U.S. v. Cranley

• Decision Date: 19 November 2003
• Docket Number: No. 03-1908.,03-1908.
• Citation: 350 F.3d 617
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James CRANLEY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

350 F.3d 617

UNITED STATES of America, Plaintiff-Appellant, v. James CRANLEY, Defendant-Appellee.

No. 03-1908.

United States Court of Appeals, Seventh Circuit.

Argued September 23, 2003.

Decided November 19, 2003.

Joy Bertrand (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellant.

Brian P. Mullins (argued), Federal Defender Services of Eastern Wisconsin, Inc., Milwaukee, WI, for Defendant-Appellee.

Before POSNER, MANION, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

James Cranley, indicted for federal firearms-related offenses, moved to suppress the confession that he had given to an agent of the federal Bureau of Alcohol, Tobacco, and Firearms. The district judge granted the motion, and the government appeals.

Cranley had been convicted in a Wisconsin state court of misdemeanor theft and had been placed on probation. Among the terms of his probation was a requirement that he report to his probation officer "as directed for scheduled or unscheduled meetings," and he was also required to "provide true and correct information verbally and in writing, in response to inquiries by the [probation] agent." A BATF agent traced several guns to Cranley, learned he was on probation, and asked Cranley's probation officer to arrange a meeting at which the agent could question Cranley about the guns. She did so, explaining to Cranley that a BATF agent wanted to talk to him about guns. The meeting was held in a conference room at a local probation office with just Cranley, the probation officer, and the agent present. The room was unlocked, but to leave the probation office Cranley would have had to have been buzzed out by a guard. The meeting lasted an hour. The agent wasn't satisfied with Cranley's answers to his questions about the guns, and he asked the probation officer to arrange another meeting, in the same room, and she did so. At this meeting, which differed from the first only in that it lasted a half hour or hour longer and the probation officer was not present, Cranley gave a full confession, but was permitted to leave without being arrested. Prior to either the first or the second meeting (we do not know which), the probation officer had reminded him of his duty to answer questions truthfully. He was not given Miranda warnings at either meeting; nor did he invoke his Fifth Amendment privilege not to be compelled to incriminate himself.

The district judge ruled that Cranley had not been in custody and therefore had not been entitled to the Miranda warnings. But the judge thought that Cranley's Fifth Amendment privilege had been infringed because there was an implicit threat that if he refused to answer the BATF agent's questions his probation would be revoked and he would be sent to prison.

Cranley advances an alternative ground for upholding the suppression of his confession, namely that he was in custody and therefore was entitled to the Miranda warnings. As a matter of logic and good sense, it would seem that a district court's finding that a defendant was or was not in custody when he made a statement that the prosecution wants to use against him must stand unless the finding was clearly erroneous. United States v. Humphrey, 34 F.3d 551, 558 (7th Cir.1994) (concurring opinion). That is the usual scope of appellate review of applications of a legal standard to the facts, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-05, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 307-08 (7th Cir.2002); United States v. Frederick, 182 F.3d 496, 499-500 (7th Cir.1999); Anderson v. Flexel, Inc., 47 F.3d 243, 248 (7th Cir.1995), and we cannot think of a good reason for an exception when the legal standard is custody. Whether a particular set of facts adds up to custody — that is, to the defendant's reasonably believing himself unable to leave without the permission of the police, Stansbury v. California, 511 U.S. 318, 322-23, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam); Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); United States v. Scheets, 188 F.3d 829, 841 (7th Cir.1999) — will vary unpredictably from case to case, so that the appellate court's primary duty of prescribing uniform rules is not engaged by its having to rule on the existence of custody in a particular case. But we bow to the weight of contrary authority, e.g., United States v. Jackson, 189 F.3d 502, 509 (7th Cir.1999); United States v. Mancillas, 183 F.3d 682, 701-02 (7th Cir.1999); United States v. Salyers, 160 F.3d 1152, 1159 (7th Cir.1998); United States v. Yusuff, 96 F.3d 982, 987-88 (7th Cir.1996), and so give the district court's ruling plenary review.

