United States v. Lnu

• Decision Date: 09 August 2011
• Docket Number: Docket No. 10–419–cr.
• Citation: 653 F.3d 144
• Parties: UNITED STATES, Appellee,v.FNU LNU, a/k/a Sandra Calzada, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

653 F.3d 144

UNITED STATES, Appellee,

v.FNU LNU, a/k/a Sandra Calzada, Defendant–Appellant.

Docket No. 10–419–cr.

United States Court of Appeals, Second Circuit.

Argued: March 22, 2011.Decided: Aug. 9, 2011.

Colleen P. Cassidy, of counsel, Federal Defenders of New York, Inc., Appeals Bureau, New York, N.Y., for Defendant–Appellant.Lan Nguyen, (Peter A. Norling, on the brief), Assistant U.S. Attorneys, of counsel, for Loretta Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.Before: JACOBS, Chief Judge, and CALABRESI and LOHIER, Circuit Judges.Chief Judge JACOBS concurs in the judgment of the Court and files a separate opinion.CALABRESI, Circuit Judge:

The district court (Weinstein, J.) denied the defendant's motion to suppress testimony from the Customs and Border Patrol (CBP) officer who questioned her without Miranda warnings on her arrival at John F. Kennedy International Airport. We reject the district court's reasoning that either a general exception to Miranda for border questioning exists or that the officer's intent in posing the questions is relevant. But, based on the totality of the circumstances, we conclude that the defendant was not in custody during the questioning and so Miranda warnings were unnecessary. Accordingly, we affirm the defendant's conviction.

Background

The defendant, traveling under the name Sandra Calzada, arrived at John F. Kennedy International Airport in New York on December 29, 2008, on a flight from the Dominican Republic. In preparing to process the passengers from this flight, CBP Officer Frank Umowski ran the flight's manifest through a database of outstanding warrants and received notice that Calzada's name appeared on a New York Police Department (NYPD) arrest warrant. Umowski verified that the date and place of birth of the person on the warrant matched that listed on the passport for the passenger and flagged Calzada for “secondary inspection.” Upon arrival, an armed guard escorted her to the secondary inspection room, which, Umowski concedes, she was not free to leave, and Umowski questioned her.

She presented a U.S. passport in the name of Sandra Calzada. He asked her: her name, her citizenship, and where and when she was born. She responded: Sandra Calzada, U.S. citizen, Puerto Rico, and gave a date of birth matching the passport. He asked if she had ever been arrested; she said no. He took her fingerprints, which failed to match those in the NYPD warrant. After a brief computer search, he found her 2008 passport application, which requested renewal of a 1998 passport, and determined that the application contained the same photograph and information as the passport the defendant presented. He then examined the 1998 application, which bore a photograph that he thought depicted someone else. Umowski confronted her with that older photograph, and she said she did not recognize the person pictured.

Umowski again questioned the defendant about her name and background, including her parents and siblings, this time using a translator. She responded that she had one brother, whereas the 1998 passport application listed only one sister. She was unable to recall any addresses where she had lived in Puerto Rico. In total, the questioning lasted for about 90 minutes. Umowski then delivered the defendant to another officer, to whom she gave a sworn statement.¹ CBP deemed her inadmissible at that time and held her over for a hearing with an immigration judge. At some later time, different federal agents arrested her on an indictment for making a false statement in a passport application, 18 U.S.C. § 1542; misusing a passport, id. § 1544; and aggravated identity theft, id. § 1028A(a)(1) & (c)(7).

In the district court, the defendant moved in limine to suppress her statements to Umowski, whom the government had slated as a trial witness, because he failed to provide her with the prophylactic warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court held a hearing and found Miranda inapplicable to this situation. It first held that Miranda warnings are not required where a person is questioned in a “routine border crossing inquiry.” United States v. FNU LNU, 261 F.R.D. 1, 3 (E.D.N.Y.2009). It further explained that Miranda warnings were unnecessary because it believed Umowski's testimony that his “purpose ... was to verify if [the defendant], in fact, was admissible into the U.S. as a U.S. citizen.” Id. (internal quotation marks omitted). The court also explained that the interrogation constituted routine border questioning because “Umowski's function or intent” was only to determine the defendant's true identity. Id. It therefore denied the motion.

