United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2848

___________

United States of America, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Arkansas.

*

W. J. B. Axsom, II, *

*

Appellee. *

*

___________

Submitted: December 11, 2001

Filed: May 6, 2002

___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.

___________

RILEY, Circuit Judge.

W.J.B. Axsom, II (Axsom) filed a motion to suppress inculpatory statements

made during a police interrogation conducted in his home. The district court granted

the defendant's motion to suppress. The government appeals, and we reverse.
1

Axsom did not recall the agent telling him he was not under arrest although

he did not deny she may have made that statement.

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I. BACKGROUND

On March 3, 1999, at approximately 6:45 a.m., federal agents executed a search

warrant on Axsom's residence seeking evidence of child pornography. When the

federal agents knocked and announced their presence, Axsom arrived at the door

wearing only a towel. Under the direction of FBI Special Agent Jill Hill (Hill), nine

federal agents and other employees entered Axsom's house. Upon entering, agents

observed dogs inside the residence and directed Axsom to secure the dogs outside.

The agents also observed numerous firearms and knives inside the residence,

including fifteen shotguns and rifles lying on a kitchen table, another loaded firearm,

three Samurai swords, and dozens of display knives and other guns hanging on the

walls.

Once the dogs and weapons were secured, Hill and Customs Service Agent

Robert Mensinger (Mensinger) directed Axsom to sit down. Hill explained to Axsom

that she had a search warrant to search the residence for the presence of child

pornography. She informed him that he was not under arrest1

 and that she was

interested in speaking with him, if he would like to speak with her. Axsom told Hill

he was willing to talk with her. Before commencing the interview, federal agents

escorted Axsom to the bedroom to dress. 

 After dressing, Axsom returned to the living room, sat down on an easy chair

and smoked his pipe. Hill and Mensinger sat on a sofa located across from Axsom.

Intermittently, over the course of the next hour, Hill and Mensinger interviewed

Axsom. At the beginning of the questioning, Axsom stood up to get a drink.

Mensinger told Axsom to "hold on just a minute" and asked him what he needed.

When Axsom explained he had a dry mouth, Mensinger directed another agent to

bring Axsom a glass of water. 
2

Mensinger testified that an FBI computer specialist secured the computer and

asked Axsom several questions concerning the computer, including questions about

hookups, encryption devices and booby traps.

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During the interview, Hill asked Axsom if he lived alone, how long he had

owned his computer, what his password was, the name of his Internet service

provider, how long he had subscribed to the provider, and for what purposes he used

the Internet.2

 Axsom provided the requested information and gave Hill his password.

Hill also asked Axsom whether he had downloaded child pornographic images off the

Internet into his computer, if he visited news groups and chat rooms on the Internet,

and, if so, which ones. Axsom admitted to Hill that he had downloaded child

pornography. He did not identify news groups by names, but instead told Hill he

enjoyed news groups on certain subjects, including preteens, high heels, nylons,

screen savers, and cartoon sounds.

Mensinger asked Axsom whether he had downloaded or transmitted child

pornography, and whether he had received foreign manufactured pornography.

Axsom replied that he had received some pornography with foreign language script,

which he believed had been manufactured abroad. Mensinger also asked Axsom

whether he was molesting children. Axsom denied ever doing so. Axsom expressed

his need to use the bathroom, and Mensinger escorted him for security reasons. 

 Execution of the search warrant took approximately two hours. After the

interview, and while the agents continued their search, Axsom moved about his

residence, answered the telephone, and continued to smoke his pipe. The agents' only

concern with Axsom's movements was Axsom obtaining any of the numerous

weapons spread throughout the house. Axsom volunteered to show agents which of

his two computers contained pornography and offered to show Mensinger his

Samurai sword collection.
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 During the search, agents discovered a small quantity of marijuana inside the

house and contacted the local sheriff's office. Two sheriff officers arrived during the

search and issued Axsom a citation. When the search ended at 8:45 a.m., the federal

agents departed without arresting Axsom. Several hours later, Axsom phoned the

Customs Service office and left a recorded voice message for Agent Mensinger's

supervisor commending Mensinger and the FBI for having done "a really professional

job" . . . "in a real professional manner." In the same recording, Axsom also said "I

done something that was illegal."

Following his indictment, Axsom moved to suppress inculpatory statements

made during the interview. Axsom claimed he had been the subject of a custodial

interrogation and had not been given a Miranda warning. The district court

conducted a suppression hearing and granted the motion to suppress. The district

court concluded that the balance of the six factors outlined in United States v. Griffin,

922 F.2d 1343, 1349 (8th Cir. 1990), weighed in favor of suppression. The

government filed a motion for reconsideration which the district court denied. This

appeal followed.

