Case o' The Week: Eight is (not) Enough! - Bocharnikov, Attentuation, and Suppression of Statements

“To rule in the government’s favor on this appeal would have required us to bend over backwards, doing the government’s work for it.

 

 Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it.”

  United States v. Bocharnikov, 2020 WL 4280957 (9th Cir. July 27, 2020), decision available here.

 Players: Decision by Judge Bybee, joined by Judge VanDyke. Concurrence by ND Cal DJ Chhabria. Big win for D. Oregon AFPD Conor Huseby.   

 Facts: A pilot was hit with a green laser: gear on the plane tracked it to Bocharnikov’s house. Id. at *1. Sheriffs came to the house without a warrant, cuffed Bocharnikov, and interrogated him without Miranda warnings. Id. at *2. He confessed. Id. Eight months later, the aptly-named FBI Agent “Hoover” confronted Bocharnikov again. Id. They met on the sidewalk outside of the home, and Hoover posed some “follow-up questions.” Id. Again, no Miranda warnings; again, Bocharnikov confessed. Id. After he was charged with 18 USC § 39A Bocharnikov moved to suppress his statements. Id. The motion was denied and he entered a conditional plea. Id.

 Issue(s): “Bocharnikov argues that his statements in March 2018 should be suppressed because they were tainted by the illegality of his detention and the seizure of the laser in July 2017. The government does not dispute that the initial encounter violated at least the Fourth Amendment. The only question before us, then, is whether the taint of the illegal seizure was sufficiently attenuated to render Bocharnikov’s statements to Agent Hoover admissible.” Id. at *3.

 Held: “As we consider these factors together, we are persuaded that the [first] encounter, introduced as a ‘follow up’ to the first, was directly linked to the original illegalities. While significant time had passed, that time was collapsed by Agent Hoover opening the conversation by stating that he was following up on the original investigation. Without other intervening circumstances that act to separate the incidents, the government cannot carry its burden of proving that Bocharnikov’s statements to Agent Hoover were  sufficiently attenuated from the illegal detention and seizure eight months prior. His statements should have been suppressed.” Id. at *5.

 Of Note: DJ Chhabria is frustrated. He questions what type of violation occurred at the initial contact: a Miranda violation, a warrantless arrest with probable cause, or a warrantless arrest without probable cause? Id. at *5 (Chhabria, D.J., concurring). The “nature of the initial violation actually matters a great deal” for the outcome of the second statement. Id. The government, the D.J. complains, concedes there was an unMirandized interrogation after a warrantless arrest without probable cause: the Ninth finds itself boxed into this outcome. 

  Thankfully the Court holds the government to its position: “To rule in the government’s favor on this appeal would have required us to bend over backwards, doing the government’s work for it. Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it.” Id. at *6.

  It is a curious concurrence: though we’re grateful that the government was held to its concessions, there actually doesn’t seem to be P.C. at the initial contact to suggest Bocharnikov fired the laser (versus some other residents of his home). Seems the government just did the right thing: it properly refused to advance an unsupported probable cause argument.

 How to Use: Eight months between statements, and no attenuation!?! Id. at *3-*4. Judge Bybee explains this great holding by noting Agent Hoover started the second encounter by posing “some follow-up questions.” Id. at *3. Turn to Bocharnikov when arguing attenuation: even eight months is not a per se attenuation break.                                    

For Further Reading: There have been over 200 COVID cases in Santa Rita jail. See article here.  After a recent outbreak of over 100 positives, the beleaguered jail still has 28 active cases. Id. 

With dozens of active cases in the jail, and rising rates in the Bay Area, the NorCal District Court should extend its ban on in-custody in-person court proceedings past the looming August 10 date. See ND Cal Website with shutdown information, here.

 

 

Image of man “bending over backwards” from https://www.arvinddevalia.com/blog/2011/02/07/stop-bending-over-backwards-for-other-people-all-the-time/

Image of August 10 on calendar from https://www.canstockphoto.com/august-10-day-on-the-calendar-46568525.html

 

 

 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

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