
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1254                                    UNITED STATES,                                      Appellant,                                          v.                   AMADO FERNANDEZ-VENTURA AND MILAGROS A. CEDE O,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Lynch, Circuit Judge,                                       _____________                  Hill* and John R. Gibson,** Senior Circuit Judges.                                              _____________________                                _____________________               Demetra Lambros, Attorney, Department of Justice,  with whom               _______________          Guillermo  Gil,   United  States  Attorney,  Antonio   R.  Baz n,          ______________                               ___________________          Assistant  United States  Attorney,  and Nina  Goodman, Attorney,                                                   _____________          Department of Justice, were on brief for appellant.               Linda Backiel, with  whom Gregorio Lima and  Carlos Ram rez-               _____________             _____________      _______________          Fiol were on brief for appellees.          ____                                 ____________________                                   January 6, 1998                                 ____________________                                        ____________________          *  Of the Eleventh Circuit, sitting by designation.          **  Of the Eighth Circuit, sitting by designation.                    JOHN R. GIBSON,  Senior Circuit Judge.   Once again the                    JOHN R. GIBSON,  Senior Circuit Judge                                     ____________________          appeal  of the  United States  in  the case  of Amado  Fern ndez-          Ventura and Milagros  Cede o is before us.  Fern ndez-Ventura and          Cede o were indicted for failing to declare currency in excess of          $10,000 brought into  the United States, 31  U.S.C.     5316  and          5322 (1994), and  for making false statements in  a matter within          the  jurisdiction of the United States Customs Service, 18 U.S.C.              1001 (1994).   Their motions to  suppress statements they had          made to the Customs officers at San Juan's international  airport          were  granted on  the  ground  that they  had  been subjected  to          custodial interrogation without the benefit of Miranda1 warnings.                                                         _______          We reversed the district court, United States v. Ventura, 85 F.3d                                          _____________    _______          708 (1st Cir. 1996) (Ventura I), and remanded for reconsideration                               _________          under the proper legal  standard.  The district court  reexamined          the  record in  light of  our  opinion and  again suppressed  the          evidence for failure  to comply with Miranda.   The United States                                               _______          appeals, and we again reverse.                    Fern ndez-Ventura  flew from  St. Maarten,  Netherlands          Antilles,  to San Juan,  Puerto Rico on  November 12,  1994.  The          Customs Service  had Fern ndez-Ventura's name  on a  computerized          "lookout" list,  due  to  his frequent  travel  between  the  two          cities.  After  Fern ndez-Ventura  cleared  immigration,  Customs          inspector  Rose  Espada   sent  him  to  the   secondary  Customs          inspection  area,  where  Customs  officers  Eugene  Fischer  and          Richard  Rausch interviewed him  and searched his  bags.  Officer                                        ____________________          1  Miranda v. Arizona, 384 U.S. 436 (1966).             _______    _______                                         -2-          Fischer asked Fern ndez-Ventura whether he was bringing more than          $10,000  cash into the United States, and Fern ndez-Ventura said,          "No."  He said he had about $8,000.                    Meanwhile,  Officer Rausch  found  women's clothing  in          Fern ndez-Ventura's bag and asked him  why he had it.  Fern ndez-          Ventura replied that the clothing belonged to his "mujer" ("wife"          or "woman"),  who was traveling  with him.  The  inspectors asked          Fern ndez-Ventura where she was, and he took Fischer to find her.          Milagros  Cede o,  Fern ndez-Ventura's  girlfriend,  had  already          cleared  the  check point  and  was  waiting inside  the  Customs          enclosure.    Fern ndez-Ventura  beckoned  to   Cede o,  and  she          returned with  Fischer  and Fern ndez-Ventura  to the  inspection          area.  As they walked, Fischer asked Cede o if she had  more than          $10,000  in cash,  and she  replied  that she  had about  $9,000.          Rausch searched Cede o's purse and found $9,500.                    Rausch then  contacted a supervisor, H ctor  Alvino, to          ask for  permission to  search Fern ndez-Ventura.   Rausch  found          $6,666 in cash on Fern ndez-Ventura.  Alvino then became involved          in the questioning.  Alvino asked Fern ndez-Ventura who owned the          $6,666,  and Fern ndez-Ventura replied that the money belonged to          his  money exchange  company.   