Medicare & Medicaid Guide P 42,636 United States of America v. Charles Floyd Humphrey and Isabelle Heyder

POSNER, Chief Judge,

concurring.

I agree with everything in the majority opinion except the discussion of the standard of appellate review of determinations of custodial interrogation. I believe it is plain that the proper standard is not review de novo, but rather review for clear error, and I see no reason to avoid saying so.

The police are required to give the Miranda warnings to anyone whom they subject to a custodial interrogation. Two questions can arise: Was there an interrogation? Was it custodial? The first, clearly, is what the law calls a “mixed question of law and fact”; more illuminatingly, it is a question about the application of a legal concept, that of “interrogation,” to the facts as a lay person would understand them. Ordinarily such questions are treated for purposes of appellate review like questions of fact, and the elear-error standard is therefore applied. That is, in fact, how we have treated eases in which the question — Was there an interrogation? Or did the defendant volunteer a damning statement without having been asked? — has arisen. United States v. Laughlin, 772 F.2d 1382, 1386 (7th Cir.1985); Robinson v. Percy, 738 F.2d 214, 218-19 (7th Cir.1984). There is no reason to treat the question — Was the suspect in custody? — differently.

This court has been a leader in insisting that clear error is the correct standard for all so-called mixed questions of law (with a handful of exceptions, irrelevant here, founded mainly on First Amendment concerns and sanctified by Supreme Court decisions). See, e.g., Barber v. Ruth, 7 F.3d 636, 642-43 (7th Cir.1993); Jos. Schlitz Brewing Co. v. Milwaukee Brewery Workers’ Pension Plan, 3 F.3d 994, 999 (7th Cir.1993); FDIC v. Bierman, 2 F.3d 1424, 1432 (7th Cir.1993); Williams v. Commissioner, 1 F.3d 502, 505 (7th Cir.1993); United States v. Spears, 965 F.2d 262, 270-71 (7th Cir.1992); United States v. Levy, 955 F.2d 1098 , 1103 n. 5 (7th *559 Cir.1992); Mucha v. King, 792 F.2d 602, 604-06 (7th Cir.1986). Although there is not a perfect uniformity in our decisions, we said in Barber v. Ruth, supra, 7 F.3d at 643 (footnote omitted), “to the extent that any of the cases [of this court relied on by the appellants in that case] suggest a different rule, they do not represent the law of this circuit.”

The question whether a given interrogation was “custodial,” like the question whether the defendant’s statement came in response to an “interrogation,” is one of applying a legal concept to facts, since “custody” is a legal concept, just like “interrogation.” It might seem that “custody” is only nominally a legal concept — that you don’t have to be a lawyer to know that a person is in custody when he is not free to leave; if he tried he would be stopped. The intentions of the police and the understanding of the suspect are facts that, unlike negligence, or possession, or “interrogation,” do not require any filtering through legal concepts. If that were true, it would be even plainer that the proper standard of appellate review was clear error, as no one doubts that in the case of a “pure” question of fact, the trial court’s finding must be upheld unless clearly erroneous. Fed.R.Civ.P. 52(a).

It is not true. The legal definition of custody departs from the lay understanding. The intentions of the police have been ruled out of bounds and so too the understanding of the suspect. He is in custody only if a reasonable person in his position would not think himself free to leave. Michigan v. Chesternut, 486 U.S. 567, 573 , 108 S.Ct. 1975, 1979 , 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 215 , 104 S.Ct. 1758, 1762 , 80 L.Ed.2d 247 (1984); Stansbury v. California, — U.S. -,-, 114 S.Ct. 1526, 1529-30 , 128 L.Ed.2d 293 (1994) (per curiam). As in the law of negligence, so in the law as to when the Miranda warnings must be given, the question whether a person acted reasonably in the circumstances facing him is a question about the application of a legal standard (reasonableness) to the facts. No doubt the line between pure facts on the one hand and, on the other hand, the application to them of a legal standard that is as non-technical — as eommonsensical — as reasonableness is a faint one. But that is simply one more reason why both questions are and should be governed by the same standard of review, that of clear error.

The majority opinion cites United States v. Fazio, 914 F.2d 950, 955 (7th Cir.1990), for the proposition that appellate review of a finding that the defendant was in custody is plenary. See also United States v. Smith, 3 F.3d 1088, 1091 (7th Cir.1993). In fact Fazio left the issue open. See 914 F.2d at 955 n. 5. And the precedential value of the only case on which Fazio relied for the proposition that review might be plenary rather than deferential, United States v. Hocking, 860 F.2d 769, 772 (7th Cir.1988), was later described by this court as having been “vitiated” by the cases establishing clear error as the standard for reviewing mixed questions of fact and law. United States v. Levy, supra, 955 F.2d at 1103 -04 n. 5. It is instructive to consider the two cases on which Hocking had (without any independent analysis) based its conclusion that appellate review of a finding of custodial interrogation is plenary. Schuneman v. United States, 783 F.2d 694, 699 (7th Cir.1986), was a tax ease which merely recited, what plainly is no longer the view of this court, that review of mixed questions of law and fact is plenary. United States ex rel. Tonaldi v. Elrod, 716 F.2d 431, 437 (7th Cir.1983), was a habeas corpus case. The issue was not appellate review, but the scope of 28 U.S.C. § 2254 (d), which governs the weight that federal district courts in such cases must give to findings of fact by state courts. And Tonaldi has no remaining vitality even in its limited domain, for it was overruled in Perri v. Director, 817 F.2d 448 , 451 (7th Cir.1987). Hocking thus rests on air; Fazio on Hocking ; this case on Fazio— but I repeat that Fazio holds that review of a finding on whether there was custodial interrogation may be plenary, not that it is. Plainly it isn’t. A recent opinion by the author of Fazio points out that not only are the other circuits divided over the issue but so are the decisions of this court, and again treats the issue as an open one, declining to resolve it only because the outcome would not be affected. United States v. Jones, 21 F.3d 165, 169 (7th Cir.1994). To similar ef- *560 feet, see United States v. Menzer, 29 F.3d 1223, 1230 (7th Cir.1994).

Must the issue continue to fester? The correct resolution is clear; the only decision squarely in the way — Hocking■—has been thoroughly discredited; and the majority opinion does not even suggest a reason for treating the issue of custody differently from other mixed questions of fact and law. Nothing is gained by deferring the inevitable, except to perpetuate confusion and disarray in our precedents. Caution is a judicial virtue; but it is not the only judicial virtue. We should be hesitant to create intercircuit conflicts and to overrule decisions of this circuit, but we should be quick to terminate gratuitous intraeircuit conflicts.