With reluctance, given the coercive atmosphere and the pressure on Cranley to talk in order to avoid jeopardizing his probation, we accept the district court's finding that he was not in custody. We are influenced by the fact that Cranley's lawyer failed to tell us (and admitted at argument that he did not know) the character of the building in which the probation office in Sturtevant, Wisconsin, is located. If the office shares the building with the local jail or police department, or even a courthouse, that is one thing, but if it shares it with offices unrelated to law enforcement, such as the department of motor vehicles or of natural resources, that is quite another, muting the impression that the probation service is a branch of the state correctional authority. In fact it appears from discreet inquiry that the probation office shares the building with the state's departments of transportation and natural resources rather than with law enforcers.

Cranley would have been reluctant to break off an interview by a police officer, but that would have been true if the BATF agent had accosted him on the street outside. He could, however, have asked the agent, when the questioning got hot, "Am I under arrest or am I free to leave?" Had he done that we would know from the answer whether he was in custody. His failure to ask, given the location of the interview and the absence of the usual indications of police custody, precludes a finding of custody, in light of such cases as Minnesota v. Murphy, 465 U.S. 420, 433, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984); United States v. Humphrey, supra, 34 F.3d at 554: United States v. Hayden, 260 F.3d 1062, 1066-67 (9th Cir.2001); United States v. Howard, 115 F.3d 1151, 1154-55 (4th Cir.1997); United States v. Nieblas, 115 F.3d 703, 704-05 (9th Cir.1997), and United States v. Ruggles, 70 F.3d 262, 264-65 (2d Cir.1995), all closely in point. (Only United States v. Byram, 145 F.3d 405, 406, 409 (1st Cir.1998), tugs in the opposite direction.) These cases are perhaps not entirely realistic, and may reflect a subterranean dissatisfaction with the Miranda rule. But we are not disposed to buck such a long list of cases, especially when their fons et origens is a Supreme Court decision (Murphy).

On whether Cranley's Fifth Amendment privilege was violated, we have some doubt whether the question would even arise under a rational system of criminal-law enforcement. Our system seems to critics irrationally complex, and not tethered very closely to common sense either. It has been argued with some force that an innocent defendant would rather be tried under the European system of criminal justice than under the American, and a guilty defendant under the American system rather than the European. William T. Pizzi, Trials without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It (1999).

Criminal defendants are free to waive constitutional rights, including the right not to be forced to incriminate themselves. They do it all the time, for example in pleading guilty, which in fact is the mode of conviction in the vast majority of criminal cases in America. At least as an original matter it would seem that Wisconsin courts should be allowed to require as a condition of probation that every person admitted to probation waive his Fifth Amendment right and answer all questions put to him by law enforcement officers concerning his criminal conduct. Cf. United States v. Ross, 9 F.3d 1182, 1190-91 (7th Cir.1993), vacated on other grounds, 511 U.S. 1124, 114 S.Ct. 2129, 128 L.Ed.2d 860 (1994); Asherman v. Meachum, 957 F.2d 978, 982-83 (2d Cir.1992) (en banc).

Of course there are what are called "unconstitutional conditions." Board of County Commissioners v. Umbehr, 518 U.S. 668, 674-75 (1996); Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Burgess v. Lowery, 201 F.3d 942, 946-47 (7th Cir.2000). Although Wisconsin doesn't have to provide a probation option to convicted criminals at all, it could not condition the option on the probationer's being a white man or a non-Jew. But to say to a convicted criminal we will not let you substitute freedom for imprisonment unless you agree to give a full accounting of any criminal behavior in which you have engaged seems a reasonable condition to attach to probation. Granted, it would be in tension with language in Minnesota v. Murphy, supra, 465 U.S. at 435-37, 104 S.Ct. 1136, as interpreted in such cases as Mangarella v. State, 117 Nev. 130, 17 P.3d 989, 992-93 (2001); State v. Eccles, 179 Ariz. 226, 877 P.2d 799, 800-01 (1994), and Gyles v. State, 901 P.2d 1143, 1148 (Alaska App.1995). But American law doesn't stand still. Decisions subsequent to Murphy, such as Griffin v. Wisconsin, 483 U.S. 868, 874-75, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), and United States v. Knights, 534 U.S. 112, 119-20, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), evince a greater willingness to enforce terms attached to conditional release, though neither involved the right not to be compelled to incriminate oneself.

In Griffin, the Supreme Court permitted dilution of the Fourth Amendment's "probable cause" requirement because "a State's...