845 F.2d 593 (5th Cir. 1988), 86-2394, United States v. Bengivenga

Docket Nº:86-2394.
Citation:845 F.2d 593
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mary Dangerfield BENGIVENGA, Defendant-Appellant.
Case Date:May 25, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 593

845 F.2d 593 (5th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Mary Dangerfield BENGIVENGA, Defendant-Appellant.

No. 86-2394.

United States Court of Appeals, Fifth Circuit

May 25, 1988

Frank M. Garza, Canales & Associates, Corpus Christi, Tex., for defendant-appellant.

Susan L. Yarbrough, James R. Gough, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., Mervyn Hamburg, Crim. Div., Appellate Section, U.S. Dept. of Justice, Washington D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

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CLARK, Chief Judge:

A jury found Mary Dangerfield Bengivenga guilty of possessing marijuana with intent to distribute. A panel of this court reversed the conviction because the district court had denied Bengivenga's motion to suppress evidence obtained before border patrol agents administered Miranda warnings. 1 Our order granting rehearing en banc vacated the panel's holding. We now affirm the conviction because Bengivenga was not "in custody" prior to her formal arrest and because, if a Miranda violation occurred, that alone would neither require exclusion of nontestimonial evidence nor trigger the derivative evidence rule.


On February 1, 1986, shortly after midnight, Border Patrol Agents Santana and Ramos stopped a commercial bus at a fixed checkpoint located seven miles south of Falfurrias, Texas. Agent Santana boarded the bus at the secondary inspection point to conduct a routine citizenship check of the ten to fifteen passengers while Agent Ramos watched the exits. Two of the passengers, Bengivenga and a female companion, told Agent Santana that they were bound for Alice, Texas, a small town fifty miles north of the checkpoint.

After completing the citizenship check, Agent Santana left the bus to examine the luggage bins for illegal aliens. In the front compartment he detected a strong marijuana odor emanating from three similar suitcases. Agent Ramos confirmed this suspicion and the two agents removed the three suitcases from the luggage bin. The agents inspected the baggage claim tags and discovered that the suitcases were destined for Alice. Throughout this luggage inspection, the agents observed Bengivenga and her companion peering nervously out the bus window.

Santana then informed Ramos that those two women were the only passengers who said they were traveling to Alice. Agent Ramos boarded the bus and first asked two men sitting in front of the women about their destination to determine whether they might be involved in smuggling the marijuana. When the men indicated that they were bound for San Antonio, Ramos proceeded to ask the women their destination and whether they had any luggage. They responded that they were bound for Alice and that they had not checked any luggage. Ramos then requested that they "please" step off the bus for further questioning. Ramos testified that further questioning is customarily done off the bus to avoid embarrassment to the suspect and to ensure the safety of the other passengers.

As they exited the bus, Ramos asked the women whether they owned the three suitcases. The women denied ownership. Ramos and Santana carried the luggage into the checkpoint trailer and requested the two women to accompany them. Agent Santana began filling out a baggage receipt form for the bus driver who was already in the trailer drinking coffee. In response to a question, the women again nervously denied that the suitcases belonged to them. Agent Ramos then requested the women to produce their bus tickets. When Bengivenga opened the envelope containing her ticket, Ramos noticed three baggage claim stubs which he asked to see. After matching the stubs to the baggage claim tags on the suitcases, Agent Ramos arrested the two women, advised them of their constitutional rights and opened the luggage. The agents found twenty-four kilograms of marijuana inside the suitcases. 2 Approximately a minute

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and a half elapsed between the time the women entered the trailer and the time of their arrest.

Before her trial, Bengivenga moved to suppress her statements to the agents, her bus ticket, the baggage claim stubs and the marijuana arguing that she was "in custody" and entitled to Miranda warnings prior to being questioned in the trailer. Agent Ramos testified at the suppression hearing that he believed Bengivenga was free to refuse to accompany him to the trailer and he did not possess probable cause to arrest until he examined the baggage claim stubs. The district court denied the motion to suppress. At trial, the prosecution introduced the baggage claim stubs. Agent Ramos also testified at the trial that Bengivenga produced her bus ticket, that he observed baggage claim stubs in Bengivenga's ticket envelope and that he matched the stubs to baggage claim tags on the suitcases containing marijuana.


Miranda warnings must be administered prior to "custodial interrogation." 3 The issue in this case is whether Bengivenga was "in custody" prior to producing her bus ticket and baggage claim stubs.

  1. The Four Factor Test

    This circuit has considered four factors on a case-by-case basis to determine whether a person is "in custody." These factors are (1) whether there was probable cause to arrest the defendant, (2) whether the investigation was focused on the defendant at the time of interrogation, (3) whether the law enforcement officer had a subjective intent to hold the defendant, and (4) whether the defendant subjectively believed that her freedom was significantly restricted. 4 Custody did not require the presence of all factors, 5 but more than one factor had to be present. 6

    The district court held that Bengivenga was not in custody under this four factor test. First, the district court concluded that probable cause to arrest did not arise until after Bengivenga produced the baggage claim stubs and Agent Ramos matched them to the suitcases. Second, the district court found that the agents subjectively intended to restrict Bengivenga's freedom of movement for only a limited and brief investigation of suspicious circumstances. Third, Bengivenga did not testify at the suppression hearing. The district court also found that the objective facts did not support an inference that Bengivenga believed she was in custody. Finally, although the investigation had focused

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    upon Bengivenga and her companion, the district court held that this factor alone was insufficient to render the interrogation custodial.

    On appeal, the panel held that Bengivenga was in custody before being questioned in the trailer because the agents, in addition to having focused their investigation on the women, had probable cause to arrest. United States v. Bengivenga, 811 F.2d 853, 855 (5th Cir.1987). The panel, unlike this en banc court, was constrained by our past precedent. For the following reasons, we conclude that our four factor custody test is no longer compatible with Supreme Court precedent and must be abandoned in favor of the analysis we adopt today.

  2. The Reasonable Person Test

    The Miranda Court first defined "custodial interrogation" to "mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 7 The meaning of custody has been refined so "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with formal arrest." 8 The Supreme Court has also explained that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood the situation." 9 A suspect is therefore "in custody" for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. The reasonable person through whom we view the situation must be neutral to the environment and to the purposes of the investigation--that is, neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.

    1. Factoring out the Four Factor Test

    Although the task of defining custody can be "a slippery one," 10 Supreme Court precedent has substantially undermined the four factors comprising our custody test. First, the existence of probable cause to arrest is largely immaterial to the question of custody. In a case holding that traffic stops do not ordinarily place a motorist in custody, the Court rejected the position that custody arises as soon as the level of suspicion amounts to probable cause to arrest. Berkemer v. McCarty, 468 U.S. 420, 435 n. 22, 104 S.Ct. 3138, 3148 n. 22, 82 L.Ed.2d 317 (1984).

    The threat to a citizen's Fifth Amendment rights that Miranda was designed to neutralize has little to do with the strength of an interrogating officer's suspicions. And, by requiring a policeman conversing with a motorist constantly to monitor the information available to him to determine when it becomes sufficient to establish probable cause, the [proposed rule] would be extremely difficult to administer.

    Id. Police officers are not required to effectuate an arrest the moment probable cause arises. 11 Regardless of the presence

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    of probable cause, until an officer acts to exert some type of restraint a suspect cannot reasonably believe her freedom is restrained.

    The Supreme Court has also made it clear that focus alone does...

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