On Appeal from the United States District Court for the District of Delaware (D.C. Criminal Action No. 01-cr-00031) District Judge: Honorable Joseph J. Farnan, Jr.
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges
Josette Jacobs was indicted on May 8, 2001, and charged with conspiring to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Jacobs moved to suppress statements she made on March 14, 2000 ("the March statements") and on April 4, 2000 ("the April statements"). After a hearing, the District Court granted the motions. The Government now appeals.*fn1 We affirm in part and reverse in part, as we hold that Jacobs' April statements were involuntary and taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), but her March statements were voluntary.
The District Court found the following facts in its opinion reported at United States v. Jacobs, 312 F. Supp. 2d 619 (D. Del. 2004).
A. Jacobs' History as an Informant
Jacobs was a confidential informant for the Wilmington Police Department and the Federal Bureau of Investigation ("FBI") for ten years prior to March 2000. Her primary law enforcement contact, or "case handler," was Wilmington police detective Liam Sullivan, a Special Federal Officer ("SFO") on an FBI task force. To persuade Jacobs to become an FBI informant, Sullivan told her that he had become affiliated with the FBI and that it would pay more than the Wilmington police for information. Jacobs provided information to the FBI about fugitives, top-level Wilmington drug dealers, and current community criminal trends. Sullivan characterized Jacobs as a "good" informant and an "outstanding source of information." If Sullivan and Jacobs were working on a specific case they would meet daily, but otherwise their meetings were more sporadic.
The FBI sometimes paid Jacobs for information. From August 1997 to January 2000 she was paid five times for a total of $3,450. Sullivan also assisted Jacobs when she was charged with criminal offenses. Sullivan stated: "The exact amount of times that I spoke with prosecutors and/or probation officers, there were several times. I know that I advised prosecutors and/or probation officers that . . . she was cooperating and providing very valuable information and should be considered for some, I guess, assistance."
Jacobs was regularly admonished not to engage in any unlawful acts except as specifically authorized.*fn2 Between 1997 and 1999 the FBI sometimes authorized Jacobs to engage in criminal activity in order to provide intelligence for the FBI. For example, in 1999 Jacobs was authorized to travel to New York to bring back cocaine to targeted individuals in Philadelphia.
On March 14, 2000, Jacobs called Sullivan and asked to see him right away about an "important" matter. She requested they meet at her hotel room and Sullivan agreed. Sullivan and FBI Special Agent Scott Duffey went to the hotel, knocked on Jacobs' door, and Jacobs invited them in.*fn3 Jacobs told them she had information about "the biggest" drug dealer in Wilmington. She said that Bruce Stewart was regularly importing cocaine from Los Angeles to Wilmington using couriers. She went on to describe the scope, members, and method of operation of Stewart's drug organization. She also described the particular suitcases used by the organization to carry the cash and cocaine. Sullivan began to suspect that Jacobs was involved in these drug offenses because she possessed "entirely too much information." Sullivan asked Jacobs if she had ever taken a trip to Los Angeles for Stewart, and Jacobs replied she had not. Sullivan then told Jacobs, "Listen[,] if you did, just tell me . . . because if it comes out later, I can't cover you." Jacobs again denied that she had traveled to Los Angeles on these drug buys, and Sullivan and Duffey then left the hotel room.*fn4
After the March 14, 2000 meeting, the FBI began an investigation into the Stewart organization. During that investigation, a different source admitted that she had taken seven trips for Stewart, and that Jacobs had, in fact, taken three trips for him. On April 3, 2000, Stewart and two other female couriers were arrested at the Philadelphia Airport. Coincidentally, on the same day, the FBI "closed" Jacobs as an informant without informing her.
The next day (April 4), Sullivan called Jacobs and told her he needed to see her right away.*fn5 Jacobs, along with her five-year-old son, then went to the Wilmington FBI office and entered through the private task force door. Sullivan then had Jacobs and her son wait for approximately thirty minutes in a room where suspects are interviewed, processed, and detained. During this time Sullivan placed two suitcases that had been recovered during Stewart's arrest on the floor of the "squad bay area" (an open office area in the vicinity of Sullivan's desk).
