US v. Mora-Alcaraz, No. 19-10323 (1-21-21)(Schroeder w/Berzon & Mendoza). After the district court suppressed statements for a Miranda violation, the government took an interlocutory appeal. The 9^th affirmed the finding of a Miranda violation, but remanded to determine whether the consent to search the car, and thus find the firearm (alien in possession) was consensual.

The Miranda violation arose when the police accosted the defendant at a mall. The police were looking because of a domestic disturbance allegation the previous night.

The police called the defendant, who was at a mall, with his 7-year-old child, and agreed to meet to “discuss” what happened. Instead of just one officer, 4 show up, in two cars, separated the defendant from his son, and questioned him. The defendant admitted being here illegally and having a gun in his truck. The police then drove him to his truck, where he consented to a search.

The 9^th affirmed suppression because of the police dominated environment, and the separation of his child. The 9^th used the factors in US v. Kim, 292 F.3d 969 (9^th Cir. 2002), as to public interrogations (or non-police stations). The various, not exclusive, factors are: (1) the language used to summon; (2) confrontation of guilt; (3) physical surroundings; (4) duration; and (5) pressure. Using these factors, the 9^th agreed with the district court that the defendant would not have felt free to end the questioning and leave the mall. This was a custodial interrogation, therefore, but without Miranda warnings given. The statements are suppressed.

The question then becomes whether the gun can be suppressed too. The court suppressed as poisoned fruit of the Miranda violation. This was error.  Physical evidence – here, the gun -- can be admissible, even after a Miranda violation. US v. Patane, 543 US 630 (2004). The inquiry thus focuses on whether the defendant’s consent to search the trunk was voluntary.  The 9^th remanded to the district court to determine.

Congrats to Aarin Kevorkian, AFPD, FPD Nev (Las Vegas).  This was a nice Miranda win from these unusual facts.

Of note is the opinion’s first sentence: “This is what has become a relatively rare interlocutory appeal by the United States from a district court order suppressing evidence in a criminal prosecution.”  Hmmm, it isn’t because the government decides not to appeal and to lick its wounds.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/21/19-10323.pdf