Case o' The Week: Ninth Not Laughing at Mall Cops - Mora-Alcaraz and "Custody" for Miranda

“This is what has become a relatively rare interlocutory appeal by the United States from a district court order suppression evidence in a criminal prosecution.”

United States v. Mora-Alcaraz, 2021 WL 209168, *1 (9th Cir. Jan. 21, 2021) (emphasis added), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Berzon and DJ Mendoza, Jr. Admirable win for D. Nev. AFPD Aarin Kevorkian.  

Facts: Mora-Alcaraz’s estranged wife called the after he brandished a gun. Id. at *2. The next day, Mora-Alcaraz was at the mall with his seven-year old stepson. Four armed cops confronted him, escorted the boy away, and interrogated Mora-Alcaraz without Miranda warnings. Id. He admitted to being an undocumented alien, and having a gun in his truck. He was driven in a patrol car with flashing lights across a parking lot, to his own truck. Id. Mora-Alcaraz then consented to a search that produced the gun. Id. After he was charged with being an alien-in-possession, he moved to suppress. The district court suppressed the statements, and also suppressed the gun as the fruit of a Miranda violation. Id. The government moved for reconsideration. When that was denied, the government filed an interlocutory appeal. Id. at *3.

Hon. Judge Mary Schroeder

Issue(s): “The district court ordered Mora-Alcaraz’s incriminating statements concerning his citizenship status and his ownership of the gun suppressed because they were the product of a custodial interrogation that required Miranda warnings. The parties agree that the key issue is whether the district court erred in holding that persons in Mora-Alcaraz’s position would have felt, under a totality of the circumstances, that they were not at liberty to terminate the interrogation and leave.” Id. at *4 (internal quotations and citation omitted).

Held: “In sum, the totality of circumstances, including the Kim factors, supports the district court’s conclusion that a reasonable person in Mora-Alcaraz's position would not have felt free to end the questioning and leave the mall. The district court properly ordered the statements suppressed because they were the product of a custodial interrogation in which Mora-Alcaraz was not advised of his rights pursuant to Miranda. The order suppressing Mora-Alcaraz’s inculpatory statements to Officer Jackins must be affirmed.” Id. at *5.

Of Note: The defense argued that the government’s interlocutory appeal was untimely, because it was filed thirty days after the denial of the motion for reconsideration ( instead of thirty days after the original order suppressing evidence_. Id. at *3. Rule 4(b) of the Rules of Appellate Procedure lists motions that toll the time for appeal, and government motions for reconsideration are not on that list. Id. In a decision of first impression, the Ninth disagrees. Judge Schroeder holds that Rule 4(b)(b)(3)(A) refers to appeals by criminal defendants, not to by the government. Id. The effective rule: a motion to reconsider tolls time for a government appeal.

How to Use: Most Miranda cases involve police stations. How should the Court evaluate “custodial” interrogations in public places (like a mall?) Judge Schroeder does a thorough job carefully working through the “Kim” factors that guide these types of “public places” Miranda cases. See id. at *4-*5. 

Note that the cops’ separation of the boy from Mora-Alcaraz was an important factor in the “custodial” analysis. Id. at *5. As the Court explained, “No physical restraint of Mora-Alcaraz was necessary so long as the police kept him separated from his son. He could not leave.” Id. at *5. 

Turn to Mora-Alcaraz when cops interrogate your client in a public place.        

For Further Reading: The heart of this victory rests upon the Ninth Circuit's great decision in United States v. Kim, 292 F.3d 969 (9th Cir. 2002). Kim was written by Judge Berzon . . . who by happy coincidence was the second Circuit judge on this Mora-Alcaraz panel. For an interesting discussion on Kim’s role in other Miranda jurisprudence, see Daniel C. Isaacs, Miranda’s Application to the Expanding Terry Stop, 18 J.L. & Pol’y 383 (2009), available here.

