United States v. Molina-Gomez

United States Court of Appeals
For the First Circuit

No. 13-1494

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE L. MOLINA-GÓMEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Torruella, Lipez, and Barron,
Circuit Judges.

Leonardo M. Aldridge-Kontos, Assistant Federal Public
Defender, with whom Héctor E. Guzmán-Silva, Jr., Federal Public
Defender, Héctor L. Ramos-Vega, Assistant Federal Public Defender,
and Liza L. Rosado-Rodríguez, Research and Writing Specialist, were
on brief, for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

March 20, 2015
 TORRUELLA, Circuit Judge. Jorge L. Molina-Gómez

("Molina") appeals the district court's order denying his motion to

suppress both the heroin discovered in hidden compartments of his

laptop computer and Sony Playstation game console and some of the

statements he made to United States Customs and Border Protection

("CBP") officers upon returning to Puerto Rico from Colombia.

While we find no Fourth Amendment violation, Molina's statements

made during further secondary questioning regarding drug

trafficking activity should have been suppressed. As a result, his

case must be remanded so that he can opt to withdraw his plea and

proceed to trial should he choose to do so.

I. Background1

On August 6, 2012, at approximately 11:00 p.m., Molina

arrived at the Luis Muñoz Marín International Airport in San Juan,

Puerto Rico, via Panama, after a five-day trip to Colombia. This

was the third time in four months in which Molina had taken a short

trip to Colombia, a known source of illegal narcotics. As a

result, the CBP computer system flagged Molina for questioning.

Upon deplaning, Molina was referred to secondary

inspection, where he claimed one carry-on bag, one computer case

1
Because this appeal follows a guilty plea, we draw the facts
from the change-of-plea colloquy and the presentence investigation
report, United States v. Cintrón-Echautegui, 604 F.3d 1, 2 (1st
Cir. 2010), supplementing where necessary from the United States
Immigration and Customs Enforcement ("ICE") Investigation Report.
Notably, the parties do not dispute many of the material facts.

-2-
holding an ACER laptop computer, and one small bag containing a

Sony Playstation. The carry-on bag contained personal belongings,

three cell phones, and a Western Union money gram in the amount of

one million Colombian pesos (approximately $560) sent to Molina at

the Hotel Galaxy the day after he arrived in Colombia by a

Colombian man named Rodolfo Trochez Sardí.

In response to the CBP officers' questions, Molina

explained that he traveled to Cartagena, Colombia, for four days to

visit a friend, "Camilo," whom he met through another friend named

Cynthia. He stated that he purchased his ticket for $500 on the

COPA Airlines website using a credit card, but that he did not have

the credit card with him. Molina told the CBP officers that while

in Colombia he stayed at the Hotel Galaxy and did not leave his

hotel room, but rather just ate and played games on his

Playstation.

These answers raised the CBP officers' suspicions, and

further questioning and investigation revealed problems with

Molina's story. For example, Molina did not know either Camilo or

Cynthia's last name. And, contrary to his assertion, Molina did

not purchase his plane ticket online via credit card, but rather it

was purchased in cash at a Cali, Colombia travel agency. Indeed,

all three of Molina's Colombian trips were booked with cash through

this travel agency.

-3-
 Molina was then escorted to a small (approximately ten-

foot-by-ten-foot), windowless room containing one desk where he was

patted down and subjected to further secondary questioning. He was

in this room for approximately two hours and was asked about his

trip to Colombia, his intentions upon reentry, and drug trafficking

generally. The record is unclear as to what specifically the CBP

officers asked and what Molina's responses were. He did, however,

tell the officers that he had to work the following morning at

8:00 a.m., and he denied any involvement in drug trafficking.

While this questioning was ongoing, other CBP officers

were inspecting Molina's belongings. They X-rayed his laptop,

Playstation, and three cell phones and saw no contraband. They

also confirmed that the electronics were all operational, but noted

that while the laptop turned on, it contained no data despite being

an older model. A review of the three cell phones showed text

messages from Camilo, Sardí, and numerous unidentified others.

These text messages involved money transactions totaling

approximately $8,000 and referenced money Molina had already

received and money he would receive once he arrived in New York.

The phones also revealed a confirmed plane ticket from San Juan to

New York for 9:35 the following morning, contradicting Molina's

statement to CBP officers that he would be working in San Juan at

8:00 a.m.

