                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 07 2015

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



                            FOR THE NINTH CIRCUIT


JOVAN’Z SMITH,                                   No. 14-15162

              Petitioner - Appellant,            D.C. No. 2:11-cv-03312-MCE-
                                                 GGH
  v.

KEN CLARK, Warden,                               MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Morrison C. England, Jr., Chief District Judge, Presiding

                       Argued and Submitted March 11, 2015
                            San Francisco, California

Before: CALLAHAN, M. SMITH, and WATFORD, Circuit Judges.

       California state prisoner Jovan’z Smith (Smith) appeals the district court’s

denial of his habeas corpus petition challenging his conviction for assault on a

child causing death. Smith contends that the California trial court violated his

constitutional rights by admitting his confession into evidence even though it was



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
obtained during a lengthy, station-house interrogation during which he was not

timely advised of his Miranda rights. The district court found this to be a close

case, but denied Smith’s petition and granted a certificate of appealability.

Reviewing the district court’s denial of habeas relief de novo, and bound by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we affirm.

      1.     AEDPA authorizes the grant of a state prisoner’s petition for a writ of

habeas corpus when the relevant state court decision was (1) “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court” or (2) “based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d). Under AEDPA, the Court must “look to the last reasoned state

court adjudication on the merits of [Smith’s] Miranda claim[s], which was the

decision of the California Court of Appeal . . . .” Thompson v. Runnels, 705 F.3d

1089, 1096 (9th Cir. 2013).

      The parties, the state appellate court, and the district court identify the

pivotal issue in this case to be whether Smith was “in custody” when he first made

incriminating statements to the police. See United States v. Kim, 292 F.3d 969,

973 (9th Cir. 2002) (“An officer’s obligation to give a suspect Miranda warnings

before interrogation extends only to those instances where the individual is ‘in


                                           2
custody.’” (internal citation omitted)). In determining whether a suspect was in

custody, “[t]wo discrete inquiries are essential . . . .” Thompson v. Keohane, 516

U.S. 99, 112 (1995). First, a court must determine “what [objective]

circumstances surround[ed] the interrogation . . . .” Id.1 Second, a court must

decide whether “a reasonable person [in those objective circumstances would] have

felt he or she was not at liberty to terminate the interrogation and leave.” Id.; see

also Howes v. Fields, 132 S. Ct. 1181, 1189 (2012) (setting forth a non-exhaustive

list of factors that are pertinent to the determination whether a reasonable person

would have believed he could freely walk away from the interrogators); Kim, 292

F.3d at 974 (same).

      2.     Applying the custody test here, we find that a fairminded jurist could

conclude, as did the three judges on the state appellate court, that a reasonable

person in Smith’s circumstances would have believed that he or she was free to go.

It is true that a number of circumstances weigh in favor of the view that the

interrogation became custodial before Smith first confessed. Such circumstances

include, but are not limited to, how Smith was summoned and brought from school



      1
             The circumstances surrounding Smith’s interrogation are detailed in
the magistrate judge’s report and recommendation. While not repeated here, the
panel’s decision is based on the totality of circumstances, including as shown by
the video footage of the interrogation.

                                           3
to the police station, aspects of the interview’s physical surroundings, the

confiscation of Smith’s property, the tag-team interrogation tactics employed, the

detectives’ at times accusatory tone, the duration of the interview, some statements

made by the officers and the child’s grandmother during the interview, and the fact

that Smith was not released at the end of the questioning.

      But numerous other circumstances support the view that the interrogation

could fairly be deemed investigative rather than custodial. Smith was never

handcuffed, the door to the interview room was unlocked and was sometimes left

open, the detectives were dressed in plain clothes, the detectives were courteous

and relaxed for most of the interview, Smith was given some breaks from

questioning, and Smith signed forms consenting to a lie detector test and retrieval

of items from his room. Most significantly, as the state appellate court

emphasized, the police advised Smith that he was not under arrest three times and

that he was free to leave twice. The Supreme Court and this Court have

consistently recognized that such advisements weigh strongly in favor of the view

that an interviewee was not in custody. California v. Beheler, 463 U.S. 1121, 1122

(1983) (per curiam); Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam);

United States v. Crawford, 372 F.3d 1048, 1059-60 (9th Cir. 2004) (en banc).




