United States v. Julian Mora-Alcaraz ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10323
Plaintiff-Appellant,
D.C. No.
v. 3:17-cr-00022-
LRH-CBC-1
JULIAN MORA-ALCARAZ,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted November 16, 2020
San Francisco, California
Filed January 21, 2021
Before: Mary M. Schroeder and Marsha S. Berzon, Circuit
Judges, and Salvador Mendoza, Jr.,* District Judge.
Opinion by Judge Schroeder
*
The Honorable Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.
2 UNITED STATES V. MORA-ALCARAZ
SUMMARY**
Criminal Law
On an interlocutory appeal by the United States, the panel
affirmed in part and reversed in part the district court’s order
suppressing evidence resulting from a confrontation between
police officers and the defendant while he was with his seven-
year-old son at a shopping mall, and remanded.
The panel rejected the defendant’s contention that the
appeal, which was filed more than thirty days after the
suppression order but within thirty days of the district court’s
denial of the government’s motion for reconsideration, is
untimely. The panel held that United States v. Healy, 376
U.S. 75 (1964), which forecloses the defendant’s argument,
has not been supplanted by Fed. R. App. P. 4, and is not
inconsistent with the Supreme Court’s more recent decision
in Bowles v. Russell, 551 U.S. 205 (2007).
The panel affirmed the district court’s suppression of
incriminating statements the defendant made after the armed
police officers met him in two marked vehicles, separated
him from his son, and interrogated him without reading him
Miranda warnings. The panel held that the totality of the
circumstances, including the factors identified in United
States v. Kim, 292 F.3d 969 (9th Cir. 2002), supports the
district court’s conclusion that a reasonable person in the
defendant’s position would not have felt free to end the
questioning and leave the mall; and that the district court
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MORA-ALCARAZ 3
therefore properly ordered the statements suppressed because
they were the product of a custodial interrogation in which
the defendant was not advised of his rights pursuant to
Miranda.
The panel held that the district court erred in ruling that
because the Miranda violation resulted in the seizure of a
firearm from the defendant’s truck, that violation also
required the gun’s suppression as evidence. Because a
Miranda violation does not alone warrant suppression of the
physical fruits of the defendant’s inculpatory statements, and
both parties agree that the appropriate inquiry is whether,
looking at the totality of the circumstances, the defendant’s
consent to the search of the trunk was voluntary, the panel
remanded for the district court to resolve the voluntariness
issue in the first instance.
COUNSEL
Nancy M. Olson (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,
United States Attorney, United States Attorney’s Office, Las
Vegas, Nevada; for Plaintiff-Appellant.
Aarin E. Kevorkian (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender;
Office of the Federal Public Defender, Las Vegas, Nevada;
for Defendant-Appellee.
4 UNITED STATES V. MORA-ALCARAZ
OPINION
SCHROEDER, Circuit Judge:
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. The
defendant-appellee is Julian Mora-Alcaraz, who has been
indicted for being an alien in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). The
evidence suppressed resulted from a confrontation between
police officers and Mora-Alcaraz while he was with his
seven-year-old son at a shopping mall in Reno, Nevada.
The evidence suppressed consisted of incriminatory
statements by Mora-Alcaraz and a gun the police seized from
his vehicle. Mora-Alcaraz made the statements after several,
armed police officers met him in two marked vehicles. The
police separated Mora-Alcaraz’s son from him before
beginning the interrogation. Throughout the encounter, the
officers never read him the warnings required by Miranda v.
Arizona, 384 U.S. 436 (1966) (“Miranda warnings”). After
Mora-Alcaraz admitted being an alien and possessing a
firearm, he consented to a search of his vehicle that resulted
in seizure of the gun. The district court suppressed both the
statements and the gun.
We affirm the suppression of the statements, because we
agree with the district court that they were the product of a
custodial interrogation conducted without the required
Miranda warnings and therefore inadmissable. However, the
district court suppressed the firearm on the same ground
without further analysis. Because a Miranda violation does
not alone warrant suppression of the physical fruits of the
UNITED STATES V. MORA-ALCARAZ 5
defendant’s inculpatory statements, see United States v.
Patane, 542 U.S. 630, 635 (2004) (plurality opinion), and
both parties agree that the appropriate inquiry is whether,
looking at the totality of the circumstances, Mora-Alcaraz’s
consent to the search of the trunk was voluntary, we remand
for the district court to resolve the voluntariness issue in the
first instance.
