United States v. FNU LNU 1 2

10-419-cr
United States v. FNU LNU
1
2
UNITED STATES COURT OF APPEALS 3
4
FOR THE SECOND CIRCUIT 5
6
7
8
August Term, 2010 9
10
(Argued: March 22, 2011 Decided: August 9, 2011) 11
12
Docket No. 10-419-cr 13
14
15
16
UNITED STATES, 17
18
Appellee, 19
20
– v. – 21
22
FNU LNU, a/k/a SANDRA CALZADA, 23
24
Defendant-Appellant. 25
26
27
28
Before: JACOBS, Chief Judge, and CALABRESI and LOHIER, Circuit Judges. 29
Appeal of the defendant’s conviction on immigration offenses after the district court 30
(Weinstein, J.) denied her motion to suppress testimony from the officer who questioned her 31
without Miranda warnings on her arrival at John F. Kennedy International Airport. Finding that, 32
though for reasons different from those the district court gave, Miranda warnings were not 33
required on the facts of this case, we AFFIRM. 34
Chief Judge Jacobs concurs in the judgment of the Court and files a separate opinion. 35
COLLEEN P. CASSIDY, of counsel, Federal Defenders of 36
New York, Inc., Appeals Bureau, New York, N.Y., for 37
Defendant-Appellant. 38
39

-- 1 of 22 --

LAN NGUYEN, (Peter A. Norling, on the brief), Assistant 1
U.S. Attorneys, of counsel, for Loretta Lynch, United States 2
Attorney for the Eastern District of New York, Brooklyn, 3
N.Y., for Appellee. 4
5
6
CALABRESI, Circuit Judge: 7
The district court (Weinstein, J.) denied the defendant’s motion to suppress testimony 8
from the Customs and Border Patrol (CBP) officer who questioned her without Miranda warnings 9
on her arrival at John F. Kennedy International Airport. We reject the district court’s reasoning 10
that either a general exception to Miranda for border questioning exists or that the officer’s intent 11
in posing the questions is relevant. But, based on the totality of the circumstances, we conclude 12
that the defendant was not in custody during the questioning and so Miranda warnings were 13
unnecessary. Accordingly, we affirm the defendant’s conviction. 14
Background 15
The defendant, traveling under the name Sandra Calzada, arrived at John F. Kennedy 16
International Airport in New York on December 29, 2008, on a flight from the Dominican 17
Republic. In preparing to process the passengers from this flight, CBP Officer Frank Umowski 18
ran the flight’s manifest through a database of outstanding warrants and received notice that 19
Calzada’s name appeared on a New York Police Department (NYPD) arrest warrant. Umowski 20
verified that the date and place of birth of the person on the warrant matched that listed on the 21
passport for the passenger and flagged Calzada for “secondary inspection.” Upon arrival, an 22
armed guard escorted her to the secondary inspection room, which, Umowski concedes, she was 23
not free to leave, and Umowski questioned her. 24
2

-- 2 of 22 --

She presented a U.S. passport in the name of Sandra Calzada. He asked her: her name, her 1
citizenship, and where and when she was born. She responded: Sandra Calzada, U.S. citizen, 2
Puerto Rico, and gave a date of birth matching the passport. He asked if she had ever been 3
arrested; she said no. He took her fingerprints, which failed to match those in the NYPD warrant. 4
After a brief computer search, he found her 2008 passport application, which requested renewal of 5
a 1998 passport, and determined that the application contained the same photograph and 6
information as the passport the defendant presented. He then examined the 1998 application, 7
which bore a photograph that he thought depicted someone else. Umowski confronted her with 8
that older photograph, and she said she did not recognize the person pictured. 9
Umowski again questioned the defendant about her name and background, including her 10
parents and siblings, this time using a translator. She responded that she had one brother, whereas 11
the 1998 passport application listed only one sister. She was unable to recall any addresses where 12
she had lived in Puerto Rico. In total, the questioning lasted for about 90 minutes. Umowski then 13
delivered the defendant to another officer, to whom she gave a sworn statement. 1 CBP deemed her 14
inadmissible at that time and held her over for a hearing with an immigration judge. At some later 15
time, different federal agents arrested her on an indictment for making a false statement in a 16
passport application, 18 U.S.C. § 1542; misusing a passport, id. § 1544; and aggravated identity 17
theft, id. § 1028A(a)(1) & (c)(7). 18
In the district court, the defendant moved in limine to suppress her statements to 19
Umowski, whom the government had slated as a trial witness, because he failed to provide her 20
with the prophylactic warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). The district 21
1 The government never sought to admit this statement at trial.
3