                                          4
      While the state appellate court incorrectly stated that Smith was “told three

times that he was not under arrest and that he was free to go,” the misstatement

appears to have been inadvertent and not to have affected its analysis. In fact, the

state appellate court directly confronted the third advisement’s ambiguity, and thus

must have known that Smith was told that he was “not under arrest,” not that he

was “free to go.” The reasonableness of the state appellate court’s view that the

third advisement’s ambiguity did not render the interrogation custodial is

reinforced by statements that Detective Pucci made at the conclusion of the lie

detector test. Detective Pucci shook Smith’s hand and stated, “[i]f I don’t get a

chance to see you again, good luck to you, and I hope everything works out for

you.” He then handed Smith his card and said “[y]ou got any questions, concerns

about anything, that’s my desk number there.” A reasonable person in Smith’s

circumstances would view this interaction as an indication that he or she remained

free to leave.

      It is concerning that the state appellate court did not address Detective

Pucci’s comment that Smith could not “leave the room lying bro.” As this Court

has noted, “[a] decision on which turns whether a teenager will spend the rest of

his days behind bars merits closer judicial attention from the state courts.” Taylor

v. Maddox, 366 F.3d 992, 1007 (9th Cir. 2004). But, viewed in context, the


                                          5
statement “[y]ou can’t leave this room lying bro” could be viewed as an appeal to

the importance of truth rather than interpreted as a literal statement about whether

Smith was free to leave.

      Looking to the totality of circumstances, we conclude that the state appellate

court’s decision that Smith was not in custody when he first confessed was not

objectively unreasonable. Accordingly, we must deny habeas relief. As the

Supreme Court has held on multiple occasions, “even a strong case for relief does

not mean the state court’s contrary conclusion was unreasonable.” Harrington v.

Richter, 562 U.S. 86, 102 (2011); see also Lockyer v. Andrade, 538 U.S. 63, 75

(2003) (reversing the Ninth Circuit for “fail[ing] to give proper deference to state

courts by conflating error (even clear error) with unreasonableness”). Indeed, state

courts are given even “more leeway” in cases like this one, where the rule applied

is general in nature, requiring a case-by-case assessment based on the totality of

circumstances. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

      3.     The state appellate court’s failure to identify Smith’s youth as a

relevant factor in the custody test does not render its decision contrary to clearly

established Supreme Court precedent.2 It was not until the Supreme Court decided

J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), on June 16, 2011, several

      2
             Smith was sixteen years old at the time of the interrogation.

                                           6
months after Smith’s appeal became final, that the Supreme Court squarely held

that a suspect’s age properly informs the Miranda custody analysis. J.D.B. was

thus not clearly established law at the time of the state appellate court’s decision

and may not provide a basis for granting habeas relief.

      4.     The district court also certified the following issue: “Whether the

police may use the ‘you’re not under arrest’ strategy to avoid reading petitioner his

rights while, in the meantime, resorting to coercive strategies condemned by

Miranda to extract a confession.” On appeal, Smith frames this issue as whether

the state trial court should have suppressed Smith’s confession because it was

obtained during a deliberate two-step interrogation in violation of the rule set forth

in Missouri v. Seibert, 542 U.S. 600 (2004) (plurality opinion). Smith’s argument

fails because Seibert does not apply where, as here, the suspect was not in custody

during the first stage of the interrogation. See United States v. Barnes, 713 F.3d

1200, 1205–06 (9th Cir. 2013) (per curiam). We note that the Supreme Court has

not categorically prohibited the deliberate use of the “‘you’re not under arrest’

strategy.” Rather, the Supreme Court endorsed this strategy in Mathiason, 429

U.S. at 495, and Beheler, 463 U.S. at 1122. This is not to say that an interrogation

begun with a so-called “Beheler advisement” cannot become custodial as that

interrogation drags on and coercive circumstances accumulate. But, on the facts


                                           7
presented, the state appellate court did not unreasonably conclude that the custodial

rubicon had not been crossed by the time Smith first confessed, and thus the

prophylactic procedural measures adopted by the Supreme Court in Miranda had

not been triggered.

      For these reasons, the district court’s denial of habeas relief is AFFIRMED.




                                         8
                                                                                FILED
Smith v. Clark, No. 14-15162                                                    MAY 07 2015

                                                                            MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, concurring:                                          U.S. COURT OF APPEALS



      I agree with my colleagues that we are forced to affirm, given the deferential

standard of review imposed by the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA). See 28 U.S.C. § 2254(d)(1). I offer a few additional thoughts

to explain why I find that outcome troubling. If this case is any indication,

California courts are giving virtually dispositive weight to the fact that a suspect

has been told he is not under arrest, even when all other circumstances suggest that

the suspect is “in custody” for Miranda purposes.

