U.S. v. Craighead

• Decision Date: 21 August 2008
• Docket Number: No. 07-10135.,07-10135.
• Citation: 539 F.3d 1073
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest CRAIGHEAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

539 F.3d 1073

UNITED STATES of America, Plaintiff-Appellee, v. Ernest CRAIGHEAD, Defendant-Appellant.

No. 07-10135.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2008.

Filed August 21, 2008.

Celeste Corlett, Assistant United States Attorney, United States Attorney for the District of Arizona, Tucson, AZ, for plaintiffs-appellee.

Steven D. West, Tucson, AZ, for the defendant-appellant.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-04-02351-JMR.

Before: SIDNEY R. THOMAS and JAY S. BYBEE, Circuit Judges, and FREDERIC BLOCK,^* Senior District Judge.

BYBEE, Circuit Judge:

The home occupies a special place in the pantheon of constitutional rights. Under the First Amendment, the "State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch." Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). The Second Amendment prohibits a federal "ban on handgun possession in the home." District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 2822, 171 L.Ed.2d 637 (2008). The Third Amendment forbids quartering soldiers "in any house" in time of peace "without the consent of the Owner." U.S. CONST. amend. III. The Fourth Amendment protects us against unreasonable searches or seizures in our "persons, houses, papers, and effects." Id. amend. IV. The question presented in this case is one of first impression in our court: under what circumstances under the Fifth Amendment does an interrogation by law enforcement officers in the suspect's own home turn the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings?

Appellant Ernest D. Craighead appeals his conviction following entry of a conditional guilty plea for transportation, shipping, and possession of child pornography. A search of Craighead's home computer system revealed numerous movies and images depicting child pornography. On appeal, as his plea agreement permits, he renews his argument that he is entitled to an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because the affidavit used to obtain the warrant for this search depended on misleading statements and omissions. Craighead also renews his argument that his confession to having downloaded and stored child pornography on his computer system should be suppressed because the interrogation in his home was custodial and he was not read his Miranda rights.

We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court's ruling that Craighead was not entitled to a Franks hearing because Craighead did not properly allege that any specific portion of the warrant was actually false or misleading. On the Miranda question, we reverse the district court's ruling that the interrogation in Craighead's home was not custodial and that Miranda warnings were not required. Craighead's self-incriminating statements should have been suppressed. We remand for further proceedings.

I

A

Craighead first came to the FBI's attention in 2004. At that time, Craighead was an electronic warfare technician in the U.S. Air Force. On July 13, Special Agent Robin Andrews ("SA Andrews"), a seventeen-year FBI veteran, logged onto the LimeWire peer-to-peer file-sharing network to conduct undercover surveillance of child pornography distribution. Using LimeWire, SA Andrews entered a search term that she knew was associated with graphic files depicting child pornography. Her search revealed that a computer using IP address 68.0.185.111 was sharing files that, by their titles, appeared related to child pornography. SA Andrews down-loaded two of these images, and confirmed that they depicted prepubescent females in sexually explicit positions. She attempted to download a third image but received the message, "Waiting for Busy Host." SA Andrews knew from experience that this message indicates that the server will not permit the download because demand for the image has overloaded its capacity to supply it.

Using a publicly-accessible online database, SA Andrews determined that IP address 68.0.185.111 was owned by Cox Communications. By administrative subpoena to Cox Communications, SA Andrews learned that IP address 68.0.185.111 was assigned to Ernest Craighead's residence in base housing on Davis-Monthan Air Force Base in Tucson, Arizona. The subpoena listed Craighead's address and telephone number. SA Andrews then corroborated the name, address, and telephone number by running a driver's licence check, querying the County Clerk's Office, and contacting the Air Force Office of Special Investigations ("OSI"). On July 26, 2004, SA Andrews swore out an affidavit for a search warrant. The warrant was authorized the same day by Magistrate Judge Glenda Edmonds.

