United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3891

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United States of America, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the District of

* South Dakota.

Jerome Black Bear, *

*

Appellee. *

*

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Submitted: June 21, 2005

Filed: September 1, 2005

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Before RILEY, BOWMAN, and BENTON, Circuit Judges.

___________

BENTON, Circuit Judge.

Jerome Albert Black Bear was indicted for assault causing serious bodily injury

to his infant son, in violation of 18 U.S.C. §§ 1153 and 113(a)(6). Before the

indictment, FBI agents questioned him four times. 

On November 21, 2003, agent Miller spoke with Black Bear in a pediatricintensive-care breakroom at the hospital, after treating doctors said that his son's

fractured ribs "are consistent with intentional injury and are not consistent with

accidental injury." Before the interview, the agent told Black Bear that he was not
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under arrest, would not be arrested at the end of the interview, did not have to talk to

the agent, and could end the interview at any time. Black Bear spoke with the agent,

signing a (jointly) handwritten statement – all of which lasted about an hour.

On December 9, Black Bear was summoned and appeared in the Rosebud

Sioux Tribal Children's Court for a (civil) preliminary hearing on temporary

emergency custody. A public defender was appointed to represent him. After the

hearing, a social worker from the South Dakota Department of Social Services called

Black Bear back into the courtroom and "handmotioned" him to follow down a back

hallway to the connected law-enforcement center. There, he met with FBI agent

Allan D. Wipperfurth. Black Bear's public defender was not informed he was going

to be questioned. Before the 30-minute interview, Wipperfurth told Black Bear that

he was not under arrest, would not be arrested at the end of the interview, did not

have to speak with Wipperfurth, and could end the interview at any time. Later in the

day, Wipperfurth "asked" Black Bear to come in the next day – not as an optional

appointment – for a polygraph examination at the county courthouse. 

On the morning of December 10, Black Bear came to the courthouse without

counsel. Upon arriving, he signed – between 10:17 and 10:21 am – a "consent to

interview with polygraph" form in connection with "the physical abuse of a child,"

and a Miranda "advice of rights" form. Both agents present witnessed Black Bear's

signatures on the two forms. Agent Trone alone administered the polygraph exam,

and then questioned him further. Agent Wipperfurth re-entered the room at about

11:25 and asked more questions, with Trone present. Immediately before

Wipperfurth's (and Trone's) post-exam questioning, Black Bear was not advised: that

he was not under arrest, would not be arrested at the end of the interview, did not

have to speak with them, and could stop talking at any time. Following Wipperfurth's

questions, Black Bear agreed to provide a tape-recorded oral summary, which lasted

from 12:10 to 12:16 pm. Black Bear left at 12:20 pm.
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Later in the afternoon on December 10, Black Bear spoke with his public

defender and returned home. About four hours after leaving the agents, he

telephoned indicating he wanted to talk further. Wipperfurth and Trone drove to

Black Bear's house, where the three talked inside Trone's vehicle for about 10 to 15

minutes. 

Before trial, Black Bear moved to suppress all these statements, invoking the

Fifth and Sixth Amendments. After a hearing pursuant to 28 U.S.C. § 636(b)(1)(B),

the magistrate judge recommended denying the motion. The district court accepted

the recommendation as to the November 21 hospital interview, the morning

statements to Agent Trone on December 10, and the late-afternoon conversation on

December 10. The district court suppressed the December 9 and December 10

statements to Wipperfurth – for violating the Fifth Amendment. The government

appeals. Having jurisdiction under 18 U.S.C. § 3731, this court reverses.

The standard of review for suppression issues is two-pronged. See United

States v. Sheikh, 367 F.3d 756, 762 (8th Cir. 2004). This court reviews a district

court's factual findings for clear error, and its legal conclusions de novo. Id. "In

custody" determinations are independently reviewed on direct appeal. Id.

I. Interrogation by agent Wipperfurth on December 9

When taken into custody for questioning, an individual must be advised of the

rights to be free from compulsory self-incrimination, and to the assistance of counsel.