      The Supreme Court devised the warnings required by Miranda v. Arizona,

384 U.S. 436 (1966), to protect the Fifth Amendment privilege against self-

incrimination. The Court believed that “incommunicado interrogation of

individuals in a police-dominated atmosphere” generates “inherently compelling

pressures which work to undermine the individual’s will to resist and to compel

him to speak where he would not otherwise do so freely.” Id. at 445, 467. The

Court concluded that the warnings it prescribed were needed “to combat these

pressures and to permit a full opportunity to exercise the privilege against self-

incrimination.” Id. at 467. The Court has pegged the trigger for Miranda warnings

to the concept of “custody,” defined to mean either formal arrest or circumstances

in which the suspect has otherwise been “deprived of his freedom of action in any
                                                                             Page 2 of 8
significant way.” Id. at 444; see Berkemer v. McCarty, 468 U.S. 420, 428–31, 434

(1984).

      The police subjected the petitioner in this case, Jovon’z Smith, to

incommunicado interrogation in a police-dominated atmosphere—namely, a small,

windowless room in the bowels of the police station, without his parents or any

other family members present. Interrogating a suspect in that setting, the Court

recognized in Miranda, gives the police a significant psychological advantage in

overcoming a suspect’s desire to remain silent. Why? Mainly because the suspect

is alone, cut off from the rest of the world, in surroundings that are intimidating

and unfamiliar. The Court put it this way in Miranda, quoting from a police

training textbook:

               “If at all practicable, the interrogation should take place
             in the investigator’s office or at least in a room of his
             own choice. The subject should be deprived of every
             psychological advantage. In his own home he may be
             confident, indignant, or recalcitrant. He is more keenly
             aware of his rights and more reluctant to tell of his
             indiscretions or criminal behavior within the walls of his
             home. Moreover, his family and other friends are
             nearby, their presence lending moral support. In his own
             office, the investigator possesses all the advantages. The
             atmosphere suggests the invincibility of the forces of the
             law.”

Id. at 449–50 (quoting Charles E. O’Hara & Gregory L. O’Hara, Fundamentals of
                                                                          Page 3 of 8
Criminal Investigation 99 (1956)).

      The police could nevertheless interrogate Smith without providing Miranda

warnings so long as he wasn’t “in custody”—in other words, so long as a

reasonable person in Smith’s shoes would have felt “at liberty to terminate the

interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995).

Applying this test, the California courts held that Smith was never in custody,

relying primarily on the fact that officers told Smith he wasn’t under arrest on three

occasions. But all the other circumstances surrounding Smith’s interrogation

suggest that he wasn’t free to leave whenever he wanted, notwithstanding the

admonitions he had been given.

      First, officers constrained Smith’s ability to leave by confiscating his

property. About an hour into the interrogation, the police took Smith’s cell phone

and did not return it. (They had earlier taken his backpack.) The signal sent by

that action seems obvious to me. When the police confiscate a valuable piece of

your personal property (in today’s world that certainly describes one’s cell phone),

everyone understands that, as a practical matter, you’re not likely to leave without

it. See Florida v. Royer, 460 U.S. 491, 504 n.9 (1983) (plurality opinion); id. at

512 (Brennan, J., concurring in the judgment). So, despite assurances that he was

not under arrest, the reality is that Smith’s freedom to terminate the encounter was
                                                                             Page 4 of 8
dependent almost from the outset upon the officers’ willingness to return his

property.

      Second, the officers’ responses to Smith’s questions strongly suggested that

he would not be permitted to leave until the officers had finished questioning him.

About an hour and a half into the interrogation, Smith informed Detective Fong

that he had basketball practice at 4:00 p.m., although by then it was already a little

after 4:00. In response, Detective Fong didn’t tell Smith that he was running late

and had better leave right away. She instead instructed him to “hang tight” and

said she would let the officer leading the interrogation (Detective Mustard) know

about Smith’s prior commitment.

      Later, roughly two and a half hours into the interrogation, Smith agreed to

take a lie detector test and asked the officer administering the test, “After this, will

I be able to go home?” The officer didn’t respond with the only answer consistent

with Smith’s supposed freedom to leave, which would have been “yes, of course.”

