Search Warrant Execution: When Does Detention Rise to Custody?
By M. Todd Heflin, J.D.
The execution of a search warrant by law enforcement personnel at a private dwelling, apartment, or other residence often creates an opportunity for officers to interact with individuals associated with the premises. Given the reason for law enforcement presence—the exercise of authority derived from the search warrant, this encounter may create the need for officers to use such power over the persons they encounter.
The U.S. Supreme Court has addressed the contours of this authority in several ways, such as holding that officers could detain persons present during the execution of a valid search warrant.1 In defense of this authority, the Court stated that “[S]uch detentions are appropriate…because the character of the additional intrusion caused by detention is slight and because the justifications are substantial.”2 In some cases the exercise of this authority has carried with it the need to use restraining devices and control the movement of individuals during the execution of the warrant for, perhaps, a lengthy period of time.3 While this authority has been well established since 1981, what has surfaced more recently is concern by courts that the circumstances related to detention are akin to those associated with custody and, thus, may invoke the prophylactic protections of Miranda v. Arizona.4 This article discusses situations in which these concerns surfaced and the various factors that courts have considered in determining when the encounter falls within the protective ambit of Miranda.
Michigan v. Summers5
Detroit, Michigan, Police Department officers encountered George Summers on the steps of a residence as they prepared to execute a search warrant for narcotics. While the warrant was for the residence, police detained Summers in hopes he would assist in entering the home. Summers claimed to have left his keys inside. Another party then came to the door but refused to open it for the officers, who then forced their way into the home. The police officers then brought Summers into the residence and held him there with eight other occupants. During the course of the search, police found two bags of suspected narcotics in the basement. When the officers determined Summers owned the house, they placed him under arrest, and during a search incident to his arrest, they discovered heroin.6
Agreeing with Summers, the lower courts suppressed the evidence found on his person, concluding that police discovered it during an unlawful seizure and finding that officers unreasonably detained him during the execution of the warrant. The Supreme Court disagreed, holding that the detention of occupants or recent inhabitants of a residence subject to a search warrant is a reasonable seizure within the meaning of the Fourth Amendment. The Court noted that to obtain a search warrant, a neutral and detached magistrate had found probable cause to believe a crime was committed and that evidence of the crime was located at the location to be searched.7 Logically, the link of the occupant or recent inhabitant to the premises targeted by the warrant would give rise to suspicion. Because the search warrant already was a substantial invasion of privacy, the detention of a resident or recent occupant—although intrusive—surely, was not as intrusive as the search itself. If probable cause was the required standard to obtain the search warrant, it was logical to assume that at least reasonable suspicion existed to detain the residents during the search.8
The Supreme Court further clarified the scope of the detention in Muehler v. Mena.9 While investigating a drive-by shooting, police obtained a search warrant for Mena’s residence, believing that a gang member involved in the incident resided there. During the search Mena was detained in a converted garage connected to the home while in handcuffs for almost 3 hours. Mena was not arrested at the conclusion of the search, although a gun, marijuana, and gang paraphernalia were found at the scene.
Special Agent Heflin is a logical instructor at the FBI Academy.