Alvino then  asked who  owned the          $9,500 in  Cede o's possession,  and Fern ndez-Ventura said  that          money also  belonged to the company.  Fern ndez-Ventura said that          he was president of the company.2  Alvino then sent for a special                                        ____________________          2  Though Fern dez-Ventura and Cede o each had less than $10,000,          the government contends that all  the money belonged to one owner          and is therefore aggregated.  United States v. Fern ndez-Ventura,                                        _____________    _________________                                         -3-          agent to  arrest Fern ndez-Ventura.   The  agent told  Fischer to          read  Fern ndez-Ventura and  Cede o their  rights.   They  signed          Miranda waiver cards.          _______                    The district court  initially suppressed the statements          made after  Fischer asked Cede o  if she was carrying  any money.          United States v.  Ventura, 892 F. Supp. 362,  369 (D. Puerto Rico          _____________     _______          1995).  The district court held that, since Fern ndez-Ventura and          Cede o were not free to  leave the interview, they were therefore          in  custody and  entitled to Miranda  warnings. The  court wrote,                                       _______          "Customs is  an inherently  coercive environment."   Id.  at 367.                                                               ___          The district court also relied on the officers' state of mind and          their belief that they had a "promising theory of guilt."  Id. at                                                                     ___          369.                    We reversed, holding  that the district court  erred in          concluding  that  Fern ndez-Ventura  and Cede o  were  in custody          because they could not leave.  We held:                      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, . .  . is whether there                      was an arrest or restraint on freedom  of                      movement of the  degree associated with a                      formal arrest.          Ventura I, 85 F.3d at 712.   We further stated that the  district          _________          court  erred  in considering  the  officers' focus  on Fern ndez-          Ventura and Cede o, which was not relevant to a Miranda inquiry.                                                          _______                                        ____________________          892 F. Supp. 362, 370 (D. Puerto Rico 1995).                                         -4-                    On remand,  the district  court reexamined the  custody          issue,   looking  at  three  factors:  (1)   the  nature  of  the          surroundings   and  the  extent   of  police  control   over  the          surroundings; (2) the degree of physical restraint  placed on the          suspect; and (3) the  duration and character of the  questioning.          United  States v. Ventura,  947 F. Supp.  25, 29 (D.  Puerto Rico          ______________    _______          1996).    The district  court  held  that  the surroundings  were          indicative of custody because the officers sent Fern ndez-Ventura          straight  to secondary  inspection  without  first going  through          primary  inspection,  and  because  there  were  "four  uniformed          officers  with the  defendants at  all  times, two  of whom  were          armed."  Id. at 30.   The court conceded that  neither Fern ndez-                   ___          Ventura nor Cede o was physically  restrained, but held that  the          second  factor nevertheless weighed  in favor of  custody because          "they were  unaware of  any ability  to leave  and  were in  fact          unable to leave."   Id.  Moreover,  the court considered it  very                              ___          important  that Cede o  had  already  cleared  Customs  when  the          officers asked her to  return.  Id.  Finally, the  court held the                                          ___          duration  of the questioning,  approximately one hour  and twenty          minutes,  was  indicative of  custody.    Id.   The  court  again                                                    ___          suppressed  the statements made after  Cede o was returned to the          inspection area.  Id. at 31.                            ___                    The district  court's conclusion  that a  person is  in          custody is a mixed  question of fact and law, subject  to de novo          review.  Thompson  v. Keohane, 116 S.  Ct. 457, 460 (1995).   The                   ________     _______          district  court's  findings  of  historical  fact concerning  the                                         -5-          circumstances  of the interrogation are reviewed for clear error.          See Ornelas v.  United States, 116 S. Ct. 1657, 1663 (1996).  The          ___ _______     _____________          ultimate question  is  whether  there was  "a  formal  arrest  or          restraint on freedom of movement  of the degree associated with a          formal arrest."  Thompson, 116  S. Ct. at 465 (internal quotation                           ________          omitted).  The  test is not applied mechanically,  but in view of          the totality of the circumstances.  See id. at 466.   