Reyes v. Lewis (798 F.3d 815, 2015)

Opinion by Judge W. FLETCHER; Concurrence by Judge SINGLETON.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Adrian Reyes petitions for a-writ of habeas corpus on the ground, inter alia, that his state-court conviction rested on a confession obtained in violation of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). For the reasons that follow, we reverse the district court and remand with instructions to grant the writ.

I. Factual Background

On January 11, 2006, an armed person got out of a silver Toyota Camry and shot Derek Ochoa three times. The- person may have yelled “Delhi” (the name of an Orange County gang). Ochoa died as a result of the shooting. He was a senior at La Sierra High School in Riverside County-

Riverside Police Department officers traced the Camry to the home of Andres Munoz, an older cousin of petitioner Adrian Reyes. The car was registered to another member of the Munoz family, Albert. Reyes had recently moved to Riverside County from Orange County. He was a freshman at La Sierra. He was not quite two months past his fifteenth birthday.

The day before the shooting, Reyes had been walking home from school with a friend. A carload of gang members drove up and asked Reyes where he was from. Reyes answered “Delhi.” One of the gang members punched Reyes in the eye. They then drove away, yelling “South Side Riverside 51-50.”

Two days after the shooting, Riverside Police Department homicide detectives James Brandt and Rick Wheeler questioned Reyes at his aunt’s home. Reyes had moved from his family’s home to his aunt’s home the day after his assault by the gang members. The detectives’ questions related primarily to the- assault. During the questioning, Reyes acknowledged that he had known Ochoa and that he knew Delhi was a “group in Santa Ana.”

Nearly a month later, on February 9, sometime between 5:20 and 5:30 in the morning, a SWAT team of between fifteen and twenty officers executed a search warrant on Reyes’s aunt’s home. They handcuffed Reyes and searched the house. In Reyes’s bedroom they discovered papers with “Delhi” written in large block letters. After the house was secured, Reyes was released from handcuffs and allowed to eat breakfast.

Brandt told Reyes that he was not under arrest, but that he wanted to ask him some questions at the station. Reyes acquiesced, and he was driven to the Riverside police station. Reyes was not accompanied to the station by any family member. At the station, Brandt and Wheeler together questioned Reyes. At no point during their questioning on February 9 did they provide Miranda warnings.

Reyes was held at the station for some time before he was questioned. Wheeler began the interview by saying, “Thanks for being so dang patient man I appreciate you ... [hjanging out for us ‘cause it’s been a long day, long day.” Wheeler told Reyes that he could stop the interview at any time: “I just wanna make sure that you understand that if we get at some point in the interview that you’re done talkin’ ... and you don’t feel like answering any more questions or whatever, let me know, okay?”

Wheeler asked briefly about the assault the day before the shooting. He then asked about the shooting. He said that the search warrants had been executed and that they had talked “with all these different people.” “[W]e got pictures, too, ... and I’ve had more than one person say that’s the car that the guy was in, okay? ... I’ve got enough information that shows that you were there.” (Wheeler’s statement was false. The only witness who had made any type of identification had not identified Reyes.) According to the transcript, Wheeler was interrupted by the “sound of sniffing.” Wheeler continued, “[Tjhere’s no denying it----[T]he truth is gonna come out and, and I already know what it is.” Reyes denied that he was there. “I didn’t go out that day you could ask my Mom, you would ask anybody in my home I didn’t come out that day, I was sleeping.” When Wheeler said that the police had spoken to his family already, Reyes said, “Don’t you guys have a lie detector or something? I, I was in my house.”

Brandt then took over the questioning. He challenged Reyes, saying that he had his phone records. “When your phone is being used basically six, seven, eight times an hour every, you know, on an average every five minutes so you’re not sleeping okay?” Brandt was interrupted by the “sound of sniffing.” Brandt suggested a mitigating version of events: “There is a big difference between being in the car when this thing happens ... and being the shooter and stuff.... So just tell us what happened, okay?” “We’ve done our homework, dude and ... don’t screw yourself and lie to us, seriously, tell us what happened.”

