United States v. Molina-Gomez , 781 F.3d 13 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1494
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE L. MOLINA-GÓMEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Leonardo M. Aldridge-Kontos, Assistant Federal Public
Defender, with whom Héctor E. Guzmán-Silva, Jr., Federal Public
Defender, Héctor L. Ramos-Vega, Assistant Federal Public Defender,
and Liza L. Rosado-Rodríguez, Research and Writing Specialist, were
on brief, for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
March 20, 2015
TORRUELLA, Circuit Judge. Jorge L. Molina-Gómez
("Molina") appeals the district court's order denying his motion to
suppress both the heroin discovered in hidden compartments of his
laptop computer and Sony Playstation game console and some of the
statements he made to United States Customs and Border Protection
("CBP") officers upon returning to Puerto Rico from Colombia.
While we find no Fourth Amendment violation, Molina's statements
made during further secondary questioning regarding drug
trafficking activity should have been suppressed. As a result, his
case must be remanded so that he can opt to withdraw his plea and
proceed to trial should he choose to do so.
I. Background1
On August 6, 2012, at approximately 11:00 p.m., Molina
arrived at the Luis Muñoz Marín International Airport in San Juan,
Puerto Rico, via Panama, after a five-day trip to Colombia. This
was the third time in four months in which Molina had taken a short
trip to Colombia, a known source of illegal narcotics. As a
result, the CBP computer system flagged Molina for questioning.
Upon deplaning, Molina was referred to secondary
inspection, where he claimed one carry-on bag, one computer case
1
Because this appeal follows a guilty plea, we draw the facts
from the change-of-plea colloquy and the presentence investigation
report, United States v. Cintrón-Echautegui, 604 F.3d 1, 2 (1st
Cir. 2010), supplementing where necessary from the United States
Immigration and Customs Enforcement ("ICE") Investigation Report.
Notably, the parties do not dispute many of the material facts.
-2-
holding an ACER laptop computer, and one small bag containing a
Sony Playstation. The carry-on bag contained personal belongings,
three cell phones, and a Western Union money gram in the amount of
one million Colombian pesos (approximately $560) sent to Molina at
the Hotel Galaxy the day after he arrived in Colombia by a
Colombian man named Rodolfo Trochez Sardí.
In response to the CBP officers' questions, Molina
explained that he traveled to Cartagena, Colombia, for four days to
visit a friend, "Camilo," whom he met through another friend named
Cynthia. He stated that he purchased his ticket for $500 on the
COPA Airlines website using a credit card, but that he did not have
the credit card with him. Molina told the CBP officers that while
in Colombia he stayed at the Hotel Galaxy and did not leave his
hotel room, but rather just ate and played games on his
Playstation.
These answers raised the CBP officers' suspicions, and
further questioning and investigation revealed problems with
Molina's story. For example, Molina did not know either Camilo or
Cynthia's last name. And, contrary to his assertion, Molina did
not purchase his plane ticket online via credit card, but rather it
was purchased in cash at a Cali, Colombia travel agency. Indeed,
all three of Molina's Colombian trips were booked with cash through
this travel agency.
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Molina was then escorted to a small (approximately ten-
foot-by-ten-foot), windowless room containing one desk where he was
patted down and subjected to further secondary questioning. He was
in this room for approximately two hours and was asked about his
trip to Colombia, his intentions upon reentry, and drug trafficking
generally. The record is unclear as to what specifically the CBP
officers asked and what Molina's responses were. He did, however,
tell the officers that he had to work the following morning at
8:00 a.m., and he denied any involvement in drug trafficking.
While this questioning was ongoing, other CBP officers
were inspecting Molina's belongings. They X-rayed his laptop,
Playstation, and three cell phones and saw no contraband. They
also confirmed that the electronics were all operational, but noted
that while the laptop turned on, it contained no data despite being
an older model. A review of the three cell phones showed text
messages from Camilo, Sardí, and numerous unidentified others.
These text messages involved money transactions totaling
approximately $8,000 and referenced money Molina had already
received and money he would receive once he arrived in New York.
The phones also revealed a confirmed plane ticket from San Juan to
New York for 9:35 the following morning, contradicting Molina's
statement to CBP officers that he would be working in San Juan at
8:00 a.m.
