U.S. v. Axsom
| Decision Date | 06 May 2002 |
| Docket Number | No. 01-2848.,01-2848. |
| Citation | 289 F.3d 496 |
| Parties | UNITED STATES of America, Appellant, v. W.J.B. AXSOM, II, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Karen DeLayne Colman, Asst. U.S. Atty., argued, Little Rock, AR (Todd L. Newton, Asst. U.S. Atty., on the brief), for appellant.
Milton A. Dejesus, argued, Little Rock, AR, for appellee.
Before: MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
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.
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.
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.
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.
In Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (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, 116 S.Ct. 457. 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, 116 S.Ct. 457 (footnote omitted). In contrast to the first inquiry, which is factual, the second inquiry "calls for application of the controlling legal 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 982, 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, 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, 116 S.Ct. 457; Evans, 223 F.2d at 872.
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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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,...
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