Umowski and the translator testified at trial. The government also presented testimony from the real Sandra Calzada, who testified that when she had been a cocaine addict, she had sold her passport, birth certificate, and social security card to her drug dealer. She had presented two different stories to the authorities before the one she told at trial and testified pursuant to a nonprosecution agreement covering her passport offenses, her cocaine offenses, and a more recent state shoplifting charge. A State Department agent, Eric Donelan, testified that the defendant possessed a receipt for the 2008 passport renewal and a social security card in the name Sandra Iris Calzada. He also testified that her boyfriend had brought the canceled 1998 passport, which bore her picture, to the airport after her detention and that her boyfriend had provided CBP with a birth certificate matching the information on both passports. Finally, the government called a Department of Homeland Security document expert, Wayne Laptosh, who testified that the 1998 passport had been altered.

The defendant presented no affirmative case, and the jury convicted her on all three counts. The district court sentenced her to 25 months' imprisonment, three years of supervised release, and the mandatory special assessment. The defendant timely appealed, challenging only the district court's suppression decision.

Discussion

This case presents the question of whether the district court correctly ruled that Officer Umowski's questioning failed to rise to the level of a “custodial interrogation” under Miranda and thus whether that court properly admitted into evidence the defendant's statements to Umowski. Though we generally review a district court's evidentiary decisions for abuse of discretion, United States v. Quinones, 511 F.3d 289, 307 (2d Cir.2007), we review decisions on suppression motions de novo, In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 167 (2d Cir.2008). We may, however, uphold the district court's ultimate decision on any ground supported in the record. United States v. Green, 595 F.3d 432, 436 (2d Cir.2010).

An interaction between law enforcement officials and an individual generally triggers Miranda's prophylactic warnings when the interaction becomes a “custodial interrogation.” This determination has two parts: (a) there must be an interrogation of the defendant, and (b) it must be while she is in “custody.” See Cruz v. Miller, 255 F.3d 77, 80–81 (2d Cir.2001) (recognizing custody and interrogation as separate elements of the Miranda determination); accord United States v. Ali, 68 F.3d 1468, 1473 (2d Cir.1995). Neither the government nor the district court suggests that Umowski's direct questioning of the defendant fails to qualify as an interrogation. An interrogation consists of “express questioning or its functional equivalent,” which aptly describes the interaction between Umowski and the defendant. Rhode Island v. Innis, 446 U.S. 291, 300–01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).² Under standard Miranda analysis, the only issue in the instant case would be whether the defendant was in “custody” during the interrogation. The government, however, urges that an altogether different analysis should apply in the context of questioning at the border.³ We take up this contention first.

Though accepting that Miranda applies when the questioning constitutes custodial interrogation, the government insists that “[r]outine border questioning does not constitute ‘custodial interrogation’ for Miranda purposes.” Appellee's Br. 17. Indeed, it claims there exists a “routine border questioning exception to Miranda,” dating back several decades and undisturbed by developments in Fifth Amendment law. Id. at 20. This exception stems, it asserts, from the government's “broad powers to detain, search, and question individuals even absent any reasonable suspicion of wrongdoing” at “border entry points.” Id. at 16. In support of this argument, the government relies primarily on three cases: Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir.2007), United States v. Silva, 715 F.2d 43 (2d Cir.1983), and United States v. Rodriguez, 356 F.3d 254 (2d Cir.2004). We address each case in turn.

Relying on Tabbaa, the government contends that border questioning requires Miranda warnings only when it becomes “non-routine.” Tabbaa rejected a Fourth Amendment challenge to a series of border searches involving pat downs, fingerprinting, photographing, and questioning lasting several hours. 509 F.3d at 94–95, 100–01. Under Fourth Amendment case law, routine border searches fall within a well-established exception to the warrant requirement. The term “routine” delineates the exception's scope, thus explaining the term's significance in this line of jurisprudence. See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (“Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant....”); United States v. Martinez–Fuerte, 428 U.S. 543, 566, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (authorizing warrantless, suspicionless stops...