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Miranda warnings are required only

where a person is deemed to be in custody. Oregon v. Mathiason, 429 U.S. 492, 495

(1977).

The ultimate inquiry to determine custody for Miranda purposes is whether

there was a formal arrest, or restraint on freedom of movement of the degree
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associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983).

This court first considers the totality of the circumstances of the historical facts that

confronted Black Bear at the time of questioning. See Thompson v. Keohane, 516

U.S. 99, 112 (1995); United States v. Czichray, 378 F.3d 822, 826-28 (8th Cir. 2004).

Second, the only relevant inquiry is whether reasonable persons in Black Bear's

position would consider their freedom of movement restricted to the degree

associated with a formal arrest. See Berkemer v. McCarty, 468 U.S. 420, 442 (1984);

Thompson, 516 U.S. at 112. This determination is based on the objective

circumstances, not on subjective views of the participants. See United States v.

LeBrun, 363 F.3d 715, 720 (8th Cir. 2004) (en banc).

The district court found that Black Bear "was ordered to attend the December

9 interview by Agent Wipperfurth acting through [social worker] Lanz." The court

concluded that, from the perspective of a reasonable person, the restrictions on Black

Bear were like those of a formal arrest. The court identified as key historical facts:

1. Lanz had considerable authority and power over Black Bear,

having obtained an ex parte order removing his son to foster

parents, and prosecuting the litigation (possibly) to terminate

Black Bear's parental rights; 

2. He directed Black Bear to meet with Wipperfurth, pursuant to

Wipperfurth's advance directions; 

3. Lanz ordered Black Bear to accompany him to be interviewed by

Wipperfurth; 

4. He did not give Black Bear the option of not coming; and 

5. Black Bear was told the interview was "voluntary" only after he

was in a private room of the police station.
1

The magistrate judge made additional findings, which the district court did not

directly address. The district court disbelieved some of Wipperfurth's testimony,

noting inconsistencies with Lanz's testimony. The magistrate judge who actually saw

and heard the witnesses (apparently) believed Wipperfurth, although the magistrate

judge did not make credibility findings. In this case, this court need not address the

roles of the district court and magistrate judge relative to credibility determinations.

See United States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002); United States

v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001). The historical facts listed above are

not clearly erroneous, but the issue here is the legal conclusion regarding custody. 

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These findings of fact are not clearly erroneous.1

 However, the district court's

legal conclusions are reviewed de novo, as is the ultimate determination of custody.

The facts listed emphasize the events preceding the interview. These facts do not

resolve whether Black Bear was in custody during the interview of December 9.

The LeBrun case is instructive. Before concluding that LeBrun was not in

custody, this court considered the events preceding the interview. LeBrun, 363 F.3d

at 718. There, a Highway Patrol officer and a Naval investigator met LeBrun at his

place of employment and asked him to accompany them to a Patrol office. LeBrun

was not informed of the subject of the investigation, nor given any warnings at that

time. LeBrun rode in a police car to the Patrol office, but was not restrained in any

manner. Upon arriving at the Patrol office, but before going inside, the investigator

told LeBrun that he was not under arrest, was free to terminate the impending

interview at any time, and was free to leave at any time. Id.

In this case, Wipperfurth made almost identical statements to Black Bear.

True, in the events here, Black Bear may have faced more compulsion than LeBrun.

However, "the coercive aspects of a police interview are largely irrelevant to the

custody determination except where a reasonable person would perceive the coercion

as restricting his or her freedom to depart." Id. at 721.
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The key is the reasonable person's view "during the interview" or "during the

interrogation." United States v. Wallace, 323 F.3d 1109, 1113 (8th Cir. 2003);

United States v. Axsom, 289 F.3d 496, 500 (8th Cir. 2002). Measured by the factors

in Axsom, Black Bear was not in custody during the interview because: 

1. He was informed at the time of his interview that he was not

under arrest, would not be arrested at the end of the interview,

did not have to speak with Wipperfurth, and could end the

interview at any time; 