-4-
Given all of these red flags, the officers suspected that
Molina was smuggling narcotics. Because the pat-down yielded no
results and the X-ray of Molina's electronics came back negative,
the officers were concerned that Molina was carrying drugs
internally. They explained the situation to Molina, and he
voluntarily consented to a medical exam. At around 1:45 a.m.,
Molina was taken, in shackles,2 to San Gerardo Hospital. An X-ray
exam was inconclusive, so a CT scan was performed and his bowel-
movements were monitored. These tests confirmed that there were no
foreign objects inside Molina's body. Later that day, at around
6:00 p.m., he was released from the hospital and transported back
to the airport.
Upon returning to the airport, Molina was released by CBP
and allowed to enter the United States. He was given all of his
belongings except for the laptop and Playstation, which were
detained for further examination by the CBP Forensics Laboratory
because a dog-sniff "showed interest" in the laptop. Molina was
given a pamphlet explaining the electronic-device detention process
and whom to contact to inquire about the property.
The following day, August 8, the laptop and Playstation
were received by the CBP Forensic Lab. The detention ticket
2
Molina was not handcuffed or restrained during his initial
questioning or during the inspections of his belongings. It is
unclear whether he was handcuffed during the further two-hour
questioning in the small, windowless room.
-5-
indicated that the detention was for "data extraction" but this was
in error, as the electronics were detained in order to be searched
for hidden contraband. Indeed, no data extraction was ever
conducted. Beginning on August 11, Molina started calling the CBP
to inquire about the status of his electronics and when they would
be returned. On August 24, a CBP forensic chemist disassembled the
electronics and found black bags hidden inside sophisticated
compartments of both the laptop and Playstation. The bags'
contents tested positive for heroin -- 511 grams in the laptop and
1.05 kilograms in the Playstation.
On August 28, CBP, in coordination with ICE, called
Molina to inform him that his electronics could be picked up at the
airport. When Molina arrived later that day, he was arrested by
ICE agents. The agents read Molina his rights, which Molina
subsequently waived. He confirmed that he owned both the laptop
and the Playstation, that he took them to Colombia and intended to
return with them, that he had planned to travel to New York the
morning after he returned to Puerto Rico but never did so, and that
his trip to Colombia and New York were paid for by Sardí.
Molina was indicted for possession with intent to
distribute one kilogram or more of heroin, in violation of 21
U.S.C. § 841(a)(1) & (b)(1)(A)(i), in September 2012. In December
2012, he filed a motion to suppress the heroin and any statements
made during the further secondary questioning as violations of his
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Fourth and Fifth Amendment rights, respectively. The motion was
denied via a brief text order, which stated in its entirety:
I am of the opinion that the position advanced
by the government in the opposition to the
motion to suppress is correct as a matter of
law. The Motion to Suppress is denied. If
the defendant pleads, he may preserve the
issue on appeal.
Three days later, Molina entered a conditional plea pursuant to
Rule 11(a)(2) of the Federal Rules of Criminal Procedure,3 and he
now timely appeals the denial.
3
The rule states:
With the consent of the court and the government, a
defendant may enter a conditional plea of guilty or nolo
contendere, reserving in writing the right to have an
appellate court review an adverse determination of a
specified pretrial motion. A defendant who prevails on
appeal may then withdraw the plea.
Fed. R. Crim. P. 11(a)(2). As there was no written plea agreement
in this case, Rule 11(a)(2) was technically violated. However,
Molina, the government, and the district court all understood that
the plea was conditional upon Molina's right to appeal the
suppression ruling. This was explicitly stated in the text order
denying the motion to suppress and again at the change of plea
hearing. Thus, the violation is excused under Rule 11(h) as a
harmless error. See Fed. R. Crim. P. 11(h) ("A variance from the
requirements of this rule is harmless error if it does not affect
substantial rights."). Other courts faced with this issue have
likewise found a conditional plea valid despite the technical
violation. See, e.g., United States v. Santiago, 410 F.3d 193,
197-98 (5th Cir. 2005); United States v. Markling, 7 F.3d 1309,
1313 (7th Cir. 1993).
-7-
II. Discussion
A. Standard of Review
"We review the [district] court's findings of fact for
clear error and review de novo its conclusions of law and its
rulings on the constitutionality of the government's conduct."