-- 3 of 22 --

court held a hearing and found Miranda inapplicable to this situation. It first held that Miranda 1
warnings are not required where a person is questioned in a “routine border crossing inquiry.” 2
United States v. FNU LNU, No. 09-CR-415, 2009 U.S. Dist. LEXIS 88225, at **6 (E.D.N.Y. Sept. 3
25, 2009). It further explained that Miranda warnings were unnecessary because it believed 4
Umowski’s testimony that his “purpose . . . was to verify if [the defendant], in fact, was admissible 5
into the U.S. as a U.S. citizen.” Id. (internal quotation marks omitted). The court also explained 6
that the interrogation constituted routine border questioning because “Umowski’s function or 7
intent” was only to determine the defendant’s true identity. Id. It therefore denied the motion. 8
Umowski and the translator testified at trial. The government also presented testimony 9
from the real Sandra Calzada, who testified that when she had been a cocaine addict, she had sold 10
her passport, birth certificate, and social security card to her drug dealer. She had presented two 11
different stories to the authorities before the one she told at trial and testified pursuant to a non- 12
prosecution agreement covering her passport offenses, her cocaine offenses, and a more recent 13
state shoplifting charge. A State Department agent, Eric Donelan, testified that the defendant 14
possessed a receipt for the 2008 passport renewal and a social security card in the name Sandra Iris 15
Calzada. He also testified that her boyfriend had brought the canceled 1998 passport, which bore 16
her picture, to the airport after her detention and that her boyfriend had provided CBP with a 17
birth certificate matching the information on both passports. Finally, the government called a 18
Department of Homeland Security document expert, Wayne Laptosh, who testified that the 1998 19
passport had been altered. 20
The defendant presented no affirmative case, and the jury convicted her on all three 21
counts. The district court sentenced her to 25 months’ imprisonment, three years of supervised 22
4

-- 4 of 22 --

release, and the mandatory special assessment. The defendant timely appealed, challenging only 1
the district court’s suppression decision. 2
Discussion 3
This case presents the question of whether the district court correctly ruled that Officer 4
Umowski’s questioning failed to rise to the level of a “custodial interrogation” under Miranda and 5
thus whether that court properly admitted into evidence the defendant’s statements to Umowski. 6
Though we generally review a district court’s evidentiary decisions for abuse of discretion, United 7
States v. Quinones, 511 F.3d 289, 307 (2d Cir. 2007), we review decisions on suppression motions 8
de novo, In re Terrorist Bombings of U.S. Embassies in E. Afr. v. Odeh, 552 F.3d 157, 167 (2d Cir. 9
2008). We may, however, uphold the district court’s ultimate decision on any ground supported in 10
the record. United States v. Green, 595 F.3d 432, 436 (2d Cir. 2010). 11
An interaction between law enforcement officials and an individual generally triggers 12
Miranda’s prophylactic warnings when the interaction becomes a “custodial interrogation.” This 13
determination has two parts: (a) there must be an interrogation of the defendant, and (b) it must 14
be while she is in “custody.” See Cruz v. Miller, 255 F.3d 77, 80–81 (2d. Cir. 2001) (recognizing 15
custody and interrogation as separate elements of the Miranda determination); accord United States 16
v. Ali, 68 F.3d 1468, 1473 (2d Cir. 1995). Neither the government nor the district court suggests 17
that Umowski’s direct questioning of the defendant fails to qualify as an interrogation. An 18
interrogation consists of “express questioning or its functional equivalent,” which aptly describes 19
the interaction between Umowski and the defendant. Rhode Island v. Innis, 446 U.S. 291, 300–01 20
5