Mena sued the police officers for damages, alleging, among other things, that the length and manner of her detention—namely, the fact she was handcuffed—were unreasonable and a violation of her Fourth Amendment rights. While Mena won a money judgment in the lower court, the Supreme Court reversed the judgment, holding that Mena’s detention was reasonable in light of the Michigan v. Summers decision because it was appropriate for officers to control individuals at the scene to protect their safety and prevent the destruction of evidence.10 The Supreme Court further held that the form of Mena’s detention, specifically, being handcuffed, also was reasonable in light of the government interest in the safety of its officers conducting the search.11
Summers and the Fifth Amendment
The degree of control exercised by law enforcement as a result of these Supreme Court pronouncements has led some courts to consider the implications of the Fifth Amendment privilege against self-incrimination with respect to statements derived from an individual during the encounter. The Fifth Amendment states, in part, that no person “shall be compelled in any criminal case to be a witness against himself.”12 This specific limitation on compelled self-incrimination was addressed in the seminal Supreme Court decision Miranda v. Arizona.13 In Miranda, the Supreme Court fashioned a prophylactic rule designed to prevent a subject in custody from being interrogated without advisement of his rights pursuant to the protections granted in the Fifth Amendment.14 The Supreme Court made it clear that formal arrest is not the only way the protections provided by Miranda would apply and that if a “suspect’s freedom of action is curtailed to a degree associated with formal arrest,” then any subsequent interrogation would be valid only if the suspect was advised of the rights in a manner consistent with Miranda.15
The proper test to find if an individual is “in custody” when not under formal arrest involves the totality of the circumstances.16 The determination of custody is based solely on whether, when viewed through an objective lens, “a reasonable man in the suspect’s position would have understood his situation” to be one of custody.17 Thus, when an official arrest has not occurred, a court will look at all circumstances surrounding the interaction between officers and a subject and determine, based on an objective analysis, whether there was a restraint on freedom of movement at a degree associated with formal arrest.18
The nature of the encounter with law enforcement in the Summers context has led to claims that statements should be suppressed when obtained from the subject during the execution of a search warrant regardless of whether a formal arrest occurred. This has been particularly apparent in cases involving crimes against children and search warrants targeting computers and other related evidence at premises.19 Many investigations of child pornography or sexual exploitation of children involving use of the Internet hone in on an offender by garnering an Internet Protocol (IP) address connected to a residence by customer or subscriber information. Similar to physical addresses, IP addresses are assigned to particular customers.20 The customers then can be tied to a billing or subscriber address. However, the anonymity of the actual computer user remains because anyone who has access to the IP address within the residence can connect to the Internet using a multitude of capable devices. This makes interviews of occupants at residences critical to investigators. While many times forensic reviews of electronic devices during the execution of a search warrant will easily identify those in the residence who have access to the devices, sometimes a quick conversation with the occupants makes the determination much easier.
“The Supreme Court made it clear that formal arrest is not the only way the protections provided by Miranda would apply....”
United States v. Craighead, Ninth Circuit21
This important case illustrates the role of the interview during the execution of a search warrant in cases involving crimes against children. During the early morning of July 27, 2004, eight law enforcement officers executed a search warrant on base housing at Davis-Monthan Air Force Base in Tucson, Arizona. The specific residence was assigned to Ernest Craighead, an electronic warfare technician for the U.S. Air Force. Craighead was the subject of a crimes against children investigation based on information obtained from his Internet service provider.22
The eight law enforcement officers represented three agencies, including the FBI; Pima County, Arizona, Sheriff’s Office; and Air Force Office of Special Investigations (OSI). In addition two civilians were brought along in the event Craighead needed emotional support. All of the officers were armed, and most wore body armor identifying them as law enforcement.23 In addition, at the time of entry, some of them had their sidearms unholstered while they executed the warrant.24
After securing the residence, the lead agent and a detective from the sheriff’s office introduced themselves to Craighead and asked to speak with him about the search warrant. They told Craighead that he was not under arrest; he was free to leave; and that regardless of the answers he gave to any questions, they would not arrest him that day.25 Craighead agreed to speak with the officers and accompanied them to a storage room in the back of the house. During the interview, Craighead sat while the agent squatted on the ground and the detective leaned against a wall near the exit.26 The detective was wearing his body armor and an exposed sidearm. During the interview, the door was shut, and Craighead was not told about the Air Force sergeant brought along for his emotional support. The interview lasted about 20 minutes.27
During the interview, Craighead admitted that he accessed and downloaded child pornography. He further confessed to having such material on his computer. At no time during the interview was Craighead advised of his Miranda rights. The search of Craighead’s computer, retrieved during the execution of the search warrant, revealed both images and movies depicting child pornography. Craighead was indicted for transporting and shipping child pornography, as well as possession of such materials.28
Craighead challenged the government’s case, arguing that evidence, including his statements, obtained during the execution of the search warrant should be suppressed.29 The Ninth Circuit Court of Appeals ruled that the physical evidence seized during the execution of the search warrant was admissible, but ruled that Craighead’s statements should be suppressed.30
The court reiterated that the proper standard to apply in this case is whether, based on the totality of the circumstances, a reasonable person in Craighead’s position would have felt deprived of his freedom of action in a significant way and, thus, could not end interrogation. The court in this case noted that this determination may not be as easy when a defendant is interrogated in his home, the very place he would retreat to when faced with law enforcement interrogation. According to the court, a person “may not feel that he can successfully terminate the interrogation if he knows that he cannot empty his home of his interrogators until they have completed their search.”31 The court focused on “how to apply the traditional Miranda inquiry to an in-home interrogation.”32
The court held that to resolve the in-home interrogation question, the benchmark to apply is the extent to which it was a “police-dominated atmosphere.”33 The court described this as a fact-sensitive inquiry. However, it referred to several factors that can be considered when determining whether an interrogation in this context triggers Miranda, including 1) the number of law enforcement personnel and whether they were armed; 2) whether the suspect was at any point restrained, either by physical force or by threats; 3) if the suspect was isolated from others; and 4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such information was provided.34
“Officers might consider advising the subject of their Miranda rights prior to an interview, even if the subject is not formally placed under arrest.”
