United States v. Fernandez-Ventura

• Court: Court of Appeals for the First Circuit
• Decided: May 30, 1996
• Docket: 95-1871
• Status: Published

Opinion

USCA1 Opinion

                            United States Court of Appeals

                                For the First Circuit

                                 ____________________



        No. 95-1871



                              UNITED STATES OF AMERICA,



                                      Appellant,



                                          v.



                   AMADO FERNANDEZ VENTURA AND MILAGROS A. CEDENO,



                                Defendants, Appellees.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                               and Cyr, Circuit Judge.
                                        _____________



                                 ____________________



            David  S. Kris, Attorney,  with whom  Guillermo Gil, United States
            ______________                        _____________

        Attorney, Antonio R. Bazan, Assistant United States Attorney, and Nina
                  ________________                                        ____

        Goodman, Attorney, were on brief for appellant.
        _______

            Linda  Backiel with  whom Carlos  Ramirez  Fiol  was on  brief for
            ______________            _____________________

        appellees.


____________________



                                     May 30, 1996

                                 ____________________



COFFIN, Senior  Circuit Judge.  After deplaning  at San Juan
                       _____________________



          International Airport,  defendants  Amado Fernandez  Ventura  and



          Milagros Cedeno  were questioned  by Customs agents  and arrested



          for illegally  transporting money,  in violation  of 31 U.S.C.   



          5316.  They filed a motion to suppress all inculpatory statements



          made in the absence of Miranda warnings, which was  granted.  The
                                 _______



          government appealed.   Having  concluded that the  district court



          applied an erroneous legal test, we remand for reconsideration of



          the suppression motion under the proper standard.



                                      BACKGROUND



          Facts
          _____



               Because  of  his frequent  travel  between  St. Maarten  and



          Puerto  Rico, Fernandez  was  on a  "lookout"  list kept  by  the



          Customs  Service.     On   November  12,  1994,   after  clearing



          immigration,  Fernandez   was  taken   to  a   secondary  Customs



          inspection  area.  One agent  asked Fernandez if  he was carrying



          any money;  Fernandez responded "$8000."   Another agent searched



          his  suitcase, discovered  women's  lingerie, and  asked whom  it



          belonged to.   Fernandez answered "mi  mujer," which colloquially



          means "my wife"  or "my woman."   Fernandez was directed  to find



          her.



               Cedeno,  Fernandez's girlfriend, had already cleared customs



          but  was  still  within  the  customs  area.    Fernandez,  while



          accompanied  by an agent, located Cedeno and returned with her to



          the  secondary inspections  area.   On the  way there,  the agent


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asked Cedeno whether  she was  carrying any money.   She  replied



          that she was carrying approximately $9,000.  



               A  search of the defendants revealed  that the actual amount



          in  their  possession  was  $16,166.    In  response  to  further



          questioning, Fernandez  revealed that  the money belonged  to his



          money  exchange company, of which  he was president.   The agents



          then placed the couple  under arrest and read them  their Miranda
                                                                    _______



          rights.  



               The  defendants  were charged  with  failing  to report  the



          transportation of  monetary instruments  in excess of  $10,000 in



          violation of 31 U.S.C.   5316, and making false statements to the



          Customs  Service in violation  of 18 U.S.C.    1001.   Upon their



          motion  alleging a  Miranda violation,  the court  suppressed all
                              _______



          statements made by the defendants after Cedeno  was asked whether



          she  was  carrying any  money.   See  United States  v. Fernandez
                                           ___  _____________     _________



          Ventura, 892 F. Supp. 362 (D.P.R. 1995). 
          _______



          The District Court's Opinion
          ____________________________



               The  district court delineated  four relevant  inquiries for



          determining whether  the rule  enunciated in Miranda  v. Arizona,
                                                       _______     _______



          384 U.S. 436 (1966), has been violated: 



               1.   Was the person in "custody"?

               2.   Was the person "interrogated"?

               3.   Had   the   Fifth   Amendment   right   against   self-

          incrimination       attached?

               4.   Had the Sixth Amendment right to counsel attached?



          Under the court's analysis, a violation occurs when "each element



          (custody,  un-Mirandized  interrogation, and  attached  Fifth and



          Sixth Amendment rights) . . . exist[s] simultaneously."