United States v. Beras, 183 F.3d 22, 25 (1st Cir. 1999); see also
United States v. Carrigan, 724 F.3d 39, 45 (1st Cir. 2013) (Fourth
Amendment); United States v. Mittel-Carey, 493 F.3d 36, 39 (1st
Cir. 2007) (Fifth Amendment). Because the district court made no
findings of fact, the entire record is reviewed de novo. United
States v. Robles, 45 F.3d 1, 5 (1st Cir. 1995). So long as "any
reasonable view of the evidence supports it," we will uphold the
denial of the motion to suppress. United States v. Brown, 510 F.3d
57, 64 (1st Cir. 2007) (internal quotation marks and citation
omitted).
B. The Search of the Electronics
Molina first argues that the search of his laptop and
Playstation, which uncovered the hidden heroin, was an unreasonable
search in violation of the Fourth Amendment to the United States
Constitution. Pursuant to the Fourth Amendment,
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
-8-
U.S. Const. amend. IV. It is well established, however, that "the
Fourth Amendment's balance of reasonableness is qualitatively
different at the international border than in the interior" due to
the "longstanding concern for the protection of the integrity of
the border." United States v. Montoya de Hernández, 473 U.S. 531,
538 (1985). This concern is, "if anything, heightened by the
veritable national crisis in law enforcement caused by smuggling of
illicit narcotics." Id. As a result, there is a recognized
"border search exception" to the warrant requirement. See United
States v. Ramsey, 431 U.S. 606, 619-22 (1977); see also Montoya de
Hernández, 473 U.S. at 538; Beras, 183 F.3d at 25-26.
International airports such as the Luis Muñoz Marín International
Airport are the "functional equivalent" of an international border
and are thus subject to this exception. Robles, 45 F.3d at 5;
United States v. Uricoechea-Casallas, 946 F.2d 162, 164 (1st Cir.
1991).
Under the border search exception, "[r]outine searches of
the persons and effects of entrants are not subject to any
requirement of reasonable suspicion, probable cause, or warrant."
Montoya de Hernández, 473 U.S. at 538; see also United States v.
Braks, 842 F.2d 509, 514 (1st Cir. 1988) ("The First Circuit
standard for routine border searches is the 'no suspicion'
standard."). These searches "are reasonable simply by virtue of
the fact they occur at the border." United States v. Flores-
-9-
Montano, 541 U.S. 149, 152-53 (2004) (quoting Ramsey, 431 U.S. at
616). Non-routine searches, by contrast, require reasonable
suspicion. Montoya de Hernández, 473 U.S. at 541-42; United States
v. Barrow, 448 F.3d 37, 41 (1st Cir. 2006). Though there is no
hard-and-fast rule, and the Supreme Court has cautioned against
"[c]omplex balancing tests," Flores-Montano, 541 U.S. at 152,
whether a search qualifies as "routine" or "not routine" often
depends on the "degree of invasiveness or intrusiveness associated
with" the search. Braks, 842 F.2d at 511-12 (listing numerous
factors to consider). For example, searches that are "highly
intrusive searches of the person," Flores-Montano, 541 U.S. at 152,
such as strip searches and body cavity searches, have been deemed
to be non-routine. E.g., id.; Barrow, 448 F.3d at 41; Braks, 842
F.2d at 512-13; United States v. Kallevig, 534 F.2d 411, 413-14
(1st Cir. 1976). So have searches of property that are
"destructive," Flores-Montano, 541 U.S. at 155-56, such as drilling
a hole in a metal cylinder. Robles, 45 F.3d at 5. By contrast,
pat-downs, Braks, 842 F.2d at 513, searching luggage inside an
aircraft's cargo hold, Uricoechea-Casallas, 946 F.2d at 165,
opening bottles of liquor and testing the contents, Barrow, 448
F.3d at 41, and removing, disassembling, and reassembling a fuel
tank without causing damage, Flores-Montano, 541 U.S. at 154-55,
have all been deemed routine searches.
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Here, Molina argues that the search of his laptop and
Playstation that led to the discovery of the two heroin bags
constitutes a non-routine and unreasonable search. However, he is
unable to point to any specific act that is either non-routine or
unreasonable. Instead, his argument seems to be that because the
initial X-ray and search of his laptop and Playstation turned up
negative, and because his eighteen-hour detention at the hospital
(to which he consented) showed that he was not carrying drugs
internally, it was therefore unreasonable to detain his laptop and
Playstation for further testing. And, even if it was reasonable to
further detain the electronics initially, he contends, the
detention became unreasonable during the twenty-two days they were
at the CBP lab. The government, for its part, counters that the
search qualifies as a routine border search and thus no suspicion
at all -- let alone reasonable suspicion -- was necessary, but even
if reasonable suspicion was necessary, that standard was satisfied.