Applying these factors to Craighead’s interrogation, the court noted the presence of eight armed law enforcement officers from three jurisdictions in Craighead’s home during the execution of the warrant. The court viewed this as significant because Craighead indicated that he was unsure if the agencies were acting in coordination and, thus, did not know whether the FBI agent’s pronouncements that Craighead’s statements were voluntary and that he was free to leave applied to the other two agencies.35 Further, the court found that a reasonable person in the defendant’s position could have felt that his home was dominated by law enforcement agents prepared for a confrontation.
Officers never handcuffed or physically restrained Craighead during the initial execution of the search warrant or during the subsequent search and his interrogation. However, during the interrogation, a uniformed sheriff’s deputy stood between Craighead and the only exit to the room.36 The uniformed officer was wearing external body armor and was visibly armed. According to Craighead’s testimony, the only way he could have exited the room was to either move the officer or ask him to move. The court found this a significant enough restraint on Craighead’s movement to weigh in favor of custody for purposes of Miranda.37
The agents and officers conducting the search and interrogation took Craighead to a separate part of the house away from the Air Force sergeant brought by the team to, in the words of the law enforcement officers, provide emotional support for Craighead. The court found this isolation to weigh in favor of custody, noting that the Supreme Court has indicated that “isolating the suspect from family and friends is one of the distinguishing features of a custodial interrogation.”38 The record does not indicate that Craighead ever became aware of the Air Force sergeant’s presence or purpose nor does it indicate whether Craighead ever asked for anyone else to be present during the interrogation.
Finally, the court looked at its fourth factor, whether a subject was informed that the questioning was voluntary and that he or she was free to leave or terminate the interview. While the record indicated that the lead agent told Craighead that he was not under arrest nor would he be that day, the mere recitation of such language does not automatically make an interrogation noncustodial.39 The court found that while these statements made by the agent to Craighead would tend to weigh in favor of finding a noncustodial environment, all the other factors present would lead reasonable people to believe that they were not, in fact, free to leave and, thus, that they remained in custody for Miranda purposes.
United States v. Hargrove, Fourth Circuit40
On January 5, 2007, officers executed a search warrant at the residence belonging to John Hargrove. Authorities issued the warrant after Hargrove began communicating on the Internet in a sexually explicit manner with two undercover law enforcement officers he believed to be underage females, as well as two actual underage girls. Hargrove expressed interest in meeting in person and engaging in sex acts.41
A team of between 10 and 15 law enforcement officers were present during the execution of the warrant, and while neither of the lead agents unholstered their firearms, it was not clear whether any other officers at any point had weapons drawn.42 Hargrove was not handcuffed at any time during the search. After an initial sweep of the residence, one of the lead agents told Hargrove that he was free to leave the house at any time and that he was not under arrest. The agent asked Hargrove if he would speak with the agents and Hargrove agreed.43
The interview took place at Hargrove’s kitchen table. While one agent asked Hargrove questions, another stood in the doorway of the kitchen. At no time during the interview did any of the agents have their weapons drawn in the house. Hargrove did not protest any of the questions, and the tone of the interview was “polite and cooperative.” During the interview, Hargrove made incriminating statements. He was not arrested at the conclusion of the interview.
Hargrove filed a motion to suppress his statement to the agents, alleging a violation of his rights pursuant to Miranda. The lower court denied the motion to dismiss. Hargrove appealed his conviction, primarily arguing that the court erred when it failed to suppress the statements he made during the execution of the search warrant.44
The fourth circuit faced a scenario similar to that presented in Craighead, framing the question before it as to “whether the January 2007 interview in Hargrove’s kitchen constituted a custodial interrogation. If it did, then Hargrove’s statements, which the parties agree were made without the benefits of Miranda warnings—were inadmissible against him at trial.”45 The court also applied the same standard as that used in Craighead—whether, under the totality of the circumstances, reasonable persons in an identical situation would have felt their freedom of movement was impaired to a degree significant enough to constitute formal arrest.