 

Picture of the Mall Cop from https://www.sonypictures.com/movies/paulblartmallcop 

Picture of the Honorable Judge Mary Schroeder from https://www.ali.org/members/member/100673/

 

 

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

 

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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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Case o' The Week: Silence is Golden (Opportunity for AUSA) -- Garcia-Morales and Doyle Comments on Post-Miranda Silence

  “The prosecution's reference to Garcia's silence as evidence of his guilt in this context was a Doyle violation, plain and simple.” 

 

The Hon. Judge Carlos Bea

 United States v. Garcia-Morales, 2019 WL 5608832, at *5. (9th Cir. Oct. 31, 2019) (Bea, J., dissenting), decision available here.

Players: Decision by DJ Settle, joined by Judge Rawlinson.

  Compelling dissent by Judge Carlos Bea.

  Hard fought appeal by AFD Sara Weinman, Federal Defenders of San Diego, Inc.   

Facts: Garcia was charged with attempted transport of aliens, after he was arrested near the border where three undocumented aliens had been found. Id. at *2. He was Mirandized, waived, and answered videotaped questions. Id.

  Garcia admitted a prior attempt to transport aliens, and that he had been offered a job transporting aliens by a smuggler on the morning of his arrest. Id. He contended, however, that on the day of arrest, he was just scoping out the area. When asked the names of his smuggling contacts, Garcia said he wasn’t feeling “cool with that camera.” Id. The agent offered to turn off the camera later: Garcia nodded his head “yes” twice. Id. The interrogation continued.

  Later, at trial, in the closing argument the AUSA argued that Garcia’s “evasiveness” about other people involved contradicted other statements Garcia had made. Id. The defense did not object.

  Garcia was convicted, and appealed.  

Issue(s): “Garcia alleges that the prosecution committed misconduct by introducing evidence of, and commenting on, his post-arrest silence at trial.” Id. at *1.

  “Because Garcia argues that he selectively invoked the right to silence on the topic of his co-conspirators, he contends that the prosecution's eliciting of testimony and argument about this topic was improper and asks us to remand for a new trial.” Id. at *2.  

Held: “Upon review of the record, we conclude that Garcia was not silent in response to Agent Kahl's questioning on the topic of his co-conspirators. This conclusion is driven by the fact that the exchange between Agent Kahl and Garcia began with Garcia voicing discomfort with video recording and concluded with Garcia agreeing to speak about his coconspirators. At most, the exchange demonstrated that Garcia did not want to discuss his co-conspirators on video tape but was willing to continue talking about the subject later. On the fact-specific record before us, that brief exchange does not amount to the invocation of silence under either standard articulated above.” Id. at *3.

  “Because the prosecution tied its arguments characterizing Garcia as evasive to the evidence and given our holding that Garcia was not silent, the prosecution did not commit misconduct by characterizing him as being evasive about the other people involved in alien smuggling. Rather, the prosecution properly relied on admissible evidence to rebut the theory that Garcia had always intended to turn aliens he picked up over to border patrol.” Id.

Of Note: In a compelling dissent, Judge Bea explains “the prosecution argued in its closing statement that Garcia must be guilty because he was ‘evasive about other people who are involved,’ asking ‘Why does he want the recording turned off? . . . . It wasn't because he had a plan the entire time to turn these people over.’ This is exactly the type of penalty for exercising one's Fifth Amendment rights that Doyle prohibits.” Id. at *4 (Bea, J., dissenting) (emphasis in original).

  “The prosecution's reference to Garcia's silence as evidence of his guilt in this context was a Doyle violation, plain and simple.” Id.

  Judge Bea correctly, and forcefully, argues that the prosecutor’s reliance on post-Miranda silence rose to the level of plain error, meriting reversal. Garcia-Morales is a troubling break from Ninth authority prohibiting comments on silence. Id. 

  This great Judge Bea dissent is, hopefully, the seed of a future en banc flower.

How to Use: The majority decision oddly relies upon an agent’s reference to further interrogation discussions as a reason to find that Garcia did not remain silent (further discussions that never happened, by the way). Id. at *3. Use that quirky fact to limit this unfortunate holding in future Doyle cases.

                                               

For Further Reading: Task-Force Feds flaunt local and state cop rules. So reports this fascinating Marshall Project article, available here. 