The search warrant for Craighead's residence on the Air Force base was executed at approximately 8:40 A.M. on July 27, 2004. Eight law enforcement officers, representing three different agencies, went to Craighead's residence: five FBI agents, a detective from the Pima County Sheriff's Department, and two members from the OSI. All of these law enforcement officers were armed; some of them unholstered their firearms in Craighead's presence during the search. All of the FBI agents were wearing flak jackets or "raid vests." Two non-agents accompanied the law enforcement officers: an FBI evidence control clerk, and Air Force Sergeant Mike Ramsey, who the government later represented was present for Craighead's "emotional support."

At the hearing on Craighead's motion to suppress, SA Andrews testified that while other officers executed the search warrant, she introduced herself to Craighead as Robin Andrews from the FBI. She also introduced Jeff Englander, the detective from Pima County. She told Craighead that the two of them would like to talk with him about the search warrant. She told him that he was not under arrest, that any statement he might make would be voluntary, and that he would not be arrested that day regardless of what information he provided. SA Andrews also testified that she told Craighead that he was free to leave.¹

SA Andrews and Detective Englander then directed Craighead to a storage room at the back of his house, "where [they] could have a private conversation." SA Andrews did not handcuff Craighead at any point while escorting him to the storage room nor during the interview that followed. As SA Andrews described the storage room, it was cluttered with boxes. She could not recall whether Craighead sat on a box, or whether he sat on a chair grabbed from the kitchen. SA Andrews squatted on the ground, taking notes. Detective Englander stood leaning against the wall near the exit, with his back to the door. Detective Englander wore a flak jacket and a sidearm. SA Andrews testified that they shut the door "for privacy." Although Sergeant Ramsey had ostensibly been brought along to provide emotional support for Craighead, he was not permitted to accompany Craighead into the storage room. SA Andrews testified that this was because he was "non-law enforcement" and therefore would "never" be permitted to be present during an FBI interview.

The interview lasted approximately twenty to thirty minutes. SA Andrews testified that it was her practice to tell interviewees that they are "free to leave" at the beginning of each interview, even if she has already told them this when escorting them to the interview location. However, she could not recall whether she actually repeated this statement to Craighead after they entered the back storage room and she closed the door. During the interview, SA Andrews did not make any threats or promises to induce Craighead to speak. She did not use any force. She did not read Craighead the Miranda warnings.

Craighead testified that he felt that he was not free to leave because he "would have either had to have moved [Detective Englander] or asked him to move." He also testified that the "prevailing mood of the morning" left him with the impression that he was not free to leave. He knew there were members of three different law enforcement agencies present in his home: the FBI, the Pima County Sheriff's Department, and the Air Force OSI. He believed that even if SA Andrews permitted him to leave, members of the other two law enforcement agencies would not. He was concerned that the agencies had not coordinated and so members of the other agencies might not know that SA Andrews had authorized him to leave. Similarly, he was unsure if he needed permission from all three agencies to leave, or if the Air Force investigators believed that he needed such permission.

Craighead also testified that he was unaware during the interview that Sergeant Ramsey had been invited to provide emotional support. Rather, as Craighead explained, Sergeant Ramsey was his "first sergeant," a superior with authority over him. Craighead assumed Sergeant Ramsey was required to be there by Air Force regulation. It was not until after everyone had left his house that he had a moment to speak with Sergeant Ramsey and discover the reason for Sergeant Ramsey's presence.

During the interview, Craighead admitted that he downloaded child pornography using LimeWire, that he stored child pornography on his computer, and that he had saved some to a disk. Craighead was not arrested at the end of the interview. He was never arrested at any time prior to his conviction; he appeared in court by summons only.

The search resulted in the seizure of the hard drive and loose storage media (compact discs and 3.5-inch floppy diskettes) from Craighead's computer. The FBI computer forensics expert located sixteen movies of various lengths depicting child pornography on the hard drive of Craighead's computer. The movies were found in a folder titled "PTHC," which...