United States v. Nikolay Bocharnikov (9th Cir. July 2020)

The Federal Docket

August 20, 2020

Miranda Rights/Attenuation  – A second interview between law enforcement and a defendant is not sufficiently attenuated from a prior, illegal interview if the officers tell the defendant the interview is a follow-up from the first and do not give the defendant Miranda warnings. Neither the passage of several months between the interviews nor the lack of deceit are dispositive.

Nikolay Bocharnikov was charged with pointing a laser at a police aircraft in flight under 18 U.S.C. § 39A.

Uniformed officers went to Bocharnikov’s residence and asked about the laser. After Bocharnikov said the laser was his kids’, Bocharnikov was handcuffed and told by the officers that they were at his residence to recover the laser. “Bocharnikov then admitted to shining the laser” and instructed his wife to give the laser to the officers. He was never told he was under arrest nor given Miranda warnings.

Eight months later, FBI agents approached Bocharnikov, introduced themselves as members of the FBI Joint Terrorism Task Force, and one asked “if he ‘could ask some follow-up questions regarding the laser strike.’” Bocharnikov was never given Miranda warnings and “almost immediately” began to discuss the incident.

Bocharnikov moved to suppress his statements to the FBI agents but was denied by the district court. He appealed the district court’s holding that his interview with the FBI agents was not a continuation of his prior interview with the officers.

The Court agreed, holding that the interview with the FBI agents was not “sufficiently attenuated from the illegal detention and seizure” by the officers. The Court held that although eight months had passed, the FBI interview was an extension of the initial, unlawful interview because “one of the first things [one of the FBI agents] said was that he was there to ‘ask some follow-up questions.’” The Court noted that “[t]he mere fact that time has passed is not the deciding factor in any case.” The Court also held that Bocharnikov did not know he did not need to cooperate in the FBI interview because he was not read his Miranda warnings in either encounter. The Court also held that the lack of “evidence of any subterfuge on the part of the officers” or the FBI “is not dispositive.”

Appeal from the District of Oregon

 Opinion by Bybee, joined by VanDyke. Concurernce by Chhabrria (by designation from N.D. Cal.)

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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