Sunday, August 21st, 2011

Custody Battle

United Stateds v. FNU LNU, No. 10-419-cr (2d Cir. August 9, 2011)

(Jacobs, Calabresi, Lohier, CJJ)

Defendant, traveling under the name Sandra Calzada, arrived at JFK on a flight from the DR. A border patrol agent noticed that Calzada had an open arrest warrant, and flagged her for secondary inspection. An “armed guard” escorted her to the secondary inspection room, from which she was not free to leave, and the agent questioned her for 90 minutes without first reading the Miranda warnings.

The interrogation included questions about her pedigree, passport and the like. Eventually, the agent found some discrepancies: she did not look like the photograph on the original passport application, gave inconsistent biographic information, and could not recall any of her addresses in Puerto Rico, where she said she was born.

The district court refused to suppress the statements, holding that Miranda warnings were not required during a “routine border crossing inquiry” and because the questioning was not interrogation. The agent’s “function or intent” was to determine the defendant’s true identity.

The circuit affirmed, albeit on different grounds. The majority squarely rejected the notion that routine border questioning could never be “custodial interrogation” requiring Miranda warnings. While there is a Fourth Amendment exception for routine border searches, there is “no similar exception to Miranda’s prophylactic requirement under the Fifth Amendment.” The circuit has long held that where a “stop” was permissible under the Fourth Amendment is “irrelevant to the Miranda analysis.”

The question thus remains, for Miranda purposes, whether the suspect was “in custody.” The standard is whether “a reasonable person in the suspect’s position would have understood herself to be subjected to restraints comparable to those associated with a formal arrest.” This is a very fact-bound determination requiring close consideration of the circumstances surrounding the encounter with the authorities – the interrogation’s duration, its location, whether the suspect volunteered for the interview, whether the officers used restraints, whether weapons were present or drawn, where the officers told the suspect she was free to leave or under suspicion, and a juvenile suspect’s age. A “reasonable person’s expectations about how the questioning is likely to unfold are also relevant.” This last consideration is important at borders, since a reasonable traveler will “expect some constraints as well as questions and follow-up,” without considering himself to be under arrest.

Here, the court identified “several” facts to suggest that the interrogation was custodial – “it took place in a closed room, out of public view; armed guards escorted the defendant there and remained in the vicinity; it lasted for 90 minutes … [and the agent] took the defendant’s fingerprints and did not inform her she was free to go. On the other hand, “the officers never drew their weapons, no physical restraints were used; and, crucially, a reasonable person would recognize that the questions being asked were “par for the course of entering the country from abroad.”

That said, after seventeen pages of reasoning, here is the court’s entire analysis – a single sentence: “In light of the totality of these circumstances, we conclude that a reasonable person in the defendant’s position would not have considered what occurred to be the equivalent of a formal arrest.”

Conviction affirmed.

Chief Judge Jacobs concurred in result, but did not sign on. He thought this case was too easy, and did not “remotely” merit a “tour d’horizon of Miranda law” or “pages of tendentious analysis in which useful precedents of this Circuit are deconstructed.” To the chief, the majority opinion “unnecessarily complicates what should be a straightforward holding.” Miranda warnings are simply not required in a routine secondary inspection when a reasonable person would consider the questions asked to be relevant to an admissibility or customs determination.

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