United States v. Jorge Leal ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3102
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JORGE L. LEAL,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 19-CR-40069-JPG-1 — J. Phil Gilbert, Judge.
____________________
ARGUED MAY 18, 2021 — DECIDED JUNE 21, 2021
____________________
Before EASTERBROOK, BRENNAN, and SCUDDER, Circuit
Judges.
BRENNAN, Circuit Judge. Jorge Leal used an online dating
application to solicit sex acts from a user he believed was an
underage boy. That user turned out to be a Federal Bureau of
Investigation agent conducting a sting operation. In an inter-
view with law enforcement, Leal confessed. He was then
arrested and charged with knowingly attempting to entice a
minor to engage in sexual activity, in violation of 18 U.S.C.
2 No. 20-3102
§ 2422(b). Leal moved to suppress his incriminating state-
ments, arguing that the agents failed to provide a Miranda
warning before the interview. The district court granted the
motion, and the government filed this interlocutory appeal.
Because Leal was not “in custody” during the interview, we
reverse.
I
In July 2019, Jorge Leal contacted a user on Grindr, an
online dating application. 1 Unknown to Leal, that user was an
undercover FBI agent looking to identify and locate individu-
als who have a sexual interest in children. The agent, posing
as a teenage boy, informed Leal that he was 15 years old. De-
spite learning that the user was underage, Leal continued to
engage in sexually explicit conversations and eventually so-
licited oral sex. A week after the initial conversation, Leal
asked the user for his location. The agent provided Leal the
address of a house in Herrin, Illinois, that the FBI was using
for the operation.
Leal arrived at the house on the evening of July 19. An FBI
surveillance team watched Leal drive around the block and
stop in an alley behind the house. Wary of a potential trap,
Leal asked the supposed minor to flick on the outside lights
to the house. When one of the surveillance team officers, U.S.
Marshal Clark Meadows, drove an unmarked vehicle up the
alley, Leal sped off but did not get far. Meadows pulled Leal
over approximately two blocks from the house.
1We draw the facts from the indictment, parties’ briefs, suppression
hearing transcript, and district court’s memorandum and order.
No. 20-3102 3
Three law enforcement agents were present during the
stop. Meadows wore a green tactical vest with a badge and
“U.S. Marshal” written across the front and back. The other
two—FBI special agent Adam Buiter and a local police of-
ficer—each wore plain clothes under a vest with the words
“Police” displayed across the front and back. Buiter identified
himself as an FBI agent and asked Leal if he would step out of
the car. Leal agreed, exited the vehicle, and consented to a pat
down during which Buiter retrieved Leal’s wallet. When
Buiter asked Leal if he had a cellphone, Leal pointed to it and
handed it over. Buiter next explained to Leal that he was not
under arrest and that he was stopped as part of an ongoing
investigation. Buiter asked whether Leal would voluntarily
consent to speak with other agents in a nearby house, and
Leal said “yes.” Before leaving, Buiter asked Leal for his car
keys so an agent could move his car off the road to a nearby
parking lot. Again, Leal consented and handed over his keys.
Meadows then drove Leal back to the house. There, an-
other FBI agent escorted Leal through the back door. Leal
passed the kitchen, where he encountered at least two other
law enforcement personnel, before arriving at a first-floor
bedroom. Two new FBI agents waited inside the room, which
contained a table, three chairs, and a computer. They set
Leal’s wallet and cellphone on the table; his car keys remained
with law enforcement. Leal agreed to the interview, which
proceeded with the door closed and was audiotaped. The
agents neither handcuffed nor restrained Leal during this en-
tire episode.
Leal quickly confessed. After explaining to Leal that the
interview was informal and that they are “just going to have
a conversation,” the agents began by asking, “What brings
4 No. 20-3102
you out this way?” Within two minutes, Leal admitted to
driving to the house after “chatting with a younger male
through the Grindr app.” A few minutes later, an agent asked,
“What was the point of you coming here tonight?” Leal then
admitted that he came to the house “to play around sexually”
with and receive oral sex from a minor. Leal also confessed
that he knew showing up to meet with a fifteen-year-old was
wrong, but he did so anyway. Only after Leal’s confession did
the agents read aloud the Grindr chat log containing Leal’s
solicitation messages. Leal confirmed he had sent these mes-
sages. At the end of the interview, which lasted approximately
eighteen minutes, the FBI arrested Leal.