-- 5 of 22 --

(1980). 2 Under standard Miranda analysis, the only issue in the instant case would be whether the 1
defendant was in “custody” during the interrogation. The government, however, urges that an 2
altogether different analysis should apply in the context of questioning at the border. 3 We take up 3
this contention first. 4
Though accepting that Miranda applies when the questioning constitutes custodial 5
interrogation, the government insists that “[r]outine border questioning does not constitute 6
‘custodial interrogation’ for Miranda purposes.” Appellee’s Br. 17. Indeed, it claims there exists a 7
“routine border questioning exception to Miranda,” dating back several decades and undisturbed 8
by developments in Fifth Amendment law. Id. at 20. This exception stems, it asserts, from the 9
government’s “broad powers to detain, search, and question individuals even absent any 10
reasonable suspicion of wrongdoing” at “border entry points.” Id. at 16. In support of this 11
argument, the government relies primarily on three cases: Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 12
2007), United States v. Silva, 715 F.2d 43 (2d Cir. 1983), and United States v. Rodriguez, 356 F.3d 13
254 (2d Cir. 2004). We address each case in turn. 14
Relying on Tabbaa, the government contends that border questioning requires Miranda 15
warnings only when it becomes “non-routine.” Tabbaa rejected a Fourth Amendment challenge to 16
2 An exception exists for “routine booking question[s],” but aside from the fact that Umowski was not
booking the defendant during the questioning here, the questions asked far exceeded the scope of that
exception. Pennsylvania v. Muniz, 496 U.S. 582, 601–02 (1990) (establishing the exception for questions
about the suspect’s “name, address, height, weight, eye color, date of birth, and current age”).
3 The international arrivals section and Customs area of a U.S. airport undisputedly constitute the “border”
for constitutional purposes. See Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973) (“[A] search of the
passengers and cargo of an airplane arriving at a [U.S.] airport after a nonstop flight from [abroad] would
clearly be the functional equivalent of a border search.”); United States v. Irving, 452 F.3d 110, 123 (2d Cir.
2006) (“An airport is considered the functional equivalent of a border and thus a search there may fit
within the border search exception.”).
6

-- 6 of 22 --

a series of border searches involving pat downs, fingerprinting, photographing, and questioning 1
lasting several hours. 509 F.3d at 94–95, 100–01. Under Fourth Amendment case law, routine 2
border searches fall within a well-established exception to the warrant requirement. The term 3
“routine” delineates the exception’s scope, thus explaining the term’s significance in this line of 4
jurisprudence. See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) 5
(“Routine searches of the persons and effects of entrants are not subject to any requirement of 6
reasonable suspicion, probable cause, or warrant . . . .”); United States v. Martinez-Fuerte, 428 U.S. 7
543, 566 (1976) (authorizing warrantless, suspicionless stops for “brief questioning routinely 8
conducted at permanent checkpoints” near the border). 9
But Supreme Court precedents establish no similar exception to Miranda’s prophylactic 10
requirement under the Fifth Amendment. Cf. Pennsylvania v. Muniz, 496 U.S. 582, 601–02 (1990) 11
(adopting an exception to Miranda for “routine booking question[s]”); New York v. Quarles, 467 12
U.S. 649, 657–58 (1984) (recognizing a limited public-safety exception to Miranda); Harris v. New 13
York, 401 U.S. 222, 224–26 (1971) (holding that statements that were otherwise inadmissible due 14
to a Miranda violation were admissible to impeach the defendant’s trial testimony). 15
Similarly, Tabbaa says nothing about Miranda or the Fifth Amendment, and, indeed, as we 16
have previously said, “whether a ‘stop’ was permissible under [Fourth Amendment doctrine] is 17
irrelevant to the Miranda analysis.” Ali, 68 F.3d at 1473. Though Tabbaa provides a useful guide 18
for delineating the boundaries of “routineness” as that word is used in the specific context of 19
Fourth Amendment warrantless border searches, its usefulness outside that context is inherently 20
limited. United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006) (discussing the “routine”-border- 21
7

