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, Neva