First, we must consider the threshold issue of the
timeliness of the appeal. Mora-Alcaraz contends it is
untimely even though the appeal was filed within thirty days
of the district court’s denial of the government’s motion for
reconsideration. Mora-Alcaraz contends 18 U.S.C. § 3731requires the appeal to be filed within thirty days of the order
granting the motion to suppress. We follow the Supreme
Court’s opinion in United States v. Healy, 376 U.S. 75 (1964)
which squarely forecloses Mora-Alcaraz’s argument. Healy
has not been supplanted by the adoption of Rule 4 of the
Federal Rules of Appellate Procedure. Moreover, we agree
with the other Circuits that Healy’s holding is compatible
with Bowles v. Russell, 551 U.S. 205 (2007). See United
States v. Henderson, 536 F.3d 776, 779 n.2 (7th Cir. 2008)
(cert denied); United States v. Rainey, 757 F.3d 234, 239–240
(5th Cir. 2014).
I. Background
The events giving rise to this appeal began with a call to
the Reno police department in November 2016 reporting a
domestic dispute at the home of Mora-Alcaraz’s estranged
wife Geneva and their seven-year-old son. When contacted,
Geneva reported that Mora-Alcaraz had come to her home to
accost her new boyfriend. She stated that, during the
argument, and in front of the boy, Mora-Alcaraz brandished
6 UNITED STATES V. MORA-ALCARAZ
a semi-automatic gun. According to Geneva, the argument
eventually settled down, and Mora-Alcaraz spent the night
sleeping on the couch in her home.
The next morning, Mora-Alcaraz set off on a trip with the
boy to a mall. Although the child was not the defendant’s
biological son, the district court found the two had a close
father-son relationship, something the government does not
dispute. Officer Jackins, who had received the report of the
domestic disturbance, called Mora-Alcaraz at the mall, asking
to speak with him about the events of the previous evening
and early morning and do a welfare check on the child.
Mora-Alcaraz agreed to meet at the mall, outside of Dick’s
Sporting Goods store.
Officer Jackins arrived at the mall with three other armed,
uniformed officers in two police cars. After Mora-Alcaraz
and his son met the officers outside the store, Officer Jackins
asked to speak to Mora-Alcaraz away from the boy. Mora-
Alcaraz acquiesced. Two officers then escorted the boy to
the entrance of the store; they eventually took him inside
because the boy was cold.
In the meantime, Officer Jackins took what he described
as a “kill them with kindness” approach to the interrogation.
Mora-Alcaraz cooperated and eventually admitted to being in
the United States illegally and having a gun in his truck. He
agreed to let Officer Jackins see the gun. The officer drove
Mora-Alcaraz in the patrol car across the parking lot and
parked in the travel lane, amber lights flashing. Officer
Jackins then entered the truck, seized the firearm, and
arrested Mora-Alcaraz for being an alien in possession of a
firearm.
UNITED STATES V. MORA-ALCARAZ 7
After his indictment for violating 18 U.S.C.
§§ 922(g)(5)(A) and 924(a)(2), Mora-Alcaraz moved to
suppress both his statements and the firearm. Following a
two-day evidentiary hearing, the district court ruled from the
bench that Mora-Alcaraz had been subjected to a custodial
interrogation, because he was not free to leave, and that he
should have been given Miranda warnings. In response to
the government’s argument that Mora-Alcaraz could leave
because he was not physically restrained, the district court
focused on his having been separated from the boy, which the
court concluded made physical restraint unnecessary. The
court also noted the threatening nature of the “police
dominated atmosphere”—there were several armed officers
in marked cars, and lights flashing or otherwise displayed.
The court ordered the statements suppressed. It also ordered
the gun suppressed as well, on the ground that the lack of
Miranda warnings may have led to Mora-Alcaraz’s consent
to the search.
The government moved for reconsideration, stressing that
Mora-Alcaraz had consented to being separated from his son,
and raising factual disputes. The district court denied the
motion because its ruling on suppression had taken the
government’s position with respect to the separation into
account, and the factual issues were not material. This appeal
of the suppression order followed.
The government here contends that the statements should
not have been suppressed because Mora-Alcaraz was not
taken into custody, and that the district court erred in
suppressing the gun as the fruit of a Miranda violation.
Mora-Alcaraz, apart from defending the district court’s
rulings, contends that we should dismiss the government’s
appeal as untimely. We consider that issue first.
8 UNITED STATES V. MORA-ALCARAZ
II. Discussion
A. THE APPEAL IS TIMELY
Mora-Alcaraz asks us to dismiss the appeal as untimely,
pointing to the statutory language of 18 U.S.C. § 3731.
Section 3731 authorizes an interlocutory appeal “from a
decision or order of a district court suppressing or excluding
evidence . . . in a criminal proceeding” and states that an
appeal must be filed “within thirty days after the decision,
judgment or order. . . .” In this case the government, within
thirty days of the order granting the motion to suppress, asked
the district court to reconsider its order, and within thirty days
of the denial of that motion for reconsideration, filed this
appeal. Mora-Alcaraz argues that the motion for
reconsideration does not toll the running of the thirty-day
statutory time for appeal.
