In United States v. Colonna, 06-5237 (4th Cir., Dec. 20, 2007), the FBI agents told the accused he was not under arrest. The FBI agents did not give Miranda warnings. The appellate court reinforced looking to the totality of the circumstances.
Indeed, there is no precedent for the contention that a law enforcement
officer simply stating to a suspect that he is "not under arrest"
is sufficient to end the inquiry into whether the suspect was "in custody"
during an interrogation. See Davis v. Allsbrook, 778 F.2d 168,
171-72 (4th Cir. 1985) ("Though informing a suspect that he is not
under arrest is one factor frequently considered to show lack of custody,
it is not a talismanic factor"). Rather, we have held that the "ultimate
inquiry" looks to the totality of the circumstances to determine
whether they indicate an individual’s freedom of action is curtailed to
a degree associated with formal arrest.
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