2. While Black Bear did not have unrestrained freedom of

movement during the interview because it occurred in a closeddoor room in the police department, he nonetheless accompanied

Wipperfurth to the room and was not handcuffed or restrained at

any time during the interview; 

3. Black Bear voluntarily acquiesced to Wipperfurth's requests to

respond to questions;

4. No strong-arm tactics or deceptive strategies were employed

during his interview; 

5. While the atmosphere was police-dominated to some extent, it

was not overly so to the point that Black Bear's freedom of

movement was restrained to the degree associated with formal

arrest; and 

6. He was not placed under arrest at the termination of the interview.

See Axsom, 289 F.3d at 500 (quoting United States v. Griffin, 922 F.2d 1343, 1349

(8th Cir. 1990)). 

Because Black Bear was not in custody for the purposes of Miranda, the

district court's order suppressing his statements on December 9 is reversed. 
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II. Post-examination questioning by agent Wipperfurth on December 10

The district court concluded that Black Bear was in custody on the morning of

December 10 during the post-polygraph questioning. The court relied on the

historical facts that Black Bear, after being ordered to the December 9 interview, was

then ordered by Wipperfurth to return for the polygraph on December 10, and that the

request for the exam was not an "optional appointment." The district court,

acknowledging the LeBrun case, emphasized that Black Bear was not a repeat felon

or otherwise familiar with FBI tactics or his Fifth Amendment rights. 

The government attacks these factual findings, reiterating that the district court

– without conducting an evidentiary hearing – disbelieved Wipperfurth's testimony

that he told Black Bear the polygraph exam was voluntary (as he "always" does).

This court again need not address the relative roles of the district court and magistrate

judge, because the magistrate judge made a finding only as to an "agreed upon time"

for the exam, mentioning nothing about other arrangements for it. The district court

did not clearly err in its factual findings as to the December 10 questioning.

Based on these facts, the district court had "no doubt" that Black Bear's

freedom to depart was restricted on December 10. Significantly, Black Bear was not

told before the post-exam questioning on December 10: that he was not under arrest,

would not be arrested at the end of the interview, did not have to speak with them,

and could stop talking at any time. Based on a de novo review of the totality of these

historical facts, this court agrees that Black Bear was in custody on the morning of

December 10. 

The government retreats to the position that proper warnings were given. The

government has the burden of proving by a preponderance of the evidence that, under

the particular facts and circumstances of the case, the waiver was an intentional,
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voluntary, knowing, and intelligent relinquishment or abandonment of a known right

or privilege. See LeBrun, 363 F.3d at 724. 

At the outset of the polygraph exam on December 10 – between 10:17 and

10:21 am – Black Bear was advised of his Miranda rights, and waived them in

writing. The "advice of rights" form plainly states the Miranda warnings, is not

restricted, and was signed by both agents Trone and Wipperfurth. Black Bear also

signed a (separate) consent to interview with polygraph. After the exam, agent Trone

questioned Black Bear. Wipperfurth then re-entered the room and with Trone

present, immediately interrogated Black Bear in the same room. Finally, with a taperecorder on, both interviewed Black Bear, with Wipperfurth posing 20 questions,

Trone next asking 7, and Wipperfurth concluding with 4 more. The district court

admitted all the post-exam statements made to Trone, but suppressed those made to

Wipperfurth.

The district court emphasized that Wipperfurth did not give any warnings

when he re-entered the room to begin questioning at 11:25, and repeated the Miranda

warning only when tape-recording began at 12:10. The district court concluded this

was analogous and parallel to Missouri v. Seibert, __ U.S. __, 124 S.Ct. 2601 (2004).

There, the defendant was given no warning of any kind until "midstream" – after she

confessed during a continuous interrogation in the same room by the same officer

who eventually gave the Miranda warnings. Seibert, 124 S.Ct. at 2605, 2606, 2612-

13 (plurality opinion). The Seibert case is inapposite to this case, where Miranda

warnings were given at the beginning of a continuous interrogation in the same room

by the same officer who witnessed the warning at the outset. 