The Supreme Court has held, however, that an order
appealable by the United States in a criminal case is not final
until a pending rehearing petition is resolved. See Healy,
376 U.S. at 78. Mora-Alcaraz contends Healy is no longer
good law because it has been superseded by the subsections
of Rule 4(b) of the Federal Rules of Appellate Procedure that
list motions that toll the time for appeal from a final
judgment. Government motions for reconsideration are not
listed. See Rule 4(b)(3)(A); Rule 4(b)(1)(B).
There is no conflict. The subsection of Rule 4 upon
which Mora-Alcaraz relies relates to appeals by criminal
defendants, not appeals by the government. See Rule
4(b)(3)(A). There can be no serious question about the
continuing validity of Healy, since the Supreme Court and
this court have relied on Healy following promulgation of the
UNITED STATES V. MORA-ALCARAZ 9
Appellate Rules. See, e.g., United States v. Ibarra, 502 U.S.
1, 4–8 (1991); United States v. Belgarde, 300 F.3d 1177,
1180 (9th Cir. 2002).
Mora-Alcaraz also argues that if Rule 4 did not displace
Healy, then the Supreme Court’s more recent decision in
Bowles, 551 U.S. 205 (2007), did. There is no inconsistency
between the two decisions of the Court. Healy concerns
when the statutory time for an appeal begins to run, and
Bowles addresses whether a court can create exceptions to the
statutory time limit once it has begun running. The only other
circuits to consider Mora-Alcaraz’s argument have agreed
with this understanding. See United States v. Henderson,
536 F.3d 776, 779 n.2 (7th Cir. 2008) (cert denied) (“Bowles
considered whether a court may make an exception to a
statutorily imposed time limit for filing an appeal; it did not
involve the separate question of when such a time limit
begins to run.”); see also United States v. Rainey, 757 F.3d
234, 239 (5th Cir. 2014).
The appeal is timely because the notice was filed within
thirty days after the suppression order became final.
B. THE DISTRICT COURT CORRECTLY ORDERED
MORA-ALCARAZ’S STATEMENTS SUPPRESSED
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
10 UNITED STATES V. MORA-ALCARAZ
interrogation and leave.” United States v. Craighead,
539 F.3d 1073, 1082 (9th Cir. 2008).
The case differs from most Miranda cases, however, in
that the police interrogation took place in a public shopping
mall. Most such disputed interrogations seem to take place
in a police station, see, e.g., Miranda, 384 U.S. 436; Mathis
v. United States, 391 U.S. 1 (1968), or in the defendant’s
home, see e.g., Orozco v. Texas, 394 U.S. 324 (1969);
Craighead, 539 F.3d 1073. We agree with the government
that, in determining whether Mora-Alcaraz was free to leave,
the factors we identified in United States v. Kim, 292 F.3d
969 (9th Cir. 2002), are certainly relevant, although not
exclusive. See id. at 974. Mora-Alcaraz agrees that Kim is
instructive. These factors are: “(1) the language used to
summon the individual; (2) the extent to which the defendant
is confronted with evidence of guilt; (3) the physical
surroundings of the interrogation; (4) the duration of the
detention; and (5) the degree of pressure applied to detain the
individual.” Id. at 974 (citations omitted).
In Kim, the defendant went with her husband to her shop,
from which she was suspected of supplying ingredients for
the production of methamphetamine. Id. at 971. The reason
the two came to the store was that they had not been able to
reach their son, who had been left in charge. Id. at 971–972.
Upon her arrival, she encountered several officers. Id. The
police prevented the husband from entering the shop,
surrounded the defendant inside the shop, and prevented her
from speaking to her son. Id.In deciding whether the interrogation was custodial, our
court assessed what have since been referred to as the “Kim
factors.” First, we looked to “the language used to summon
UNITED STATES V. MORA-ALCARAZ 11
the defendant,” which, in Kim, and in the case before us, is
not telling as to custody. Id. at 974. Second, we looked to
“the extent to which the defendant [was] confronted with
evidence of guilt.” Id. The confrontational posture taken by
the officer was greater in Kim than in this case. Id. Here,
Officer Jackins did confront Mora-Alcaraz with guilt, but
neither party contends that Officer Jackins was aggressive,
since he deliberately refrained from such tactics, describing
his approach instead as intended to “kill them with kindness.”
