatisfaction with the Miranda

rule. But we are not disposed to buck such a long list of

cases, especially when their fons et origens is a Supreme

Court decision (Murphy).

On whether Cranley’s Fifth Amendment privilege was

violated, we have some doubt whether the question would

even arise under a rational system of criminal-law enforcement. Our system seems to critics irrationally complex,
No. 03-1908 5

and not tethered very closely to common sense either. It has

been argued with some force that an innocent defendant

would rather be tried under the European system of

criminal justice than under the American, and a guilty

defendant under the American system rather than the

European. William T. Pizzi, Trials without Truth: Why Our

System of Criminal Trials Has Become an Expensive Failure and

What We Need to Do to Rebuild It (1999).

Criminal defendants are free to waive constitutional

rights, including the right not to be forced to incriminate

themselves. They do it all the time, for example in pleading

guilty, which in fact is the mode of conviction in the vast

majority of criminal cases in America. At least as an original

matter it would seem that Wisconsin courts should be

allowed to require as a condition of probation that every

person admitted to probation waive his Fifth Amendment

right and answer all questions put to him by law enforcement officers concerning his criminal conduct. Cf. United

States v. Ross, 9 F.3d 1182, 1190-91 (7th Cir. 1993), vacated on

other grounds, 511 U.S. 1124 (1994); Asherman v. Meachum,

957 F.2d 978, 982-83 (2d Cir. 1992) (en banc).

Of course there are what are called “unconstitutional

conditions.” Board of County Commissioners v. Umbehr, 518

U.S. 668, 674-75 (1996); Dolan v. City of Tigard, 512 U.S. 374,

385 (1994); Burgess v. Lowery, 201 F.3d 942, 946-47 (7th Cir.

2000). Although Wisconsin doesn’t have to provide a probation option to convicted criminals at all, it could not

condition the option on the probationer’s being a white man

or a non-Jew. But to say to a convicted criminal we will not

let you substitute freedom for imprisonment unless you

agree to give a full accounting of any criminal behavior in

which you have engaged seems a reasonable condition to

attach to probation. Granted, it would be in tension with

language in Minnesota v. Murphy, supra, 465 U.S. at 435-37,
6 No. 03-1908

as interpreted in such cases as Mangarella v. State, 17 P.3d

989, 992-93 (Nev. 2001); State v. Eccles, 877 P.2d 799, 800-01

(Ariz. 1994), and Gyles v. State, 901 P.2d 1143, 1148 (Alaska

App. 1995). But American law doesn’t stand still. Decisions

subsequent to Murphy, such as Griffin v. Wisconsin, 483 U.S.

868, 874-75 (1987), and United States v. Knights, 534 U.S. 112,

119-20 (2001), evince a greater willingness to enforce terms

attached to conditional release, though neither involved the

right not to be compelled to incriminate oneself.

In Griffin, the Supreme Court permitted dilution of the

Fourth Amendment’s “probable cause” requirement because “a State’s operation of a probation system, like its

operation of a school, government office or prison, or its

supervision of a regulated industry, . . . presents ‘special

needs’ beyond normal law enforcement that may justify

departures from the usual warrant and probable-cause

requirements.” 483 U.S. at 873-74. The Court added that

probationers “do not enjoy ‘the absolute liberty to which

every citizen is entitled, but only. . . conditional liberty

properly dependent on observance of special [probation]

restrictions,’ ” Id. at 874, quoting Morissey v. Brewer, 408 U.S.

471, 480 (1972). California has gone further: “When involuntary search conditions are properly imposed, reasonable

suspicion is no longer a prerequisite to conducting a search

of the subject’s person or property. Such a search is reasonable within the meaning of the Fourth Amendment as long

as it is not arbitrary, capricious or harassing. . . . [T]he

government’s action is triggered by defendant’s own

conduct. The existence of this triggering event—the crime

which results in conviction or juvenile adjudication—creates

the compelling need for government intervention and

diminishes any reasonable expectation of privacy.” People v.

Reyes, 968 P.2d 445, 450 (Cal. 1998). And it has long been

understood that a fundamental and unchallenged condition

of probation is that the probationer surrender his right to

trial by jury should the government seek revocation, and
No. 03-1908 7

thus imprisonment. Minnesota v. Murphy, supra, 465 U.S. at

435 n. 7; United States v. Czajak, 909 F.2d 20, 23-24 (1st Cir.

1990); Morgan v. Wainwright, 676 F.2d 476, 481 (11th Cir.

1982); United States v. Nagelberg, 413 F.2d 708, 709-10 (2d Cir.

