NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10157
Plaintiff-Appellee, D.C. No.
4:17-cr-01026-RCC-JR-1
v.
SERGIO HERRAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted October 6, 2021
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and FRIEDLAND, Circuit
Judges.
Sergio Herran appeals his convictions for distribution and possession of
child pornography following a jury trial, challenging the district court’s denial of
his motion to suppress statements made during a police interrogation at his home.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Whether a defendant was in custody for purposes of Miranda v. Arizona,
384 U.S. 436 (1966), is a mixed question of law and fact warranting de novo
review. United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002). We ordinarily
review the underlying factual findings for clear error. Id.
When the district court adopts the report and recommendation of a
magistrate judge, a party’s “failure to object to [the] magistrate judge’s factual
findings waives the right to challenge those findings” on appeal. Miranda v.
Anchondo, 684 F.3d 844, 848 (9th Cir. 2012). But “[i]t is well settled law in this
circuit that failure to file objections . . . does not [automatically] waive the right to
appeal the district court’s conclusions of law.” Id. (alterations in original) (quoting
Lisenbee v. Henry, 166 F.3d 997, 998 n.2 (9th Cir. 1999)). Instead, “such a failure
is a factor to be weighed in considering the propriety of finding waiver of an issue
on appeal.” Id. (quoting Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991)).
Herran did not file objections to the magistrate judge’s report and
recommendation to deny Herran’s motion to suppress. The district court
nevertheless reviewed the report and recommendation de novo before adopting it
in full. Herran challenges only the legal conclusion that he was not in custody
during the police interrogation, and he raises this challenge in his opening brief on
appeal. We conclude that the question whether Herran was in custody is properly
preserved for de novo review. See id.
2
Law enforcement officers must provide Miranda warnings before
questioning a suspect who is “in custody at the station or otherwise deprived of his
freedom of action in any significant way.” Miranda, 384 U.S. at 477. A suspect
who has not been formally arrested is nevertheless in custody if, given the
circumstances surrounding the interrogation, “a reasonable person [would] have
felt he or she was not at liberty to terminate the interrogation and leave.”
Thompson v. Keohane, 516 U.S. 99, 112 (1995).
When an interrogation takes place in the home, we consider:
(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.
United States v. Craighead, 539 F.3d 1073, 1084 (9th Cir. 2008). We generally
also examine “(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.” Kim, 292 F.3d at 974 (quoting
United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001)).
Applying the factors from both Craighead and Kim, we conclude that
Herran was in custody throughout the interview. Although Herran was told he was
free to leave near the beginning of the interview, “the mere recitation of [that]
3
statement . . . does not render an interrogation non-custodial per se” and must be
assessed “within the context of the scene as a whole.” Craighead, 539 F.3d at
1088. The length of the interrogation, the number of armed agents, and the way in
which the agents directed and escorted Herran around his own property “turned the
otherwise comfortable and familiar surroundings of the home into a ‘police-
dominated atmosphere.’” Id. at 1083 (quoting Miranda, 384 U.S. at 445). Herran
was also confronted with evidence of his guilt and pressured to confess. See
United States v. Brobst, 558 F.3d 982, 995-96 (9th Cir. 2009); Kim, 292 F.3d at
974. Under the totality of the circumstances, a reasonable person would not have
felt free to leave or to terminate the interview. See Keohane, 516 U.S. at 112.
Accordingly, we hold that Herran’s statements were obtained in violation of
Miranda.1
The district court’s denial of Herran’s motion to suppress is REVERSED;
Herran’s conviction is VACATED; and we REMAND for a new trial.
1
Herran also argues that some of the Government’s trial exhibits should have been
excluded under Federal Rules of Evidence 403 and 404(b). Because we reverse
the district court’s denial of the motion to suppress, we need not address whether
the exhibits were properly admitted at trial.
4