-- 7 of 22 --

search exception to the Fourth Amendment and noting that “the level of intrusion into a person's 1
privacy is what determines whether a border search is routine”). Tabbaa does not speak to the 2
primary question we face here: does a border-questioning exception to the requirement of Miranda 3
warnings—whether limited by routineness or not—exist at all. Accordingly, Tabbaa is of little help 4
to the government here. 5
The government argues, however, that Silva establishes just such a border-questioning 6
exception for our circuit. It is Silva, also, that forms the core of the district court’s decision 7
admitting the evidence in this case. In Silva, the defendant was convicted of making a false 8
statement to a federal official and of attempting to bring a large sum of currency into the country 9
without declaring it. 715 F.2d at 44. After initial questioning at the Canadian border during which 10
the defendant claimed to be a U.S. citizen, an immigration agent searched her purse, in which he 11
found her Venezuelan passport and a bundle of currency. Id. at 45–46. Customs officials then 12
asked her additional questions about the currency, which led to establishing her criminal 13
conduct. 4 Id. Noting that the questioning “amounted to no more than routine customs and 14
immigration inquires,” we held that the officers’ un-Mirandized questioning of the defendant at 15
the border was permissible. Id. at 46. Critically, in so holding, we rejected the defendant’s 16
argument that she was entitled to Miranda warnings as soon as any agent had probable cause to 17
arrest her, that is, as soon as they discovered her Venezuelan passport after she had claimed to be a 18
U.S. citizen. Id. at 47. 19
4 The law governing undeclared importation of currency applies only over a given threshold. See 31 U.S.C.
§ 5322 (providing criminal penalties for willful violation of 31 U.S.C. §§ 5311–32); 31 U.S.C. § 5316
(1984) (prohibiting the undeclared importation of more than $5,000 in U.S. currency) (amended by Pub. L.
99-570, § 1358(c) (increasing the threshold to $10,000)). Until agents questioned her and counted the
currency, whether the defendant possessed more than that threshold was unclear.
8

-- 8 of 22 --

To reach this conclusion, we distinguished a prior case, United States v. Moody, 649 F.2d 1
124 (2d Cir. 1981), in which we had held that customs agents erred in failing to give Miranda 2
warnings to a suspect once they saw her carrying what appeared to be drugs—that is, at the moment 3
probable cause arose for her arrest. Her response “was elicited for the purpose of incriminating 4
her” and Miranda applied. Id. at 128. 5
The Silva court reasoned in two steps. First, it separated the fact that immigration agents 6
had probable cause to arrest the defendant on the false statement offense—as to which no 7
challenged questions had been posed—from the issue of whether customs agents had probable 8
cause to suspect a crime with respect to the currency. Silva, 715 F.2d at 48. Then, it found that the 9
customs agents acted properly in questioning her about the currency because transporting 10
currency—unlike transporting drugs, as in Moody—is not inherently illegal and, therefore, creates no 11
automatic suspicion of criminal wrongdoing. Id. In all this, the court continued to focus on 12
whether the agents thought they had probable cause to believe a crime was being committed as the 13
key to determining whether the situation consisted of “routine customs and immigration 14
inquiries.” Id. at 46. Because the inquiries were routine, it concluded, Miranda warnings were not 15
required. 16
On appeal, as she did also below, the defendant argues that reliance on Silva is misplaced 17
because a series of later Supreme Court cases, most notably Berkemer v. McCarty, 468 U.S. 420 18
(1984), and Stansbury v. California, 511 U.S. 318 (1994), have undercut its bases and, therefore, its 19
current validity. Berkemer involved a traffic stop during which the officer elicited incriminating 20
statements from the suspect. In concluding that the traffic stop, though a seizure, failed to 21
9

-- 9 of 22 --

implicate the coercive aspects of stationhouse interrogation that animated Miranda, and thus failed 1
to constitute custody, the Court rejected the contention that the officer’s “unarticulated plan” to 2
arrest the suspect had any bearing on the determination of custody. 468 U.S. at 442. The motive 3
of the questioner was thus deemed irrelevant. 5 Similarly, in Stansbury, a man considered a witness 4
rather than a suspect accompanied police to their stationhouse for questioning. During the course 5
of that questioning, police began to suspect him of having committed the crime, ceased the 6
interview, and read him the Miranda warnings. At trial he moved to suppress his pre-warning 7
statements. The trial court denied the motion and the California Supreme Court affirmed, 8
reasoning that the interrogation became custodial only when suspicion focused on the defendant. 9
511 U.S. at 320–22. The Court remanded the case for reconsideration, explicitly stating more 10
than once that the officer’s subjective beliefs about whether the interviewee was a suspect were 11
irrelevant to the Miranda determination. Id. at 323–26. 12
Together, these and subsequent Supreme Court cases establish that the test for when 13
Miranda warnings are mandated is objective with respect to the personal attitudes and knowledge 14
of both the questioner and the person questioned. It depends on how a reasonable person in the 15
suspect’s position would view the situation. See, e.g., Stansbury, 511 U.S. at 323 (“Our decisions 16
make clear that the initial determination of custody depends on the objective circumstances of the 17
interrogation, not on the subjective views harbored by either the interrogating officers or the 18
5 The Berkemer court also considered a test based only on the existence of probable cause. 468 U.S. at 435
n.22. The Court rejected probable cause as the dividing line because probable cause rests, in part, on what
the officer knows but the suspect may not, making it subjective, and because “[t]he 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.”
10