In August 2019, a grand jury indicted Leal for knowingly
attempting to entice a minor to engage in sexual activity, in
violation of 18 U.S.C. § 2422(b). Leal moved to suppress his
statements in the interview, arguing that the agents con-
ducted a custodial interrogation without advising him of his
Fifth Amendment rights. Applying the totality-of-the-circum-
stances test of Howes v. Fields, 565 U.S. 499 (2012), the district
court concluded that Leal was “in custody” for purposes of
Miranda and granted his motion to suppress.
II
The government filed this interlocutory appeal, challeng-
ing the district court’s grant of the motion to suppress. We
have jurisdiction under 18 U.S.C. § 3731. On a grant of a mo-
tion to suppress, we review the district court’s legal conclu-
sions de novo and its factual findings for clear error. See
United States v. Outland, 993 F.3d 1017, 1021 (7th Cir. 2021).
The Fifth Amendment protects individuals from self-in-
crimination. U.S. CONST. amend. V. Before conducting a
No. 20-3102 5
custodial interrogation, law enforcement officers must inform
suspects of their constitutional right to remain silent and to
have counsel present. Miranda v. Arizona, 384 U.S. 436, 444
(1966). But the officers need not provide Miranda warnings
unless the suspect is both “interrogated” and “in custody.”
Rhode Island v. Innis, 446 U.S. 291, 300 (1980). In other words,
“[a]n interrogation is custodial when ‘a person has been taken
into custody or otherwise deprived of his freedom of action
in any significant way.’” United States v. Littledale, 652 F.3d 698,
701 (7th Cir. 2011) (quoting Miranda, 384 U.S. at 444). To es-
tablish that he was in custody at the time of the questioning,
a defendant must show that he was either “formally arrested”
or “subjected to restraints of freedom such that the conditions
of a formal arrest were closely approximated or actually at-
tained.” United States v. Patterson, 826 F.3d 450, 455 (7th Cir.
2016) (internal quotation marks omitted). A person who is
“free to end the interrogation and leave is not in custody.”
United States v. Higgins-Vogt, 911 F.3d 814, 820 (7th Cir. 2018)
(citing Howes, 565 U.S. at 509).
Determining whether a person is “in custody” is an objec-
tive inquiry. J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011).
Courts must ascertain whether “a reasonable person [would]
have felt he or she was not at liberty to terminate the interro-
gation and leave.” Howes, 565 U.S. at 509 (alteration in origi-
nal) (internal quotation marks omitted). The “only relevant
inquiry is how a reasonable man in the suspect’s position
would have understood his situation,” Berkemer v. McCarty,
468 U.S. 420, 442 (1984), in light of “all of the circumstances
surrounding the interrogation.” Stansbury v. California, 511
U.S. 318, 322 (1994) (per curiam). Relevant factors include: the
location of the questioning; its duration; statements made
during the interview; the presence or absence of physical
6 No. 20-3102
restraints during the questioning; and the release of the inter-
viewee at the end of the questioning. Howes, 565 U.S. at 509.
An individual’s subjective beliefs are irrelevant in a Mi-
randa custody determination. See Stansbury, 511 U.S. at 323; see
also Stechauner v. Smith, 852 F.3d 708, 715 (7th Cir. 2017) (“Be-
cause custody is determined by an objective standard, the
subjective beliefs of the suspect and police officers are irrele-
vant.”). The Supreme Court has explained that the custody
inquiry “involves no consideration of the ‘actual mindset’ of
the particular suspect subjected to police questioning.” J.D.B.,
564 U.S. at 271 (quoting Yarborough v. Alvarado, 541 U.S. 652,
667 (2004)). And for good reason: “the objective test avoids
burdening police with the task of anticipating the idiosyncra-
sies of every individual suspect and divining how those par-
ticular traits affect each person’s subjective state of mind.”
J.D.B., 564 U.S. at 271. True enough, “the line between permis-
sible objective facts and impermissible subjective experiences
can be indistinct in some cases.” Alvarado, 541 U.S. at 667. But,
where possible, courts must draw the distinction. A subjective
inquiry looks to the individual’s idiosyncrasies, such as the
suspect’s own beliefs about the situation or his state of mind,
that may impact how they perceive the questioning. See
United States v. Ambrose, 668 F.3d 943, 954 (7th Cir. 2012). The
objective test instead focuses on how a reasonable person
would have perceived the events. Howes, 565 U.S. at 509.