II. DISCUSSION

A. Standard of Review

In Thompson v. Keohane, 516 U.S. 99 (1995), the Supreme Court considered

the question whether a state-court "in custody" determination, for purposes of

Miranda, is a factual finding entitled to a presumption of correctness under 28 U.S.C.

§ 2254(d) or a mixed question of law and fact warranting independent review by the

federal habeas court. Thompson, 516 U.S. at 106. The Court held that an "in

custody" determination requires two discrete inquiries: "first, what were the

circumstances surrounding the interrogation; and second, given those circumstances,

would a reasonable person have felt he or she was not at liberty to terminate the

interrogation and leave." Id. at 112 (footnote omitted). In contrast to the first inquiry,

which is factual, the second inquiry "calls for application of the controlling legal
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standard to the historical facts." Id. This ultimate determination, the Court held,

"presents a 'mixed question of law and fact' qualifying for independent review." Id.

We first cited Thompson in United States v. McKinney, 88 F.3d 551 (8th Cir.

1996), a case involving a direct appeal of an "in custody" determination. In

McKinney, we suggested that, in light of Thompson, the circuit may need to

reconsider the applicable standard of review. McKinney, 88 F.3d at 554 n.2.

Although we upheld the district court's "in custody" determination utilizing a clearly

erroneous standard, we concluded we would have reached the same result if we had

applied de novo review under Thompson. Id.

Later, in Evans v. Rogerson, 223 F.3d 869 (8th Cir. 2000), a case brought

pursuant to 28 U.S.C. § 2254, we applied the "two discrete inquiries" test outlined in

Thompson in analyzing an "in custody" determination made by a state court. Id. at

872-73. Since Evans was decided, the circuit has not revisited Thompson. Recently,

in two direct appeals of "in custody" determinations, a clearly erroneous standard of

review was utilized. See United States v. Cates, 251 F.3d 1164, 1166 (8th Cir. 2001);

United States v. Hanson, 237 F.3d 961, 963 (8th Cir. 2001) (citing McKinney, 88

F.3d at 553).

Seven circuit courts have applied Thompson's standard of independent review

in direct appeals of "in custody" determinations made by district courts. See United

States v. Hayden, 260 F.3d 1062, 1065 (9th Cir. 2001); United States v. Trueber, 238

F.3d 79, 93 (1st Cir. 2001); United States v. Mahan, 190 F.3d 416, 421 (6th Cir.

1999); United States v. Erving L., 147 F.3d 1240, 1244-46 (10th Cir. 1998); United

States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998); United States v. Yusuff, 96 F.3d

987-88 (7th Cir. 1996); United States v. Ali, 86 F.3d 275, 276 (2d Cir. 1996). Before

Thompson was decided, four other circuit courts applied a de novo standard in

reviewing a district court's conclusions of law pertaining to "in-custody" issues. See

United States v. Adams, 1 F.3d 1566, 1575 (11th Cir. 1993); United States v. Collins,
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972 F.2d 1385, 1404-06 (5th Cir. 1992); United States v. Cruz, 910 F.2d 1072, 1077-

78 (3d Cir. 1990); United States v. Baird, 851 F.2d 376, 379 (D.C. Cir. 1988).

In determining whether Axsom was "in custody," we follow our precedent

established in Evans and join the other circuit courts in applying a de novo standard

of review to all "in custody" determinations, whether appealed directly or brought

collaterally. We reject our earlier cases that applied a clearly erroneous standard of

review because this standard is inconsistent with Thompson. Accordingly, in

reviewing "in custody" determinations, we uphold findings of historical fact unless

clearly erroneous, but we apply the controlling legal standard to the historical facts

utilizing an independent review. Thompson, 516 U.S. at 112; Evans, 223 F.2d at 872.

B. The Interrogation

The rule in Miranda requires that any time a person is taken into custody for

questioning, a law enforcement officer must, prior to questioning, advise the

individual of his right to be free from compulsory self-incrimination and his right to

the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 444 (1966). A custody

determination requires the court to carefully assess "the totality of the circumstances."

Hanson, 237 F.3d at 963. The undisputed facts establish that Hill and Mensinger

were interrogating Axsom. To determine whether the Miranda rule applies, we must

examine whether Axsom's interrogation was custodial.

The "task of defining 'custody' is a slippery one." Oregon v. Elstad, 470 U.S.