-- 10 of 22 --

person being questioned.”). 6 To the extent that Silva and Moody rely on the officer’s subjective 1
motives for the interrogation (including the uncommunicated existence of probable cause or 2
intent to arrest) in determining whether the interaction qualifies as custodial, we agree with the 3
defendant that Berkemer and Stansbury abrogate them. This does not mean, however, that Silva does 4
not remain important and, indeed, binding on us in some particulars that do not depend on its 5
reliance on the subjective intent of the questioner. Specifically, Silva’s holding with respect to the 6
(a) routineness of the (b) questioning (c) at the border, remains our circuit law and distinguishes 7
our approach from both the Third Circuit in United States v. Kiam, 432 F.3d 524 (3d Cir. 2006), 8
and the First Circuit in United States v. Ventura, 85 F.3d 708, 711 (1st Cir. 1996), discussed infra. 9
Rodriguez, the final case on which the government’s relies, has little bearing on this case. 10
There the defendant, while incarcerated on unrelated state charges, submitted to an interview with 11
a federal immigration officer. No Miranda warnings were given. The defendant’s responses during 12
that interview established that his presence in the United States was unauthorized and, on his 13
release from state custody, the federal government deported him. A year later, he returned to the 14
United States and was arrested at the airport while attempting to enter the country illegally. At his 15
trial for unauthorized reentry and visa fraud, the immigration agent testified regarding the 16
defendant’s nationality, based on the then-four-year-old interview. 356 F.3d at 256–57. The trial 17
court denied the defendant’s motion to suppress this evidence pursuant to Miranda, and we 18
affirmed. 19
6 Fourth Amendment doctrine, which uses a similar reasonable-person test, holds that the relevant
perspective is that of a reasonable, innocent person. Florida v. Bostick, 501 U.S. 429, 438 (1991) (rejecting the
argument that a suspect’s consent to search his luggage must be invalid because no reasonable person in his
actual shoes—who knows the luggage contains contraband—would consent). Whether the reasonable person
in the Fifth Amendment Miranda inquiry is similarly innocent seems to be an open question.
11

-- 11 of 22 --

To begin with, the Rodriguez court’s precise holding evades easy discernment. In Rodriguez, 1
we found both (a) that Rodriguez’s interrogation did not require a Miranda warning and (b) that 2
sufficient other evidence existed to render harmless any error in admitting the agent’s testimony. 3
Id. at 260–61. Furthermore, we have generally treated the issue of whether questioning requires 4
Miranda warnings differently depending on whether the suspect was already incarcerated on 5
unrelated grounds at the time of the interrogation. See, e.g., United States v. Willoughby, 860 F.2d 15, 6
23 (2d Cir. 1988) (holding that though the defendant’s incarceration was undeniably custody in 7
the colloquial sense, the conversation at issue involved no additional coercion and so Miranda 8
warnings were not required). Therefore, because Rodriguez was incarcerated during his 9
questioning, how that court analyzed whether Miranda warnings were required is not directly 10
apposite to whether they were required in the instant case, where the defendant was not in prison. 11
Most important, moreover, in reaching its conclusion that Rodriguez’s interrogation was 12
not custodial, the court distinguished a seemingly similar Supreme Court case that had excluded 13
the evidence, Mathis v. United States, 391 U.S. 1 (1968). Mathis, the court noted, involved 14
administrative questioning in an ongoing investigation into the crime for which the defendant was 15
ultimately prosecuted, whereas the crime for which Rodriguez was prosecuted—illegally reentering 16
the country after being deported—had yet to occur when Rodriguez’s interview with the INS agent 17
took place. Rodriguez, 356 F.3d at 260. Clearly, the instant case lies closer to Mathis than to 18
Rodriguez in this regard: for here, as in Mathis, Umowski’s questioning of the defendant focused on 19
precisely the set of facts underlying the conviction she now appeals. 7
20
7 The government also seeks to base Rodriguez on an earlier circuit decision that Rodriguez quotes as asking
whether the “‘officers . . . are aware of the potentially incriminatory nature of the disclosures sought.’”
Rodriguez, 356 F.3d at 259 (quoting United States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987)). But,
12