We conclude                                              ___ ___          that the district court once again applied this test erroneously.                    The most significant circumstance is that this incident          occurred in  the course of  a Customs inspection at  our nation's          border.  In the context of Customs inspections, our assessment of          whether an interrogation  is custodial must take into account the          strong governmental  interest in  controlling our  borders.   See                                                                        ___          United  States v.  Moya, 74  F.3d  1117, 1119  (11th Cir.  1996).          ______________     ____          "[Q]uestions from [Customs]  officials are especially  understood          to be a necessary and important routine for travelers arriving at          American  entry  points.   This  understanding  cuts  against the          potentially coercive aspect  of the Customs inquiry,  and lessens          the need  for  Miranda warnings."    Ventura I,  85 F.3d  at  711                         _______               _________          (citations  omitted).  The Eleventh Circuit has stated, "[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 he country."  Moya, 74 F.3d at 1120.                             ____                    In its  conclusion that the surroundings  suggested the          defendants  were  in  custody, the  district  court  placed great          reliance on the fact that the officers skipped primary inspection                                         -6-          and  took Fern ndez-Ventura directly to secondary inspection.  We          said in Ventura I that "even secondary inspection does not per se                  _________                                          ______          constitute custodial  interrogation."   83 F.3d  at 711.   Accord                                                                     ______          United States v. Pratt, 645 F.2d 89, 90 (1st Cir.), cert. denied,          _____________    _____                              ____________          454 U.S. 881  (1981); Moya,  74 F.3d  at 1120.   Since  secondary                                ____          inspection is  not innately custodial,  we fail to see  how going          directly to  secondary  inspection  makes  the  questioning  more          coercive.  As  a practical matter, this likely  reduces the total          time  the traveler  has  to  spend in  Customs,  which makes  the          questioning less coercive, not more.                    The  district court's opinion on remand stated that the          surroundings were  coercive  because "there  were four  uniformed          officers with the defendants at all times."  947 F. Supp.  at 30.          The government pointed out that the officers were not all present          simultaneously.   Espada delivered  Fern ndez-Ventura to  Fischer          and Rausch, and  then left.  Fischer went  with Fern ndez-Ventura          to  get Cede o, and  as the three  of them walked,  Fischer asked          Cede o  what cash  she was  carrying.   After  Fischer found  the          $9,500 on  Cede o, Alvino  appeared on the  scene.   The district          court   changed  its  opinion  on  reconsideration  to  say  that          Fern ndez-Ventura and  Cede o  were  "guarded  by  four  officers          during the course of this incident," 947 F. Supp. at 32 (emphasis          __________________________________          added), but  the court did  not change its conclusion  that there          were too many officers.  We  conclude that the early  involvement          of Espada was inconsequential.   The presence of the three others          is  not so  unusual as  to convert  a Customs inspection  into an                                         -7-          arrest.   See United  States v. Tajeddini,  996 F.2d  1278, 1281,                    ___ ______________    _________          1288   (1st  Cir.  1993)  (three  Customs  officers  present;  no          custody); United States v. Park, 947 F.2d 130, 132-33, 138 (1991)                    _____________    ____          (same), vacated in  part on other grounds, 951 F.2d 634 (5th Cir.                  _________________________________          1992).                    The district court also emphasized the fact that Alvino          and Espada were armed. The court conceded on reconsideration that          "guns were not drawn" during the  incident.  947 F. Supp. at  32.          The  testimony at  the hearing  was that  Espada and  Alvino were          required to  be armed  as part of  their jobs.   The  presence of          armed officers  in this case  was simply  a part  of the  Customs          routine and not an extraordinary circumstance.                    Though  the  district  court conceded  that  Fern ndez-          Ventura and Cede o were  not subjected to physical restraint,  it          resolved the physical restraint factor against the government for          three reasons: (1) the two were "in fact unable to leave," id. at                                                                     ___          30; (2)   Fern ndez-Ventura was  subjected to a  pat-down search,          id.; and  (3) Fischer  requested  that Cede o  return to  Customs          ___          after  she had already  passed through, id.   