
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                                         -2-          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."                                         -3-               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                                         -4-          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                         _______                                         -5-          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.                                         -6-          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).                                         -7-          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                                                          ___   ______                                         -8-          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.                                         -9-          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,                                         -10-          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.          ____________________________________________________________                                         -11-
