Today the Second Circuit concluded that a request for cooperation can constitute an interrogation for Miranda purposes. United States v. Familetti, No. 16-2334 (Jacobs, Sack, Parker) (appeal from Preska, J., S.D.N.Y.). The Circuit held, however, that the defendant in Familetti was not under custody when the cooperation request occurred — notwithstanding that he had earlier been handcuffed while suffering a panic attack. The short opinion in Familetti, available here, offers mixed blessings to defendants, but includes excellent language as to when a request for cooperation crosses a line to become a full-blown interrogation.
Investigators executed a search warrant of Mr. Familetti’s apartment after he offered money to an undercover agent in exchange for sexual favors with a minor. As described in the opinion:
Familetti suffered an extreme panic attack as the agents entered, and two agents were needed to restrain him, push him against the wall, and temporarily handcuff him. The agents placed him in a chair in his living room, brought him a glass of water, and waited for him to calm down. Agent Thompson then explained to Familetti that he was not under arrest and was “free to leave,” but that the agents had a warrant to search the apartment and might take some things. When Familettiʹs panic subsided, the handcuffs were removed; he was led into his bedroom, and advised again that he was not under arrest. Thompson then told Familetti “that the reason why we’re here is related to child pornography” and that the “number one goal is to find those people out there who are raping children and making these type of videos.” Although the record does not reflect the precise exchange that followed, it is undisputed that Thompson asked for Familetti’s help with the investigation, and that Familetti stated that he was willing.
Slip op. at 3.
Under these circumstances, the panel determined, the defendant was subjected to questioning that rose to the level of an interrogation. The panel distinguished United States v. Guido, 704 F.2d 675 (2d Cir. 1983), where the court had questioned whether a request for cooperation could ever constitute an interrogation. In doing so, the distinguished between interrogatory and non-interrogatory requests for cooperation as follows:
[A] request to “help” or “cooperate” in an investigation may be treated as interrogation for the purposes of Miranda if: there is no concern about officer or public safety; the officers have volunteered the specific criminal behavior at issue; the officers have given the defendant good reason to believe that he is suspected of participating in or having special knowledge of criminal conduct; and an undertaking to help or cooperate necessarily bespeaks criminal involvement.2 Fifth Amendment concerns are especially lively when the behavior alleged is highly antisocial or idiosyncratic, such as (as here) the molestation of minors and the sharing of child pornography.
Id. at 7.
Notwithstanding this holding, the panel held that Mr. Familetti was not under custody when is cooperation was requested. Relevant to this conclusion were the facts that (1) he was in his own home, (2) his handcuffs were removed before the interrogation began, (3) he was repeatedly advised that he was free to leave, and (4) the agents “engaged him in a tone that was non-confrontational,” id. at 11. Notwithstanding the seemingly aggressive circumstances of the encounter, the panel concluded that a reasonable person in Mr. Familetti’s position would not “feel that he was completely at the mercy of the police.” Id. at 11.