The district court viewed the December 10 statements to Wipperfurth as a

continuation of the unwarned statements to him on December 9. First, this view

misinterprets the multifactor test of the Seibert plurality (assuming it applies to these

facts). Black Bear's statements were separated by almost 24 hours, occurred in
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different places, and involved an additional officer the second day; the first

questioning was short (30 minutes); there was no cross-referencing overlap between

the interrogations; and the agent did not treat the second day's as continuous with the

first's. See United States v. Fellers, 397 F.3d 1090, 1098 (8th Cir. 2005); United

States v. Briones, 390 F.3d 610, 614 n.3 (8th Cir. 2004); United States v. HernandezHernandez, 384 F.3d 562, 566-67 (8th Cir. 2004); United States v. Aguilar, 384 F.3d

520, 524 (8th Cir. 2004). In addition, Black Bear was not under any police control

(apparently returning home) during the nearly 24-hour break in questioning.

Second, the key to Seibert is whether the police officer's technique was a

"designed," "deliberate," "intentional," or "calculated" circumvention of Miranda.

See Seibert, 124 S.Ct. at 2614-16 (Kennedy, J., concurring in the judgment). See

generally Marks v. United States, 430 U.S. 188, 193 (1977) (when no single rationale

has the assent of five Justices, the holding is the position of the Justices who

concurred in the judgment on the narrowest grounds). The district court did not make

a legal conclusion of such intent as to the December 10 statements to Wipperfurth.

Moreover, the district court did not conclude that there was "a deliberate strategy of

staged interrogations" to circumvent Miranda. See Fellers, 397 F.3d at 1098;

Briones, 390 F.3d at 614; Hernandez-Hernandez, 384 F.3d at 566; Aguilar, 384

F.3d at 525. 

On a de novo review, the totality of the circumstances does not support such

conclusions. Wipperfurth's questioning occurred in the same room, continuously

after the (warned) polygraph and the (admissible) examining agent's questions. This

case therefore is like those where after a (warned) polygraph exam, there is no per se

requirement for Miranda warnings before (admissible) post-exam questioning. See

Wyrick v. Fields, 459 U.S. 42, 48-49 (1982); McDowell v. Leapley, 984 F.2d 232,

234 (8th Cir. 1993); Vassar v. Solem, 763 F.2d 975, 978 (8th Cir. 1985); United

States v. Eagle Elk, 711 F.2d 80, 83 (8th Cir. 1983). 
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Black Bear objects that in those cases, the polygraph examiner was apparently

also the post-exam questioner – not another officer. Black Bear argues that this

change is so serious that his answers no longer were voluntary, or he no longer was

making a knowing and intelligent relinquishment of his rights. See Wyrick, 459 U.S.

at 47; Fields v. Wyrick, 706 F.2d 879, 881 (8th Cir. 1983). To the contrary, the

change in interrogator is not itself decisive. See United States v. Gell-Iren, 146 F.3d

827, 830-31 (10th Cir. 1998); United States v. Andaverde, 64 F.3d 1305, 1312-13

(9th Cir. 1995). This is not a case where the new interrogator had "nothing to do with

the polygraph examination," as the district court here found that Wipperfurth had

arranged the exam, ordered Black Bear to attend, and witnessed the Miranda and

polygraph warnings. See United States v. Gillyard, 726 F.2d 1426, 1429 (9th Cir.

1984). Moreover, by ruling that post-exam statements to agent Trone were

admissible, the district court found that Black Bear was sufficiently informed of the

post-exam questioning. See United States v. Leon-Delfis, 203 F.3d 103, 109 (1st Cir.

2000).

This appeal presents no other issue of involuntariness as to the statements to

agent Wipperfurth on December 10. See LeBrun, 363 F.3d at 724-27. Because

required warnings were given, the district court's order suppressing Black Bear's

statements to Wipperfurth after the polygraph exam on December 10 is reversed.

III.

The district court's order is reversed, and the case remanded.

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