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The court considered  each factor.   It stated that  custody



          "depends  exclusively upon  whether  a reasonable  person in  the



          defendant's position  would have felt  free to  leave."   Because



          "Customs  is  an inherently  coercive  environment  [in that]  an



          individual  is  never  free  to  simply  walk  away,"  the  court



          concluded that  defendants were  in "custody."    In the  court's



          view, "interrogation" was satisfied because "[t]he parties do not



          dispute that all of the questioning conducted by Customs officers



          in this case constituted 'interrogation' as defined and explained



          in Rhode Island v. Innis, 446 U.S. 291 (1980)."
             ____________    _____



               Most of the  court's analysis focused on  whether the rights



          to silence and counsel had attached.  The court held that "in the



          context of  Customs interrogation,  these rights attach  when the



          questioning has ceased to be purely investigatory  and has become



          accusatory."  Elaborating further, the court explained



               [This] has  both an  objective and  subjective element.

               The objective element[]  requires that officers provide

               Miranda warnings when  there exists  probable cause  to
               _______

               make  an arrest . . . . The subjective element requires

               that  officers  provide  Miranda  warnings  when it  is
                                        _______

               apparent  that the  interrogating officer's  purpose in

               questioning is not purely investigatory.



          As applied in the Customs setting: 



               when the  questioning extends beyond that  asked of the

               average   Customs  interrogee  at   either  primary  or

               secondary inspection, we  infer that the  interrogation

               has become sufficiently focused upon the interrogee  to

               require Miranda warnings.
                       _______



               Applying  the  facts to  these  legal  standards, the  court



          concluded that the "interrogation turned accusatorial at the time



          Inspector  Fisher  asked  Cedeno  whether she  was  carrying  any


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money."   At that point, the "investigation  had clearly narrowed



          to a particular  crime with particular defendants,  based on what



          we infer to  have been  substantial, particularized  suspicions."



          Accordingly,  the  court   determined,  all  ensuing   statements



          violated Miranda, and were properly suppressed.
                   _______



                                      DISCUSSION



               The government claims  that the court's  test for a  Miranda
                                                                    _______



          violation  was legally  erroneous.   Defendants concede  that the



          court's approach was novel, but argue that, taken as a  whole, it



          comports  with settled  precedent.   Our task  in this  appeal is



          straightforward:  to set  forth the Miranda test as  derived from
                                              _______



          Supreme Court  and First Circuit  caselaw and assess  whether the



          district  court followed it.  Our standard  of review is de novo.
                                                                   __ ____



          See United States v. Lewis, 40 F.3d 1325, 1332 (1st Cir. 1994).
          ___ _____________    _____



               Miranda warnings must be given before a suspect is subjected
               _______



          to custodial interrogation.  United States v. Taylor, 985 F.2d 3,
                                       _____________    ______



          7  (1st   Cir.  1993).    The   custodial  interrogation  inquiry



          necessarily   demands  determination   of   its  two   subsidiary



          components:   1) custody and  2) interrogation.   See Illinois v.
                                                            ___ ________



          Perkins, 496 U.S. 292, 297 (1990) ("It is the premise  of Miranda
          _______                                                   _______



          that  the danger  of  coercion results  from  the interaction  of



          custody and official interrogation.").  



               The custody determination is the initial and, generally, the



          central  inquiry:  it is "the touchstone  to the need for Miranda
                                                                    _______



          warnings."  United States v.  Quinn, 815 F.2d 153, 160 (1st  Cir.
                      _____________     _____



          1987).  Since  Miranda, the Court has enunciated  several general
                         _______


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definitions of custody, but the ultimate inquiry is whether there



          was  "a formal arrest or restraint on  freedom of movement of the



          degree associated  with a formal  arrest."  Thompson  v. Keohane,
                                                      ________     _______



          116  S.  Ct. 457,  465  (1995)  (quotation  marks  and  citations



          omitted); Stansbury v. California, 114  S. Ct. 1526, 1529  (1994)
                    _________    __________



          (per curiam) (same).1
           ___ ______



               In order to assess the "restraint on freedom of movement," a



          court  must   examine  all  the  circumstances   surrounding  the



          interrogation.    This test  is  objective:   the  only  relevant



          inquiry is "how  a reasonable  man in the  suspect's shoes  would



          have understood his situation."2   Stansbury, 114 S. Ct.  at 1529
                                             _________



          (quoting Berkemer v.  McCarty, 468  U.S. 420, 442  (1984)).   The
                   ________     _______



          subjective  beliefs held  by  the interrogating  officers or  the



          person being interrogated are not germane.  Id.   
                                                      ___



               Relevant  circumstances  include  "whether the  suspect  was



          questioned  in familiar  or  at least  neutral surroundings,  the



          number  of law  enforcement officers  present  at the  scene, the



                              
          ____________________



               1    This  specific  formulation was  first  articulated  in

          California v.  Beheler, 463 U.S.  1121, 1125 (1983)  (per curiam)
          __________     _______                                ___ ______

          and Minnesota  v. Murphy, 465 U.S. 420, 430 (1984).  It served to
              _________     ______

          clarify  the  Court's conception  that  Miranda  applied after  a
                                                  _______

          "person  has been taken into custody or otherwise deprived of his

          freedom of action in any significant  way."  Miranda, 384 U.S. at
                                                       _______

          444 (footnote omitted).