-- 12 of 22 --

We, therefore, conclude (a) that the government’s position is not supported by binding 1
precedent in this circuit, but (b) that Silva continues to guide our approach to the case before us. 2
The question thus becomes: was the defendant in the case before us in “custody” during 3
the questioning. The district court—believing that it was bound by Silva’s reliance on the 4
questioner’s intent—admitted the evidence without reaching the issue of custody. See FNU LNU, 5
2009 U.S. Dist. LEXIS 88225, at **6–7. In such circumstances, we would normally remand the 6
case to the district court to determine, in the first instance, whether custody existed. See Ali, 68 7
F.3d at 1473. Here, however, the district court admirably compiled an extensive record 8
documenting the circumstances of the defendant’s questioning. As a result, we are at no 9
disadvantage in examining the issue first. Given, moreover, that we would review the district 10
court’s custody conclusion de novo in any event, United States v. Badmus, 325 F.3d 133, 138 (2d 11
Cir. 2003) (per curiam), considerations of judicial efficiency lead us to resolve the case ourselves. 12
We pause to clarify that “custody” for Miranda purposes is not coterminous with, though it 13
is often informed by, the colloquial understanding of custody. For example, in Berkemer, even 14
though state law required the defendant to stop when the highway patrolman flashed his lights 15
and the defendant was not free to leave the traffic stop, either as a legal matter or in terms of how 16
a reasonable person would view the situation, the stop did not constitute “custody” for Miranda 17
purposes. 468 U.S. at 435–39; see also Willoughby, 860 F.2d at 23 (holding that incarceration does 18
not necessarily constitute Miranda “custody”). As stated by the Supreme Court and our cases, the 19
overarching “custody” question is whether “a reasonable [person] in the suspect’s position would 20
significantly, Morales, and hence this aspect of Rodriguez, preceded Stansbury and its rejection of subjective
intent. The basis of Rodriguez noted above—the time of the interview in relation to the crime charged—is,
instead, completely consistent with the Supreme Court’s requirement of an objective Miranda test.
13

-- 13 of 22 --

have understood” herself to be “‘subjected to restraints comparable to those associated with a 1
formal arrest.’” Georgison v. Donelli, 588 F.3d 145, 155 (2d Cir. 2009) (quoting Berkemer, 468 U.S. 2
at 441)). 3
Imagining oneself in “the suspect’s position” necessarily involves considering the 4
circumstances surrounding the encounter with authorities. Those circumstances include, inter alia, 5
the interrogation’s duration; its location (e.g., at the suspect’s home, in public, in a police station, 6
or at the border); whether the suspect volunteered for the interview; whether the officers used 7
restraints; whether weapons were present and especially whether they were drawn; whether officers 8
told the suspect he was free to leave or under suspicion, see Yarborough v. Alvarado, 541 U.S. 652, 9
661–63, 664–65 (2004) (recounting the development of Miranda case law); and, now, a juvenile 10
suspect’s age, if known to the officer or readily apparent, J.D.B. v. North Carolina, 131 S. Ct. 2394, 11
2406 (2011). See also Ali, 68 F.3d at 1472–73 (looking at the “‘objective circumstances of the 12
interrogation’” such as its location out of public view, the fact that officers drew weapons and 13
surrounded the defendant, and the fact that they confiscated his travel documents, without which 14
he could not leave (quoting Stansbury, 54 U.S. at 322)). The circumstances also include, and 15
especially so in border situations, the nature of the questions asked. See United States v. Galloway, 16
316 F.3d 624, 631 (6th Cir. 2003) (considering the content of the CBP officer’s questioning in 17
evaluating whether custody existed in an airport). 18
A reasonable person’s expectations about how the questioning is likely to unfold are also 19
relevant. Again, in Berkemer, the Court explained that “[a] motorist’s expectations, when he sees a 20
policeman’s light flashing behind him, are that he will be obliged to spend a short period of time 21
14

