FILED

NOT FOR PUBLICATION

MAY 18 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10076

Plaintiff-Appellant, D.C. No. 3:15-cr-00070-MMD-WGC-1 v.

JAYSON ALAN ROBBINS, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Argued and Submitted April 10, 2018 San Francisco, California

Before: D.W. NELSON, W. FLETCHER, and FISHER, Circuit Judges.

The United States appeals an order of the district court granting Jayson

Robbins’s motion to suppress statements made during a 2015 interview on the

ground that Robbins was custodially interrogated without sufficient Miranda

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). We have jurisdiction

under 18 U.S.C. § 3731, and we affirm.

Statements are inadmissible under Miranda only if the defendant was in

custody. See Miranda, 384 U.S. at 444. “To determine whether an individual was

in custody, we must decide whether a reasonable person in the circumstances

would have believed he could freely walk away from the interrogators.” United

States v. Barnes, 713 F.3d 1200, 1204 (9th Cir. 2013). Among the factors relevant

to the custody analysis are “(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.” United States v. Kim,

292 F.3d 969, 974 (9th Cir. 2002). “[A] district court's ‘in custody’ determination

is a ‘mixed question of law and fact warranting de novo review.’ ” United States v.

Bassignani, 575 F.3d 879, 883 (9th Cir. 2009) (quoting Kim, 292 F.3d at 973).

Underlying factual findings are reviewed for clear error. Id.

Robbins was in custody at the time of the interview. The language used to

summon Robbins weighs against custody. Robbins’s physical surroundings favor

custody, see Bassignani, 575 F.3d at 885, though we accord this factor slight

weight; the room was small, the door was closed, Robbins was positioned arm’s

2 length from an officer on either side, and Robbins was alone with the officers for

the vast majority of the interview. See Barnes, 713 F.3d at 1204 (small room,

closed door); United States v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir. 1987)

(isolated environment, officers on either side).

The remaining factors weigh in favor of custody. Officers repeatedly

confronted Robbins with evidence of guilt and emphasized that they had recently

executed a search warrant on his house. See Barnes, 713 F.3d at 1204. Under the

circumstances, Robbins “could well have assumed . . . that [he] was a criminal

suspect,” Kim 292 F.3d at 977. The interview was long, lasting 90 minutes. See

United States v. IMM, 747 F.3d 754, 768 (9th Cir. 2014) (“Although our

precedents do not specify a precise amount of time at which a detention turns

custodial, we have found an adult defendant to have been in custody when she was

interrogated for 45 to 90 minutes.”). The officers’ statement near the beginning of

the interview that Robbins was “not under arrest right now,” unaccompanied by an

assurance that Robbins was free to leave at any time, was insufficient to alleviate

the pressure created by the officers’ intense questioning over the course of a

prolonged interview. Barnes, 713 F.3d at 1204-05 (noting that a combination of the

other factors may create pressure to stay); IMM, 747 F.3d at 768 (same). Weighing

3 this combination of factors, we conclude that a reasonable person in Robbins’s

position would not have felt free to leave.

The officers’ statement “You have a right to an attorney” was not sufficient

to “reasonably convey to [Robbins] his rights as required by Miranda.” Duckworth

v. Eagan, 492 U.S. 195, 202 (1989). Our decisions in United States v. Noti, 731

F.2d 610, 614-15 (9th Cir. 1984), and United States v. Bland, 908 F.2d 471,

473–74 (9th Cir. 1990), require that officers convey that the suspect has a right to

an attorney prior to and during questioning. While we recognize that other circuits

have approved warnings similar to the one in this case, these out-of-circuit cases do

not reflect the law in this circuit. See Bridgers v. Dretke, 431 F.3d 853, 859 (5th

Cir. 2005) (recognizing a circuit split on this issue).

Because we affirm on these grounds, we not reach Robbins’s alternative

arguments that some comments that the officers made before delivering the

warnings undermined the efficacy of the warnings, see, e.g., Doody v. Ryan, 649

F.3d 986, 1002-03 (9th Cir. 2011), or that the officers employed a “deliberate two-

step [interrogation] strategy,” Missouri v. Seibert, 542 U.S. 600, 622 (2004)

(Kennedy, J., concurring).

AFFIRMED.

4