-4-
 Given all of these red flags, the officers suspected that

Molina was smuggling narcotics. Because the pat-down yielded no

results and the X-ray of Molina's electronics came back negative,

the officers were concerned that Molina was carrying drugs

internally. They explained the situation to Molina, and he

voluntarily consented to a medical exam. At around 1:45 a.m.,

Molina was taken, in shackles,2 to San Gerardo Hospital. An X-ray

exam was inconclusive, so a CT scan was performed and his bowel-

movements were monitored. These tests confirmed that there were no

foreign objects inside Molina's body. Later that day, at around

6:00 p.m., he was released from the hospital and transported back

to the airport.

Upon returning to the airport, Molina was released by CBP

and allowed to enter the United States. He was given all of his

belongings except for the laptop and Playstation, which were

detained for further examination by the CBP Forensics Laboratory

because a dog-sniff "showed interest" in the laptop. Molina was

given a pamphlet explaining the electronic-device detention process

and whom to contact to inquire about the property.

The following day, August 8, the laptop and Playstation

were received by the CBP Forensic Lab. The detention ticket

2
Molina was not handcuffed or restrained during his initial
questioning or during the inspections of his belongings. It is
unclear whether he was handcuffed during the further two-hour
questioning in the small, windowless room.

-5-
indicated that the detention was for "data extraction" but this was

in error, as the electronics were detained in order to be searched

for hidden contraband. Indeed, no data extraction was ever

conducted. Beginning on August 11, Molina started calling the CBP

to inquire about the status of his electronics and when they would

be returned. On August 24, a CBP forensic chemist disassembled the

electronics and found black bags hidden inside sophisticated

compartments of both the laptop and Playstation. The bags'

contents tested positive for heroin -- 511 grams in the laptop and

1.05 kilograms in the Playstation.

On August 28, CBP, in coordination with ICE, called

Molina to inform him that his electronics could be picked up at the

airport. When Molina arrived later that day, he was arrested by

ICE agents. The agents read Molina his rights, which Molina

subsequently waived. He confirmed that he owned both the laptop

and the Playstation, that he took them to Colombia and intended to

return with them, that he had planned to travel to New York the

morning after he returned to Puerto Rico but never did so, and that

his trip to Colombia and New York were paid for by Sardí.

Molina was indicted for possession with intent to

distribute one kilogram or more of heroin, in violation of 21

U.S.C. § 841(a)(1) & (b)(1)(A)(i), in September 2012. In December

2012, he filed a motion to suppress the heroin and any statements

made during the further secondary questioning as violations of his

-6-
Fourth and Fifth Amendment rights, respectively. The motion was

denied via a brief text order, which stated in its entirety:

I am of the opinion that the position advanced
by the government in the opposition to the
motion to suppress is correct as a matter of
law. The Motion to Suppress is denied. If
the defendant pleads, he may preserve the
issue on appeal.

Three days later, Molina entered a conditional plea pursuant to

Rule 11(a)(2) of the Federal Rules of Criminal Procedure,3 and he

now timely appeals the denial.

3
The rule states:

With the consent of the court and the government, a
defendant may enter a conditional plea of guilty or nolo
contendere, reserving in writing the right to have an
appellate court review an adverse determination of a
specified pretrial motion. A defendant who prevails on
appeal may then withdraw the plea.

Fed. R. Crim. P. 11(a)(2). As there was no written plea agreement
in this case, Rule 11(a)(2) was technically violated. However,
Molina, the government, and the district court all understood that
the plea was conditional upon Molina's right to appeal the
suppression ruling. This was explicitly stated in the text order
denying the motion to suppress and again at the change of plea
hearing. Thus, the violation is excused under Rule 11(h) as a
harmless error. See Fed. R. Crim. P. 11(h) ("A variance from the
requirements of this rule is harmless error if it does not affect
substantial rights."). Other courts faced with this issue have
likewise found a conditional plea valid despite the technical
violation. See, e.g., United States v. Santiago, 410 F.3d 193,
197-98 (5th Cir. 2005); United States v. Markling, 7 F.3d 1309,
1313 (7th Cir. 1993).

-7-
 II. Discussion

A. Standard of Review

"We review the [district] court's findings of fact for

clear error and review de novo its conclusions of law and its

rulings on the constitutionality of the government's conduct."