Instead, he told Smith, “Hey, you know, I don’t know. Are you and Detective

Mustard done talking?” That response seems pretty clearly to indicate that Smith

wasn’t free to leave whenever he chose but rather only when Detective Mustard

had finished interrogating him. That the officer hastily added, “You understand

you’re not under arrest, okay?” doesn’t seem to change anything. A reasonable
                                                                            Page 5 of 8
person who asks whether he can go home and is told that the answer depends on

whether the police are done questioning him probably won’t feel “at liberty to

terminate the interrogation and leave.” Thompson, 516 U.S. at 112.

      Finally, even if Smith should have understood up until this point that he was

free to leave (notwithstanding the decidedly mixed signals he had been sent), what

happened next surely had to affect Smith’s thinking. After Smith completed the lie

detector test, the officer administering the test left the room and then returned a

short time later with Detective Mustard. The officers told Smith he had failed the

test. Is it really reasonable to think that Smith could have said at that point, “Thank

you very much, I’ll be leaving now”? I find it hard to imagine any reasonable

person, much less a reasonable 16-year-old, feeling free to walk out of the police

station in those circumstances.

      From that point on, the officers used the results of the lie detector test to

convey to Smith that they would not end their questioning until he told them what

they wanted to hear. Smith repeatedly tried to explain that he hadn’t done anything

intentional to hurt the child, but the officers interrupted him each time and told him

that they didn’t believe him. Four hours into the interrogation, the two detectives

made their position clear: “Jovon’z, it didn’t happen like that,” said one. “You

can’t leave this room lying, bro,” added the other. As the majority notes, the state
                                                                            Page 6 of 8
courts never even addressed this last statement. Considered in context, I see no

reason why a reasonable person in Smith’s shoes wouldn’t have interpreted that

statement literally.

      The only circumstance the state courts identified as suggesting Smith was

not in custody is the fact that he had been advised three times he was not under

arrest and once that he could leave at any time. The state courts placed essentially

dispositive weight on those advisements in evaluating the totality of the

circumstances, even though each of those advisements was undermined by

subsequent events during the interrogation. The first time Smith was told he was

not under arrest occurred at school, before Smith even arrived at the police station

and thus before the interrogation even began. The second time occurred at the very

outset of the interrogation, which was also the only time the officers told Smith he

could leave at any time. And the third time Smith was told he was not under arrest

occurred just before he took the lie detector test, as part of the highly equivocal

response to Smith’s asking whether he could go home afterward.

      In giving all-but-dispositive weight to a “you’re not under arrest”

advisement, the California courts appear to be validating a practice adopted by at

least some California police departments. Those departments interpret existing

Supreme Court precedent, particularly California v. Beheler, 463 U.S. 1121 (1983)
                                                                           Page 7 of 8
(per curiam), to mean that so long as a suspect is told he’s not under arrest, officers

need not provide Miranda warnings, even if the circumstances surrounding the

interrogation give rise to the same “inherently compelling pressures” to speak that

the warnings were designed to combat. See Charles D. Weisselberg, Mourning

Miranda, 96 Calif. L. Rev. 1519, 1542–45 (2008) (canvassing police training

materials used in California). Using this tactic to skirt the requirements of

Miranda is apparently common enough in some law enforcement circles that

officers have coined a short-hand term for it. Shortly after the interrogation at

issue in this case begins, Detective Mustard enters the room to take the lead in

questioning Smith. Before doing so he turns to Detective Fong and asks, “You

Beheler-ing here?”

      Despite my misgivings about the correctness of the California courts’ ruling

in this case, I think we are compelled to affirm under AEDPA. On the one hand,

the Supreme Court’s decision in Beheler seems to hold that telling a suspect he’s

not under arrest is just one of many circumstances courts must evaluate when

deciding whether someone is in custody, not a circumstance that’s entitled to

overriding weight. It’s hard to square that reading of Beheler with the rule the

California courts used to decide this case: “We think a reasonable person who is

told that he is not under arrest would understand that he is not in custody.” On the
                                                                         Page 8 of 8
other hand, however, the Supreme Court has never explicitly clarified how much

weight a “you’re not under arrest” advisement may be given, much less explicitly

forbidden state courts to give such an advisement the heavy weight it received

here. So I can’t say, under existing Supreme Court precedent, that the California

courts’ decision represents an unreasonable application of clearly established

federal law, as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). Until

the Supreme Court says otherwise, California courts will remain free to validate

the “Beheler-ing” of suspects, even when that practice is used to evade Miranda’s

requirements.
