US v. Bocharnikov, No. 19-30163 (7-27-20)(Bybee w/VanDyke; concurrence by Chhabria). The 9th reverses the denial of a suppression motion for inculpatory statements. The issue was whether a second interview, and confession, was tainted by the illegality of the first due to a Miranda violation.

The defendant was arrested (in his home) without a warrant. Without Miranda warnings, handcuffed, in boxer shorts, surrounded by three sheriffs, the police questioned the defendant about aiming a laser at aircraft. He admitted he did, not thinking it would shine that far up. He gave up the laser. Then, nothing happened. A month later, the County Sheriff turns the matter to the FBI. Eight months later, the FBI, concerned with the no Miranda warnings at the first interrogation, has a second interview.  The agent, and later his partner, go to the defendant’s house, and speak to him on the street. The agent starts by saying this is a “follow up” to the first interview. The government concedes there was a Miranda and other violations.

The 9th engages in an attenuation analysis under Brown v. Illinois, 422 U.S. 590 (1975). Did the taint of the first illegal questioning link it to the second? The 9th holds it did. There is a three-part test: (1) time span; (2) intervening circumstances; and (3) flagrancy of the misconduct.

The government argued that passage of 8 months was enough. The 9th noted that though 8 months is lengthy, the key is the agent’s stating that his second interview was a “follow up.” It connected the second to the first. The 9th found, for the second factor, that no intervening circumstances arose. No Miranda warnings were ever read: the first or the second time.  The defendant could have assumed that all was well. Last, there was no flagrant misconduct. As the case is presented, the second statement must be suppressed.

The concurrence by Chhabria grudgingly agrees, taking the government to task for apparently conceding there were violations. Had the government analyzed the violations separately, there may have been no need for attenuation analysis, as Oregon v. Elstad, 470 U.S.298 (1985) would likely control; the statements were voluntary; and warnings not required as no arrest. Likewise, if arrested with in the house without a warrant but with probable cause, then no attenuation was required. Attenuation is only required if arrested in the house without probable cause. The concurrence chides the government, stating that the court cannot do the work of the government and won’t bend over backwards.

Congrats to Conor Huseby, AFPD, D. Oregon (Portland).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/27/19-30163.pdf