Third, in Kim, as well as in Craighead, 539 F.3d at 1083,
a further relevant factor was the assessment of “the physical
surroundings of the interrogation,” and in both cases we
concluded a person is in custody when in a “police-dominated
atmosphere.” Kim, 292 F.3d at 974, 977. Here, the
government argues that such an atmosphere could not have
existed because the mall setting was a familiar, public one.
The district court correctly concluded, however, that despite
the setting, the police created what was undoubtedly a police-
dominated atmosphere. Mora-Alcaraz expected to meet a
single police officer and was confronted instead by four
armed officers and two police cars; at one point, one of the
vehicles was blocking the travel lane and flashing amber
lights, creating a major distraction from the otherwise
familiar surroundings. The defendant in Kim was in more
familiar surroundings—her own shop. Still, this court
observed that “isolating the defendant from the outside world
. . . largely neutralizes the familiarity of the location as a
factor affirmatively undermining a finding of coercion.” Id.
at 977. The fourth factor is the duration of the detention.
Mora-Alcaraz was detained for 36 minutes, which may weigh
against custody.
12 UNITED STATES V. MORA-ALCARAZ
Finally, and most important in this case, as in Kim, we
look to “the degree of pressure applied to detain the
individual.” Id. at 974. In Kim, we concluded that the
interrogation was custodial for the principal reason that the
police had separated the defendant from her husband and
grown son. Id. at 977–78. Here, the police took physical
custody of Mora-Alcaraz’s seven-year-old son and eventually
led him inside a large store and out of Mora-Alcaraz’s sight.
Despite the lack of physical restraints, Mora-Alcaraz was
subjected to severe pressure as a result of the police
separating him from his son. Although the government
argues the situation was relatively benign, because there was
no threat of harm to the child, the police were well aware that
a father would not walk away from a public place and leave
his young son with strangers. No physical restraint of Mora-
Alcaraz was necessary so long as the police kept him
separated from his son. He could not leave.
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.
C. THE LACK OF MIRANDA WARNINGS DID NOT
ALSO JUSTIFY SUPPRESSION OF THE FIREARM
Mora-Alcaraz’s admission that he possessed a firearm led
directly to its seizure from his truck out of direct eyesight of
Dick’s Sporting Goods. The district court ruled that because
UNITED STATES V. MORA-ALCARAZ 13
the Miranda violation resulted in the seizure of the gun, that
violation also required the gun’s suppression as evidence.
This was error.
The Supreme Court determined in United States v.
Patane, 542 U.S. 630 (2004) that the physical evidence
obtained as a result of a custodial interrogation without
Miranda warnings is nevertheless admissible. Both the
plurality and concurrence agreed with this conclusion. Id.
at 634 (plurality opinion); id. at 644–645 (Kennedy, J. and
O’Connor, J., concurring).
In this case, the parties agree that the appropriate inquiry
is whether, looking at the totality of the circumstances, Mora-
Alcaraz’s consent to the search of the trunk was voluntary.
Consistent with the Patane decision, this court has long-held
that the failure to give Miranda warnings is not “dispositive
of whether an individual voluntarily consented to a search.”
United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985)
(citations omitted).
The district court remarked that consent was “very
voluntary” but then determined that the gun should be
suppressed simply because Mora-Alcaraz had not received
Miranda warnings. The proper analysis, however, looks to
all the circumstances, including: “(1) whether defendant was
in custody; (2) whether the arresting officers have their guns
drawn; (3) whether Miranda warnings have been given;
(4) whether the defendant was told he has a right not to
consent; and (5) whether defendant was told a search warrant
could be obtained.” United States v. Johnson, 875 F.3d 1265,
1276–77 (9th Cir. 2017); see also United States v. Patayan
Soriano, 361 F.3d 494, 502 (9th Cir. 2004).
14 UNITED STATES V. MORA-ALCARAZ
The government urges us to conclude consent was
voluntary, and Mora-Alcaraz urges us to hold it was not. As
we have seen, the district court did not separately decide the
issue of voluntariness of the consent to search the vehicle
because it suppressed the gun only on the basis of the
Miranda violation. We decline to resolve the voluntariness
issue in the first instance because the question involves
applying the law to the facts of this particular case, which the
district court is in a better position to do. See Planned
Parenthood of Greater Washington & N. Idaho v. U.S. Dep’t
of Health & Human Servs., 946 F.3d 1100, 1111, 1115 (9th
Cir. 2020) (citations omitted) (remanding is often the
appropriate action when the issue is not “purely legal”
because “[a] district court is usually best positioned to apply
the law to the record”).
We therefore vacate the district court’s order suppressing
the firearm and remand for the district court to determine
whether Mora-Alcaraz’s consent to the search of the truck
was voluntary, applying the factors enumerated in Johnson
and Patayan Soriano.
AFFIRMED IN PART, VACATED AND
REMANDED IN PART.