United States v. Pence: Voluntary Questioning in an FBI Vehicle During Warrant Execution Is Not “Custody” for Miranda When the Suspect Is Told He Is Not Under Arrest and Is Not Restrained

Introduction

In United States v. Pence (2d Cir. Apr. 10, 2026), the Second Circuit affirmed the denial of a motion to suppress pre-Miranda statements made during an interview conducted in an FBI vehicle parked outside the defendant’s home while agents executed a search warrant. The defendant, Christopher Pence, ultimately pleaded guilty (conditionally) to using a facility of interstate commerce in connection with murder-for-hire, in violation of 18 U.S.C. § 1958(a).

The central issue on appeal was narrow but consequential: although Pence was interrogated and was not advised of his Miranda rights until after he confessed, was he “in custody” when he confessed such that Miranda warnings were required? The Second Circuit held the Government proved by a preponderance of the evidence that Pence was not in custody at the time of his pre-warning confession.

Summary of the Opinion

The Court of Appeals affirmed, concluding that under the totality of the circumstances a reasonable person in Pence’s position would not have understood his freedom of action to be curtailed to a degree associated with formal arrest. Key facts supporting non-custody included: Pence agreed to speak with agents, chose to speak in the vehicle, was told he was not under arrest and had no obligation to talk, was unrestrained, was not threatened, and was not subjected to drawn weapons during questioning.

Although the panel described the case as a “close call” given the early-morning warrant execution by approximately fourteen armed agents and the length of questioning before warnings, it held those facts did not overcome the substantial indicators of a noncustodial, voluntary encounter—especially the explicit advisement that he was “not under arrest” and “under no obligation” to speak.

Analysis

Precedents Cited

1) Standard of review and suppression framework

  • United States v. Worjloh, 546 F.3d 104 (2d Cir. 2008) (per curiam) and United States v. Rodriguez, 356 F.3d 254 (2d Cir. 2004) supplied the familiar appellate posture: factual findings are reviewed for clear error (viewing evidence in the Government’s favor), while legal conclusions (including custody) are reviewed de novo. This allocation mattered because Pence did not challenge factual findings, leaving the appellate court to apply the custody standard to largely settled facts.

2) The baseline Miranda doctrine

  • Miranda v. Arizona, 384 U.S. 436 (1966) provided the foundational rule: warnings are required for interrogation of a person “taken into custody or otherwise deprived of his freedom ... in any significant way.” Because interrogation and lack of warnings were undisputed, Pence turned entirely on the custody prong.
  • United States v. Rommy, 506 F.3d 108 (2d Cir. 2007) was cited for the distinction between interrogations and volunteered statements. While not outcome-determinative here (there was interrogation), it framed the broader Fifth Amendment architecture the panel applied.
  • United States v. FNU LNU, 653 F.3d 144 (2d Cir. 2011) was cited for the two-part requirement: interrogation plus custody. It also anchored the court’s statement that the “only issue” was custody.
  • United States v. Newton, 369 F.3d 659 (2d Cir. 2004) emphasized that “custody remains the touchstone” even though coercion animates Miranda. This reinforced the panel’s refusal to equate the stressful atmosphere of a warrant search with formal-arrest custody.
  • California v. Beheler, 463 U.S. 1121 (1983) supported two propositions: (i) police questioning often has coercive aspects even absent custody; and (ii) warnings are required only where freedom is restricted to render a person “in custody.” Pence used this to cabin the analysis to restraint comparable to arrest rather than generalized pressure.

3) The Second Circuit’s custody test and its “guidepost” factors

  • United States v. Faux, 828 F.3d 130 (2d Cir. 2016) supplied both the core, objective two-step inquiry—(1) free to leave, and (2) restraint akin to formal arrest—and the commonly used, non-exclusive factor list (duration, location, voluntariness, restraints, weapons, advisements). Pence treated Faux as the closest analogue: there, despite a “raid” by multiple agents and a two-hour interview at home, the court found no custody given lack of restraints, limited weapon display, and an advisement that the defendant was not under arrest.
  • J.D.B. v. North Carolina, 564 U.S. 261 (2011) was cited for the Supreme Court’s instruction to consider “all of the circumstances” affecting a reasonable person’s perception of freedom to leave. The panel invoked J.D.B. to legitimize a holistic analysis rather than a location-based shortcut (e.g., “interview in FBI car = custody”).

4) Interviews in law enforcement vehicles / during searches

  • United States v. Burke, 700 F.2d 70 (2d Cir. 1983) was central to rejecting the argument that being questioned in an FBI car is inherently custodial. The court relied on Burke for the proposition that a voluntary interview in an FBI car outside one’s home can still be noncustodial.
  • United States v. Schaffer, 851 F.3d 166 (2d Cir. 2017) reinforced that questioning in a controlled, search-adjacent setting (there, adjacent to an office while agents searched) can remain noncustodial when other factors cut against arrest-like restraint.

5) Confronting the suspect with evidence of guilt

  • United States v. Hall, 421 F.2d 540 (2d Cir. 1969) (Friendly, J.) and United States v. Hall, 459 F.2d 454 (2d Cir. 1972) (per curiam) supplied an important nuance: the stronger the officers’ cause and the more they “bear down,” the more an interrogation can become custodial; but confrontation is only one circumstance, and what matters is whether the atmosphere becomes one of “significant restraint” triggering Miranda. The panel used Hall to give weight—but not dispositive effect—to the agents’ confrontation of Pence with incriminating evidence.
  • The panel also cited out-of-circuit authorities consistent with this “confrontation” factor: United States v. Barnes, 713 F.3d 1200 (9th Cir. 2013), United States v. Panak, 552 F.3d 462 (6th Cir. 2009) (quoting Stansbury v. California, 511 U.S. 318 (1994)), United States v. Revels, 510 F.3d 1269 (10th Cir. 2007), and United States v. Carter, 884 F.2d 368 (8th Cir. 1989). These citations positioned the Second Circuit’s approach as aligned with a broader consensus: accusatory presentation of evidence can contribute to custody, but does not automatically establish it.
  • Finally, the panel reinforced its own precedent that confrontation does not necessarily create custody by citing United States v. Jabar, 19 F.4th 66 (2d Cir. 2021) and United States v. Badmus, 325 F.3d 133 (2d Cir. 2003), both of which found no custody despite the government confronting defendants with incriminating records/evidence.