Wheeler and Brandt pressed Reyes on the inconsistency between Reyes’s statements and his phone records. Wheeler asked him about the papers found in his room with “Delhi written in big letters.” Brandt said, “We work homicide, alright, we gonna do our homework, definitely, I’m telling you, we have the car, we have the gun, we have five guns total.... ” (Brandt’s statement was false. The Sheriffs Department had not recovered — indeed, never did recover — the gun used to shoot Ochoa.)

Wheeler and Brandt continued to press Reyes. Brandt said, “[T]here’s another detective was out showing witnesses the picture ... ’cause we had a picture of you.” Wheeler immediately followed, “And we identified you as being in the car.” (Wheeler’s statement was false. Reyes had not been identified by anyone as having been in the car.) Brandt said, “I’m not trying to trick you and ... I’m not making the stuff up that I’m telling you---- [S]o you know I’m not trying to trick you.”

Brandt talked about Ochoa’s family and their “right to understand what happened.” Reyes responded, “I don’t really want to say nothing no more ... trying to cooperate here.” (Elision in original.) Brandt replied, “You’re not cooperating.” Brandt was interrupted multiple times by the “sound of sniffing.” A moment later, Brandt said, “Tell me what happened.” Reyes responded, “I don’t know nothing man.”

Reyes said, “Stop asking me questions.” Brandt said, “No I’m not gonna stop asking you questions.” Brandt was again interrupted by the “sound of sniffing.”

Brandt said, “[A]re you willing to take a polygraph examination?” Reyes responded, “Yeah.” Brandt elaborated, “About everything.” Reyes responded, “I guess, man, I don’t know nothing man.” Reyes mentioned that he might need to have his parents there, but Brandt interrupted him, saying, “[Wje’ll certainly arrange for all that stuff just seeing that you’re willing to ... do it.”

A moment later, Reyes said, “You guys stop asking me ... kinda questions.” (Elision in original.) “Stop[ ] asking this kind of stuff man.” Wheeler, who had begun the interview by telling Reyes that he could stop at any time, did not stop. He responded to Reyes, “The only rope that you got is me throwing it to you right now and telling you ‘you gotta be clean’ because you haven’t been. This thing’s gonna burn you down.”

Wheeler persisted, interrupted frequently by the “sound of sniffing.” Reyes continued to indicate that he did not want to talk. “I’ve got nothing to say man.” Brandt took over the questioning: “Okay, so witnesses identifying you and other people in the car identifying you, ... you’re good with that? ... You want us to go in there with this two-hour conversation of you just lying about where you were when your phone records show it’s not the case and all that stuff, you’re comfortable with that.” Reyes replied, “Stop asking me man. I don’t know nothing.”

Brandt .terminated the interview, saying, “This time when I walk out I’m not gonna come back and give you another shot, okay? We’re gonna, we’ll, we’ll go to the D.A.’s office and, and then later on to court with the case we have and, and I’m, I’m not worried about it, I’m not gonna lose.” Wheeler added, “Oh ya, we’re not gonna lose that case.” Brandt said, “Last chance.” Reyes responded, “I don’t know nothing man.”

The transcript of the February 9 interview does not indicate start and stop times, but it is apparent from Brandt’s statement referring to “this two-hour conversation,” quoted above, that the interview took about two hours. Brandt testified at Reyes’s preliminary hearing that the interview had taken “forty minutes to an hour,” but his testimony is inconsistent with what he himself said during the interview and with the length of the transcript. The interview was interrupted thirty-three times by the “sound of sniffing.”

Reyes went to his mother’s house to sleep that night. The next morning, Brandt and Michael Medici, another Riverside Police Department detective, picked up Reyes and took him to the San Bernardino County sheriffs station for a polygraph test. There is no written consent by an adult to the polygraph test. Brandt testified at the preliminary hearing that Reyes’s mother gave permission “on the phone,” and the record contains a police report stating that she had given permission. No family member accompanied Reyes to the sheriffs station.

