United States v. Pence, No. 24-1025-cr (2d Cir. Apr. 10, 2026) (Cabranes, Chin (writing), Robinson, Circuit Judges).

In a decision the panel described as “a close call,” the Second Circuit affirmed the district court’s denial of Pence’s motion to suppress statements he made to agents before they gave Miranda warnings. In an opinion by Judge Chin, the panel concluded that a defendant questioned for over two hours in an FBI vehicle outside his home — while numerous armed agents were executing a dawn search warrant — was not in custody. Its “no custody” determination turned on the agents’ explicit admonition to Pence that “you are not under arrest”; Pence’s voluntary choice to speak with agents in the vehicle; and the panel’s conclusion that confronting Pence with evidence of his guilt did not tip the balance to custody because agents (falsely) told him he was not their principal target and did not threaten him with arrest.

 

Relevant Facts

In July 2021, Christopher Pence used the Internet’s dark web to solicit the murder of Francesco and Christina Cordero, the biological parents of five children Pence and his wife had adopted. He sent over $16,000 in Bitcoin (via Coinbase) to a purported hitman, asked that the killing “look like an accident,” and provided the Corderos’ photos and address. Slip op. at 4. The FBI learned of this and traced the IP address to Pence’s Utah home and the Coinbase account to Pence himself. Agents obtained a search warrant for the home.

 

Roughly fourteen agents — armed with “a mix of pistols, long guns, shields, and sledgehammers” —executed the warrant at dawn. Slip op. at 5. After a loud bang, Pence opened the door. Agents entered with weapons in the “low-ready” position, held Pence in the foyer, and kept his family in the living room.

An agent then asked whether Pence was “willing to speak” in the house or in a vehicle outside. Slip op. at 5. Pence chose the vehicle. Escorted upstairs by agents to retrieve his shoes (upon his request), he then walked out under his own power, opened the vehicle door, and got in. He was never handcuffed.

Inside the vehicle, agents told Pence: “You are not under arrest, at all . . . . You’re under no obligation to talk to us . . . .” Slip op. at 6. They spent ninety minutes on what they described as “rapport-building or small talk.” Slip op. at 6. Agents then “shared with Pence evidence they gathered from investigating the murder-for-hire scheme.” Id. Pence confessed within six minutes. He was not Mirandized until after he confessed, more than two hours after questioning began.

The district court denied suppression after an evidentiary hearing. Pence entered a conditional plea to one count under 18 U.S.C. § 1958(a), was sentenced to seven years, and appealed.

 

The Panel’s Ruling

On appeal, Pence argued that he was in custody during the pre-Miranda questioning and that his statements should have been suppressed. The Second Circuit rejected the argument, applying the totality-of-circumstances test from United States v. Faux, 828 F.3d 130, 135 (2d Cir. 2016), which asks whether a reasonable person would have thought he was free to leave and whether his freedom of action was curtailed to a degree associated with formal arrest.

 

The panel emphasized that Pence chose to enter the vehicle, was never handcuffed, was told explicitly that he was not under arrest, was not threatened, and never asked to leave. Slip op. at 12. Faux itself, the panel observed, found no custody where ten to fifteen agents raided a home and questioned the defendant for two hours in her dining room — and “[m]any of the same circumstances existed here.” Slip op. at 13. The choice between speaking in the home and in the vehicle, combined with the explicit no-arrest statement, blunted the significance of the vehicle’s more confined setting. See id. (citing United States v. Burke, 700 F.2d 70, 83–84 (2d Cir. 1983)).

 

The most consequential aspect of the opinion is its treatment of the confrontation-with-evidence factor. The panel reaffirmed Judge Friendly’s observation in United States v. Hall that “[t]he more cause for believing the suspect committed the crime, the greater the tendency to bear down in interrogation and to create the kind of atmosphere of significant restraint that triggers Miranda.” 421 F.2d 540, 545 (2d Cir. 1969); slip op. at 14. The panel even collected supporting authority from four other circuits. Slip op. at 14 n.5 (“Other circuits have likewise recognized this as a potentially important factor in assessing whether an interrogation has occurred in a custodial setting.”).

 

But the factor did not carry the day here because, while Pence was “under considerable suspicion,” the agents “sedulously abstain[ed] from any threat that they would” arrest him. Even more, they told him their focus was on “the people pulling the trigger . . . the big fish,” not him. Slip op. at 15 (quoting Hall, 421 F.2d at 545–46). The panel acknowledged evidence cutting the other way — the dawn raid by fourteen armed agents that Pence experienced as “Armageddon” at his door, the two-hour-plus delay before any warning, the escorted movement through his own home — and called the custody question “a close call.” Slip op. at 15–16. But viewing the evidence in the light most favorable to the government, see United States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 2008), the panel was “persuaded that Pence was not in ‘custody’ for purposes of Miranda.” Slip op. at 16.

 

Practitioner’s Notes

First, Pence should be read narrowly. The panel’s “close call” language and the deferential standard of review are doing real work in the opinion, and both cut in favor of treating Pence as the outer edge of what the government can defend rather than a roadmap for future custodial interrogations. The key operative facts in Pence were the recorded, explicit “you are not under arrest” admonition by the agents and the defendant’s affirmative choice to speak in the vehicle. The explicit no-arrest statement, no drawn weapons or handcuffing at any point, and a defendant-chosen location all give meaningful daylight to argue that Pence does not control.

 

Second, the most useful takeaway is Pence’s affirmation of Hall‘s confrontation-with-evidence principle, which remains good law in this circuit and now travels with a footnote of supporting authority from the Sixth, Eighth, Ninth, and Tenth Circuits. See slip op. at 14 & n.5. Pence lost on this factor only because the agents paired the confrontation with an explicit “we’re after bigger fish” narrative and didn’t threaten to arrest him. Where agents do not offer that softening — where the message to the suspect is an unambiguously threatening “we know you did this” — Pence supports a custody finding.