We need not categorize the search as either routine or
non-routine because we agree with the government that even assuming
the search was non-routine, reasonable suspicion existed to justify
the search. Reasonable suspicion exists when agents "demonstrate
some objective, articulable facts that justify the intrusion as to
the particular person and place searched." Robles, 45 F.3d at 5
(quoting Uricoechea-Casallas, 946 F.2d at 166); see also Montoya de
Hernández, 473 U.S. at 541-42 (describing reasonable suspicion as
-11-
a "common-sense conclusio[n] about human behavior upon which
practical people, -- including government officials, are entitled
to rely" (alteration in original) (quoting New Jersey v. T.L.O.,
469 U.S. 325, 346 (1985)) (internal quotation marks omitted)).
Such objective, articulable facts are present here.
First, this was Molina's third trip in four months (each only for
a matter of days) to Colombia, a country known for its connection
to drug smuggling. Second, Molina gave odd and suspicious answers
to routine Customs questions. These answers ranged from highly
dubious -- (1) he could not remember the last name of either the
friend he was visiting (Camilo) or the friend who introduced them
(Cynthia); and (2) all he did while in Colombia was stay in the
hotel and play with his Playstation –- to assertions proven to be
flat-out lies -- (3) he claimed to have purchased his ticket online
with a credit card but in actuality paid for it in cash at a travel
agency; and (4) he claimed to be working in Puerto Rico the next
morning but in fact had a confirmed flight to New York City.
Third, his laptop was old and operational, yet it contained no
data. Finally, his phones contained text messages involving prior
and future money transactions. Taken together, these facts easily
give rise to a reasonable suspicion that Molina was attempting to
smuggle narcotics. See Robles, 45 F.3d at 5 (holding that
reasonable suspicion existed where a metal machine part of no
commercial value was shipped "from Colombia -- a known source
-12-
country for narcotics" to a residence in the United States at a
cost higher than its worth, without insurance); United States v.
Lamela, 942 F.2d 100, 102 (1st Cir. 1991) (finding reasonable
suspicion where defendant, among other things, "was a passenger
aboard an international flight originating in Colombia" and "gave
inconsistent responses to routine questions relating to the purpose
of his travel"); Kallevig, 534 F.2d at 414 (explaining that the
"pattern and brevity of [defendant's] recent visits to countries
considered to be important sources of drugs" was "properly noted"
as a relevant factor in evaluating reasonable suspicion).
That the initial X-ray of the electronics and the X-ray,
CT scan, and bowel monitoring of Molina came up negative in no way
alters this conclusion or transforms a legitimate and proper search
into an unreasonable one. "Authorities must be allowed 'to
graduate their response to the demands of any particular
situation,'" Montoya de Hernández, 473 U.S. at 542 (quoting United
States v. Place, 462 U.S. 696, 709 n.10 (1983)), and that is
precisely what the CBP officers did here. The officers had
reasonable suspicion that Molina was smuggling drugs; they just did
not know where the drugs were hidden. There is nothing
unreasonable about the officers shifting their attention back to
the electronics and giving them a more in-depth look once they were
satisfied that the drugs were neither on nor in Molina's body. To
the contrary, this approach is eminently reasonable when one
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considers that a dog-sniff conducted while Molina was at the
hospital showed interest in his laptop.
Similarly, the search did not become unreasonable during
the twenty-two days the electronics were detained. The Supreme
Court has "consistently rejected hard-and-fast time limits,"
instead placing an emphasis on "'common sense and ordinary human
experience.'" Id. at 543 (quoting United States v. Sharpe, 470
U.S. 675, 685 (1985)); see also Flores-Montano, 541 U.S. at 155 n.3
(noting that "[r]espondent points to no cases indicating the Fourth
Amendment shields entrants from inconvenience or delay at the
international border"). Though twenty-two days does seem lengthy,
it is not unreasonable under these circumstances. We will not
second-guess the techniques used by the CBP lab and require that a
faster alternative -- which could have damaged the electronics
during the disassembly and reassembly process, could have put an
unnecessary budgetary and workload strain on the lab, or could even
have failed to detect the expertly hidden heroin -- be employed.4
See Montoya de Hernández, 473 U.S. at 542 ("[C]ourts should not
indulge in 'unrealistic second-guessing,' . . . . '[T]he fact that
the protection of the public might, in the abstract, have been
4
We note that while Molina's laptop and Playstation were detained
for twenty-two days, Molina himself was allowed entry into the
United States upon his return from the hospital. It would be a
different situation -- one we take no position on -- if Molina
himself was also forced to stay in detention during the twenty-two
days his laptop was being held by CBP.