Sullivan next asked Jacobs to leave her son in the interview room and brought her out to the squad bay area, where he told her about the arrests at the airport. Jacobs then saw the suitcases and said, "That's the cases. See, I told you." Sullivan then told Jacobs that he had information that she was involved in the conspiracy to transport drugs from Los Angeles to Delaware. She responded that she had only carried money. When Sullivan said that that was not his understanding, Jacobs asked, "[W]ell, how else could I get any information on Bruce [Stewart] for you if I didn't go?" She went on to say that she had two suitcases she had used during the trips at her residence, and that a drug dog sniff of the suitcases would probably indicate traces of cocaine. Sullivan asked her how many trips to Los Angeles she had taken, and she replied there had been two. Sullivan then confronted Jacobs with other aspects of her prior statements in March that differed from what she had just told him. He next told her to go home and think about what she wanted to do regarding further cooperation with law enforcement. Further, he told her that the FBI wanted the suitcases she had at her residence.*fn6 It is not disputed that at no time did Sullivan (or anyone else) inform Jacobs that the FBI had closed her as an authorized confidential informant, nor was she given any Miranda warnings.
Whether a person was "in custody" for the purposes of Miranda, and whether a statement was "voluntary" for the purposes of a motion to suppress, are conclusions reviewed de novo . Thompson v. Keohane, 516 U.S. 99, 112-13 (1995); United States v. Walton, 10 F.3d 1024, 1027 (3d Cir. 1993). However, the factual findings underlying the District Court's decision are reviewed for clear error. Walton, 10 F.3d at 1027.
We must determine whether Jacobs was in custody when she made her statements and whether her statements were involuntary. In section "A" we examine custody. Next, to analyze involuntariness properly, it will be useful to examine in section "B1" a preliminary issue: whether Sullivan made an implied promise that Jacobs' statements regarding the Stewart drug conspiracy would not be used against her. We will then be ready to address in sections "B2" and "B3" whether Jacobs' March statements and April statements, respectively, were involuntary.
A. Was Jacobs in Custody During her Statements?
Jacobs claims only that she was in custody during her April statements. Thus we address only that custody issue.
As noted, it is undisputed that Sullivan did not advise Jacobs of her Miranda rights before her April statements. If Miranda warnings are not given before a person "in custody" is questioned, evidence resulting from the questioning must be suppressed.*fn7 Miranda, 384 U.S. at 444-45. An individual is in custody when he or she has been "deprived of his [or her] freedom of action in any significant way." Id . at 444; see also United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999). In Yarborough v. Alvarado, 541 U.S. 652 (2004), the Supreme Court gave the following description of the Miranda custody test:
Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt that he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a . . . restraint on freedom of movement of the degree associated with a formal arrest .
Id . at 663 (quoting Keohane, 516 U.S. at 112) (emphases added) (quotation marks omitted). In this context, there are at least three differently worded tests for when a person is in custody: (1) when the person has been deprived of her or his freedom in some significant way; (2) when a reasonable person would perceive that she or he was not at liberty to terminate the interrogation and leave; and (3) when there is a restraint on the person's freedom of movement of the degree associated with a formal arrest. More clear is that the determination of custody is an objective inquiry (that is, what a reasonable person would believe) based on the circumstances of the interrogation. Leese, 176 F.3d at 743.
The District Court correctly noted three factors that are among those that should be weighed to determine if an individual was in custody. Jacobs, 312 F. Supp. 2d at 627-28. One is the location of the questioning. We have stated that "all 'station house' interrogations should be scrutinized with extreme care for any taint of psychological compulsion or intimidation because such pressure is most apt to exist while a defendant is interviewed at a police station." Steigler v. Anderson, 496 F.2d 793, 799 (3d Cir. 1974). A second factor is the information known by the officer concerning the suspect's culpability. "'The more cause for believing the suspect committed the crime, the greater tendency to bear down in interrogation and create the kind of atmosphere of significant restraint that triggers Miranda, and vice versa.'" Id. at 799 (quoting United States v. Hall, 421 F.2d 540, 545 (2d Cir. 1969)). And a third factor is whether the officer revealed ...