Reyes v. Lewis

• Decision Date: 14 August 2015
• Docket Number: No. 12–56650.,12–56650.
• Citation: 798 F.3d 815
• Parties: Adrian REYES, Petitioner–Appellant, v. Greg LEWIS, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

798 F.3d 815

Adrian REYES, Petitioner–Appellant

v.Greg LEWIS, Warden, Respondent–Appellee.

No. 12–56650.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 19, 2014.

Filed Aug. 14, 2015.

Elizabeth Armena Missakian (argued), San Diego, CA, for Petitioner–Appellant.

Kevin Vienna (argued), David Delgado–Rucci, and Daniel Rodgers, Deputy Attorneys General, Julie L. Garland, Senior Assistant Attorney General, and Kamala D. Harris, Attorney General, San Diego, CA, for Respondent–Appellee.

Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. 5:12–cv–00691–GAF–E.

Before: WILLIAM A. FLETCHER and JAY S. BYBEE, Circuit Judges, and JAMES K. SINGLETON, Senior District Judge.^*

Opinion by Judge W. FLETCHER

; Concurrence by Judge SINGLETON.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Adrian Reyes petitions for a writ of habeas corpus on the ground, inter alia, that his state-court conviction rested on a confession obtained in violation of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). For the reasons that follow, we reverse the district court and remand with instructions to grant the writ.

I. Factual Background

On January 11, 2006, an armed person got out of a silver Toyota Camry and shot Derek Ochoa three times. The person may have yelled “Delhi” (the name of an Orange County gang). Ochoa died as a result of the shooting. He was a senior at La Sierra High School in Riverside County.

Riverside Police Department officers traced the Camry to the home of Andres Munoz, an older cousin of petitioner Adrian Reyes. The car was registered to another member of the Munoz family, Albert. Reyes had recently moved to Riverside County from Orange County. He was a freshman at La Sierra. He was not quite two months past his fifteenth birthday.

The day before the shooting, Reyes had been walking home from school with a friend. A carload of gang members drove up and asked Reyes where he was from. Reyes answered “Delhi.” One of the gang members punched Reyes in the eye. They then drove away, yelling “South Side Riverside 51–50.”

Two days after the shooting, Riverside Police Department homicide detectives James Brandt and Rick Wheeler questioned Reyes at his aunt's home. Reyes had moved from his family's home to his aunt's home the day after his assault by the gang members. The detectives' questions related primarily to the assault. During the questioning, Reyes acknowledged that he had known Ochoa and that he knew Delhi was a “group in Santa Ana.”

Nearly a month later, on February 9, sometime between 5:20 and 5:30 in the morning, a SWAT team of between fifteen and twenty officers executed a search warrant on Reyes's aunt's home. They handcuffed Reyes and searched the house. In Reyes's bedroom they discovered papers with “Delhi” written in large block letters. After the house was secured, Reyes was released from handcuffs and allowed to eat breakfast.

Brandt told Reyes that he was not under arrest, but that he wanted to ask him some questions at the station. Reyes acquiesced, and he was driven to the Riverside police station. Reyes was not accompanied to the station by any family member. At the station, Brandt and Wheeler together questioned Reyes. At no point during their questioning on February 9 did they provide Miranda warnings.

Reyes was held at the station for some time before he was questioned. Wheeler began the interview by saying, “Thanks for being so dang patient man I appreciate you ... [h]anging out for us ‘cause it's been a long day, long day.” Wheeler told Reyes that he could stop the interview at any time: “I just wanna make sure that you understand that if we get at some point in the interview that you're done talkin’ ... and you don't feel like answering any more questions or whatever, let me know, okay?”

Wheeler asked briefly about the assault the day before the shooting. He then asked about the shooting. He said that the search warrants had been executed and that they had talked “with all these different people.” “[W]e got pictures, too, ... and I've had more than one person say that's the car that the guy was in, okay? ... I've got enough information that shows that you were there.” (Wheeler's statement was false. The only witness who had made any type of identification had not identified Reyes.) According to the transcript, Wheeler was interrupted by the “sound of sniffing.” Wheeler continued, “[T]here's no denying it.... [T]he truth is gonna come out and, and I already know what it is.” Reyes denied that he was there. “I didn't go out that day you could ask my Mom, you would ask anybody in my home I didn't come out that day, I was sleeping.” When Wheeler said that the police had spoken to his family already, Reyes said, “Don't you guys have a lie detector or something? I, I was in my house.”