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accomplished by 'less-intrusive' means does not, in itself, render
the search unreasonable.'" (quoting Sharpe, 470 U.S. at 686, 687));
id. at 544 (explaining that the Customs officers were not required
by the Fourth Amendment to "simply shrug [their] shoulders" and
allow an alimentary canal smuggling defendant into the interior
because she had been detained for too long before passing cocaine-
filled balloons (quoting Adams v. Williams, 407 U.S. 143, 145
(1972))). Thus, the search of Molina's laptop and Playstation did
not violate his Fourth Amendment rights.
C. The Further Secondary Questioning
Molina also argues that the further secondary questioning
conducted by the CBP officers in a small, windowless room violated
his Fifth Amendment rights because he was not given his Miranda
warnings prior to being questioned.5 We agree.6
"The Supreme Court developed the Miranda rules as a
prophylactic measure to dissipate the coercion inherent in the
custodial interrogation setting, with a goal of ensuring that any
5
Molina concedes that the initial questioning by the CBP officers
prior to being moved to this room was permissible.
6
When Molina moved to suppress his statements in the district
court, the government failed to respond. Molina thus argues that
the government has waived any opposition to their suppression. We
disagree. By denying Molina's motion to suppress, the district
court "implicitly for[gave] any waiver that may have occurred."
United States v. Scott, 705 F.3d 410, 416 (9th Cir. 2012). In
similar circumstances, we have reached the merits of allegedly
waived arguments, and we will do so here as well. See United
States v. Del-Valle, 566 F.3d 31, 37-38 (1st Cir. 2009).
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statements made by a suspect are 'truly the product of free
choice'" and consistent with the Fifth Amendment to the United
States Constitution. United States v. Vázquez, 857 F.2d 857, 861
(1st Cir. 1988) (quoting Miranda v. Arizona, 384 U.S. 436, 457, 458
(1966)). Accordingly, "[i]t is well established that Miranda
warnings must be communicated to a suspect before he is subjected
to 'custodial interrogation.'" United States v. Nai Fook Li, 206
F.3d 78, 83 (1st Cir. 2000). Both "custody" and "interrogation"
must be present to require Miranda warnings. See, e.g., United
States v. Fernández-Ventura, 85 F.3d 708, 710 (1st Cir. 1996)
("Fernández-Ventura I").
Custody exists where there is "a formal arrest or
restraint on freedom of movement of the degree associated with a
formal arrest." Id. (internal quotation marks and citations
omitted). Though custody is a somewhat amorphous concept, relevant
considerations in a custody determination include, but are not
limited to, "whether the suspect was questioned in familiar or at
least neutral surroundings, the number of law enforcement officers
present at the scene, the degree of physical restraint placed upon
the suspect, and the duration and character of the interrogation."
Id. at 711 (quoting United States v. Masse, 816 F.2d 805, 809 (1st
Cir. 1987)).
In the border context, we also "must take into account
the strong governmental interest in controlling our borders."
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United States v. Fernández-Ventura, 132 F.3d 844, 846 (1st Cir.
1998) ("Fernández-Ventura II"). As a result, the rules surrounding
Miranda at the border are more relaxed. See United States v. Long
Tong Kiam, 432 F.3d 524, 529 (3d Cir. 2006) ("[N]ormal Miranda
rules simply cannot apply to this unique situation at the border.
This is a situation utterly unlike a normal law enforcement
setting." (internal citation omitted)). "[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 [t]he country."
Fernández-Ventura II, 132 F.3d at 847 (quoting United States v.
Moya, 74 F.3d 1117, 1120 (11th Cir. 1996)). For example, even
though a traveler being questioned by CBP is not "free to leave,"
he is not necessarily in custody. See Fernández-Ventura I, 85 F.3d
at 711 ("[E]ven secondary inspection does not per se constitute
custodial interrogation."); id. at 712 (explaining that it "is
simply wrong" to conclude that a traveler is in custody because
they "may not simply walk away from an interrogating officer"
(internal quotation marks omitted)); see also United States v.