United States v. Beras, 183 F.3d 22, 25 (1st Cir. 1999); see also

United States v. Carrigan, 724 F.3d 39, 45 (1st Cir. 2013) (Fourth

Amendment); United States v. Mittel-Carey, 493 F.3d 36, 39 (1st

Cir. 2007) (Fifth Amendment). Because the district court made no

findings of fact, the entire record is reviewed de novo. United

States v. Robles, 45 F.3d 1, 5 (1st Cir. 1995). So long as "any

reasonable view of the evidence supports it," we will uphold the

denial of the motion to suppress. United States v. Brown, 510 F.3d

57, 64 (1st Cir. 2007) (internal quotation marks and citation

omitted).

B. The Search of the Electronics

Molina first argues that the search of his laptop and

Playstation, which uncovered the hidden heroin, was an unreasonable

search in violation of the Fourth Amendment to the United States

Constitution. Pursuant to the Fourth Amendment,

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.

-8-
U.S. Const. amend. IV. It is well established, however, that "the

Fourth Amendment's balance of reasonableness is qualitatively

different at the international border than in the interior" due to

the "longstanding concern for the protection of the integrity of

the border." United States v. Montoya de Hernández, 473 U.S. 531,

538 (1985). This concern is, "if anything, heightened by the

veritable national crisis in law enforcement caused by smuggling of

illicit narcotics." Id. As a result, there is a recognized

"border search exception" to the warrant requirement. See United

States v. Ramsey, 431 U.S. 606, 619-22 (1977); see also Montoya de

Hernández, 473 U.S. at 538; Beras, 183 F.3d at 25-26.

International airports such as the Luis Muñoz Marín International

Airport are the "functional equivalent" of an international border

and are thus subject to this exception. Robles, 45 F.3d at 5;

United States v. Uricoechea-Casallas, 946 F.2d 162, 164 (1st Cir.

1991).

Under the border search exception, "[r]outine searches of

the persons and effects of entrants are not subject to any

requirement of reasonable suspicion, probable cause, or warrant."

Montoya de Hernández, 473 U.S. at 538; see also United States v.

Braks, 842 F.2d 509, 514 (1st Cir. 1988) ("The First Circuit

standard for routine border searches is the 'no suspicion'

standard."). These searches "are reasonable simply by virtue of

the fact they occur at the border." United States v. Flores-

-9-
Montano, 541 U.S. 149, 152-53 (2004) (quoting Ramsey, 431 U.S. at

616). Non-routine searches, by contrast, require reasonable

suspicion. Montoya de Hernández, 473 U.S. at 541-42; United States

v. Barrow, 448 F.3d 37, 41 (1st Cir. 2006). Though there is no

hard-and-fast rule, and the Supreme Court has cautioned against

"[c]omplex balancing tests," Flores-Montano, 541 U.S. at 152,

whether a search qualifies as "routine" or "not routine" often

depends on the "degree of invasiveness or intrusiveness associated

with" the search. Braks, 842 F.2d at 511-12 (listing numerous

factors to consider). For example, searches that are "highly

intrusive searches of the person," Flores-Montano, 541 U.S. at 152,

such as strip searches and body cavity searches, have been deemed

to be non-routine. E.g., id.; Barrow, 448 F.3d at 41; Braks, 842

F.2d at 512-13; United States v. Kallevig, 534 F.2d 411, 413-14

(1st Cir. 1976). So have searches of property that are

"destructive," Flores-Montano, 541 U.S. at 155-56, such as drilling

a hole in a metal cylinder. Robles, 45 F.3d at 5. By contrast,

pat-downs, Braks, 842 F.2d at 513, searching luggage inside an

aircraft's cargo hold, Uricoechea-Casallas, 946 F.2d at 165,

opening bottles of liquor and testing the contents, Barrow, 448

F.3d at 41, and removing, disassembling, and reassembling a fuel

tank without causing damage, Flores-Montano, 541 U.S. at 154-55,

have all been deemed routine searches.

-10-
 Here, Molina argues that the search of his laptop and

Playstation that led to the discovery of the two heroin bags

constitutes a non-routine and unreasonable search. However, he is

unable to point to any specific act that is either non-routine or

unreasonable. Instead, his argument seems to be that because the

initial X-ray and search of his laptop and Playstation turned up

negative, and because his eighteen-hour detention at the hospital

(to which he consented) showed that he was not carrying drugs

internally, it was therefore unreasonable to detain his laptop and

Playstation for further testing. And, even if it was reasonable to

further detain the electronics initially, he contends, the

detention became unreasonable during the twenty-two days they were

at the CBP lab. The government, for its part, counters that the

search qualifies as a routine border search and thus no suspicion

at all -- let alone reasonable suspicion -- was necessary, but even

if reasonable suspicion was necessary, that standard was satisfied.