Whether we review this case under our court’s decision in
Patterson, or independently under the Howes factors, we con-
clude that Leal was not in custody while the agents inter-
viewed him.
In Patterson, FBI agents identified the defendant as a sus-
pect involved in a bank robbery. 826 F.3d at 452. Two agents—
No. 20-3102 7
dressed in casual clothes and each armed with a handgun—
approached the defendant in his driveway. Id. They identified
themselves as FBI agents, asked the defendant to show his
hands, and explained that “his name came up in an investiga-
tion.” Id. When the agents requested a pat down and an
interview, the defendant voluntarily consented to both and
accompanied the agents to an FBI office located on the tenth
floor of a downtown building. Id. at 453. During the two-hour
interview inside a conference room, which was unlocked
from the inside, he confessed his involvement in the robbery.
Id. The defendant later moved to suppress his incriminating
statements, asserting the agents failed to provide Miranda
warnings. Id. at 454.
Affirming the denial of the defendant’s suppression mo-
tion, this court in Patterson emphasized that the totality of the
circumstances militated against suppression. Id. at 459. There,
the agents did not physically restrain the defendant, threaten
him to induce compliance, or tell him he was under arrest or
was not free to leave. Id. at 458. The defendant also did not
make any “statements in the car or during the interrogation
that indicated involuntariness on his part.” Id. at 457. That the
agents conducted the interview in a private FBI conference
room, this court held, had “minimal weight in considering the
totality of circumstances.” Id. This was especially true because
the defendant was never restrained inside the conference
room and the door remained unlocked from the inside, sug-
gesting that he remained free to walk out of the interview. Id.
The district court here distinguished Patterson but did so
by infusing Leal’s subjective beliefs into the totality-of-the-cir-
cumstances evaluation. First, the court found that the location
of the interview favored suppression because it “occurred
8 No. 20-3102
outside public purview” and in a “police-dominated atmos-
phere of the home,” which it described as “outfitted like a
makeshift police station.” To distinguish these facts from
those in Patterson, in which the agents approached an unsus-
pecting defendant in his driveway, the district court here
emphasized that Leal was “‘caught in the act,’ making it less
reasonable to think that he could turn his back on the offic-
ers.” As to the statements made, the court pointed to Leal’s
request to flick on the lights once he first drove up the alley
and his prompt confession once the questioning began. These
circumstances, the court explained, suggested that Leal “did
not think that he was going home a free man from the onset.”
Then, citing a nonprecedential District of Columbia Court of
Appeals opinion, the district court concluded that Leal “could
reasonably have assumed that he would not be allowed to
leave” after he was confronted with “obvious evidence of
[his] guilt.” (alteration in original) (quoting Miley v. United
States, 477 A.2d 720, 722 (D.C. 1984)).
Contrary to the district court’s reasoning, a suspect’s
guilty conscience does not turn every police encounter into a
custodial interrogation. See United States v. Budd, 549 F.3d
1140, 1145 (7th Cir. 2008) (noting that the custody inquiry “is
not whether the defendant was under a subjective belief that
his or her movements were restricted, but whether a reasona-
ble person in the defendant’s position would believe that he
or she was free to leave” (internal quotation marks omitted)).
The district court, in evaluating the locations factor, empha-
sized that Leal felt obliged to stay because he was caught in
the act. But this rationale focuses on Leal’s state of mind rather
than looking at what a reasonable person would have done in
that situation. That Leal believed he was in a precarious posi-
tion from the moment he drove up the alley says nothing
No. 20-3102 9
about the behavior of the officers or whether a reasonable per-
son would have felt bound to stay. The same is true for the
district court’s discussion of Leal’s statements. The court em-
phasized his quick confession, including his statement that he
knew “it was wrong from the very beginning,” to demon-
strate that Leal believed he was not free to leave. This too
skirts the objective inquiry—here, whether a reasonable per-
son would have confessed two minutes into the interview—
by viewing the statements through the lens of Leal’s guilty
conscience.
Recall that none of the agents had confronted Leal with
evidence of his guilt until after he had voluntarily confessed.
That means the district court conducted the custody analysis
presuming that Leal believed he was guilty. And by doing so,
the district court allowed Leal’s subjective state of mind to
color its custody analysis. The district court’s assessment
“turn[ed] too much on the suspect’s subjective state of mind
and not enough on the objective circumstances of the interro-
gation.” Alvarado, 541 U.S. at 669 (internal quotation marks
omitted). As our precedents make clear, that cannot be the
case.