Brandt then took over the questioning. He challenged Reyes, saying that he had his phone records. “When your phone is being used basically six, seven, eight times an hour every, you know, on an average every five minutes so you're not sleeping okay?” Brandt was interrupted by the “sound of sniffing.” Brandt suggested a mitigating version of events: “There is a big difference between being in the car when this thing happens ... and being the shooter and stuff.... So just tell us what happened, okay?” “We've done our homework, dude and ... don't screw yourself and lie to us, seriously, tell us what happened.”

Wheeler and Brandt pressed Reyes on the inconsistency between Reyes's statements and his phone records. Wheeler asked him about the papers found in his room with “Delhi written in big letters.” Brandt said, “We work homicide, alright, we gonna do our homework, definitely, I'm telling you, we have the car, we have the gun, we have five guns total....” (Brandt's statement was false. The Sheriff's Department had not recovered—indeed, never did recover—the gun used to shoot Ochoa.)

Wheeler and Brandt continued to press Reyes. Brandt said, “[T]here's another detective was out showing witnesses the picture ... 'cause we had a picture of you.” Wheeler immediately followed, “And we identified you as being in the car.” (Wheeler's statement was false. Reyes had not been identified by anyone as having been in the car.) Brandt said, “I'm not trying to trick you and ... I'm not making the stuff up that I'm telling you.... [S]o you know I'm not trying to trick you.”

Brandt talked about Ochoa's family and their “right to understand what happened.” Reyes responded, “I don't really want to say nothing no more ... trying to cooperate here.” (Elision in original.) Brandt replied, “You're not cooperating.” Brandt was interrupted multiple times by the “sound of sniffing.” A moment later, Brandt said, “Tell me what happened.” Reyes responded, “I don't know nothing man.”

Reyes said, “Stop asking me questions.” Brandt said, “No I'm not gonna stop asking you questions.” Brandt was again interrupted by the “sound of sniffing.”

Brandt said, “[A]re you willing to take a polygraph examination?” Reyes responded, “Yeah.” Brandt elaborated, “About everything.” Reyes responded, “I guess, man, I don't know nothing man.” Reyes mentioned that he might need to have his parents there, but Brandt interrupted him, saying, “[W]e'll certainly arrange for all that stuff just seeing that you're willing to ... do it.”

A moment later, Reyes said, “You guys stop asking me ... kinda questions.” (Elision in original.) “Stop[ ] asking this kind of stuff man.” Wheeler, who had begun the interview by telling Reyes that he could stop at any time, did not stop. He responded to Reyes, “The only rope that you got is me throwing it to you right now and telling you ‘you gotta be clean’ because you haven't been. This thing's gonna burn you down.”

Wheeler persisted, interrupted frequently by the “sound of sniffing.” Reyes continued to indicate that he did not want to talk. “I've got nothing to say man.” Brandt took over the questioning: “Okay, so witnesses identifying you and other people in the car identifying you, ... you're good with that? ... You want us to go in there with this two-hour conversation of you just lying about where you were when your phone records show it's not the case and all that stuff, you're comfortable with that.” Reyes replied, “Stop asking me man. I don't know nothing.”

Brandt terminated the interview, saying, “This time when I walk out I'm not gonna come back and give you another shot, okay? We're gonna, we'll, we'll go to the D.A.'s office and, and then later on to court with the case we have and, and I'm, I'm not worried about it, I'm not gonna lose.” Wheeler added, “Oh ya, we're not gonna lose that case.” Brandt said, “Last chance.” Reyes responded, “I don't know nothing man.”

The transcript of the February 9 interview does not indicate start and stop times, but it is apparent from Brandt's statement referring to “this two-hour conversation,” quoted above, that the interview took about two hours. Brandt testified at Reyes's preliminary hearing that the interview had taken “forty minutes to an hour,” but his testimony is inconsistent with what he himself said during the interview and with the length of the transcript. The interview was interrupted thirty-three times by the “sound of sniffing.”

Reyes went to his mother's house to sleep that night. The next morning, Brandt and Michael Medici, another Riverside Police Department detective, picked up Reyes and took him to the San Bernardino County sheriff's station for a polygraph test. There is no written consent by an adult to the polygraph test. Brandt testified at the preliminary hearing that Reyes's mother gave permission “on the phone,” and the record contains a police report stating that she had given permission. No family member accompanied Reyes to the sheriff's station.

Robert Heard of the San Bernardino County Sheriff's Department administered the polygraph test. Before administering the test, Heard...