1969).

A person untutored in the baroque structure that is the

modern U.S. system of criminal procedure might have

supposed that when as a condition of probation Cranley

agreed to “provide true and correct information verbally

and in writing, in response to inquiries by the agent,” he

surrendered his Fifth Amendment privilege and with it his

right to Miranda warnings, since their purpose is to back up

the privilege by making it less likely that it will be forfeited

through ignorance. New York v. Quarles, 467 U.S. 649, 654

(1984); United States v. Gupta, 183 F.3d 615, 617 (7th Cir.

1999); Winsett v. Washington, 130 F.3d 269, 275 (7th Cir.

1997); United States v. Bautista, 145 F.3d 1140, 1146 (10th Cir.

1998); United States v. Sullivan, 138 F.3d 126, 130 (4th Cir.

1998). It is such a natural condition that the district judge

thought that Cranley must have believed that his probation

would be revoked if he refused to answer the BATF agent’s

questions—natural because Cranley would assume that

failure to answer would indeed be grounds for revocation,

though in fact it would be only if he had waived his Fifth

Amendment right when he was admitted to probation. As

a matter of fact, Wisconsin does require probationers to

answer questions put to them by law enforcement authorities, but grants them immunity from use of the answers in

evidence against them. State ex rel. Tate v. Schwarz, 654

N.W.2d 438, 443-44 (Wis. 2002); State v. Evans, 252 N.W.2d

664, 668-69 (Wis. 1977); State v. Carrizales, 528 N.W.2d 29,

32 (Wis. App. 1995).

However these larger issues be resolved, we disagree with

the district judge that Cranley talked to the agent only

because he was afraid that if he didn’t do so his probation
8 No. 03-1908

would be revoked. The suggestion is implausible, because

if his probation were revoked he would face only 47 days in

prison, while if he confessed to federal firearms violations

he would face a much longer term. But what is more important is that the Supreme Court held in Minnesota v.

Murphy, supra, a case nearly identical to this one, that fear of

revocation is not a ground for ruling that a probationer’s

confession deprived him of his Fifth Amendment privilege.

It is one thing if the police tell the probationer that unless he

talks his probation will be revoked; that places a price on his

invoking the privilege that the Court thought excessive. 465

U.S. at 435; United States v. Humphrey, supra, 34 F.3d at 554-

55; United States v. Frierson, 945 F.2d 650, 657-58 (3d Cir.

1991). That did not happen here; and the Court in Murphy

held that the lesser price that consists of a merely plausible

fear that invoking one’s Fifth Amendment privilege will get

one into trouble with the probation authorities is not a

heavy enough penalty to excuse the failure to assert the

privilege.

The only difference between this case and Murphy is that

here the questions that elicited the defendant’s confession

were put by a police officer rather than, as in that case, by

the probation officer. We cannot see what difference that

makes, given the reasoning of Murphy, legalistic as it may

seem. The Court thought there was no difference between

being ordered to show up for questioning at the probation

office and being summoned to testify before a grand jury. If

the grand jury witness thinks his answers are going to incriminate him and therefore he doesn’t want to be questioned, he has to assert his Fifth Amendment right. He can’t

not do so and then later seek to suppress his answers on the

ground that he was afraid that if he “took the Fifth” it

would get him into trouble with the prosecutor. Probably it

would—though less trouble than if he confessed. It is the

same here. Cranley had to show up for the interview, but he

could decide whether it would be better for him to confess
No. 03-1908 9

or to take the Fifth, and he did the former and will not now

be heard to complain of the consequences. He knew what

the interview would be about and who would be doing the

interviewing. That gave him a better opportunity to plan an

appropriate response than if, as the district court thought

would have been less coercive, he had not been told and

instead the probation officer had sprung the questions about

guns on him when he arrived not knowing why he’d been

summoned.

Realistically, it is more likely that a grand jury witness

will be aware of his right to claim the Fifth Amendment

privilege and that he will forfeit the right if he fails to

invoke it than that a probationer will know that he has a

Fifth Amendment privilege, because the former is more

likely than the latter to have consulted a lawyer in advance

of his appearance. But that is a distinction the Supreme

Court declined to draw in Murphy. 465 U.S. at 427, 431-32.

It is always something of a puzzle why criminals confess.

Probably Cranley realized that the BATF had the goods on

him and so would nail him even if he clammed up, but that

if he confessed he might get points for having cooperated.

No matter. His failure to assert his Fifth Amendment privilege forfeited it, and so the order of the district court suppressing his confession must be

REVERSED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-19-03