Robert Heard of the San Bernardino County Sheriffs Department administered the polygraph test. Before, administering the test, Heard spoke with Reyes for a sustained period. He impressed on Reyes the fact that he was an experienced test administrator. He recounted that he had gone to “polygraph school” “9 years before you were born,” and that he was high demand as a polygraph teacher. At no point did Heard provide Miranda warnings.

Reyes had difficulty filling out a form Heard gave him, not knowing his zip code or his height and weight. Reyes had even more difficulty with the written consent form. When he did not understand the terms “duress and coercion” and “immunity,” Heard explained them in simpler language. Reyes had particular trouble understanding what was meant by the sentence, “I hereby release the County of San Bernardino, the Sheriffs Department and Examiner administering this examination from any and all claims resulting from, or arising out of, this examination____” After Heard explained what “release ... from any and all claims” meant, Reyes said, “Alright, so that, that means like that you guys won’t, won’t trick me....” Heard-corrected him, saying, “Well, no, this doesn’t say I won’t trick you.” Heard then added, “[Y]ou have my word I won’t trick you.” Heard again explained what “release” meant, and said, “That’s what it means.” Reyes responded, “Like you haven’t tricked me or something.” Heard replied, “Exactly, exactly.” Thus informed, Reyes signed the consent form.

After administering the test, Heard told Reyes, ‘You failed the test. I have no doubt that you were there when Derek was shot.” (There is nothing in the record to indicate whether Reyes had in fact failed the test.) Heard pressed Reyes to give details about what he had done. Reyes asked, “[L]ike what’s the truth gonna help?” Heard answered:

[T]hey read my report and the detectives, their supervisor reads the report. ... And the District Attorney’s gonna ask these detectives hey, how was Adrian? Is he one of these, you know tough, gang banger type guys[ ]? No, no. Adrian’s a nice young man. He cooperated, failed the test, and without hesitation he says hey, look, man, I feel bad about what happened.... Adrian, I can’t tell you what’s gonna happen because you know what? I don’t know. I don’t[] know what’s gonna happen because you haven’t told me what happened out there.... [Y]ou tell me I’m going to state prison for, I, I, said 25 to life or something like that. Fifteen year olds don’t go to state prison, Adrian.

Reyes responded, “I know, but I’ve got a go to Juvenile Hall.” Heard replied, “Well, I don’t know what’s gonna happen because I, you haven’t told me anything yet, Adrian.”

Heard continued to ask Reyes what happened, and Reyes repeated several times that he did not know. Heard asked from what side of the car the shooter had shot. Reyes responded, “Oh, not that I know, you know, so don’t ask any question.” Heard asked, ‘You wanna be alone?” Reyes replied, “No, it’s just, just don’t ask any questions,” and then said, “Can we just call the detectives?”

Brandt and Medici then came into the room and took over from Heard. At no point in the interview that followed did they provide Miranda warnings.

Brandt asked at the outset, “[WJhat’s your biggest concern, going to jail?”

Reyes: Think so.

Brandt: At all or for a long time?

Reyes: For a long time.

Brandt: Okay, how long do you think you would go to jail for?

Reyes: I don’t know. Like it’s a murder, probably like 25 years.

Brandt: Yeah? How old are you?

Reyes: 15.

Brandt: How many 15 year olds do you know that go to jail for 25 years?

Reyes: None.

Brandt: Huh? Reyes: None.

Brandt: Okay, so why would you be any different?

Reyes: I don’t know.

Brandt then asked, “Remember yesterday I asked you ... if Derek had anything in his hands or reached for his pockets, anything like that? You remember me asking you that?” Reyes replied, “No.” Brandt then told Reyes that Ochoa had had a gun:

There’s a reason, a very easy explanation to this whole thing____The deal is ... Derek had a gun in his pocket____ Now, if he’s going for a gun in his pocket or you believed he was going for a gun in his pocket and we find one, that’s obviously, and it’s, there’s an explanation as to what happened. Maybe you just stopped and talked to him because you knew him, and then he’s going for a gun or something like that ... and shit happens.

