U.S.A v. Hudson, 99-2165

• Citation: 210 F.3d 1184
• Decision Date: 25 April 2000
• Docket Number: No. 99-2165,99-2165
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. PETER PAUL HUDSON; TAMMY MAE RINESS, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1184

210 F.3d 1184 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. PETER PAUL HUDSON; TAMMY MAE RINESS, Defendants-Appellees.

No. 99-2165

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 25, 2000

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-99-163-LH) [Copyrighted Material Omitted] Mark D'Antonio, Assistant United States Attorney, Las Cruces, New Mexico, (John J. Kelly, United States Attorney, with him on the brief), for Appellant.

Barbara A. Mandel, Assistant Federal Public Defender, Las Cruces, New Mexico, (Stephen P. McCue, Federal Public Defender, and Shari Lynn Allison, Research and Writing Specialist, with her on the brief), for Defendant-Appellee, Peter Paul Hudson.

Richard B. McClarkin, Albuquerque, New Mexico, counsel for Defendant-Appellee, Tammy Mae Riness, joined the brief filed by Defendant-Appellee, Peter Paul Hudson.

Before KELLY and MURPHY, Circuit Judges, and COOK,^* District Judge.

I. INTRODUCTION

MURPHY, Circuit Judge.

The United States appeals an order of the district court suppressing certain statements made by Peter Hudson and Tammy Riness to agents of the United States Border Patrol. The district court suppressed the statements on the ground that they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Upon review of the record and pertinent authorities, we conclude that Hudson and Riness were not in custody at the time they made the statements in question and that Miranda, therefore, does not apply. See United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993) ("[T]wo requirements must be met before Miranda is applicable; the suspect must be in 'custody,' and the questioning must meet the legal definition of 'interrogation.'"). Accordingly, this court exercises jurisdiction pursuant to 18 U.S.C. 3731 and reverses the district court's order of suppression.

II. BACKGROUND

A. Factual Background

This case arose out of a border stop at a fixed checkpoint in a remote, desert location near Orogrande, New Mexico. A truck with an attached flat-bed trailer carrying two vehicles approached the checkpoint at 8:30 p.m.; Hudson was driving the truck and Riness was in the passenger seat. As the truck pulled into the checkpoint, United States Border Patrol Agent Jose Burgueno noticed that Hudson had some paperwork in his hand, eventually identified as a bill of lading, and that Hudson began waving these papers out of the truck's window before the truck reached the inspection area.¹ At that same time, Burgueno recognized that the truck's license plate was the subject of a be-on-the-lookout report ("BOLO") concerning the possible transportation of narcotics.

Burgueno took the bill of lading into the checkpoint trailer to review it under better lighting conditions. After further reviewing the bill of lading and discussing the BOLO with Agent Kevin Jensen, Burgueno decided further inspection of the truck was necessary. When Burgueno returned to the truck, he noticed that traffic was backing up in the primary inspection area. Accordingly, Burgueno asked Hudson to drive the truck into the secondary inspection area. At that point, the truck had been in the primary inspection area for no more than two minutes. Burgueno did not return the bill of lading to Hudson. In fact, Burgueno testified that because of the BOLO and other suspicious circumstances, he did not intend to let Hudson and Riness leave the checkpoint until the agents had conducted an inspection of the truck and trailer.²

Burgueno and Jensen approached the truck at the secondary inspection area and Burgueno asked Hudson for consent to conduct a canine inspection of the truck and attached trailer. Hudson responded, "No problem." It is uncontested that in asking for consent, neither agent spoke in a harsh manner or made any threatening gestures. After Hudson gave his consent to the canine search, Burgueno asked Hudson and Riness if they would exit the truck during the search. Hudson and Riness agreed to exit the truck and, after doing so, followed Jensen to an area adjacent to the secondary inspection and behind a brick or concrete barrier. Jensen testified that removal to the area behind the barrier was typical procedure used to obviate the danger associated with vehicles proceeding through the relatively small secondary inspection area. Jensen did not, however, inform Hudson or Riness that they were moved behind the barrier for their own safety.

