Sunday, January 24, 2021

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 

Picture of the Honorable Judge Mary Schroeder from



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



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