Image of Judge Bea from https://www.law.com/therecorder/2019/06/12/with-ninth-circuit-judge-planning-to-go-senior-trump-gets-another-potential-vacancy-to-fill/

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

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Case o' The Week: Ninth Throws the Book(ing Q's) at 'em - Zapien and the "Booking" Exception to Miranda

 This time, “book ‘em” . . . . (and use their custodial statements against ‘em, too).
 United States v. Zapien, 2017 WL 2836162 (9th Cir. July 3, 2017), decision available here.

Players: Per curiam decision with Judges McKeown, Friedland, and D. Nevada District Judge Boulware.  

Facts: Zapien was arrested, Mirandized accused by DEA agents of being a drug dealer, and he invoked his right to counsel. Id. at *1. The agents switched up and began asking custodial, or “booking,” questions -- Zapien then said he wanted to provide additional information. Id. Zapien was Mirandized again, explained he wanted to talk – and then admitted he’d been involved in drug trafficking. Id. Over defense objection, the district court permitted the questions on the theory that the biographical questions did not constitute interrogation. Id. Zapien was convicted of meth charges after a jury trial and sentenced to ten years. Id. at *2.

Issue(s): “On appeal, Luna Zapien challenges the district court’s denial of the motion to suppress . . . . Luna Zapien argues that the questioning following his invocation of his right to counsel constituted interrogation.” Id. at *3.

Held: “We disagree. We conclude that the questioning was covered by the booking exception.” Id.

Of Note: Whether the “booking exception” applies is an intensely fact-bound inquiry. Here, the booking questions didn’t relate to the charged offense, there was no evidence that the agents played upon Zapien’s weaknesses or knew that he was particularly disoriented or upset, or no facts in the record that the agents used the booking questions as a pretext. Id. at *4. The panel also collects other fact patterns, looking at both booking questions and their context. Id. 
  The Zapien outcome is what it is, and the panel carefully portrays the DEA agents as boy scouts scrupulously respecting Miranda protections. As a practical matter, however, when it is investigating agents – and not U.S. Marshals –asking these “booking” questions, and when these agents are launching into these “booking” questions right on the heels of a defendant’s solid invocation, we who represent indigent clients know that this “booking exception” is an inevitable subterfuge of Miranda protections.   

How to Use: Two footnotes may provide a foothold to distinguish Zapien in future “booking exception” cases. First, the per curiam decision dodges the (apparently unresolved) question of whether the government, or the defense, bears the burden of “establishing the applicability of the booking exception.” Id. at *4 & n.1 On a case with closer facts, tagging the government with that burden may save the day. (And really, how can it not be the government’s burden, to show invoke an exception and dodge Miranda limits?)

  The panel is also careful to note that there was no indication that Zapien’s undocumented status (discovered during the booking questions) was “used or leveraged” by the agents. Id. at 4 & n.2. Watch for the abuse of that fact – discovered during booking – even where (as here), undocumented status is not an element of the charged offense.

                                               

For Further Reading: How will the richest and most powerful country in history treat the poorest, and most vulnerable, among us?

  That question may be answered in San Francisco.

  On Tuesday, July 18, the acting director of ICE pledged to target Sanctuary Cities with new waves of ICE agents, to apprehend undocumented aliens. See article here. 

  Two days later, the Honorable District Judge William Orrick (N.D. Cal) denied the federal government’s motion for reconsideration of his Sanctuary City order: his refusal to dismiss the civil suits of Bay Area Sanctuary Cities stands. See Ord. here.  Judge Orrick also concluded that the City of San Francisco stated a sufficient claim for declaratory relief. Id. at 2:9-10.

   Yesterday, Attorney General Sessions gave a speech in Philadelphia and called on local governments to assist the “crackdown on illegal immigration.” See article here. 

   Fitting that our city, named for Saint Francis of Assisi, has become an epicenter for this brewing immigration battle.

“Book ‘em” image from https://s-media-cache-ak0.pinimg.com/236x/fb/ba/fb/fbbafb27c7f4d53f6e0c5c01e25cb145--catchphrase-hawaii-.jpg

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

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Case o' The Week: Are Cops Deterred if Rights Inferred? - Loucious and deviant Miranda warnings

  You have the right to remain silent. 

