This appeal from a conviction for bank robbery, 18 U.S.C. § 2113(a), vindicates the observation by a penetrating scholar: “Probably the most difficult and frequently raised question in the wake of [Miranda v. Arizona,
The bank robbed was the Cicero, N. Y., branch of The Merchants National Bank & Trust Co. of Syracuse. At approximately 7:55 A.M. on Thursday, December 12, 1968, Mrs. Richer, the head teller, parked her automobile at the rear of the bank. Approaching it, she sensed she was being followed. A man wearing a stocking mask over his face and carrying a rifle directed her into the bank. He herded Mrs. Richer, Mr. Corbett, the assistant manager, and two other tellers into a vault. There he instructed Mrs. Richer to put the cash, $37,872.-44, into a bag and give him the keys to her car. He then made his exit. Later Mrs. Richer saw her car in the parking lot of a bowling alley some 100' away from the back parking lot of the bank.
Unfortunately for the robber, an observant young lady, Barbara Costick, had driven onto the bowling alley parking lot around 7:45 A.M. She saw a maroon or red colored car backed up against the edge of the parking lot and .facing the rear of the bank. After letting off her brother Stanley, who worked in the bowling alley, she noticed that the man in the car was wearing a gray hat and topcoat — a description of the robber’s costume generally tallying with Mrs. Richer’s. As Miss Costick drove by, the man put his left arm up to the window to shield his face. She was sufficiently struck by this conduct to look at the license plate and, after driving a hundred yards or so and coming to a stop, to write down on a card the number — OA 1587. About five minutes later, Stanley Costick noticed that the red car, which he identified as a Chevrolet, had moved to the other side of the parking lot closer to the bank. Later observation of footprints in the snow by a county sheriff made it evident that the robber had walked from this position up to the bank parking lot and had returned to the same position from Mrs. Richer’s car.
The license number was speedily traced to the Syracuse office of Employers Insurance Co. of Wausau. Investigation there showed that a Chevrolet car bearing that number had been assigned to defendant Hall, who had been a sales trainee in the Syracuse office but had later been transferred to Buffalo.
*542 At 4:22 P.M. Special Agent Schaller and two other F.B.I. agents arrived at Hall’s apartment in North Tonawanda, N. Y. The apartment, in the rear of the first floor of a three family dwelling, was a small one, with a living room some 12' x 14' furnished with a couch and two chairs, a kitchen, a bedroom and bath. After identifying himself and his companions, Schaller told Hall they would like to come in and speak to him. He said they were welcome. Schaller related that a bank near Syracuse had been robbed that morning, that a car tallying Hall’s in description and license number had then been observed nearby, and that he would like to talk to Hall about the latter’s activities during the week of December 9 to 12.
Hall stated, apparently truthfully up to a certain point, that he had been in Syracuse on business on Monday, December 9, and had returned to North Tonawanda on Tuesday afternoon, had spent Wednesday in the insurance company office, and, after an evening with his girl friend, had parked his car in a driveway at his home behind a car owned by Schmidt, his neighbor. Since Schmidt often departed earlier in the morning, Hall long before this had given Schmidt a set of keys to the car so that Schmidt could move it out of the way. Hall said .that when he arose around 9:00 A.M. on December 12, the car was parked in front of his house; he left around 10:30 A.M., picked up a Christmas tree, arrived at the office about 11:30 A.M., had lunch with the manager, Mr. Tyler, and departed around 1 P.M. After some seventeen minutes Schaller sought permission to search the apartment and the car, and Hall signed waivers and consents. No money was found.
The interview was resumed shortly after 5 P.M. Schaller advised that Schmidt had been interviewed and had said that he had not moved Hall’s car that morning because it was not in the driveway when he arose at 6:30 A.M. Schaller then told Hall “that he did not have to further answer any questions, that anything he might say to me further could be used against him in court, that he was entitled to an attorney, to have an attorney present during any interviews,” and that “if he could not afford an attorney, the Government would provide an attorney for him.” Schaller also advised Hall that he could waive his rights if he desired, and, in .that event, if he decided to stop answering questions at any time, he could do so. After stating that he understood his rights and desired to waive them and continue the interview, Hall executed the standard F.B.I. waiver form.
When he was again asked to trace his activities on December 11 and 12, Hall at first stuck to his story. Later, under the impulsion of the agents’ telling him something his girl friend had related to them, he added that, while in Syracuse on December 10, he had sold some stock for $3000 to get his share of a $6000 down payment on a house he planned to occupy with the girl, then pregnant, whom he intended to marry as soon as he could obtain a divorce. On being told that he could not have obtained payment for .the stock so quickly, he altered his statement to say that he had sold the stock four weeks earlier and on December 10 had obtained a $3000 check which he placed in a safe deposit box in Syracuse. Finally when Agent Schaller indicated an intention .to check this story out with the broker in Syracuse, Hall admitted he had not been telling the truth and said he now wanted to do so. The new version was that he had indeed left his home early in .the morning of December 12, in order to keep a rendezvous with a “loan shark” in the parking lot of the Maple Leaf Motel on Niagara Falls Boulevard. One Jimmy, a co-owner of a bar adjacent to the motel, had agreed to negotiate a $3000 loan for him from the unidentified “loan shark,” who would telephone Hall where and when to get .the money. Around 7:30 A.M. the loan shark arrived and handed Hall an envelope containing $3000, including a $1000 bill and other $100’s, $50’s, $20’s and $10’s. On Schaller’s request Hall *543 produced his wallet which contained three $100 bills. Hall admitted that during the morning of December 12 he had made a deposit of $1000 at one bank in North Tonawanda and of $2000 at another.