We need not categorize the search as either routine or

non-routine because we agree with the government that even assuming

the search was non-routine, reasonable suspicion existed to justify

the search. Reasonable suspicion exists when agents "demonstrate

some objective, articulable facts that justify the intrusion as to

the particular person and place searched." Robles, 45 F.3d at 5

(quoting Uricoechea-Casallas, 946 F.2d at 166); see also Montoya de

Hernández, 473 U.S. at 541-42 (describing reasonable suspicion as

-11-
a "common-sense conclusio[n] about human behavior upon which

practical people, -- including government officials, are entitled

to rely" (alteration in original) (quoting New Jersey v. T.L.O.,

469 U.S. 325, 346 (1985)) (internal quotation marks omitted)).

Such objective, articulable facts are present here.

First, this was Molina's third trip in four months (each only for

a matter of days) to Colombia, a country known for its connection

to drug smuggling. Second, Molina gave odd and suspicious answers

to routine Customs questions. These answers ranged from highly

dubious -- (1) he could not remember the last name of either the

friend he was visiting (Camilo) or the friend who introduced them

(Cynthia); and (2) all he did while in Colombia was stay in the

hotel and play with his Playstation –- to assertions proven to be

flat-out lies -- (3) he claimed to have purchased his ticket online

with a credit card but in actuality paid for it in cash at a travel

agency; and (4) he claimed to be working in Puerto Rico the next

morning but in fact had a confirmed flight to New York City.

Third, his laptop was old and operational, yet it contained no

data. Finally, his phones contained text messages involving prior

and future money transactions. Taken together, these facts easily

give rise to a reasonable suspicion that Molina was attempting to

smuggle narcotics. See Robles, 45 F.3d at 5 (holding that

reasonable suspicion existed where a metal machine part of no

commercial value was shipped "from Colombia -- a known source

-12-
country for narcotics" to a residence in the United States at a

cost higher than its worth, without insurance); United States v.

Lamela, 942 F.2d 100, 102 (1st Cir. 1991) (finding reasonable

suspicion where defendant, among other things, "was a passenger

aboard an international flight originating in Colombia" and "gave

inconsistent responses to routine questions relating to the purpose

of his travel"); Kallevig, 534 F.2d at 414 (explaining that the

"pattern and brevity of [defendant's] recent visits to countries

considered to be important sources of drugs" was "properly noted"

as a relevant factor in evaluating reasonable suspicion).

That the initial X-ray of the electronics and the X-ray,

CT scan, and bowel monitoring of Molina came up negative in no way

alters this conclusion or transforms a legitimate and proper search

into an unreasonable one. "Authorities must be allowed 'to

graduate their response to the demands of any particular

situation,'" Montoya de Hernández, 473 U.S. at 542 (quoting United

States v. Place, 462 U.S. 696, 709 n.10 (1983)), and that is

precisely what the CBP officers did here. The officers had

reasonable suspicion that Molina was smuggling drugs; they just did

not know where the drugs were hidden. There is nothing

unreasonable about the officers shifting their attention back to

the electronics and giving them a more in-depth look once they were

satisfied that the drugs were neither on nor in Molina's body. To

the contrary, this approach is eminently reasonable when one

-13-
considers that a dog-sniff conducted while Molina was at the

hospital showed interest in his laptop.

Similarly, the search did not become unreasonable during

the twenty-two days the electronics were detained. The Supreme

Court has "consistently rejected hard-and-fast time limits,"

instead placing an emphasis on "'common sense and ordinary human

experience.'" Id. at 543 (quoting United States v. Sharpe, 470

U.S. 675, 685 (1985)); see also Flores-Montano, 541 U.S. at 155 n.3

(noting that "[r]espondent points to no cases indicating the Fourth

Amendment shields entrants from inconvenience or delay at the

international border"). Though twenty-two days does seem lengthy,

it is not unreasonable under these circumstances. We will not

second-guess the techniques used by the CBP lab and require that a

faster alternative -- which could have damaged the electronics

during the disassembly and reassembly process, could have put an

unnecessary budgetary and workload strain on the lab, or could even

have failed to detect the expertly hidden heroin -- be employed.4

See Montoya de Hernández, 473 U.S. at 542 ("[C]ourts should not

indulge in 'unrealistic second-guessing,' . . . . '[T]he fact that

the protection of the public might, in the abstract, have been

4
We note that while Molina's laptop and Playstation were detained
for twenty-two days, Molina himself was allowed entry into the
United States upon his return from the hospital. It would be a
different situation -- one we take no position on -- if Molina
himself was also forced to stay in detention during the twenty-two
days his laptop was being held by CBP.