Butler, 249 F.3d 1094, 1100 (9th Cir. 2001) ("[T]he mere detention
of a person in a border station's security office from which he or
she is not free to leave, while a search of a vehicle occurs, is
not 'custody' for [Miranda] purposes.").
"Relaxed" rules, however, do not mean no rules, and a
review of the record persuades us that, given the totality of the
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circumstances, Molina was, indeed, in custody during this further
secondary questioning. First, Molina was placed in a small,
windowless room, approximately ten-feet-by-ten-feet, with at least
two CBP officers. As we noted in United States v. Pratt, 645 F.2d
89, 90 (1st Cir. 1981), the "confining character of a [C]ustoms
questioning cell, combined with isolation with two probing
inspectors, . . . creates an oppressive atmosphere that we [cannot]
ignore."
Second, Molina was held in this room for between one-and-
a-half and two hours. Though this is "never a singly determinative
factor," id. at 91, the longer someone is detained, the more likely
he is in custody. Compare id. at 90-91 (finding that a fifteen-
minute encounter "supports a characterization of routine [C]ustoms
inquiry rather than custodial interrogation"), and Borodine v.
Douzanis, 592 F.2d 1202, 1208 (1st Cir. 1979) (finding that a ten-
minute encounter was not custodial and referring to similar cases
involving encounters of seventeen-minutes and twenty-minutes), with
United States v. García, 496 F.2d 670, 672-73 (5th Cir. 1974)
(holding an encounter to be custodial where detention lasted "for
at least an hour"). But see Fernández-Ventura II, 132 F.3d at 848
(finding that a one-hour-and-twenty-minute encounter was "not
extraordinary" and did not establish custody where the record did
not support defendant's allegation that he was "subjected to
'focused questioning'" for that entire time).
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Third, the questioning was not "routine." The CBP
officers were no longer probing whether or not to admit Molina into
the country, as they had already reviewed Molina's travel documents
and therefore confirmed his U.S. citizenship. Instead, they were
probing their suspicions of Molina's involvement with drug
smuggling activity. Cf. Pratt, 645 F.2d at 91 (finding that
because, among other things, "[n]o events transpired to create or
to symbolize a high and evident degree of suspicion about the
appellant by the agents," the encounter did "not transgress the
limits that case law has permitted in the absence of Miranda
warnings").7
Taken together, we conclude that this encounter -- which
involved a lengthy detention in a small, windowless room and
probing questions about potential illegal activity -- went above
and beyond a routine Customs inspection to determine whether or not
Molina should be admitted into the United States. Instead, it was
akin to "'a formal arrest or restraint on freedom of movement of
7
Molina also claims that he was handcuffed to the desk throughout
the entire encounter. The government, meanwhile, counters that
there was no evidence that Molina was handcuffed, outside of his
own self-serving statement. It adds that the surveillance video
shows Molina leaving the secondary area, being escorted to his
carry-on belongings, and returning to the secondary area without
restraints; it was not until Molina was transported to the hospital
that video footage shows him shackled. Because the government
never directly refutes that Molina was handcuffed, this
consideration is, at best, ambiguous. Hence, we cannot factor
whether Molina was handcuffed into our evaluation of whether he was
in custody.
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the degree associated with a formal arrest.'" Fernández-Ventura I,
85 F.3d at 710 (quoting Thompson v. Keohane, 516 U.S. 99, 112
(1995)). Thus, Molina was in custody for Miranda purposes.
Being in custody, however, is only half the equation.
Molina must still prove that he was subject to 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.'" Id.
at 711 (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).
At the same time though, "questions from [Customs] officials are
especially understood to be a necessary and important routine for
travelers arriving at American entry points." Id.; see also Pratt,
645 F.2d at 90 (explaining that individuals "approach official
[airport Customs inspections] inquiry knowing of its greater
necessity and routine"). "This understanding cuts against the
potentially coercive aspect of the Customs inquiry, and [thus]
lessens the need for Miranda warnings." Fernández-Ventura I, 85
F.3d at 711; see also Long Tong Kiam, 432 F.3d at 529 ("We now
reaffirm the well-established authority of border inspectors to ask
questions of those entering the United States."). As a result, a
"careful examination of all the circumstances" is needed in order
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to distinguish between "routine Customs questioning and custodial
interrogation." Fernández-Ventura I, 85 F.3d at 711.