As Jensen escorted Hudson and Riness to the area behind the barrier, Burgueno went to inform the Border Patrol canine handler, Agent Ken Jorgensen, that he had obtained consent to conduct a canine inspection of Hudson's truck and trailer. Because Jorgensen was performing a search of another vehicle, he was not immediately available to inspect Hudson's vehicle. In the interim, while all three were still standing behind the barrier, Jensen asked Hudson and Riness a series of questions over an eight-to-ten-minute period. In particular, Jensen asked Hudson and Riness where they were coming from, who they had been visiting, and where they were going.³ A number of the responses given by Hudson and Riness are incriminating.⁴ Jensen did not give Hudson or Riness Miranda warnings or inform them that they were free to ignore his questions. At the end of the questioning, Hudson and Riness, who were inappropriately dressed for the cold weather, were asked "if they would rather wait inside [the checkpoint trailer] where it was a lot warmer." Both agreed and accompanied Burgueno and Jensen into the trailer. Burgueno testified that at that point in time, Hudson and Riness were not placed under arrest, handcuffed, or placed in a cell.

Approximately three minutes after Hudson and Riness entered the checkpoint trailer, the dog alerted and border patrol agents discovered a large quantity of marijuana in one of the vehicles on the trailer. After discovering the marijuana, Burgueno and Jensen returned to the checkpoint trailer, placed Hudson and Riness under arrest, gave them Miranda warnings, handcuffed them, and placed them in a cell. A total of approximately fifteen minutes elapsed between the time Hudson and Riness first arrived at the checkpoint and the time of their arrest.

B. District Court Ruling

After they were indicted on conspiracy and possession-with-intent-to- distribute charges relating to the marijuana found during the search of their truck, Hudson and Riness filed a motion to suppress the statements they made to Jensen during the border stop. In the motion, Hudson and Riness argued that the statements were obtained through custodial interrogation without the benefit of Miranda warnings. In its response to the suppression motion, the United States argued as follows: (1) neither Hudson nor Riness were in custody at any point before they were informed the dog had alerted during its search of the truck, at which point they were formally placed under arrest and Mirandized; and (2) Jensen's questions were all within the scope of a routine encounter at a fixed border checkpoint as set forth in this court's decision in United States v. Massie, 65 F.3d 843 (10th Cir. 1995).⁵

After holding a hearing on the suppression motion, the district court granted the motion in part and denied it in part. In so doing, the district court separated Jensen's questions into two categories. The first category consisted of questions the district court found were used by the agents to "support their attempt to develop probable cause to make the BOLO hold up." The second category of questions were the type of "routine" questions "clearly contemplated" by Massie, "without any kind of [relationship to] probable cause." Utilizing these criteria, the district court suppressed all statements made in response to questions falling into the first category and refused to suppress any statements made in response to questions falling into the second category.

In a written order partially granting the motion to suppress, the district court supplemented its oral ruling, finding that the agents detained Hudson and Riness and "interrogated them with the intent of validating the unsubstantiated BOLO . . . they had received on the Defendants' vehicle." According to the district court, the "extended questioning, unrelated to the normal purposes of a referral to a secondary checkpoint and unsupported by reasonable suspicion, exceeded the scope of questioning allowed during a routine referral to a secondary checkpoint." The district court further concluded that at the time Hudson and Riness were questioned by Jensen, the situation had "ripened into a custodial interrogation" and that "a reasonable person in Defendants' position would believe his or her freedom had been curtailed to a degree associated with a formal arrest." According to the district court, the following factors supported a finding of custodial interrogation: Hudson and Riness "were removed from their vehicle, their documents had not been returned to them, and the agents were attempting to develop probable cause through pointed questioning." Nevertheless, the district court only suppressed those statements it believed were made in response to questions specifically designed to develop probable cause.

In response to the district court's suppression order, the United States filed a motion to reconsider. After holding a telephonic hearing, the district court denied the government's motion. In so doing, the district court agreed that "the encounter was essentially consensual," but reiterated his conclusion that the agents had a "hidden agenda" by trying to develop probable cause based on the BOLO. Finally, the district clarified the specific statements it was excluding based on its review of the suppression hearing transcript. The district court allowed the following questions and answers:

Q: [Agent Jensen] "Where are you all coming from?"

A: [Hudson] "We're coming from El...