-14-
accomplished by 'less-intrusive' means does not, in itself, render

the search unreasonable.'" (quoting Sharpe, 470 U.S. at 686, 687));

id. at 544 (explaining that the Customs officers were not required

by the Fourth Amendment to "simply shrug [their] shoulders" and

allow an alimentary canal smuggling defendant into the interior

because she had been detained for too long before passing cocaine-

filled balloons (quoting Adams v. Williams, 407 U.S. 143, 145

(1972))). Thus, the search of Molina's laptop and Playstation did

not violate his Fourth Amendment rights.

C. The Further Secondary Questioning

Molina also argues that the further secondary questioning

conducted by the CBP officers in a small, windowless room violated

his Fifth Amendment rights because he was not given his Miranda

warnings prior to being questioned.5 We agree.6

"The Supreme Court developed the Miranda rules as a

prophylactic measure to dissipate the coercion inherent in the

custodial interrogation setting, with a goal of ensuring that any

5
Molina concedes that the initial questioning by the CBP officers
prior to being moved to this room was permissible.
6
When Molina moved to suppress his statements in the district
court, the government failed to respond. Molina thus argues that
the government has waived any opposition to their suppression. We
disagree. By denying Molina's motion to suppress, the district
court "implicitly for[gave] any waiver that may have occurred."
United States v. Scott, 705 F.3d 410, 416 (9th Cir. 2012). In
similar circumstances, we have reached the merits of allegedly
waived arguments, and we will do so here as well. See United
States v. Del-Valle, 566 F.3d 31, 37-38 (1st Cir. 2009).

-15-
statements made by a suspect are 'truly the product of free

choice'" and consistent with the Fifth Amendment to the United

States Constitution. United States v. Vázquez, 857 F.2d 857, 861

(1st Cir. 1988) (quoting Miranda v. Arizona, 384 U.S. 436, 457, 458

(1966)). Accordingly, "[i]t is well established that Miranda

warnings must be communicated to a suspect before he is subjected

to 'custodial interrogation.'" United States v. Nai Fook Li, 206

F.3d 78, 83 (1st Cir. 2000). Both "custody" and "interrogation"

must be present to require Miranda warnings. See, e.g., United

States v. Fernández-Ventura, 85 F.3d 708, 710 (1st Cir. 1996)

("Fernández-Ventura I").

Custody exists where there is "a formal arrest or

restraint on freedom of movement of the degree associated with a

formal arrest." Id. (internal quotation marks and citations

omitted). Though custody is a somewhat amorphous concept, relevant

considerations in a custody determination include, but are not

limited to, "whether the suspect was questioned in familiar or at

least neutral surroundings, the number of law enforcement officers

present at the scene, the degree of physical restraint placed upon

the suspect, and the duration and character of the interrogation."

Id. at 711 (quoting United States v. Masse, 816 F.2d 805, 809 (1st

Cir. 1987)).

In the border context, we also "must take into account

the strong governmental interest in controlling our borders."

-16-
United States v. Fernández-Ventura, 132 F.3d 844, 846 (1st Cir.

1998) ("Fernández-Ventura II"). As a result, the rules surrounding

Miranda at the border are more relaxed. See United States v. Long

Tong Kiam, 432 F.3d 524, 529 (3d Cir. 2006) ("[N]ormal Miranda

rules simply cannot apply to this unique situation at the border.

This is a situation utterly unlike a normal law enforcement

setting." (internal citation omitted)). "[E]vents which might be

enough to signal 'custody' away from the border will not be enough

to establish 'custody' in the context of entry into [t]he country."

Fernández-Ventura II, 132 F.3d at 847 (quoting United States v.

Moya, 74 F.3d 1117, 1120 (11th Cir. 1996)). For example, even

though a traveler being questioned by CBP is not "free to leave,"

he is not necessarily in custody. See Fernández-Ventura I, 85 F.3d

at 711 ("[E]ven secondary inspection does not per se constitute

custodial interrogation."); id. at 712 (explaining that it "is

simply wrong" to conclude that a traveler is in custody because

they "may not simply walk away from an interrogating officer"

(internal quotation marks omitted)); see also United States v.

