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-