None of these facts                                                  ___          bears  the weight the district  court placed on  them.  First, in          Ventura  I we specifically instructed  the district court that it          __________          could not infer that travelers  were in custody because they were          not free simply to walk away from Customs inspectors.  85 F.3d at          712.   Yet, the  district court exhibited  the same  reasoning on          remand despite our explicit disapproval.  Next, a pat-down search          in  a  Customs inspection  was  insufficient  to tip  the  scales                                         -8-          against  the government  in Pratt, 645  F.2d at 91,  and there is                                      _____          nothing unusual about the search in  this case to give it greater          importance  here.   Even  though  Cede o had  passed  through the          inspection station,  she had  not left  the international  border          area, with  its attendant obligations to cooperate in the Customs          process.     Moreover,  her  traveling  companion  was  still  in          inspection  and she was  apparently waiting for  him.  Therefore,          her progress past the inspection area did not remove her from the          Customs context.  Cf. United States v. Wardlaw, 576 F.2d 932, 935                            ___ _____________    _______          (1st  Cir.   1978)(applying  relaxed   standard  for   search  at          international border where  defendant not  only cleared  Customs,          but also  left the airport  building before being called  back to          Customs).                    Finally,   the   district   court   found   that    the          interrogation lasted one hour  and twenty minutes.   The district          court held, "This time span ... far exceeds the length of  time a          reasonable  person would endure without feeling restrained."  947          F. Supp. at 34.                    Even  the   finding   of  historical   fact  that   the          questioning took an hour and  twenty minutes is problematic.  The          district  court found  that the  interrogation began  at  8:10 or          8:15, based on Rausch's testimony  about the time of the pat-down          of Fern ndez-Ventura.  The court found the interrogation ended at          9:40 or  9:45, based on  the times  stated in the  Miranda waiver                                                             _______          forms.   Id.   However, these do  not appear  to be  the relevant                   ___          times, since  the pat-down  search occurred near  the end  of the                                         -9-          questioning.  On  the Miranda forms Fern ndez-Ventura  and Cede o                                _______          indicated that  they were  not detained until  9:10.   The record          certainly does not indicate that there was protracted questioning          after the pat-down search.  Rather, the witnesses recounted a few          straightforward questions, followed by a call for a special agent          to  come and  arrest Fern ndez-Ventura  and  Cede o.   Therefore,          although the record may support  the conclusion that one hour and          twenty minutes (or more) elapsed during the defendants' encounter          with Customs, it does not support the district court's  inference          that  they were therefore  subjected to "focused  questioning for          nearly an hour and a half."  947 F. Supp. at 30.                    Additionally, the district court held that  the custody          began when  Fischer began to  question Cede o.   Id. at  31. This                                                           ___          occurred before  the pat-down  search, which  the district  court          used as the beginning  of the one-hour-twenty-minute period.   We          reject the circular reasoning using the lapse of time as a factor          in determining that the two were in custody at a point before the          one-hour-twenty-minute time period even began.                    Moreover, even if the questioning did take one hour and          twenty   minutes,  we  have  already  concluded  that  the  other          circumstances  of the questioning were  routine.  The duration of          the  encounter is "never  a singly determinative  factor," Pratt,                                                                     _____          645  F.2d   at  91,  and  the  duration  in  this  case  was  not          extraordinary.  We  are not prepared  to say Customs  inspections          cannot take this long without becoming an arrest, or even  that a          delay of this length is strongly indicative of arrest.  See Park,                                                                  ___ ____                                         -10-          947 F.2d at  133, 138 (no arrest where  Customs inspection lasted          three to four hours).                    We  conclude that  the factors  cited  by the  district          court  do not    distinguish  this case  from  a routine  Customs          inspection  so  as   to  support  the  court's   conclusion  that          Fern ndez-Ventura  and  Cede o were  in custody.   We  remand for                                                                 remand          further proceedings in accordance with this opinion.                                         -11-