Butler, 249 F.3d 1094, 1100 (9th Cir. 2001) ("[T]he mere detention

of a person in a border station's security office from which he or

she is not free to leave, while a search of a vehicle occurs, is

not 'custody' for [Miranda] purposes.").

"Relaxed" rules, however, do not mean no rules, and a

review of the record persuades us that, given the totality of the

-17-
circumstances, Molina was, indeed, in custody during this further

secondary questioning. First, Molina was placed in a small,

windowless room, approximately ten-feet-by-ten-feet, with at least

two CBP officers. As we noted in United States v. Pratt, 645 F.2d

89, 90 (1st Cir. 1981), the "confining character of a [C]ustoms

questioning cell, combined with isolation with two probing

inspectors, . . . creates an oppressive atmosphere that we [cannot]

ignore."

Second, Molina was held in this room for between one-and-

a-half and two hours. Though this is "never a singly determinative

factor," id. at 91, the longer someone is detained, the more likely

he is in custody. Compare id. at 90-91 (finding that a fifteen-

minute encounter "supports a characterization of routine [C]ustoms

inquiry rather than custodial interrogation"), and Borodine v.

Douzanis, 592 F.2d 1202, 1208 (1st Cir. 1979) (finding that a ten-

minute encounter was not custodial and referring to similar cases

involving encounters of seventeen-minutes and twenty-minutes), with

United States v. García, 496 F.2d 670, 672-73 (5th Cir. 1974)

(holding an encounter to be custodial where detention lasted "for

at least an hour"). But see Fernández-Ventura II, 132 F.3d at 848

(finding that a one-hour-and-twenty-minute encounter was "not

extraordinary" and did not establish custody where the record did

not support defendant's allegation that he was "subjected to

'focused questioning'" for that entire time).

-18-
 Third, the questioning was not "routine." The CBP

officers were no longer probing whether or not to admit Molina into

the country, as they had already reviewed Molina's travel documents

and therefore confirmed his U.S. citizenship. Instead, they were

probing their suspicions of Molina's involvement with drug

smuggling activity. Cf. Pratt, 645 F.2d at 91 (finding that

because, among other things, "[n]o events transpired to create or

to symbolize a high and evident degree of suspicion about the

appellant by the agents," the encounter did "not transgress the

limits that case law has permitted in the absence of Miranda

warnings").7

Taken together, we conclude that this encounter -- which

involved a lengthy detention in a small, windowless room and

probing questions about potential illegal activity -- went above

and beyond a routine Customs inspection to determine whether or not

Molina should be admitted into the United States. Instead, it was

akin to "'a formal arrest or restraint on freedom of movement of

7
Molina also claims that he was handcuffed to the desk throughout
the entire encounter. The government, meanwhile, counters that
there was no evidence that Molina was handcuffed, outside of his
own self-serving statement. It adds that the surveillance video
shows Molina leaving the secondary area, being escorted to his
carry-on belongings, and returning to the secondary area without
restraints; it was not until Molina was transported to the hospital
that video footage shows him shackled. Because the government
never directly refutes that Molina was handcuffed, this
consideration is, at best, ambiguous. Hence, we cannot factor
whether Molina was handcuffed into our evaluation of whether he was
in custody.

-19-
the degree associated with a formal arrest.'" Fernández-Ventura I,

85 F.3d at 710 (quoting Thompson v. Keohane, 516 U.S. 99, 112

(1995)). Thus, Molina was in custody for Miranda purposes.

Being in custody, however, is only half the equation.

Molina must still prove that he was subject to 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.'" Id.

at 711 (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).

At the same time though, "questions from [Customs] officials are

especially understood to be a necessary and important routine for

travelers arriving at American entry points." Id.; see also Pratt,

645 F.2d at 90 (explaining that individuals "approach official

[airport Customs inspections] inquiry knowing of its greater

necessity and routine"). "This understanding cuts against the

potentially coercive aspect of the Customs inquiry, and [thus]

lessens the need for Miranda warnings." Fernández-Ventura I, 85

F.3d at 711; see also Long Tong Kiam, 432 F.3d at 529 ("We now

reaffirm the well-established authority of border inspectors to ask

questions of those entering the United States."). As a result, a

"careful examination of all the circumstances" is needed in order

-20-
to distinguish between "routine Customs questioning and custodial

interrogation." Fernández-Ventura I, 85 F.3d at 711.