Under an objective view of the totality of the circum-
stances, insulated from irrelevant subjective elements, the
agents’ interview of Leal did not rise to the level of a custodial
interrogation. Start with the interview’s location. Leal was
stopped on a public street and then agreed to return to the
sting house, where another agent escorted him through the
backdoor to the interview room. That the house appeared like
“a makeshift police station” is not dispositive. See Oregon v.
Mathiason, 429 U.S. 492, 495 (1977) (per curiam) (“Nor is the
requirement of warnings to be imposed simply because the
10 No. 20-3102
questioning takes place in the station house … .”). In Patter-
son, we concluded that just because the interrogation occurs
inside an FBI conference room “does not by itself establish
custody.” 826 F.3d at 456. What matters is whether the de-
fendant voluntarily consented to traveling two blocks to the
house, which Leal did. Id. (noting that the defendant’s “vol-
untariness overc[ame] the fact that he was moved from the
driveway to the FBI office”); see also United States v. Ruiz, 785
F.3d 1134, 1145 (7th Cir. 2015) (finding that the suspect’s con-
sent “mitigated” the “custodial aspect” of a relocation from
the driveway to the police station). Here, Leal voluntarily con-
sented to the interview, and the bedroom door remained un-
locked throughout the questioning. So Leal did not face the
restraint of freedom proscribed in Miranda and its progeny.
The same is true for the statements factor. In Patterson, this
court reasoned that the statements at issue weighed against
suppression because the defendant “never said anything that
indicated he did not want to speak with the agents” and “was
never told he was under arrest.” 826 F.3d at 458. So too here.
Leal neither asked the agents to stop the encounter and inter-
view nor indicated he wanted the investigation to stop. In-
deed, he voluntarily consented at every stage: stepping out of
the car; complying with a pat down; surrendering his cell-
phone, wallet, and car keys; accompanying Meadows to the
house; and speaking with the two agents inside the interview
room. Importantly, during the initial stop, the agents affirma-
tively told Leal that he was not under arrest. See Mathiason,
429 U.S. at 495 (finding “no indication that the questioning
took place in a context where [suspect’s] freedom to depart
was restricted in any way,” in part, because “he was immedi-
ately informed that he was not under arrest”).
No. 20-3102 11
Leal fares no better under the remaining Howes factors.
First, the agents did not use physical restraint, brandish their
weapons, or flaunt a threatening presence “such that their re-
quests were likely to be obeyed.” Littledale, 652 F.3d at 701.
They simply stopped Leal and interviewed him with his con-
sent. Second, the short duration of the interview—less than 20
minutes—weighs against a finding of custody. Compare Cali-
fornia v. Beheler, 463 U.S. 1121, 1121–22 (1983) (considering the
brevity of the interview as weighing against a finding of cus-
tody), with United States v. Borostowski, 775 F.3d 851, 862 (7th
Cir. 2014) (noting that the “extended duration of the encoun-
ter [] weighs in favor of a finding of custody”). Finally, that
the agents arrested Leal at the end of the interview does not
change the analysis. An arrest here after questioning does not
tip the scale one way or the other as to whether Leal was in
custody. See, e.g., United States v. Jacobs, 431 F.3d 99, 106–07 (3d
Cir. 2005) (“[T]he test for custody is not whether the police in
fact let a suspect leave at the end of the questioning without
hindrance. Rather, it is whether, under the circumstances, a
reasonable person would have believed that during the question-
ing he or she could leave without hindrance.”).
In his defense of the district court’s decision, Leal contends
he was in custody because he had “no means to go home.”
Even though Leal had access to his wallet and cellphone,
which sat on top of the interview table, the agents still pos-
sessed his car keys. Even still, two factors cut against his con-
tention. For one, Leal had voluntarily handed his keys over to
the agents so that they could move his car off the public road
for safekeeping. And because Leal confessed his guilt so early
in the interview, we find it unlikely that the agent could have
returned the keys in that short time span, even if Leal had ac-
tually asked for them (which he did not). We recognize that
12 No. 20-3102
this question could be closer if the agents had questioned Leal
at length and the keys remained missing, but that did not hap-
pen here.
Considering all of the circumstances of the interview—
from the initial encounter in the back alley to the formal arrest
at the end of the questioning—we hold that Leal was not in
custody within the meaning of Miranda.
III
For the foregoing reasons, we REVERSE the district court’s
order and REMAND for further proceedings.