298, 309 (1985). This case is no exception and presents a close question. See United

States v. Mottl, 946 F.2d 1366, 1369 (8th Cir. 1991). Custody occurs when a suspect

is deprived of his freedom of action in any significant manner. Griffin, 922 F.2d at

1347 (citing Miranda, 384 U.S. at 444 and Berkemer v. McCarty, 468 U.S. 420, 429

(1984)). In deciding whether a person was "in custody," we must examine both the

presence and extent of physical and psychological restraints placed upon the person's

liberty during the interrogation "in light of whether a 'reasonable person in the
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suspect's position would have understood his situation' to be one of custody." Griffin,

922 F.2d at 1347 (quoting Berkemer, 468 U.S. at 442). Thus, if Axsom believed his

freedom of action had been restrained to a "degree associated with formal arrest" and

his "belief was reasonable from an objective viewpoint," then Axsom was "held in

custody during the interrogation." Id. at 1347 (citations omitted).

In Griffin, we outlined six common indicia of custody which tend either to

mitigate or aggravate the atmosphere of custodial interrogation. The indicia are:

(1) whether the suspect was informed at the time of questioning that the

questioning was voluntary, that the suspect was free to leave or request

the officers to do so, or that the suspect was not considered under arrest;

(2) whether the suspect possessed unrestrained freedom of movement

during questioning; (3) whether the suspect initiated contact with

authorities or voluntarily acquiesced to official requests to respond to

questions; (4) whether strong arm tactics or deceptive stratagems were

employed during questioning; (5) whether the atmosphere of the

questioning was police dominated; or, (6) whether the suspect was

placed under arrest at the termination of the questioning.

Id. at 1349.

The first three indicia are mitigating factors which, if present, mitigate against

the existence of custody at the time of questioning. Conversely, the last three indicia

are aggravating factors which, if present, aggravate the existence of custody. We

have emphasized these six indicia of custody are representative and are not exclusive.

A finding of custody does not require the factual circumstances of a case to present

all indicia; and a particularly strong showing of one factor may compensate for a

lesser or non-existent showing of another factor. Id.

Guided by these principles, we review de novo the district court's application

of the Griffin factors to this case. The district court found the absence of any
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mitigating factors and a particularly strong showing of one aggravating indicium –

a police-dominated atmosphere. Based on these findings, the district court concluded

the indicia, when balanced, weighed in favor of finding that Axsom's belief that he

was in custody was objectively reasonable under the totality of the circumstances.

The district court found the agents failed to inform the defendant (1) he was not

under arrest; (2) the questioning was voluntary; (3) he was free to leave; or (4) he

could reject the agents' request to answer questions. During the suppression hearing,

Hill and Mensinger testified that Hill told Axsom, before questioning him, that he

was not under arrest. Axsom's testimony did not deny this fact. Axsom explained

"I'm not saying [Hill] did not say that. I'm just saying the words did not register with

me." Furthermore, both Hill and Mensinger testified that Hill told Axsom, before

questioning him, that she would like to talk with him, if he was willing to talk with

her. Axsom's testimony did not dispute this fact. Therefore, we conclude the district

court's factual findings that Axsom was not advised he was not under arrest and the

questioning was voluntary were clearly erroneous. We further conclude the court

erred in not finding the presence of the first mitigating factor.

The district court found the second mitigating factor did not exist because

federal agents restrained Axsom's freedom of movement. In support of its finding,

the district court noted agents escorted Axsom into the bedroom to dress and to use

the bathroom. The record establishes that before the interview commenced, a male

agent escorted Axsom into the bedroom to obtain clothing while a search of the room

was in progress. Mensinger later escorted Axsom to the bathroom, which was located

a short distance from a Samurai sword collection. During the questioning, Axsom

attempted to obtain a drink, but Mensinger stopped him and directed another agent

to bring Axsom a glass of water. Because Axsom was not permitted to move about

at will during the interview, we cannot say the district court erred in finding that the

second mitigating factor was absent.
3

Axsom acknowledged he knew from watching TV he did not have to answer

the agents' questions.

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In considering the third mitigating factor, the district court correctly found that

Axsom did not initiate or arrange for the questioning. However, the court failed to

analyze the disjunctive prong of the third mitigating factor – whether the defendant

voluntarily acquiesced to requests by federal agents to answer questions.3

 At the

suppression hearing, Axsom testified that he would have answered any questions

asked by the interrogating agents because he believed it was in his own best interest

to appear friendly to the agents and to cooperate with their investigation. Axsom's

conduct during the interview further supports a finding of voluntary acquiescence.

Axsom was extremely friendly and cooperative during the interview. He offered to

show agents which of his two computers contained child pornography, the target he

shot to obtain his concealed handgun license, and his Samurai sword collection. We,

therefore, find the historical facts establish the presence of the third mitigating factor.

