A good tutorial on when someone is free to leave when the police are in your house

This financial executive was the target of an undercover investigation into child pornography and sex crimes. When the FBI went to his apartment, he suffered a massive panic attack and the agents had to temporarily handcuff him as he calmed down. An agent said the defendant was not under arrest and was "free to leave" but that the agents had a warrant to search the apartment. After the agents read him his Miranda rights, defendant confessed to trading child pornography and related malfeasance. Is his confession good, or is it thrown out?

The case is U.S. v. Familetti, decided on December 20. This case reminds us that child pornography arrests can even happen to white collar executives. It also reminds us that the courts are deferential to the police when it comes to confessions like this. The Second Circuit first holds that defendant was in fact interrogated, which happens when someone "is subjected to either express questioning or its functional equivalent" and his statements are "the product of words or actions on the part of the police" that "were reasonably likely to elicit an incriminating response." While the government says this was not an interrogation "because asking for cooperation is not a manner of questioning reasonably likely to elicit an incriminating response," the Second Circuit (Jacobs, Sack and Parker) disagrees, concluding that the government is stretching a Second Circuit precedent (from 1983) "to its breaking point." In other words, the government's argument is nonsense.The Court says that "the FBI agents' affirmative request for Familetti to help them investigate child pornography constituted interrogation."

That does not mean defendant is out of the woods. The Court must also decide if he was in custody when he was asked about cooperation. If he was not in custody, the government could use defendant's admissions against him. Since defendant was at home at the time of the initial interrogation (the "familiar surroundings" doctrine) and the officers told defendant several times that he was not under arrest and was free to leave, these facts tilt heavily in favor of the finding that he was not in custody and should have gotten out of there before he made incriminating statements.

Of course, defendant argues otherwise, noting he was temporarily handcuffed and that one agent said he would have to "consider his options" were defendant to leave the apartment. In the end, he was not the mercy of the police, as the cuffs eventually came off when defendant calmed down. While there were nine FBI agents in his apartment, that fact also does not establish that defendant was not free to leave. The conviction is affirmed.