The serious question concerns the initial seventeen minutes of questioning which elicited the false exculpatory statement that Hall’s car was in front of his apartment at 9:00 A.M. The parties have devoted a large portion of their briefs and arguments to whether during this period Hall had become the “focus” of the investigation. As put the question is unanswerable. Certainly the agents had “focused” on Hall more than on all residents of Cicero or on other residents of North Tonawanda; on the other hand the focus was not so sharp that they had anything approaching certain, indeed even probable cause to believe he was the robber. Furthermore, the “focus” question, derived from Escobedo v. Illinois,
It is equally plain that “focus” alone does not trigger the need for
Miranda
warnings. As appears from the first
Escobedo
extract we have quoted custody as well as focus and other factors were essential to that decision. Under
Miranda
custody alone suffices.
While much dialectic skill has been expended on this footnote, see Graham, What Is “Custodial Interrogation?”: California’s Anticipatory Application of Miranda v. Arizona, 14 U.C.L.A. L.Rev. 59, 114-15; Kamisar, supra, at 339-40, the one thing that is undeniable is that the opinion said that focus means custody, not that custody means focus. As Professor Kamisar has put it, “Miranda’s use of ‘custodial interrogation’ actually marks a fresh start in describing the point at which the Constitutional protections begin,” id. — Fifth Amendment protections, that is.
This still leaves the courts with the far from easy task of determining
*544
whether questioning was initiated “after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
Schaller was not asked concerning his intentions about holding Hall during the first stage of the interview, and Hall did not say how he regarded his situation. Doubtless this was just as well. The Court could scarcely have intended the issue whether the person being interrogated had “been taken into custody or otherwise deprived of his liberty in any significant way” to be decided by swearing contests in which officers would regularly maintain their lack of intention to assert power over a suspect save when the circumstances would make such a claim absurd, and defendants would assert with equal regularity that they considered themselves to be significantly deprived of their liberty the minute officers began to inquire of them. Moreover, any formulation making the need for Miranda warnings depend upon how each individual being questioned perceived his situation would require a prescience neither the police nor anyone else possesses. On the other hand, a standard hinging on the inner intentions of the police would fail to recognize Miranda’s concern with the coercive effect of the “atmosphere” from the point of view of the person being questioned.
The test must thus be an objective one. Clearly the Court meant that
something
more than official interrogation must be shown. It is hard to suppose that suspicion alone was thought to constitute that something; almost all official interrogation of persons who later become criminal defendants stems from that very source. While the Court’s language in
Miranda
was imprecise, doubtless deliberately so, it conveys a flavor of some affirmative action by the authorities other than polite interrogation. This view is strengthened by the passage at
“In former times such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient the modern practice [of interrogation at the police station] may be, it must normally create a situation very unfavourable to the suspect.” *545 Chalmers v. H. M. Advocate [1954], Sess.Cas. 66, 78 (J.C.).
Even without the light of
Orozco
we would not have thought this to mean that questioning in the home could never come within the mandate of
Miranda;
we do think it suggests that in the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. This is not to say that the amount of information possessed by the pólice, and the consequent acuity of their “focus,” is irrelevant. The 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,
and
vice versa.
But this is simply one circumstance, to be weighed with all the others. Although the many relevant decisions of state and lower federal courts since
Miranda,
none of which were cited to us, have not been altogther uniform, this seems the thrust of People v. Arnold,
The Gibson case is closer to this one than any other we have found.
There the West Virginia police had received information that Gibson was driving a stolen ear with Indiana license plates bearing a designated number. They located the car outside a bar where Gibson was seated. An officer invited him outside and asked whether the car was his; after initial denial, he admitted it was and produced a registration which showed alteration. The police then arrested him and gave the warnings. Writing for the court, Judge So-beloff did “not read
Miranda
as requiring officers to preface with a warning all non-coercive questioning conducted in the course of a routine investigation as in the circumstances of this case. * * In the complete absence of the element of coercion, actual or potential, or police dominance of the individual’s will, the mild police activity shown here should not prevent the introduction of statements freely made.”
It is altogether too easy to fall into the error of allowing the first seventeen minutes of interrogation to be significantly colored by what developed later. The picture presented to us is one of F.B.I. agents conscientiously interviewing a man, engaged in a respectable occupation, who was under considerable suspicion but whom they knew they
*546
could not lawfully arrest, and sedulously abstaining from any threat that they would. We have no reason .to believe the agents would not have departed on request or allowed Hall to do so — as indeed they did the next morning when he indicated a desire to see his lawyer — although they might well have kept him under surveillance. It is immaterial that if Hall had attempted to bolt, thereby furnishing added evidence of guilt, the agents would doubtless have restrained him. People v. P.,
supra,
Once this point is passed, little remains. We see no reason to question the district judge’s finding that the
Miranda
waivers were freely and voluntarily given with full knowledge by Hall of his right not to do this; evidently Hall was still persuaded that he could talk his way out, or at least thought he had little to lose by trying. The case bears no resemblance to Westover v. United States,
Affirmed.
This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.
The distinction and its significance has been aptly described in the opinion of a Scottish court:
Notes
. Kamisar, “Custodial Interrogation” within the Meaning of Miranda, in Criminal Law an<3 the Constitution 335 (1968).
. We disagree with some of the language although not with the result in Windsor v. United States,