In Hargrove the court covered much of the same ground in analyzing the relevant factors to determine whether custody existed, as it did in the ninth circuit in Craighead. The court recognized that Hargrove was initially detained at the execution of the search warrant as permitted by Summers. He was not put in any type of restraints. Further, while there were between 10 and 15 law enforcement officers present during the search, only 2 were with Hargrove during the interview. The court noted that “[t]he mere presence of armed law enforcement officers during the interview is not sufficient to create a custodial situation.”46
Important in the court’s ruling was the fact that the lead agent told Hargrove not only that he was not under arrest but that he also was “free to go.” The court observed that such a statement “is not ‘talismanic’ or sufficient in and of itself to show a lack of custody,” it is “highly probative” in determining whether a reasonable person would have felt they were in custody.47 In addition, the court noted that Hargrove was permitted to move around his home, albeit with an escort, during breaks in the interview. The interview was conducted in an innocuous setting—at the kitchen table. Hargrove argued that the second agent assisting in the interview had blocked the kitchen door, but the court found no evidence to support these allegations, noting that the agent simply stood near the door during the interview and was not “blocking” Hargrove.48 The interview was described as “amicable” and “nonthreatening.”49
The court gave little weight to assertions by Hargrove that he felt he would be arrested at the end of the interview and that he felt as if he was under arrest because the subjective beliefs of the defendant are not what is relevant to the court’s review, but only what an objectively reasonable person would believe in the same circumstances.50 In addition, the court pointed to Hargrove’s conduct during the interview, observing that he was “cooperative, loquacious, and expressing interest in working undercover to help the Task Force.” Further, Hargrove never objected to answering questions nor asked for the interview to end, cooperating throughout.51
After weighing all of the relevant facts presented to the lower court at the suppression hearing, the Fourth Circuit found that Hargrove was not in custody for purposes of Miranda and, thus, the statements could be used against him. The court then affirmed the district court’s judgment, upholding Hargrove’s conviction.
The execution of a search warrant may bring about an opportunity to engage and interview individuals, including subjects, resulting in valuable information in addition to the physical evidence seized consistent with the warrant. The priority and focus, of course, is the execution of the search warrant safely and efficiently. Law enforcement agencies should plan for contingencies that may arise during the execution of the warrant, including the possibility of an interview. This planning should include identifying which officers would conduct any interviews and how to address the factors that may give rise to a claim that due to a police-dominated atmosphere, the interview was custodial in nature.
While officer safety and the safety of those present at a search scene must be the primary concerns during the execution of a search warrant, officers also should consider the role this focus plays in determining if it creates a custodial environment. While an agency or task force should take as many officers as needed to execute the search warrant and conduct the subsequent search safely and efficiently, large numbers of heavily armed officers who no longer are needed for officer safety should not linger in an area where prospective interviewees are placed.
While the officers designated to conduct interviews may want to conduct them in as private an area as possible, they should be aware of locations that would be deemed as remote within the residence. Further, if a subject not in custody wishes to speak with a family member or someone else present at the scene, officers may consider allowing it if they do not deem it a threat to their safety or the well-being of others and something that would not jeopardize future interviews. The safety of all those present at the search scene should always be the paramount concern.
An important factor considered by the courts in determining whether custody existed is telling a subject that he is not under arrest. In addition, the court in Hargrove pointed to the fact that the subject was told he was free to leave at any point during the interview. This same representation was made to the subject in Craighead, but the ninth circuit was unconvinced that the “free to leave” representation had any meaning to the subject given that he was in his house. As stated by the ninth circuit, “to be free to leave is a hollow right if the one place the suspect cannot go is his own home.”52 Law enforcement should consider a statement that offers more clarification, such as “you are free to end this interview at any time including while we are still in the process of executing the warrant, you need not submit to the interview merely because we are present executing a search warrant.”
If the execution of a search warrant and the subsequent interactions with potential interviewees at the scene create an environment that officers present believe suggests a custodial environment, options still exist. Officers might consider advising the subject of their Miranda rights prior to an interview, even if the subject is not formally placed under arrest. Because many search warrants do not result in arrests at the time of execution, officers might consider returning to the residence at a later time or arranging a meeting with a potential interviewee away from the residence under less police-dominated circumstances. The ability to conduct noncustodial interviews at the scene of a search warrant is an important tool, but officers must be aware of the potential problems with such interviews and consider an alternative course of actions if necessary.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 Michigan v. Summers, 452 U.S. 692 (1981).