  You have the right to infer the potential meaning of additional rights, from conclusions you should draw from the rights that may or may not be explained to you.

 United States v. Loucious, 2017 WL 510457 (9th Cir. Feb. 7, 2017), decision available here.

Players: Decision by Judge Gould, joined by Judges Clifton and Watford. Hard-fought appeal by D. Nev. AFPD Wendi Overmyer.

Facts: Vegas cops stopped a car for speeding. Id. at *1. The passenger, Loucious, had an outstanding arrest warrant: he was pulled out of the car and a revolver was discovered in the back seat near where he had been sitting. Id. Loucious was taken into custody. 

  Before he was questioned, Loucious was read Miranda warnings that omitted the right to consult an attorney before questioning. Id. at *2. Instead, the rights advised him that he had the right to speak to an attorney during questioning. Id. 

  The district court granted Loucious’ motion to suppress the statement, concluding that the right to consult with a lawyer before questioning “could not have been inferred from the warnings given.” Id. 

  The government appealed.

Issue(s): “The parties dispute whether the warnings here administered by the LVMPD conveyed to Loucious his Miranda rights based on the addition of the words ‘during questioning.’ The United States contends that the warnings were sufficient because the right to consult with an attorney prior to questioning can be inferred from the warnings given. The warnings explicitly stated that Loucious had the right to the presence of counsel during questioning and that he had the right to have counsel appointed before questioning. Loucious argues that the warnings were deficient because they did not say that Loucious could consult with an attorney before questioning so that he could decide whether to speak with officers at all.” Id. at *3.

Held: “We conclude that Miranda warnings need not follow a precise formulation, and here the warnings reasonably conveyed that Loucious had the right to consult an attorney before questioning. So we reverse the district court’s grant of the motion to suppress.” Id. at *1. 

  “After discussing instructive cases from our court and the Supreme Court, we conclude that the Miranda warnings administered by the LVMPD conveyed the substance of the warning that Loucious could consult with an attorney before questioning.” Id. at *3.

Of Note: Honestly, how hard is it to issue a standard Miranda card? Way back in ’85, the Ninth upheld quirky warnings from Guam that also did not expressly “convey notice of the right to consult with an attorney before questioning.” Id. at *3. The Court suggested, however, that Guam revise its form to more clearly inform defendants of their right to counsel before questioning. Id. 

  Judge Gould revisits that clear advice to Guam, in Loucious: “police can always be certain that Miranda has been satisfied if they simply read the defendant his rights from a prepared card . . . A verbatim reading would, in all instances, preclude claims such as Loucious’s.” Id. (quotations and citations omitted). 

  Note that in this case, the officer read the warnings – this wasn’t a case of a cop mis-remembering oral warnings. Miranda was decided in 1966: after 51 years and innumerable decisions, are these deficient printed warnings really just sloppy police work, or is law enforcement deliberately testing the boundaries of Miranda’s requirements?

How to Use: Two sentences saved Vegas's deviant warnings. Loucious was told that if he couldn’t afford an attorney, “one will be appointed before questioning.” Id. at *2. Judge Gould builds off of that warning, and links it to the warning that Loucious had a right to an attorney during questioning. We’re told that when paired, those two warnings support an inference that Loucious should have concluded that he had a right to consult with an attorney before questioning. Id. at *4. 

  When cops get creative with Miranda warnings in your case, check to see if these paired admonitions took place – if not, the inference drawn in Loucious may not be possible.

                                               

For Further Reading: Will future Vegas appeals be decided by a new Twelfth Circuit Court of Appeals? (A proposed circuit composed of a weird Western donut encircling three states in the old-new Ninth: California, Oregon and Hawai'i).

  The San Francisco Chronicle reviews the current state of Arizona Senators' efforts to split the Ninth, in an article here. 

  (No mention of the poor District of Guam in the article - maybe it'll be the new Thirteenth?)

Image of signed Miranda card from http://www.mlive.com/news/grand-rapids/index.ssf/2012/03/law_talk_after_nearly_50_years.html

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