United States Court of Appeals,
Eleventh Circuit.
No. 94-4912.
UNITED STATES of America, Plaintiff-Appellee,
v.
Francisco Antonio MOYA, Defendant-Appellant.
Feb. 12, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-37-CR-SH), Shelby Highsmith, District
Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and ENGEL*, Senior
Circuit Judge.
EDMONDSON, Circuit Judge:
Defendant Francisco Moya asserts that statements he made to an
Immigration and Naturalization Service inspector were obtained in
violation of the Fifth Amendment or Miranda v. United States, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He thus urges
reversal of his conviction (before a jury) for illegal reentry into
the United States in violation of 8 U.S.C. § 1326.
I.
Moya arrived in Miami International Airport bearing a
resident-alien card and a Dominican passport. When an INS
inspector ran a computer check on Moya's resident-alien card, that
check yielded a "TECS" match,1 and agents endeavored to determine
whether Moya's arrival in the country was illegal. Moya was
*
Honorable Albert J. Engel, Senior U.S. Circuit Judge for
the Sixth Circuit, sitting by designation.
1
A "TECS" match alerts officials to a person's immigration
history. Here, the match suggested Moya may have been deported.
referred to the "secondary" area at Customs, where Inspector Juan
Lopez, a U.S. Immigration Officer, led Moya to his office and
identified himself. Lopez proceeded to administer an oath to Moya,
to interview Moya, and to transcribe his comments.
Moya's interview transcript was withdrawn as an exhibit
pursuant to an agreement by the government not to use the
transcript. The government did elicit some testimony about the
interview, though, which reveals some of the interview's contents:
Moya said he was entering the United States to see his family,
denied having ever been deported, admitted he was no United States
citizen, and said that he did not use aliases.
When the interview began, Lopez did not know of Moya's
criminal record. Lopez testified that during the interview, a
computer search confirmed that Moya had been earlier deported.
After the interview, investigation by the INS showed Moya had not
sought the permission of the Attorney General's Office to return to
the United States, as is required under 8 U.S.C. § 1326.
Nothing in the record indicates that Moya was handcuffed en
route to or in Lopez's office, was physically held or moved, or was
accompanied by uniformed officers. Nor was he subjected to booking
procedures, told he was not free to leave, or informed of formal
accusations. Nothing indicates that he ever asked to leave or to
see a lawyer.
II.
This circuit has held that aliens at the border are entitled
to Miranda warnings before custodial interrogation. See United
States v. Henry, 604 F.2d 908, 914 (5th Cir.1979); see also Jean
v. Nelson, 727 F.2d 957, 972-73 (11th Cir.1984) (citing Henry ),
aff'd on other grounds, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d
664 (1985).
Whether Moya was "in custody" and entitled to Miranda
warnings is a mixed question of law and fact; we review the
district court's factual findings on the matter for clear error and
its legal conclusions de novo. Jacobs v. Singletary, 952 F.2d
1282, 1291 (11th Cir.1992). At the outset, the issue is whether
"under the totality of the circumstances, a reasonable man in the
suspect's position would feel a restraint on his freedom of
movement ... to such extent that he would not feel free to leave."
United States v. Phillips, 812 F.2d 1355, 1360 (11th Cir.1987)
(citations omitted). The test is objective: the actual,
subjective beliefs of the defendant and the interviewing officer on
whether the defendant was free to leave are irrelevant. Berkemer
v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317
(1984); Phillips, 812 F.2d at 1360. But, to be more specific, the
Supreme Court has said that whether a suspect is in custody turns
on whether restrictions on the suspect's freedom of movement are
"of the degree associated with formal arrest." Minnesota v.
Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1144, 79 L.Ed.2d 409
(1984) (citations omitted). And, under the objective standard, the
reasonable person from whose perspective "custody" is defined is a
reasonable innocent person. See Florida v. Bostick, 501 U.S. 429,
437-38, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991). Whether a
defendant knows he is guilty and believes incriminating evidence
will soon be discovered is irrelevant.
We hold that Moya was not in custody in Inspector Lopez's
office. As noted above, he was not physically moved or restrained
by officers on the way to the scene of the interview. Cf. Jacobs,
952 F.2d at 1291 (person was in custody when grabbed and restrained
by officer). No handcuffs were employed, and no guns were drawn.
Cf. United States v. Blackman, 66 F.3d 1572, 1576-77 & n. 4 (11th
Cir.1995) (even when handcuffed and held at gunpoint, suspect was
not under arrest). He was not booked or told of formal
accusations, nor told that he was under arrest. See Phillips, 812
F.2d at 1362 (suspect not in custody because "he was never placed
under arrest or told that he was under arrest"). He did not ask to
leave, and Inspector Lopez did not communicate to him that he was
not free to do so. See id. (relying on fact suspect never
requested to terminate the interview). Moya made no admissions
during the interview that would have led a reasonable person in his
place to conclude that he would be arrested immediately. Cf.
Henry, 604 F.2d at 920 (when suspect admitted fact establishing
legal violation, he was thereafter in custody). Instead, Moya
denied that he had ever been deported.2
We note that our conclusion is buttressed by case law in this
circuit explaining that whether interrogation is "custodial" should
be interpreted in the light of the strong governmental interest in
controlling the borders. See United States v. Lueck, 678 F.2d 895,
899 (11th Cir.1982) ("Interrogation at the border constitutes one
2
Lopez testified at trial that, while he spoke to Moya, Moya
was actually not "free to leave and roam about in the airport as
he saw fit." We note that this testimony is of no consequence
under the objective test of Berkemer and Phillips, because Lopez
did not communicate his intent to Moya.
notable exception to the constitutional protection of Miranda.
Because of the overriding power and responsibility of the sovereign
to police national borders, the fifth amendment guarantee against
self-incrimination is not offended by routine questioning of those
seeking entry to the United States."). Cf. United States v. Vigil-
Montanel, 753 F.2d 996, 998 (11th Cir.1985) (discussing Lueck in
airport-security context).
Thus, because of the sovereign's responsibility, some degree
of questioning and of delay is necessary and is to be expected at
entry points into the United States. Because of this expectation,
questioning at the border must rise to a distinctly accusatory
level before it can be said that a reasonable person would feel
restraints on his ability to roam to the "degree associated with
formal arrest." Murphy, supra. We stress that events which might
be enough often to signal "custody" away from the border will not
be enough to establish "custody" in the context of entry into the
country. This idea is consistent with cases involving facts
similar to this one, which have indicated that a secondary
interview is part of the border routine and does not require
Miranda warnings.3 E.g., Henry, 604 F.2d at 920 ("[R]eferral of a
person entering this country to a secondary inspector is part of
the "routine' border interrogation and does not, in and of itself,
focus on the person so as to require a Miranda warning."); see
also United States v. Martinez, 588 F.2d 495, 498 (5th Cir.1979)
(interrogation of suspect at border was "routine customs inquiry
3
We recognize that because these cases were decided under
the older, subjective test for custody, they do not control the
outcome here.
for which Miranda warnings are unnecessary").
III.
Moya also argues that his confession was involuntary and so
obtained in violation of the Fifth Amendment. The extensive
evidence introduced on Moya's mental capacities is insufficient to
prove his confession was involuntary. This circuit has held that
"mental deficiencies of a defendant, by themselves, are not
sufficient to render a confession involuntary. To establish that
his confession was involuntary, [a defendant] must also establish
police coercion." Moore v. Dugger, 856 F.2d 129, 132 (11th
Cir.1988). Moya has not asserted that his interview was physically
or psychologically coercive, and therefore his due process argument
is without merit.
Moya's conviction is AFFIRMED.