               2   In  Keohane,  the Court  made  clear that  the  ultimate
                       _______

          determination of custody  is a  mixed question of  fact and  law.

          The initial examination of the "totality of the circumstances" is

          factual.   The second  inquiry, however --  whether, objectively,

          these   circumstances  constitute  the  requisite  "restraint  on

          freedom of  movement  of  the  degree associated  with  a  formal

          arrest"  -- requires  the "application  of the  controlling legal

          standard to the historical facts."  116 S. Ct. at 465 & n.11.



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degree  of physical  restraint placed upon  the suspect,  and the



          duration and character  of the interrogation."   United States v.
                                                           _____________



          Masse, 816 F.2d 805,  809 (1st Cir. 1987) (quoting  United States
          _____                                               _____________



          v.  Streifel, 781 F.2d 953, 961 n.13  (1st Cir. 1986)).  See also
              ________                                             ___ ____



          United  States v.  Pratt,  645 F.2d  89,  90-91 (1st  Cir.  1981)
          ______________     _____



          (discussing  factors  in  the  context  of  a  secondary  customs



          search).3



               Determining  what constitutes  custody can  be a  "slippery"



          task.  See  Oregon v. Elstad, 470 U.S. 298,  309 (1985).  Through
                 ___  ______    ______



          case by case development, however, courts have carved out certain



          circumstances  as  legally  insufficient  to  constitute custody.



          See, e.g.,  Berkemer, 468 U.S.  at 437-40 (routine  traffic stops
          ___  ____   ________



          not subject to  dictates of Miranda); United States v. Tajeddini,
                                      _______   _____________    _________



          996   F.2d  1278,   1288   (1st  Cir.   1993)  (routine   Customs



          questioning);  Pratt, 645 F.2d at  90-91 (same).   Indeed, in the
                         _____



          Customs context, we have stated that questions from officials are



          especially understood to be a necessary and important routine for



          travelers arriving at American entry points.  See Pratt, 645 F.2d
                                                        ___ _____



          at 90.   See also United States v. Moya, 74 F.3d 1117, 1120 (11th
                   ___ ____ _____________    ____



          Cir.  1996).   This  understanding cuts  against the  potentially



          coercive  aspect of the Customs inquiry, and lessens the need for



          Miranda warnings.        In   Pratt,  we  made  clear  that  even
          _______                       _____



          secondary  inspection  does  not   per  se  constitute  custodial
                                             ___  __



                              
          ____________________



               3   This  is not  an  exhaustive list.   Other  courts  have

          identified other factors significant  to a custody determination.

          See  Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996) (citing
          ___  _______    _______

          cases).



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interrogation.    We  acknowledged   that  though  "[a]ny  person



          required to  submit to a  secondary customs search  may apprehend



          some  increased  level  of  official  suspicion[,]  .  .  .  this



          perception  . . . is  not sufficient by  itself to apply coercive



          pressures equivalent to custodial questioning."  645  F.2d at 90.



          There,  we found  that  the limited  and  routine nature  of  the



          questioning and short duration of the encounter militated against



          requiring  Miranda warnings.   The  line between  routine Customs
                     _______



          questioning and custodial interrogation  is not easily drawn, but



          it requires careful examination of all the circumstances.  



               The  other  component  of  custodial  interrogation  is,  of



          course,  interrogation.   Interrogation  refers to  both  express



          questioning  and its "functional equivalent," which includes "any



          words  or actions on  the part  of the  police (other  than those



          normally attendant  to arrest and custody) that the police should



          know are  reasonably likely  to elicit an  incriminating response



          from the  suspect."  Rhode  Island v.  Innis, 446  U.S. 291,  301
                               _____________     _____



          (1980) (footnotes omitted).  Again the inquiry is objective:  how



          would the  officer's statements  and  conduct be  perceived by  a



          reasonable  person in the same  circumstances?  See   Taylor, 985
                                                          ___   ______


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F.2d at 7.4  Here, quite clearly, if defendants were in  custody,



          the officers' express questions constituted interrogation.5



               In  summary,  Miranda  warnings  ensure that  an  individual
                             _______



          subject  to custodial  interrogation has  a "full  opportunity to



          exercise the privilege against self-incrimination."  Miranda, 384
                                                               _______



          U.S. at 467.   To  find custodial interrogation,  the court  must



          first  examine  all  the circumstances  surrounding  the exchange



          between the government agent and the suspect, then determine from



          the perspective  of a  reasonable person  in the  suspect's shoes



          whether there was 1) a formal  arrest or restraint on freedom  of



          movement of the  degree associated  with a formal  arrest and  2)



          express questioning or its functional equivalent.



