Hello everybody. I am Chicago Criminal Defense Attorney Michael J. Petro. To see more about me, visit my web site at www.mjpetro.com.

Every week I will be summarizing the latest criminal law cases decided by the 7th Circuit Court of Appeals.  For the full opinions visit the 7th Circuit Court of Appeals Web Site.

USA v. Barker. 05-2861.

A jury convicted Riakos Barker of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of aiding and abetting a straw purchase in violation of 18 U.S.C. § 924(a)(1-2). Barker was sentenced to 108 months of imprisonment. On appeal, Barker argues in part that the district court erred in denying his motion to suppress.

Barker asserts that the district court erred by denying his motion to suppress. He claims that his Fifth Amendment right against self-incrimination was violated when he was subjected to a custodial interrogation without being advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). Miranda warnings are required if the is ‘in custody’ and subjected to ‘interrogation.’ United States v. Abdulla, 294 F.3d 830, 834 (7th Cir. 2002).

A custodial interrogation occurs when there is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. This inquiry is determined from the view of "how a reasonable man in the suspect’s position would have understood his situation." USA v. Jones, 21 F.3d 165, 170 (7th Cir. 1994).

A totality of the circumstances test is used to determine whether a reasonable person would have believed he or she was "free to leave." USA v. Lennick, 917 F.2d 974, 977 (7th Cir. 1990). In considering the totality of the circumstances, factors include the following: (1) whether the encounter occurred in a public place; (2) whether the suspect consented to speak with the officers; (3) whether the officers informed the individual that he was not under arrest and was free to leave; (4) whether the individuals were moved to another area; (5) whether there was a threatening presence of several officers and a display of weapons or physical force; (6) whether the officers deprived the defendant of documents she needed to continue on her way; and (7) whether the officers’ tone of voice was such that their requests would likely be obeyed. USA v. Wyatt, 179 F.3d 532, 535 (7th Cir. 1999).

The 7th Circuit finds that the district court correctly decided, based on the totality of the circumstances, that Barker was not in custody. As such, the agents were not required to inform him of his Miranda rights.

Barker voluntarily came to the ATF office, was informed that he was not under arrest and consented to speak with the officers. He was not deprived of his freedom, and there was no threatening presence of officers. Accordingly, although Barker was a suspect, Miranda warnings were not required because Barker was not in custody.

AFFIRMED

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