6) Voluntariness considerations (not independently litigated)

  • In a footnote, the panel referenced Terry v. LeFevre, 862 F.2d 409 (2d Cir. 1988) and United States v. Guarno, 819 F.2d 28 (2d Cir. 1987) (age, background, intelligence as voluntariness factors). The references served a contextual role because Pence did not bring a standalone involuntariness challenge; they underscored that the case was framed as a custody/Miranda issue, not a due-process voluntariness dispute.

Legal Reasoning

The court’s reasoning follows the Second Circuit’s established custody methodology: apply an objective “reasonable person” lens, assess the totality of circumstances, and consider the Faux factors as guideposts rather than a checklist.

  1. Voluntariness of engagement and location choice. Pence agreed to speak with agents and was offered a choice of speaking in the house or in the vehicle. He walked out uncuffed, retrieved his shoes (albeit accompanied), opened the vehicle door himself, and sat for an interview that began with rapport-building conversation. These facts supported the inference that the encounter bore the hallmarks of an interview rather than an arrest scenario.
  2. Explicit advisement: not under arrest and no obligation to speak. The agents told Pence: “You are not under arrest, at all ... You’re under no obligation to talk to us.” The panel treated this advisement as highly probative, consistent with prior cases where such statements help dispel the arrest-like character of an encounter (notably Faux).
  3. Absence of restraints, threats, and weapon brandishing during questioning. The court emphasized what did not happen in the vehicle: no handcuffs, no yelling, no threats, no pointed firearms, and holstered weapons during questioning. These facts cut strongly against a finding that Pence’s freedom was curtailed to the degree associated with formal arrest.
  4. Search-warrant environment recognized but not dispositive. The panel acknowledged the “Armageddon” feel of opening the door to roughly fourteen armed agents executing a warrant early in the morning. It also noted constraints within the home during securing (including being accompanied and momentarily blocked from going upstairs). But it treated these as contextual facts surrounding a lawful warrant execution, not as equivalent to custodial arrest—particularly given that the questioning at issue occurred after the scene was stabilized and Pence agreed to speak in the vehicle.
  5. Duration and accusatory turn weighed but did not control. Pence was questioned for over two hours before receiving warnings; he was confronted with evidence; and he confessed before warnings. The court accepted these as factors favoring custody, but held that confrontation is only one circumstance (Hall) and found it significant that agents did not threaten immediate arrest and portrayed their focus as broader (the “big fish”), which reduced the likelihood a reasonable person would feel “completely at the mercy” of police.
  6. No “hindsight” from later confession/arrest. Echoing Hall, the court stressed that custody must be assessed at the time of questioning, not “colored” by later developments (like confession and subsequent arrest).

The panel also rejected Pence’s request to “retire” the reasonable-person standard or to remand for human-behavior experts, reaffirming that custody is a legal question governed by settled Supreme Court and circuit doctrine.

Impact

United States v. Pence strengthens—and slightly extends—the Second Circuit’s line of cases holding that questioning in the shadow of a search warrant does not automatically become custodial. Three likely implications follow:

  • Vehicle interviews during warrant execution remain defensible as noncustodial when the suspect is unrestrained, the tone is nonthreatening, and officers clearly say the suspect is not under arrest and need not speak (reinforcing Burke and aligning the vehicle setting with home/office search cases like Faux and Schaffer).
  • Explicit “not under arrest” language gains additional practical weight. The opinion treats the advisement as pivotal in a “close call,” signaling to law enforcement that clear, early disclaimers can be outcome-determinative in suppression litigation.
  • Confrontation with evidence is important but not a trump card. The court’s balancing approach, grounded in Hall, suggests future defendants will need more than “they showed me evidence” to prove custody—especially absent restraints, threats, or commands restricting departure.

Complex Concepts Simplified

  • “Miranda warnings”: the required advisements (right to remain silent, statements may be used against you, right to an attorney) that must precede custodial interrogation.
  • “Custody” (for Miranda): not whether the situation felt stressful, but whether a reasonable person would think they were under arrest or restrained like an arrest.
  • “Interrogation”: questioning (or its functional equivalent) by law enforcement designed to elicit incriminating responses. Here it was undisputed.
  • “Totality of the circumstances”: courts do not rely on one factor (like location in a police car); they weigh many facts together.
  • “Preponderance of the evidence”: the Government’s burden at suppression here—more likely than not.
  • “Low-ready” position: a firearm held unholstered but angled downward; relevant because overt weapon display can increase the coercive feel of an encounter.
  • “Conditional plea”: a guilty plea that preserves the right to appeal a specified pretrial ruling (here, the suppression decision).

Conclusion

United States v. Pence reaffirms a core Second Circuit principle: even amid the inherently coercive atmosphere of a search-warrant execution, an interview can remain noncustodial where the suspect voluntarily speaks, is unrestrained, is not threatened, and is explicitly told he is not under arrest and need not answer questions. While acknowledging the factual “close call,” the court’s holding underscores that Miranda custody hinges on arrest-like restraint, not merely the seriousness of the investigation, the number of agents involved, or the fact that officers confront the suspect with incriminating evidence.