               We  will not  dwell  on all  the  problems in  the  district



          court's  version  of the  Miranda inquiry,  but  point out  a few
                                    _______



          significant errors.  First,  the court took the ultimate  factual



          and  legal question -- were defendants in custody? -- and treated



          it in  a per se manner:   because travelers "may  not simply walk
                   ___ __

                              
          ____________________



               4  However, an  officer's knowledge "'concerning the unusual

          susceptibility of a defendant to a particular form of  persuasion

          might be an important  factor in determining' what the  [officer]

          reasonably should have  known."  Pennsylvania v.  Muniz, 496 U.S.
                                           ____________     _____

          582, 601 (1990) (quoting Innis, 446 U.S. at 302 n.8).       
                                   _____



               5  We note  that not all questioning of  in-custody suspects

          constitutes  interrogation  triggering  the Miranda  protections.
                                                      _______

          For   example,  many   courts   recognize  a   "routine   booking

          interrogation" exception to the Miranda rule.   See United States
                                          _______         ___ _____________

          v.  Doe,  878 F.2d  1546, 1551  (1st  Cir. 1989)  (citing cases).
              ___

          Requesting  biographical  information --  name, address,  etc. --
                                                                    ____

          rarely elicits an incriminating  response and serves a legitimate

          administrative  need.   Id.   If, however,  the officer  seeks to
                                  ___

          elicit information  that may incriminate, the  exception does not

          apply.  Id.  We express no opinion on whether this narrow Miranda
                  ___                                               _______

          exception applies in the Customs setting.



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away from an interrogating  officer," they are in custody.   This



          is simply wrong. Individuals subject  to routine traffic stops or



          customs inspections, circumstances  which are not custodial,  are



          rarely free to leave  while being questioned by an  officer.  The



          relevant inquiry, however, as stated above, is  whether there was



          an  arrest  or restraint  on freedom  of  movement of  the degree



          associated with a formal arrest.    



               The court's  further assertion  that "all  reasonable people



          would  agree that  Customs  is an  inherently custodial  setting,



          regardless  of  the  circumstances  of   the  interrogation,"  is



          directly contrary  to our  decisions in  Tajeddini and  Pratt and
                                                   _________      _____



          runs counter  to the proper  approach articulated by  the Supreme



          Court.    A  custody  determination  requires  inquiry  into  all
                                                                        ___



          circumstances surrounding the interrogation.  See Keohane, 116 S.
                                                        ___ _______



          Ct. at 465 & n.11.    



               Finally, we note that the court, relying on outmoded circuit



          opinions, discussed  certain factors,  such as whether  there was



          probable cause to make an  arrest and the officers' focus  on the



          defendants, which are not relevant to  a Miranda inquiry.  At one
                                                   _______



          time,  certain courts  found these  factors relevant,  see, e.g.,
                                                                 ___  ____



          United  States  v.  Henry, 604  F.2d  908,  915  (5th Cir.  1979)
          ______________      _____



          (articulating a four-factor test  for custody that included these



          factors), but  subsequent Supreme  Court decisions  rejected this



          approach.   See, e.g., Berkemer, 468 U.S. at 442 (emphasizing the
                      ___  ____  ________



          objective  nature of  the inquiry).   Indeed,  in light  of these



          cases,  the  Fifth  Circuit  repudiated  its  four-factor   test,


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announcing that  "[p]robable cause  and focus become  material to



          the  custody  inquiry  only  when  they  influence  a  reasonable



          person's  perception  of  the   situation."    United  States  v.
                                                         ______________



          Bengivenga, 845 F.2d 593,  596-97, 597 (5th Cir. 1988)  (en banc)
          __________                                               __ ____



          (footnote omitted).



               Defendants argue that the court's test, taken as a whole, is



          consistent  with our precedent.  We disagree.  Although there may



          be tests  which, though  formulated differently,  approximate the



          proper standard, this is not one of them.  Accordingly, we remand



          this  case to the district  court for application  of the correct



          legal test.  On remand, the court may take additional evidence on



          the relevant factual issues.  See Streifel, 781 F.2d at 962.
                                        ___ ________



               The order suppressing evidence is vacated.  We remand to the
               ____________________________________________________________



          district court for proceedings consistent with this opinion.
          ____________________________________________________________


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