United States v. Mora-Alcaraz
| Citation | 986 F.3d 1151 |
| Decision Date | 21 January 2021 |
| Docket Number | No. 19-10323,19-10323 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Julian MORA-ALCARAZ, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
Before: Mary M. Schroeder and Marsha S. Berzon, Circuit Judges, and Salvador Mendoza, Jr.,* District 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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 defendant's inculpatory statements, see United States v. Patane , 542 U.S. 630, 635, 124 S.Ct. 2620, 159 L.Ed.2d 667 (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. § 3731 requires 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, 84 S.Ct. 553, 11 L.Ed.2d 527 (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, 127 S.Ct. 2360, 168 L.Ed.2d 96 (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).
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 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.
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.
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, 84 S.Ct. 553. 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 Appellate Rules. See, e.g. , United States v. Ibarra , 502 U.S. 1, 4–8, 112 S.Ct. 4, 116 L.Ed.2d 1 (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, 127 S.Ct. 2360, 168 L.Ed.2d 96 (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...
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