Here, the record is unclear as to what exactly Molina was
asked during secondary questioning. He claims, however -- and the
government does not contest -- that he was asked general questions
regarding his reasons for traveling to another country, his
activities while there, his reasons for entering the United States,
and his involvement in drug-trafficking activities. According to
Molina, this was all "interrogation" because he was in custody
during the further secondary questioning, and thus "all statements"
made while in the small windowless room must be suppressed.
Molina's position is far too broad. Some of the
questions asked, such as Molina's reasons for traveling to
Colombia, what he did while there, and why he decided to return
when he did, were routine questions which we have held do not
constitute interrogation. See, e.g., id. at 710 ("[I]n 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."); United States v.
Tajeddini, 996 F.2d 1278, 1287-88 (1st Cir. 1993) (asking "where [a
traveler] was arriving from and with whom he was traveling"
constitute "routine Customs questions" not requiring Miranda
warnings); United States v. Ledezma-Hernández, 729 F.2d 310, 313
(5th Cir. 1984) (finding that routine questioning at the border as
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to the traveler's destination and the contents of his truck was not
custodial interrogation). Indeed, these are the same questions
Molina was asked during his initial questioning, and he has
conceded that they were appropriate questions.
The CBP officers' questioning into Molina's involvement
with drug activity, however, is more problematic. This line of
questioning had nothing to do with whether or not to admit Molina
into the country. Instead, these questions "symbolize[d] a high
and evident degree of suspicion" by the CBP officers. Cf. Pratt,
645 F.2d at 90-91 (finding that limited questioning seeking an
explanation as to why the traveler possessed a ticket issued for
another person was routine and did not "create or . . . symbolize
a high and evident degree of suspicion about the appellant"). The
officers were already leery that Molina may have been involved in
drug trafficking, and this line of questioning was clearly aimed at
eliciting an incriminating response. See Innis, 446 U.S. at 301;
Fernández-Ventura I, 85 F.3d at 710-12 (finding that questions by
Customs agents into "whether [the defendants were] carrying any
money" would "quite clearly . . . constitute[] interrogation" if
the defendants were in custody); see also Long Tong Kiam, 432 F.3d
at 530 (explaining that interrogation begins once "the inspector's
questions objectively cease to have a bearing on the grounds for
admissibility and instead only further a potential criminal
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prosecution"). The questions regarding Molina's drug trafficking
activities, therefore, constituted interrogation.
Because Molina was in custody during the further
secondary questioning and the questions relating to drug
trafficking constituted interrogation, the CBP officers were
required to give Molina his Miranda warnings. See Fernández-
Ventura I, 85 F.3d at 710. Their failure to do so constituted a
Fifth Amendment violation, and as a result any statements made by
Molina in response to these questions should have been suppressed
by the district court.8
III. Conclusion
Molina's motion to suppress the heroin seized from his
laptop and Playstation was properly denied, as was his motion to
suppress regarding the statements made during his further secondary
questioning as to his travels to and from Colombia and his plans
upon reentry. The statements regarding Molina's drug trafficking
activity, however, should have been suppressed. Given the
remaining admissible evidence against Molina, it is highly unlikely
that the suppression of these statements regarding drug trafficking
8
It is irrelevant that Molina's responses to the drug-trafficking
interrogation were not incriminating. As the Supreme Court
explained in Miranda, "no distinction may be drawn between
inculpatory statements and statements alleged to be merely
'exculpatory'" because even "statements merely intended to be
exculpatory by the defendant are often used to impeach his
testimony at trial or to demonstrate untruths in the statement
given." Miranda, 384 U.S. at 477.
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activity -- activity that Molina emphatically denied at the time --
would have affected his decision to plead guilty. Still, that is
not our decision to make. As we explained in United States v.
Weber, "a court has no right to decide for a defendant that his
decision [to plead guilty] would have been the same had the
evidence the court considers harmless not been present." 668 F.2d
552, 562 (1st Cir. 1981) (adopting the rationale of the Seventh
Circuit and numerous state courts). Molina is entitled to
determine for himself whether he still wishes to plead guilty given
the suppression of the drug-trafficking-related statements, and,
therefore, his case is remanded so he may have the option of
withdrawing his plea and proceeding to trial should he choose to do
so.
REMANDED.
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