-- 14 of 22 --

answering questions and waiting while the officer checks his license and registration, that he may 1
then be given a citation, but that in the end he most likely will be allowed to continue on his way.” 2
468 U.S. at 437. Because one expects the detention to be brief and the questioning to be 3
circumscribed and related to the driver’s identification, authorization to drive, and conduct on the 4
roadway, one need not fear the coercion present in stationhouse interrogations that prompted 5
Miranda, in which “questioning will continue until [the suspect] provides his interrogators the 6
answers they seek.” Id. at 438. 7
Similarly, in the context of arriving at an American airport, (a) in which compulsory 8
questioning—with no freedom to enter the United States and with nowhere else to go—inheres in 9
the situation and (b) in which the traveler has voluntarily submitted to some degree of 10
confinement and restraint by approaching the border, a reasonable traveler will expect some 11
constraints as well as questions and follow-up about his or her citizenship, authorization to enter 12
the country, destination, baggage, and so on. That one expects both constraints and 13
questions—and that, at least initially, every traveler in the airport must submit to the same sort of 14
questioning while not free to leave—reduces the likelihood that reasonable persons in that 15
situation would consider themselves to be under arrest. 16
Moreover, because the questions asked are, by definition, communicated to the 17
suspect—unlike the officer’s subjective intent to arrest the suspect or the existence of probable 18
cause—they are a proper part of the objective Miranda inquiry. Cf. Stansbury, 511 U.S. at 323. In the 19
context of both the roadside traffic stop and the border, the content of the officer’s questions 20
substantially inform whether a reasonable person would feel restrained in a way similar to a formal 21
arrest. Indeed, in many such cases, the fact that the questions asked fall within the range of 22
15

-- 15 of 22 --

inquiries one expects will, by itself, be enough to assure a reasonable person that he or she is not 1
under arrest. 2
This is not to say, however, that the nature of the questions asked is the only relevant 3
factor. Cf. Kiam, 432 F.3d at 528–29 (adopting a border-questioning exception to Miranda and 4
rejecting the need for any inquiry into the conditions of the interrogation as well as—in 5
contradistinction to Silva—any distinction between “routine” and “non-routine” questioning); 6
Ventura, 85 F.3d at 711 (noting the importance of the questions asked but seemingly not giving 7
that factor the priority we did in Silva). To look only at any single factor would be inconsistent 8
with Miranda’s role as a protection against coercion. The rule exists to temper the “potentiality for 9
compulsion” that exists when an individual is “cut off from the outside world” and subjected to 10
“incommunicado interrogation . . . in a police-dominated atmosphere.” Miranda, 384 U.S. at 457, 11
445. That potential comes from the “inherently coercive pressures that tend to undermine the 12
individual’s will to resist and to compel him to speak” in such an environment. United States v. 13
Morales, 834 F.2d 35, 38 (2d Cir. 1987). Silva, with its emphasis on what is normally asked at the 14
border, suggests that it is possible, though unlikely, for such an environment to exist even at the 15
border, and if it does, so, too, must Miranda’s protections. 16
As in the traffic-stop context, the inquiry remains a holistic one in which the nature and 17
context of the questions asked, together with the nature and degree of restraints placed on the 18
person questioned, are relevant. Berkemer, 468 U.S. at 441 n.34 (contrasting the facts of 19
Berkemer’s traffic stop with those in Commonwealth v. Meyer, 488 Pa. 297, 301 (1980), which 20
found a traffic stop that lasted more than 30 minutes “custodial”). This holding comports with 21
16

-- 16 of 22 --

those in several of our sister circuits that Miranda warnings might be required even at the border if 1
the interrogation occurs while the defendant is “handcuffed to a bench in a locked security office 2
. . . for . . . four hours,” United States v. RRA-A, 229 F.3d 737, 741 (9th Cir. 2000), “placed in a 3
locked cell,” United States v. Butler, 249 F.3d 1094, 1100 (9th Cir. 2001), or “physically . . . 4
restrained” while officers had weapons drawn, see United States v. Moya, 74 F.3d 1117, 1119 (11th 5
Cir. 1996). But we need not decide today where any such lines would be drawn; that is, we need 6
not speculate on the appropriate outcome in cases in which Kiam and Ventura might lead to 7
different results. This case does not ultimately turn on that. 8
Several facts about the interrogation of the defendant before us militate in favor of finding 9
it “custodial”: it took place in a closed room, out of public view; armed guards escorted the 10
defendant there and remained in the vicinity; it lasted for 90 minutes, substantially longer than 11
most interviews that we have deemed non-custodial in other contexts, see, e.g., Cruz, 255 F.3d at 12
81–86 (contrasting “brief,” noncustodial questioning with a traffic stop that lasted more than 30 13
minutes and was custodial); Umowski took the defendant’s fingerprints and did not inform her 14
she was free to go. She was not, in fact, free to go. On the other hand: the officers never drew their 15
weapons; no physical restraints were used; and, crucially, a reasonable person would recognize all 16
Umowski’s questions as relevant to her admissibility to the United States. Such a person would 17
consider them par for the course of entering the country from abroad. 18
In light of the totality of these circumstances, we conclude that a reasonable person in the 19
defendant’s position would not have considered what occurred to be the equivalent of a formal 20
arrest. It follows that the defendant was not in “custody” and that, for this reason alone, Miranda 21
17

