Defendant’s NYC apartment was the subject of a search warrant for child pornography. Once inside, he was told repeatedly that he was not under arrest and was free to leave. He continued talking, and he wasn’t in custody for Miranda purposes. United States v. Smith, 2025 U.S. Dist. LEXIS 72753 (S.D.N.Y. Apr. 16, 2025)*:
It is undisputed that the agents’ questioning of Smith on June 26, 2024, about areas of suspected illegal activity constituted an interrogation and that Smith was never advised of his Miranda rights before or during that questioning. See Gov’t Br. at 5 & n.4; see also Innis, 446 U.S. at 300-02. Thus, the decisive question is whether Smith was “in custody” during the questioning. For the reasons that follow, the answer is no.
Crucially, the agents explicitly told Smith at the outset of the interview, and later repeated, that he was “not under arrest,” that he was “free to leave” at any point, and that he was free to decline to answer any and all questions. GX 6T 2:14-2:30. These admonitions were clear and emphatic. Smith does not claim otherwise. And after being so advised, Smith continued to answer the agents’ questions. Under Second Circuit law, this fact weighs heavily in the Court’s analysis. An interrogation, the Circuit has stated, “is not ‘custodial’ unless the authorities affirmatively convey the message that defendant is not free to leave, or that he is completely at mercy of the police.” Familetti, 878 F.3d at 60 (emphasis added) (citations omitted). Here, the agents’ words to Smith were exactly the contrary, See, e.g., Vado, 87 F. Supp. 3d at 479 (child pornography suspect interviewed in his apartment not in custody where “agents explicitly informed [him] that he was not under arrest and was free to leave” (citing United States v. Badmus, 325 F.3d 133, 139 (2d Cir. 2003)); United States v. Belitz, No. 21 Cr. 693, 2022 U.S. Dist. LEXIS 13627, 2022 WL 205585, at *4 (S.D.N.Y. Jan. 24, 2022) (defendant not in custody where he “was explicitly told by the agents that he was free to leave”); Hernandez v. McIntosh, No. 22 Civ. 2266, 2023 U.S. Dist. LEXIS 183618, 2023 WL 6566817, at *17 (S.D.N.Y. Oct. 10, 2023) (same), report and recommendation adopted, No. 22 Civ. 2266, 2024 U.S. Dist. LEXIS 103875, 2024 WL 2959688 (S.D.N.Y. June 11, 2024).
The agents’ conduct also did not convey that Smith was not free to leave. Smith was not handcuffed or otherwise restrained during the interview. …
