Recently, the Fourth Circuit Court of Appeals decided a case involving the questioning of a homeowner as police officers executed a search warrant of his residence. At issue was whether the questioning of the homeowner for two hours violated his constitutional rights. Note: The warrant was executed during the early morning hours by no less than 15 police officers who were armed with firearms, one of which was pointed at the home-
owner. The homeowner didn’t feel free to leave the kitchen (where the interview occurred) due to the presence of the interviewing officer and another officer standing nearby.
United States v. Hargrove1 is an excellent example of a scenario where the totality of the circumstances prevails as opposed to placing too much importance on one or two aspects of a legal test. Example: Reading the opening paragraph of this article in a vacuum might lead even the most experienced jurists and law enforcement officers to opine that the homeowner’s rights were surely violated, particularly because of the number of officers and especially if an officer pointed his weapon in the direction of the homeowner.
In Hargrove, John Hargrove was charged with three federal crimes: attempted transfer of obscenity to a minor, transfer of child pornography and attempted enticement of a minor as a result of an investigation by officers posing as underage females. For several months, Hargrove communicated in internet chat rooms with actual underage females, as well as two law enforcement officers posing as underage females. The chat room conversations contained graphic sexual language and explicit details about their eventual meeting when the minors would serve as his sexual slaves. Hargrove asked the minors to send him photographs of them engaged in sexual acts and also sent them images of child pornography. In time, Hargrove made plans with the minors to have them live with him as “slave sisters,”2 including making travel and financial arrangements.
Things became really serious after Hargrove asked each of the minors to obtain their mothers’ signatures for the purpose of creating false emancipation papers, and began making arrangements to meet the girls in person. Shortly thereafter, the FBI obtained and executed a search warrant on Hargrove’s residence in Bristol, Conn., on Jan. 5, 2007. During the search, the lead investigating officers interviewed Hargrove, during which time Hargrove made a number of incriminating statements.
In July 2007, a federal grand jury indicted Hargrove on the three federal charges. Prior to trial, Hargrove moved to suppress the statements he made during the search of his home, arguing that the statements were made during a custodial interrogation. He also argued that because he was never given his Miranda warnings, the statements should be excluded from evidence.
At the suppression hearing, the lead investigator testified that between 10 and 15 law enforcement officers executed the search warrant shortly after 6 a.m. He couldn’t recall who answered the door, but testified that once the officers entered the house they cleared the residence, ensuring there were no weapons and searching for other people present in the house.3 The lead investigator testified that some officers had their firearms drawn during the initial entry and sweep, which was consistent with standard operating procedures.
The lead investigator testified that he told Hargrove he wasn’t under arrest and that he was free to leave the house at any time. He then asked if Hargrove would speak with the agents and he agreed. Hargrove sat in his pajamas at the kitchen table with the lead investigator while another agent stood in the doorway of the kitchen listening. There was no arrest warrant for Hargrove and neither agent had any intention of arresting him. Hargrove wasn’t placed in handcuffs and was permitted to smoke cigarettes. At no time did Hargrove ask to end the two-hour interview or protest the questioning. Instead, according to the lead agent, Hargrove was polite and cooperative and would answer questions at length. At no time was Hargrove read his Miranda warnings.
Hargrove also testified at the suppression hearing. He asserted that when he entered the living room after being awakened by banging on the door, an officer stood in front of him with an M-16 with a laser pointed straight at him. Hargrove said he immediately raised his hands and said, “I’m not armed.”4 He claimed he was directed to the kitchen after being patted down and told that one of the agents had some questions to ask him. He said his movements were restricted and that he wasn’t permitted to retrieve cigarettes. He also claimed that he didn’t feel that he could leave the kitchen because an agent was standing in the doorway between the kitchen and the dining room, blocking the entryway.
Hargrove admitted that nobody had their firearms drawn while he was in the kitchen, he wasn’t handcuffed and the officers didn’t threaten him beyond the intimidation he felt by having a “bunch of armed officers around.”5 He stated that no officer read him his Miranda warnings or told him that he was free to leave. Hargrove asserted that he believed he was going to be arrested because the lead agent told him they had copies of everything that was on the chat log (which was probably true). He claimed that he spoke to the agents because he figured he was going to jail and that it probably made no difference whether he spoke to the agents.
The district court found Hargrove’s argument that he didn’t feel free to leave was not dispositive because “custody determinations do not depend on the subjective views of either the interrogating law enforcement officers or the person being questioned, but depend instead on the objective circumstances of the interrogation.”6 As such, it found Hargrove wasn’t in custody at the time he was interviewed in his home and, therefore, there was no requirement that Miranda warnings be given.
Consider the Totality
• Miranda must be provided before questioning someone who’s in custody.
• Custody is determined by the totality of the circumstances—not by one or two isolated facts.