2 Id. at 701.
3 Muehler v. Mena, 544 U.S. 93 (2005).
4 452 U.S. 692 (1981); and 384 U.S. 436 (1966).
5 452 U.S. 692 (1981).
6 Id. at 692.
7 Id. at 701.
8 Id. at 702.
9 544 U.S. 93 (2005) (The detention in Summers dealt with a recent occupant of a residence, so the court could not directly address other governmental concerns for detention of occupants other than the suspicion of their relation to the crime for which the search warrant was issued. In Mena, the Court addresses head-on two other important governmental interests in detaining occupants, namely the safety of the officers conducting the search warrant and preventing the destruction of evidence.).
10 Id. at 98 (The Supreme Court explicitly addressed Mena’s argument that certain questions asked of her by Immigration officials during the detention violated her Fourth Amendment right against unreasonable seizure. The court noted that the questioning occurred during the execution of the search warrant and did not extend the length of time Mena was detained, thus, there was no additional seizure of Mena for Fourth Amendment purposes.).
11 See Bailey v. United States, 133 S.Ct.1031 (2013) (The Supreme Court limited detentions allowed under Michigan v. Summers to the immediate vicinity of the residence to be searched. In Bailey the police detained two individuals who left the vicinity of a residence just prior to the execution of a search warrant. The detention occurred over a mile from the residence, and the individuals were brought back to the residence after the scene was secured. The court ruled the seizures unreasonable and not within the Summers rule.).
12 U.S. Const. amend. V.
13 384 U.S. 436 (1966).
14 Id. at 444-445.
15 Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (internal citations omitted).
16 Id. at 440.
17 See Stansbury v. California, 511 U.S. 318 (1994) (The Supreme Court held that a police officer’s subjective intent to arrest an individual at the end of an interview is irrelevant in determining custody unless the officer communicates this to the subject or the individual is subjected to treatment that for all practical purposes equals formal arrest.).
18 Id. at 323-324.
19 Department of Justice COPS Program, Child Pornography on the Internet, available at http://www.cops.usdoj.gov/Publications/e04062000.pdf (accessed March 26, 2013).
20 http://whatismyipaddress.com/ (accessed April, 2013).
21 539 F3d. 1073 (2008).
22 Id. at 1077-1078.
23 Id. at 1078.
26 Id. at 1079.
28 Id. at 1079-1080.
29 Id. at 1080 (Craighead challenged the validity of the search warrant and the admissibility of his statements. The district court ruled in the government’s favor on both issues.).
30 Id. at 1080-1081.
31 Id. at 1083.
34 Id. at 1084 (The Court noted that these factors do not create an exhaustive test, and other circuits have examined the question using similar standards. See United States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007) (concluding that the suspect’s home had become a “police-dominated environment” because “the facts belie any conclusion that [the suspect’s] home, on the morning of the questioning at issue, was the traditional comfortable environment that we normally would consider a neutral location for questioning”);United States v. Mittel–Carey, 493 F.3d 36, 40 (1st Cir.2007) (finding suspect was in custody although interrogated in his home because of the “level of physical control that the agents exercised over” the suspect); Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir.1996) (“More important than the familiarity of the surroundings where [the suspect] was being held is the degree to which the police dominated the scene.”); and United States v. Griffin, 922 F.2d 1343, 1354-55 (8th Cir.1990) (“Questioning which occurs in the suspect’s own home may provide a margin of comfort, but...the setting of the interrogation is not so important to the inquiry as the question of police domination of that setting.”).
35 539 F3d. 1073, 1084-1085 (2008).
36 Id. at 1085.
37 Id. at 1086.
38 Id. at 1087.
39 Id. at 1088.
40 625 F.3d 170 (2010).
41 Id. at 172-173.
42 Id. at 173-174.
43 Id. at 174.
44 Id. at 170.
45 Id. at 177.
46 Id. at 179.
47 Id. at 179-180.
48 Id. at 180.
50 Id. at 181.
52 539 F3d. at 1083.
“Law enforcement agencies should plan for contingencies that may arise during the execution of the warrant, including the possibility of an interview.”