The Volokh Conspiracy - The Home and Amendments 1, 2, 3, 4, and 5:

From yesterday's U.S. v. Craighead, a Ninth Circuit decision written by Judge Bybee:

The home occupies a special place in the pantheon of constitutional rights. Under the First Amendment, the "State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch." Stanley v. Georgia, 394 U.S. 557, 565 (1969). The Second Amendment prohibits a federal "ban on handgun possession in the home." District of Columbia v. Heller, 554 U.S. ___, ___ (2008). The Third Amendment forbids quartering soldiers "in any house" in time of peace "without the consent of the Owner." U.S. CONST. amend. III. The Fourth Amendment protects us against unreasonable searches or seizures in our "persons, houses, papers, and effects." Id. amend. IV. 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?

The opinion acknowledges that "An interrogation conducted within the suspect's home is not per se custodial." (There's a Supreme Court precedent on that.) "On the contrary, courts have generally been much less likely to find that an interrogation in the suspect's home was custodial in nature. The element of compulsion that concerned the Court in Miranda is less likely to be present where the suspect is in familiar surroundings." But the court concludes that this particular interrogation was custodial, partly because the interrogation took place in the home, while it was being searched:

presents an issue on which our court thus far has said little. The usual inquiry into whether the suspect reasonably believed he could "leave" the interrogation [part of the test for whether Miranda warnings are required -EV] does not quite capture the uniqueness of an interrogation conducted within the suspect's home. "Home," said Robert Frost, "is the place where, when you go there, they have to take you in." If a reasonable person is interrogated inside his own home and is told he is "free to leave," where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. To be "free" to leave is a hollow right if the one place the suspect cannot go is his own home. Similarly, a reasonable person interrogated inside his own home may have a different understanding of whether he is truly free "to terminate the interrogation" if his home is crawling with law enforcement agents conducting a warrant-approved search. He 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. We must, therefore, consider how to apply the traditional Miranda inquiry to an in-home interrogation.

The court goes through a detailed and very interesting analysis, though on balance I'm (at least tentatively) unpersuaded that this suspect was indeed in custody for Miranda purposes, or that the fact that the interrogation was in the person's home -- and that leaving the scene of the interrogation means leaving one's home -- should count in favor of Miranda warnings' being required.

	[Eugene Volokh, August 22, 2008 at 7:42pm] Trackbacks The Home and Amendments 1, 2, 3, 4, and 5: From yesterday's U.S. v. Craighead, a Ninth Circuit decision written by Judge Bybee: The home occupies a special place in the pantheon of constitutional rights. Under the First Amendment, the "State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch." Stanley v. Georgia, 394 U.S. 557, 565 (1969). The Second Amendment prohibits a federal "ban on handgun possession in the home." District of Columbia v. Heller, 554 U.S. ___, ___ (2008). The Third Amendment forbids quartering soldiers "in any house" in time of peace "without the consent of the Owner." U.S. CONST. amend. III. The Fourth Amendment protects us against unreasonable searches or seizures in our "persons, houses, papers, and effects." Id. amend. IV. 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? The opinion acknowledges that "An interrogation conducted within the suspect's home is not per se custodial." (There's a Supreme Court precedent on that.) "On the contrary, courts have generally been much less likely to find that an interrogation in the suspect's home was custodial in nature. The element of compulsion that concerned the Court in Miranda is less likely to be present where the suspect is in familiar surroundings." But the court concludes that this particular interrogation was custodial, partly because the interrogation took place in the home, while it was being searched: presents an issue on which our court thus far has said little. The usual inquiry into whether the suspect reasonably believed he could "leave" the interrogation [part of the test for whether Miranda warnings are required -EV] does not quite capture the uniqueness of an interrogation conducted within the suspect's home. "Home," said Robert Frost, "is the place where, when you go there, they have to take you in." If a reasonable person is interrogated inside his own home and is told he is "free to leave," where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. To be "free" to leave is a hollow right if the one place the suspect cannot go is his own home. Similarly, a reasonable person interrogated inside his own home may have a different understanding of whether he is truly free "to terminate the interrogation" if his home is crawling with law enforcement agents conducting a warrant-approved search. He 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. We must, therefore, consider how to apply the traditional Miranda inquiry to an in-home interrogation. The court goes through a detailed and very interesting analysis, though on balance I'm (at least tentatively) unpersuaded that this suspect was indeed in custody for Miranda purposes, or that the fact that the interrogation was in the person's home -- and that leaving the scene of the interrogation means leaving one's home -- should count in favor of Miranda warnings' being required.