• Making it clear that the subject isn’t under arrest and is free to go will often mitigate circumstances that might otherwise imply custody.
The case went to a jury trial where the prosecution introduced Hargrove’s incriminating statements as evidence. Hargrove was convicted on all three counts after a three-day trial. He then filed an appeal arguing that the district court was wrong to find that he wasn’t in custody and subject to Miranda warnings when he gave incriminating statements to the agents.
The Fourth Circuit Court of Appeals first examined whether Hargrove was in custody at the time of the interview. It restated the Supreme Court’s test for determining whether an individual is in custody despite the lack of a formal arrest to be whether, under the totality of the circumstances, “a suspect’s freedom of action is curtailed to a ‘degree associated with a formal arrest.’”7 The key question is “whether, viewed objectively, ‘a reasonable man in the suspect’s position would have understood his situation’ to be one of custody.’”8
The determination is made by looking at all of the circumstances surrounding the interrogation and determining how a reasonable person in his position would gauge the breadth of his or her freedom of action.9 Of importance to this inquiry is the fact that “any 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 that may ultimately cause the suspect to be charged with a crime.”10 Only when individuals are questioned while in custody is it necessary for law enforcement to provide them with Miranda warnings.
The appellate court emphasized that its task is to assess the “totality of the circumstances rather than focusing on any one component of the interview” (i.e., the number of officers or whether a gun was pointed at an individual sometime prior to the interview).
The Fourth Circuit Court of Appeals asserted that the record revealed some of the officers were armed when they first entered the residence, and directed Hargrove’s actions when they first observed him and patted him down. This is perfectly permissible when conducting a safety sweep.11 The appellate court recognized that there are some circumstances where a safety sweep could result in a custodial setting, but this wasn’t one of them.
The court also stated that although 10–15 officers may have been present during the initial entry and safety sweep, only two officers remained with Hargrove in the kitchen. Everyone, including Hargrove, stated that he was never handcuffed, nor did the two agents display their firearms while they were in the kitchen or threaten him. “The mere presence of armed law enforcement officers during the interview is not sufficient to create a custodial situation. The court stressed that the lead investigator not only told Hargrove before the interview that he wasn’t under arrest, but also that he was free to leave. This clearly conveyed to Hargrove that he didn’t have to participate in the interview or even remain in the residence.
Other courts have noted that by telling the individual that he’s free to leave weighs in favor of finding that the individual isn’t in custody. For example, the Eighth Circuit Court of Appeals stated, “although advising someone that he or she is not under arrest mitigates an interview’s custodial nature, ‘an explicit assertion that the person may end the encounter is stronger medicine.’”12
The Fourth Circuit also agreed with the district court that the interview was conducted in Hargrove’s kitchen where it was “amicable” and “non-threatening.”13 Usually, an interview conducted at a suspect’s residence tends to be more neutral than one that occurs at the police station. The court stated that this type of relaxed environment evinces less formal police control over the location or the suspect and suggests a scenario that isn’t typically associated with a formal arrest.
Finally, although Hargrove testified that one of the agents blocked his exit from the kitchen, the evidence suggested that the agent was merely standing at the doorway. There was no evidence that the agent actually prevented Hargrove from leaving the kitchen, or that she threatened him. Therefore, the presence of the agent in the doorway of the kitchen wasn’t enough to establish that Hargrove was in custody.
The Fourth Circuit held that the district court didn’t err in any of its factual findings and found that Hargrove wasn’t in custody when he was interviewed. There was no need for the agents to issue Hargrove Miranda warnings.
This case is an excellent example of how important it is to look at the totality of the circumstances for purposes of determining whether an individual is in custody for purposes of Miranda. All too often, law enforcement and legal professionals will focus on one of many factors that are used to determine whether an individual is free to leave. Simply telling individuals you wish to question that he or she “is not under arrest,” without more, generally won’t save the day.
Because statements made during interviews can often be the most compelling evidence against a defendent, thought should always be given to the timing of the interview and totality of the circumstances. It’s often helpful to clearly communicate to the subject that they’re not under arrest and are free to leave if desired. Doing so will increase the likelihood that elicited information can later be used in a criminal proceeding. Once again, proper report documentation is critical so that a clear picture of the circumstances can be conveyed to a court or reviewer.
1. 625 F.3d 170 (4th Cir. 2010).
2. 625 F.3d at 172.
3. Id. at 173.
4. Id. at 174–75.
5. Id. at 175.
7. Berkemer v. McCarty, 468 U.S. 420, 440 (1984).
9. Stansbury v. California, 511 U.S. 318 (1994).
10. Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
11. Michigan v. Summers, 452 U.S. 692, 702-03 (1981).
12. United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir. 2006).
13. Hargrove, 625 F.3d 170, 180.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.