Turning to the aggravating factors, the district court made no finding as to

whether Hill and Mensinger employed strong arm tactics or deceptive stratagems

during their questioning. We find the agents did not. Although armed, the agents did

not adopt a threatening posture toward Axsom, display their weapons, or make a

physical show of force during the questioning. Nor did the agents perform any

deceptive stratagems. Axsom testified the agents asked "straightforward questions"

and he gave "straightforward answers." Within hours of the agents' departure from

his home, Axsom phoned the Customs Service office and left a voice recording

commending Mensinger and the FBI for their professionalism. We, therefore, find

the facts fail to establish the presence of the fourth indicium or first aggravating

factor.

The district court found that the presence of nine agents and specialists in

Axsom's small house established the existence of the fifth indicium – a police
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dominated atmosphere. The fifth indicium inquires "whether the atmosphere of the

questioning was police dominated." Griffin, 922 F.2d at 1349 (emphasis added).

While nine persons participated in the execution of the search warrant, only two

agents conducted the interview. During the interview, Axsom sat on an easy chair

and smoked his pipe while Hill and Mensinger sat across from him on a small sofa.

Communication between the agents and Axsom consisted of two-way questioning.

The agents asked questions of Axsom, but Axsom also asked the agents questions

about search procedures. Photographs of Axsom and federal agents taken at or near

the time of questioning reflect a more casual scene than a police dominated,

inherently coercive interrogation. When a suspect is interrogated in the comfort and

familiarity of his home, a court is less likely to find the circumstances custodial. See

United States v. Erving L., 147 F.3d 1240, 1247 (10th Cir. 1998) (quoting 1 W.

LaFave, Criminal Procedure § 6.6(e), at 496 (1984 & Supp. 1991)). We, therefore,

find the district court erred in finding the presence of the fifth indicium or second

aggravating factor.

The district court also failed to document a finding regarding the presence or

absence of the sixth indicium or third aggravating factor. At the termination of the

questioning, agents did not arrest Axsom. Therefore, we find this historical fact fails

to establish the presence of the sixth indicium or third aggravating factor. 

 Having reviewed the indicia outlined in Griffin, we find the presence of the

first and third mitigating factors. Although evidence exists to support the district

court's finding that agents restrained Axsom's freedom of action, his freedom was not

restrained to a "degree associated with formal arrest." California v. Beheler, 463 U.S.

1121, 1125 (1983) (per curiam). Axsom was not handcuffed, nor was he confined to

one room. Axsom moved throughout his residence. He secured his dogs outside; he

entered his bedroom to obtain clothing; he sat in the living room; and he used his

bathroom. 
4

Over a decade ago, we declared in United States v. Mottl that "[g]iven the

FBI's acknowledged record of fairness toward criminal suspects, we see no reason

why the agents elected not to read [the suspect] the Miranda warning." 946 F.2d at

1370-71. The same holds true for the present case. We again urge federal agents not

to view our reversal as a "license to depart from that legacy of fairness." Id. at 1371.

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Given the extensive arsenal of weapons discovered inside Axsom's house, we

find the absence of the second mitigating factor – unrestrained freedom of

movement – much less significant than we otherwise would. Upon entering the

residence, agents confronted immediate threats to their physical security – dogs, rifles

and shotguns, a loaded handgun, a Samurai sword collection, and an extensive array

of other guns and knives hanging from the walls. From an objective viewpoint, a

reasonable person in Axsom's shoes should have realized the agents escorted him not

to restrict his movement, but to protect themselves and the integrity of the search.

We further find the absence of any aggravating factors outlined in Griffin.

While execution of the search warrant was certainly police-dominated,4

 the interview

between the two agents and Axsom was not. The record contains no evidence of

coercive or deceptive conduct by the agents during questioning. Axsom was not

arrested after questioning. Finally, the record establishes no other aggravating

circumstances.

In evaluating whether Axsom was "in custody," we are not concerned with any

moral or psychological pressures causing Axsom to be forthright and helpful to the

agents. Our examination only relates to the restraint imposed by the agents. Erving

L., 147 F.3d at 1247. Under the relevant circumstances here, a reasonable person

would have felt he was at liberty to terminate the interrogation and walk away or turn

his back on the agents.
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III. CONCLUSION

Because Axsom was not in custody, he was not entitled to Miranda warnings.

Conducting a Thompson independent review, we conclude the district court erred in

suppressing the defendant's statements. We reverse the judgment of the district court

and remand the case for further proceedings consistent with this opinion.

 A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.