(Third elision in original.) (Brandt’s statement was false. Ochoa had not had a gun.)

Brandt went on, “If it’s just ... a cold blooded thing, no, we just, went up and ... did it and, and shot him just because, um, and I don’t feel bad about it ... that looks bad.” Reyes said, “It wasn’t like that.” Brandt said, “Tell me, tell me why, how did it happen then?” Reyes hesitated. “I’m scared, man.... Make everybody go to prison and everything, like I want everybody to get locked up.” Brandt responded, “[I]f he’s going for a gun, dude, ... that’s gotta be explained. We have to know that and we have to be able to tell the District Attorney’s office that....” Reyes still hesitated. After encouragement from Brandt, he finally said, “Um hmm, hmm, well, he, you, he always had a gun.”

After more encouragement, Reyes said, “He was just running up 'to the car.” Brandt asked, “Okay, was he reaching for his pockets or anything like that?” Reyes replied, “Yeah.” Brandt said, “Okay, and what happened?” Reyes replied, “I don’t know.” Reyes expressed concern about his older cousin, Andres Munoz, and sought to exculpate him. “Well, if I say something like what’s going to happen with my cousin? Is he still gonna go to jail? ... He had nothing to do with it.”

Brandt asked, “Did you shoot him because you thought he was going for a gun? Yeah? Did you ... see the gun in his pocket?”

Reyes: He was reaching for it.

Brandt: Okay ... and then what happened?

Reyes: He had a grip on it.

Brandt: Okay, do you remember ... what pocket it was in, what side it was in? Okay, do you remember seeing the grip of the gun though? And he was reaching for it? But what was he yelling at you guys?

Reyes: I don’t know. It was just, I wasn’t panicked ... ain’t gonna say nothing, just scared.

Brandt: You were scared cause he was going for the gun? And then, and what happened?

Reyes: I don’t know. I just shot.

Reyes’s statement that he had shot Ochoa came early in the interview, on the seventh page of the transcript. Brandt and Medici continued to question and talk to Reyes for another thirty-five pages. Much of the later exchange was friendly, even including a discussion of Christmas. Reyes said that his family opens presents at “twelve in the night.” Brandt responded, “Oh, see I can’t stay up that late,” and Reyes laughed. Near the end of the interview, Medici asked, “Does your Mom know about any of this, your Dad?” Reyes responded, “It’ll be cool like if you guys don’t tell my Mom, you know, cause ... [l]ike it’ll break her heart and shit, you know, cause like she’s very religious.” Brandt told Reyes, “Oh, we don’t need to run over there.”

Immediately after the February 10 interview at the San Bernardino sheriffs station, Brandt drove Reyes back to the Riverside police station where he and Wheeler had interviewed him the day before. The length of the drive is not in the record, but it is apparent from a map of the area that it was no more than fifteen miles. When they arrived at the Riverside police station, Reyes was put in an interview room.

Brandt and Medici together questioned Reyes. Brandt began the interview:

OK. Uuh, we talked to people at the D.A.’s office and stuff about the case. Kinda told them that, you know, you came clean and finally told us the truth and why things happened and, you know that you were, you know, obviously scared and all that kind of stuff. Uuh, there’s more questions that they want answered, if we can. OK, just to, to clarify stuff. Alright, so I wanna talk to you again, but because you’ve been sitting in that room and the door was locked and you’re not free to leave, I wanna read you your rights, OK? And then ask you some questions. OK? You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you’re being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning. Do you understand each ofthese rights that I’ve explained to you? Yeah? OK. Can we talk about the stuff we talked about earlier today? Is that a yes?

Reyes, who had not previously spoken, answered,