Sunday, August 24, 2008

Case o' The Week: Bybee, Redux - Great Fifth Amendment Decision on "Custodial" Interrogation in the Home, Craighead

To the left of Judge Tallman, and to the left of Judge Wallace, is a smiling W. Bush appointee, Judge Jay Bybee.

Literally, too.

This week's excellent opinion in Craighead means great back-to-back decisions by Judge Bybee, with the Straub immunity case delivered last week. See United States v. Straub, 2008 WL 3547541, (Aug. 15, 2008), decision available here, blogged here; United States v. Craighead, 2008 WL 3863709 (9th Cir. Aug. 21, 2008), decision available here.

In Craighead, Judge Bybee, joined by Judge Thomas and visiting district court judge Frederic Block, create a welcome new rule in the Ninth Circuit, regarding custodial interrogation in the home that triggers Miranda protections.

Decision by Judge Bybee, joined by Judge Thomas.

Craighead was targeted for a home search for child porn after an FBI Limewire investigation. Id. at *1. Three law enforcement agencies were present during the search – eight officers, some armed, some wearing flak jackets. Id. The interviewing FBI agent said that Craighead was “free to leave.” Id.

Craighead was taken into a storage room, the door was closed, and he was interrogated for twenty to thirty minutes without Miranda warnings. Id. at *1. One officer stood with his back to the closed door. Id. at *2. Craighead confessed. Id. at *3.

The district court denied the Fifth Amendment suppression motion, holding that the interrogation was not “custodial.” Id. at *4. Craighead took a conditional plea and appealed. Id.

Issue(s): “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?” Id. at *1.

[O]ur analysis considers the extent to which the circumstances of the interrogation turned the otherwise comfortable and familiar surroundings of the home into a ‘police-dominated atmosphere.’” Id. at *7. “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.” Id. at *1.

Of Note:
It is of considerable interest to read Judge Bybee’s sensitive discussion of conditions of interrogation in Craighead. Id. at *7. In the Straub blog below, one commentator observed that Judge Bybee had recently been met with protestors at Harvard Law School. They challenged Bybee’s role in the notorious DOJ “torture memorandum,” a legal defense of harsh interrogation techniques that eventually produced the atrocities in Abu Graib. See editorial here.

And yet, in Craighead, in Straub, in Castillo, and Heredia, Judge Bybee has not only stood up against the government and for constitutional protections – he has authored decisions that create important new rules for the defense. Truth is, he’s a much better defense draw than many Clinton appointees.

Recall the great Chief Justice Earl Warren, who was “conscience-stricken” over his earlier role in the internment of Japanese prisoner’s in WW II? See article here. There are those who have posited a relationship between that guilt and Justice Warren’s later historical expansion of civil rights and liberties. It is too early in Judge Bybee’s career to claim that this causal relationship applies here. Thus far, however, it is fair to observe that this is a far more complex and nuanced judge than the DOJ torture memo would suggest.

How to Use: Craighead finally reverses the trend that treate
d in-home interrogations as non-custodial. The decision lists factors that go into what makes a home interrogation custodial, triggering Miranda:

“(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) whether 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 statements were made.” Id. at *8.

This is admittedly a fact-intensive inquiry – and every case won’t have
Craighead’s facts – but this valuable decision clearly turns the tide against non-Mirandized home confessions (a frequent child porn fact pattern).

For Further Reading:
“Home is the place where, when you go there, they have to take you in.” Judge Bybee quotes Robert Frost’s poem, “The Death of the Hired Man,” in support of his argument that the home enjoys special constitutional protections. Id. at *6.

It is a great poem, both on what “home” means and on what we in the defense bar do; “Mary” in the poem is a compelling mitigation advocate. The entire poem can be found here.

Steven Kalar, Senior Litigator N.D. cal. FPD. Website at

Photo of Judges Bybee, Tallman and Wallace by Ralph Fountain, from


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