                                                                              FILED
                            NOT FOR PUBLICATION                               FEB 23 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-10390

              Plaintiff - Appellant,              D.C. No. 3:12-cr-00803-CRB-1

  v.
                                                  MEMORANDUM*
CARLOS MARTINEZ,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Northern District of California
                 Charles R. Breyer, Senior District Judge, Presiding

                        Argued and Submitted July 10, 2014
                            San Francisco, California

Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PIERSOL, Senior
District Judge.**

       The United States appeals the district court’s order granting Carlos

Martinez’s motion to suppress statements he made during a police interrogation.

The district court ruled there was “no constitutional justification for the conduct of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
the officers” throughout the interrogation. The Government timely appealed. It

argues that because Martinez was not in custody during the initial one minute and

forty-six seconds of the interrogation, that portion of the interview should not have

been suppressed. We have jurisdiction under 28 U.S.C. § 1291. We agree with

the Government and reverse the district court’s order.1

      The Government argues for the first time on appeal that the district court

should have introduced the first one minute and forty-six seconds of the interview.

Limiting the inquiry to Martinez’s initial statements alters our analysis

considerably. We requested supplemental briefing addressing whether the

Government waived the argument that Martinez’s initial statements are admissible.

In response, Martinez took the position that the Government did not waive this

argument. Therefore, pursuant to this court’s waiver of waiver doctrine, we reach

the merits of the Government’s newly fashioned theory. Norwood v. Vance, 591

F.3d 1062, 1068 (9th Cir. 2009).

      A district court’s decision on a motion to suppress evidence is reviewed de

novo. United States v. Brobst, 558 F.3d 982, 995 (9th Cir. 2009). We also review

de novo a district court’s custody determination for Miranda purposes. Id.



      1
             Because the parties are familiar with the facts, for the most part we do
not recount them here.

                                           2
      In-custody determinations are based on the totality of the circumstances. Id.

(quoting United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001)). Relevant

factors include: “(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. (quoting Hayden, 260 F.3d

at 1066) (internal quotation marks omitted).

      We are mindful that the officers used a ruse to convince Martinez to come to

the interview, but “[p]loys to mislead a suspect or lull him into a false sense of

security that do not rise to the level of compulsion or coercion to speak are not

within Miranda’s concerns.” Illinois v. Perkins, 496 U.S. 292, 297 (1990).

       The officers did not confront Martinez with evidence of guilt during the

initial statements. This weighs against the conclusion that Martinez was in

custody. The questioning officer did not “adopt[] an aggressive, coercive, and

deceptive tone,” as in cases in which this court has found interrogations to be

custodial. United States v. Bassignani, 575 F.3d 879, 884 (9th Cir. 2009).

      The physical surroundings of this interrogation weigh in favor of custody.

Martinez saw “at least five police cars” outside the home as he approached, the

questioning took place in confined quarters—a police van—and armed and


                                           3
uniformed officers remained in the van during Martinez’s initial statements. Thus,

“the questioning occurred in a police-dominated atmosphere where [Martinez] was

effectively isolated.” See United States v. Beraun-Panez, 812 F.2d 578, 579, 582

(9th Cir. 1987) (finding an interrogation custodial where two officers questioned

an individual by himself, “well away from the public view”).

      We are most persuaded by the fact that Martinez made the statements the

Government seeks to introduce in the first one minute and forty-six seconds of the

interrogation. See Brobst, 558 F.3d at 996 (indicating that questioning of “two

minutes or so” weighs against custody); United States v. Gregory, 891 F.2d 732,

735 (9th Cir. 1989) (interrogation deemed non-custodial, in part because it “lasted

only a few minutes”). This is a far cry from cases involving extended questioning,

where the sheer length of the questioning may result in undue fatigue and thus

coercion. Cf. United States v. Kim, 292 F.3d 969, 977 (9th Cir. 2002) (finding a

“full-fledged interrogation” where suspect was questioned for at least 50 minutes

and detained even longer).

      The degree of pressure applied to detain Martinez does not significantly

weigh in favor of concluding the interview was custodial. The tone and tenor of

the initial questioning was not intense, but police dominated the physical




                                          4
environment inside and outside the van and the officers did not inform Martinez

that he was free to leave.

      This presents a close case, made all the more difficult because the district

court did not have an opportunity to make findings on the question presented by

this appeal. Under the totality of the circumstances, we are persuaded that a

reasonable person would not have believed he was not free to leave the

interrogation in the first one minute and forty-six seconds. Martinez was not in

custody when he made his initial statements, and that portion of the interview

should not have been suppressed.

      REVERSED and REMANDED for further proceedings consistent with this

decision.




                                          5
                                                                            FILED
United States v. Martinez, No. 13-10390                                      FEB 23 2015

                                                                         MOLLY C. DWYER, CLERK
PIERSOL, Senior District Judge, dissenting:                               U.S. COURT OF APPEALS


      I respectfully dissent. Under the totality of the circumstances, even reducing

the analysis to the newly considered one minute and forty-six second time period, I

conclude that from the totality of the circumstances, a reasonable person would

have believed that he was not free to leave the interrogation from its outset. No one

factor is controlling, but the overriding police presence inside and outside of the

police van used for interrogation and parked at the house weighs heavily in

evaluating the totality of the circumstances in this case.


      In United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008), this

Court considered, among other things, four factors in determining that law

enforcement dominated the scene at defendant's house to the extent that the

defendant was in custody and that his statements should be suppressed: “(1) the

number of law enforcement personnel and whether they were armed; (2) whether

the suspect was at any point restrained, either by physical force or by threats;

(3) whether the suspect was isolated from others; and (4) whether the suspect was

informed that he was free to leave or terminate the interview and the context in

which any such statements were made.” Id. at 1084. See also United States v.

Brobst, 558 F.3d 982 (9th Cir. 2009) (domination of scene by law enforcement

officers weighed in favor of custody finding in a two minute interrogation at his
house). Here, the location of Martinez’s interrogation was taken over by police.

From the outset there were at least five police cars and a police van at the house

where Martinez was living with his girlfriend. There were six armed officers and

two in plain clothes at the scene when Martinez arrived. No one told Martinez he

was free to leave. The sliding door on the police interrogation van was closed and

an officer blocked the other door in the confined quarters of the van. The video

shows that the three men and the furniture filled up the room in the van. No one

was present at the house or in the van other than Martinez and the eight police

officers so Martinez was isolated. It is agreed that the questioning itself was police

dominated and directed but was not confrontational. Accordingly, three of the four

factors set forth in United States v. Craighead indicate custody. One of those three

factors weighs especially heavily, the overwhelming police presence at defendant’s

residence from the time he arrived. As a result, under the totality of the

circumstances, a reasonable person would not have concluded he was free to leave

the van, and I would affirm the district court's suppression of Martinez's statements.
