United States v. Fernandez-Ventura

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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