Here, the record is unclear as to what exactly Molina was

asked during secondary questioning. He claims, however -- and the

government does not contest -- that he was asked general questions

regarding his reasons for traveling to another country, his

activities while there, his reasons for entering the United States,

and his involvement in drug-trafficking activities. According to

Molina, this was all "interrogation" because he was in custody

during the further secondary questioning, and thus "all statements"

made while in the small windowless room must be suppressed.

Molina's position is far too broad. Some of the

questions asked, such as Molina's reasons for traveling to

Colombia, what he did while there, and why he decided to return

when he did, were routine questions which we have held do not

constitute interrogation. See, e.g., id. at 710 ("[I]n 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."); United States v.

Tajeddini, 996 F.2d 1278, 1287-88 (1st Cir. 1993) (asking "where [a

traveler] was arriving from and with whom he was traveling"

constitute "routine Customs questions" not requiring Miranda

warnings); United States v. Ledezma-Hernández, 729 F.2d 310, 313

(5th Cir. 1984) (finding that routine questioning at the border as

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to the traveler's destination and the contents of his truck was not

custodial interrogation). Indeed, these are the same questions

Molina was asked during his initial questioning, and he has

conceded that they were appropriate questions.

The CBP officers' questioning into Molina's involvement

with drug activity, however, is more problematic. This line of

questioning had nothing to do with whether or not to admit Molina

into the country. Instead, these questions "symbolize[d] a high

and evident degree of suspicion" by the CBP officers. Cf. Pratt,

645 F.2d at 90-91 (finding that limited questioning seeking an

explanation as to why the traveler possessed a ticket issued for

another person was routine and did not "create or . . . symbolize

a high and evident degree of suspicion about the appellant"). The

officers were already leery that Molina may have been involved in

drug trafficking, and this line of questioning was clearly aimed at

eliciting an incriminating response. See Innis, 446 U.S. at 301;

Fernández-Ventura I, 85 F.3d at 710-12 (finding that questions by

Customs agents into "whether [the defendants were] carrying any

money" would "quite clearly . . . constitute[] interrogation" if

the defendants were in custody); see also Long Tong Kiam, 432 F.3d

at 530 (explaining that interrogation begins once "the inspector's

questions objectively cease to have a bearing on the grounds for

admissibility and instead only further a potential criminal

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prosecution"). The questions regarding Molina's drug trafficking

activities, therefore, constituted interrogation.

Because Molina was in custody during the further

secondary questioning and the questions relating to drug

trafficking constituted interrogation, the CBP officers were

required to give Molina his Miranda warnings. See Fernández-

Ventura I, 85 F.3d at 710. Their failure to do so constituted a

Fifth Amendment violation, and as a result any statements made by

Molina in response to these questions should have been suppressed

by the district court.8

III. Conclusion

Molina's motion to suppress the heroin seized from his

laptop and Playstation was properly denied, as was his motion to

suppress regarding the statements made during his further secondary

questioning as to his travels to and from Colombia and his plans

upon reentry. The statements regarding Molina's drug trafficking

activity, however, should have been suppressed. Given the

remaining admissible evidence against Molina, it is highly unlikely

that the suppression of these statements regarding drug trafficking

8
It is irrelevant that Molina's responses to the drug-trafficking
interrogation were not incriminating. As the Supreme Court
explained in Miranda, "no distinction may be drawn between
inculpatory statements and statements alleged to be merely
'exculpatory'" because even "statements merely intended to be
exculpatory by the defendant are often used to impeach his
testimony at trial or to demonstrate untruths in the statement
given." Miranda, 384 U.S. at 477.

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activity -- activity that Molina emphatically denied at the time --

would have affected his decision to plead guilty. Still, that is

not our decision to make. As we explained in United States v.

Weber, "a court has no right to decide for a defendant that his

decision [to plead guilty] would have been the same had the

evidence the court considers harmless not been present." 668 F.2d

552, 562 (1st Cir. 1981) (adopting the rationale of the Seventh

Circuit and numerous state courts). Molina is entitled to

determine for himself whether he still wishes to plead guilty given

the suppression of the drug-trafficking-related statements, and,

therefore, his case is remanded so he may have the option of

withdrawing his plea and proceeding to trial should he choose to do

so.

REMANDED.

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