-- 17 of 22 --

warnings were not required. Accordingly, the district court correctly denied the motion to suppress 1
Umowski’s testimony. 2
Conclusion 3
We hereby AFFIRM the defendant’s conviction. 4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
18

-- 18 of 22 --

DENNIS JACOBS, Chief Judge, concurring: 1
I concur in the result. 2
3
I. 4
I am unable to sign the majority opinion for 5
several reasons. First, the case of First-Name-Unknown 6
Last-Name-Unknown (“FNU LNU”) is the easiest of cases, in 7
which the questions asked of her had bearing on the most 8
routine issues of identity: her name, where she was born, 9
her country of citizenship, the contact information of her 10
friends and family, details about the city in Puerto Rico 11
where she purported to live for over thirty years, etc. 12
Moreover, the location and circumstances of her confinement 13
were unremarkable. 14
After the 90-minute interview, the Customs and 15
Border Patrol officers were unable even to ascertain FNU 16
LNU’s name. Indeed, if she was subjected to questioning at 17
the airport until her name was known, she would be there 18
still. So if she was being questioned (and detained) for 90 19
minutes, it is only because she declined to say who she is. 20
19

-- 19 of 22 --

This case therefore does not remotely present the occasion 1
for a tour d’horizon of Miranda law, or for pages of 2
tendentious analysis in which useful precedents of this 3
Circuit are deconstructed. See Majority Op. at 7-13. 4
This case is important nonetheless because 5
muddling up Miranda law in the context of questioning 6
entrants at the border is very dangerous. The majority 7
opinion unnecessarily complicates what should be a 8
straightforward holding. Point II of this concurrence 9
abstracts the holding from the surrounding commentary and 10
dicta in the majority opinion. I do so for the benefit of 11
future parties and panels of this Court. 12
13
II. 14
Our holding in United States v. Silva, 715 F.2d 43 15
(2d Cir. 1983) was abrogated by both Berkemer v. McCarty, 16
468 U.S. 420 (1984) and Stansbury v. California, 511 U.S. 17
318 (1994) to the limited extent that the subjective 18
intentions of an officer should not be considered in the 19
Miranda analysis. Otherwise, Silva remains the law of this 20
Circuit and guides our analysis here. 21
20

-- 20 of 22 --

Silva: (1) rejected the proposition that “from the 1
moment [the entrant] was directed to the secondary 2
inspection area she was in a custodial environment,” 715 3
F.2d at 46 (internal quotation marks omitted); reiterated 4
that “Miranda warnings need not be given to one detained at 5
the border and subjected to a routine customs inquiry,” id.; 6
and observed that “questions . . . necessary to enforce 7
immigration and customs regulations” generally will not 8
require Miranda warnings, id. at 47. Unlike the Third 9
Circuit in United States v. Kiam, 432 F.3d 524, 530 (3d Cir. 10
2006), however, Silva refrained from adopting a bright-line 11
exception to Miranda at the border and instead recognized 12
Miranda’s limited application to non-routine customs 13
inquiries. See Silva, 715 F.2d at 46-47. 14
Practically speaking, the most important factor in 15
determining whether Miranda applies at our borders will 16
often be the objective function of an inspector’s questions, 17
not the custodial nature of the questioning. 18
Miranda warnings are not required in a routine 19
secondary inspection when, as in this case, a reasonable 20
person would consider the questions asked (e.g., name, 21
21

-- 21 of 22 --

country of birth, citizenship, etc.) to be relevant to an 1
admissibility or customs determination. True, some events 2
or factors might tip the balance in another case. When the 3
custodial conditions become clearly exceptional rather than 4
routine--handcuffs, drawn weapons, administration of Sodium 5
Pentothal, etc.--questions that objectively bear on 6
admissibility might require a Miranda warning. Those 7
circumstances, however, are not present here and remain to 8
be decided in future cases. 9
The views expressed in this Point are common 10
ground among the panel members, and are expressed without 11
fear of contradiction. 12
22

-- 22 of 22 --