Appeal from the United States District Court for the Northern District of California Susan Yvonne Illston, District Judge, Presiding D.C. No. CR-06-00657-SI.
Argued and Submitted September 11, 2008-San Francisco, California.
Filed March 25, 2009; Amended August 6, 2009
Before: Diarmuid F. O'Scannlain, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.
Opinion by Judge O'Scannlain; Dissent by Judge Bea
O'SCANNLAIN, Circuit Judge
We must decide whether a criminal defendant was "in custody" when police officers interviewed him for over two hours in a conference room at his workplace.
In 2005, Yahoo, Inc. reported that "a user with the email address 'firstname.lastname@example.org' had uploaded child pornographic images to Yahoo sites." That report caught the attention of the Sacramento Valley High Tech Crimes Unit, which launched an investigation. During the ensuing inquiry, officers discovered that an alternate e-mail address for the same user was "email@example.com." Tellabs is a business located in two locations-on North McDowell Boulevard and on South McDowell Boulevard-in Petaluma, California.
Based upon such circumstantial evidence, the investigators began building a case. Detective James Williams contacted Tellabs and confirmed that a man named Alex Bassignani worked there. Tellabs personnel also told Williams that "Bassignani had access to a desktop computer with internet access; and that . . . Bassignani had installed on a work computer . . . software called 'Window Washer,' which can be set to delete and overwrite Internet-browsing history and other information on a computer hard drive."
Using the information provided by Tellabs, investigators obtained a warrant to search Bassignani's workspace. The warrant also permitted officers to search Bassignani's residence, vehicle, and person. Officers were authorized to seize computer software and any images of child pornography.*fn1
Although Bassignani worked at the South McDowell Boulevard site, the warrant only authorized officers to search the North McDowell Boulevard location.
On February 23, 2006, Detective Williams and three other officers served the search warrant at the North McDowell Tel-labs location. They were informed of the mistake and went immediately to the South McDowell site. After they arrived, Sasha King, Tellabs' Human Resources Manager, guided them to Bassignani's work station, where she reported the following encounter: "Detective [Williams] approached Bassignani and asked him to remove himself from the computer. Bassignani was hesitant, so Detective Williams reiterated the request a few times more before Bassignani complied. Bassignani was then instructed to follow me as Detective Williams remained at Bassignani's side."*fn2 The officers were in plain clothes and no weapons were visible. One officer stayed behind to remove the hard drive on Bassignani's computer.
King then led Bassignani and Williams to a Tellabs conference room where two officers were already waiting. King entered the conference room first, and stepped to the side to allow Bassignani to enter. Bassignani chose a chair on the left side of the table, and Williams sat down across from him. The two officers departed to search Bassignani's car, and closed the conference room door behind them.*fn3 The parties dispute whether the officers frisked Bassignani before allowing him into the conference room.
Before the interview began, Williams told Bassignani that he was "not under arrest. You're not being arrested. You'll walk out of here when we're done." He did not, however, ever tell Bassignani explicitly that he was free to leave. In addition, in an attempt to " 'make things easier for everybody' with regard to executing the search warrant at defendant's house," Williams asked Bassignani "whether [his] wife was home, whether [he] had any dogs or guns, and where [his] house keys were." Williams also requested Bassignani's car keys, saying that without them officers would have to break into Bassignani's vehicle to execute the search warrant.*fn4 Bassignani resisted for a few minutes, but then told Williams that the keys were in his lunch pail.
Williams then questioned Bassignani about his alleged involvement in possessing and uploading images of child pornography. Williams' tone was calm and measured throughout. For the most part, Bassignani participated actively, saying that "I understand what you're doing. I understand what you're saying. I'm more than happy to go with you through the process." Bassignani admitted to possessing and uploading child pornography. Meanwhile, officers discovered the components of the "Window Washers" program in Bassignani's lunch pail and vehicle parked in the South McDowell Tellabs parking lot. Other officers also uncovered evidence of images of child pornography on Bassignani's home computer.
Not all of the interrogation, however, was completely civil. Bassignani said to Williams at one point: "I don't want you to get mad again, because you make that face . . . I understand that you're doing your job, but I just needed at the beginning to slow you down for just a second, you know, I don't want you to get mad, to start threatening and this and that, I want to steer clear of that." In addition, near the end of the interview, Williams told Bassignani that "the big thing is, it's your laptop . . . I'm not going to lie to you . . . we've got your email connected to the images, it's a done thing."
Also near the end of the interrogation, Bassignani asked: "[A]t what point in this game do I need to get a lawyer?" Williams replied: "Me? I'd wait until you get arrested, but that's me. Like I said at the beginning, you're not under arrest, you're going to walk out of here." Williams also told Bassignani that he was "more than welcome to walk right out and call [a lawyer]." After Williams announced that the interview was finished, Bassignani prolonged it by asking questions for approximately ten additional minutes. After about two and a half hours, ...