Determining whether a “custodial interrogation” exists requires a heavily fact-specific analysis
How does the Government successfully “toe the line” when it comes to custodial interrogations for suppression purposes? In United States v. Faux, 15-1282-cr, the Court (Jacobs, J., Hall, J., Restani, J., sitting by designation) answered this question after undertaking a fact-intensive inquiry and determining that the weight of the evidence balanced against suppression. Faux underscores that there is no bright-line rule for determining whether an individual is in custody (and therefore entitled to Miranda warnings); rather, the court must engage in a fact-specific analysis that carefully weighs mitigating and aggravating factors.
Background and the Decision Below
On December 8, 2011, approximately 10 to 15 agents from three federal agencies executed a search warrant at defendant Danielle Faux’s house following an investigation into her physical therapy business’s allegedly fraudulent billing practices (she was accused of billing Medicare for routine and non-medical personal training). The agents, who arrived “just as the sun was coming up,” encountered Faux and her husband as they prepared to leave for a family vacation.
Faux stayed in her house and answered the agents’ questions for two hours while agents questioned her husband in a separate room. The agents seized her cell phone and Faux informed her husband that they would need to cancel their vacation, a statement the agents did not contradict. Although the agents did not draw weapons while in Faux’s residence, she believed that most, if not all, of the agents, were armed. Agents also accompanied Faux around the house, and she was not allowed to move freely on her own. Finally, the agents never specifically informed Faux that her participation was voluntary, that she did not have to answer questions, or that she was free to leave. Faux was eventually indicted for health care fraud.
The United States District Court for the District of Connecticut (Underhill, J.) granted Faux’s motion to suppress the statements she made during the execution of the search warrant, finding that the agents conducted the interview under circumstances amounting to a custodial interrogation without first providing proper Miranda warnings. In so holding, the District Court emphasized “numerous aggravating factors,” such as the large number of agents, Faux’s physical separation from her husband without explanation that she could see him, her inability to move freely about her home, the agents’ failure to tell her she was free to leave or not answer questions, and that she canceled her vacation and the agents did not dissuade her from doing so. The government took an interlocutory appeal.
The Circuit Reverses the Suppression Ruling
The Court began by noting that the colloquial understanding of “custody” is not coterminous with its meaning under case law for Miranda purposes. Rather, “custody” requires an objective inquiry into (1) whether a reasonable person would have thought she was free to leave the police encounter at issue, and (2) whether a reasonable person would have understood her freedom of action to have been curtailed to a degree associated with formal arrest. To evaluate the latter part of this test, the Court reiterated the factors set forth in United States v. FNU LNU, 653 F.3d 144 (2d Cir. 2011): the interrogation’s duration, its location, whether the suspect volunteered for the interview, whether the officer used restraints, whether weapons were present and especially whether they were drawn, and whether the officers told the suspect she was free to leave or under suspicion.
The Court acknowledged that the number of officers present for the search—particularly given the lack of evidence that the agents suspected Faux of any dangerous activity—gave it “considerable pause.” Yet the other mitigating factors, the Court concluded, weighed against a finding of custody.
For example, although the District Court had found that Faux had no reason to believe she would be allowed to see her husband after the agents intentionally separated them for questioning, the Court noted that Faux had been allowed to tell her husband, before the interview began, that their vacation was canceled; thus, had she asked to see her husband alone again, “it seems likely” agents would have granted her request. The Court also disagreed that Faux’s inability to move freely during her home necessitated a finding of custody, as a reasonable person would understand that being accompanied in one’s home by agents who are legally present to execute a search warrant is a sensible precaution which, “absent other hallmarks of custody,” does not curtail freedom to a degree associated with formal arrest. In other words, the Court concluded, Faux was not “completely at the mercy of the police.” In so finding, the Court did not discuss whether the fact that Faux had not been suspected of any dangerous activity should have lessened the agents’ need to restrict her movement.
The Court also gave limited weight to the agents’ failure to inform Faux she was free to leave or had a choice as to whether to respond to questioning. Instead, the Court found, agents informed Faux about 20 minutes into the interview that she was “not under arrest,” which a reasonable person would have understood as meaning she was not about to be removed from her home to the police station, thereby limiting the degree to which she was “at mercy” of the police. The Court also placed little weight on Faux canceling her vacation. “It is difficult to imagine that Faux would have embarked on a vacation given what was going on[,]” and officers had no duty to correct Faux’s misimpression that she must cancel her vacation. Finally, the Court emphasized a number of other mitigating factors: Faux was questioned in familiar surroundings and was not handcuffed or arrested; officers did not display weapons or threaten force; and the tone of the questioning was “largely conversational.”
Faux emphasizes the heavily fact-specific nature of a custody determination and demonstrates how the balancing of mitigating and aggravating factors often results in close judgment calls. Practitioners should ensure they develop a strong factual record to support the custody factors at issue and must also be mindful of the difficulty in winning a suppression motion when the interrogation is conducted without formal arrest and in the defendant’s home.
Certain aspects of the Court’s analysis are notable. First, the Court placed great emphasis on the fact that the defendant was not placed under formal arrest. But the Supreme Court has held that arrest is not required for a defendant to be in custody. See California v. Beheler, 463 U.S. 1121, 1125 (1983) (“Although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”). Nor is it clear that an ordinary person would understand that being isolated during the execution of a search warrant would not amount to an arrest, especially for the first 20 minutes of the interview, conducted before the agents told the defendant that she was not under arrest.
Second, the duration of the interrogation—the agents questioned the defendant for two hours—would seem to weigh in favor of suppression. The relevance of this fact was not elaborated to great extent in the decision.
Third, one wonders why a search warrant—as opposed to a subpoena—was needed to obtain the documents in this case. Some commentators, including one of the authors of this blog post, have asked whether some showing of necessity should be required for the issuance of a search warrant for documents (as opposed to weapons or contraband). See Harry Sandick & Robert Hotz, Search Warrants in White-Collar Crime Cases, The Review of Securities and Commodities Regulation, June 20, 2012. It is not lost on the reader of this opinion that one reason why the government might prefer to proceed by search warrant rather than subpoena is that during a search warrant’s execution, the agents might be able to persuade the target of the investigation to sit for a lengthy interview, without the benefit of Miranda, and under circumstances that fall close to the line of custodial interrogation.
-By Juvaria Khan and Harry Sandick