NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. JAYSON ALAN ROBBINS,

Defendant-Appellee. No. 17-10076 D.C. No. 3:15-cr-00070-MMD-WGC-1
MEMORANDUM *

Appeal fromthe United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding Argued and Subm itted 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 m otion to suppress statem ents m ade during a 2015 interview on the ground that Robbins was custodially interrogated without sufficient Miranda 

# FILED
MAY 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* 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

. Statem ents are inadm issible under Miranda only if the defendant was in custody. See Miranda , 384 U.S. at 444. “To determ ine whether an individual was in custody, we must decide whether a reasonable person in the circum stances would have believed he could freely walk away from the interrogators.” United States v. Barnes , 713 F.3d 1200, 1204 (9th Cir. 2013). Am ong the factors relevant to the custody analysis are “(1) the language used to sum m on 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’ determ ination is a ‘m ixed 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 tim e of the interview. The language used to

summ on 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 roomwas sm all, the door was closed, Robbins was positioned arm ’s

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

the vast m ajority of the interview. See Barnes , 713 F.3d at 1204 (sm all room , closed door); United States v. Beraun-Panez , 812 F.2d 578, 580 (9th Cir. 1987) (isolated environm ent, officers on either side). The rem aining factors weigh in favor of custody. Officers repeatedly confronted Robbins with evidence of guilt and em phasized that they had recently executed a search warrant on his house. See Barnes , 713 F.3d at 1204. Under the circum stances, Robbins “could well have assum ed . . . that [he] was a crim inal suspect,” Kim 292 F.3d at 977. The interview was long, lasting 90 m inutes. See United States v. IMM, 747 F.3d 754, 768 (9th Cir. 2014) (“Although our precedents do not specify a precise am ount of tim e 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 m inutes.”). The officers’ statem e nt near the beginning of the interview that Robbins was “not under arrest right now ,” unaccom panied by an assurance that Robbins was free to leave at any tim e, was insufficient to alleviate the pressure created by the officers’ intense questioning over the course of a prolonged interview. B arnes , 713 F.3d at 1204-05 (noting that a com bination of the other factors m ay create pressure to stay); IMM , 747 F.3d at 768 (sam e). W eighing

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

position would not have felt free to leave. The officers’ statem ent “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 sim ilar 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 argum ents that som e comm e nts that the officers m ade before delivering the warnings underm ined the efficacy of the warnings, see, e.g. , Doody v. Ryan , 649 F.3d 986, 1002-03 (9th Cir. 2011), or that the officers em ployed a “deliberate twostep [interrogation] strategy,” Missouri v. Seibert , 542 U.S. 600, 622 (2004) (Kennedy, J., concurring). AFFIRMED.

4