United States of America v. Dequan Forde

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-3654
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UNITED STATES OF AMERICA
v.
DEQUAN FORDE,
Appellant
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On Appeal from District Court of the Virgin Islands
(D. C. No. 1-18-cr-00004-001)
District Court Judge: Honorable Wilma A. Lewis
Argued December 8, 2021
Before: McKEE, RESTREPO, SMITH, Circuit Judges
(Filed: June 1, 2022)
Matthew A. Campbell, Esq. [ARGUED]
Kia D. Sears, Esq.
Office of Federal Public Defender
1336 Beltjen Road
Suite 202, Tunick Building
St. Thomas, VI 00802
Counsel for Appellant
Daniel H. Huston, Esq.
Office of United States Attorney
1108 King Street
Suite 201
Christiansted, VI 00820
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Gretchen C.F. Shappert, Esq.
Adam Sleeper, Esq. [ARGUED]
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
Counsel for Appellee
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OPINION*
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McKEE, Circuit Judge.
Dequan Forde appeals the district court’s denial of his motion to suppress
marijuana seized during a warrantless search of his checked luggage as he arrived in the
Virgin Islands from the United States mainland. He also challenges the denial of his
motion to suppress statements he made to Customs and Border Protection officers while
at the baggage claim and in secondary inspection. We will affirm the district court’s
denial of Forde’s motion to suppress the marijuana, his statements at baggage claim, and
his spontaneous statement in secondary inspection. However, for reasons set forth below,
we will reverse the court’s denial of Forde’s motion to suppress statements he made in
response to questioning while in secondary inspection.
I.1
* This disposition is not an opinion of the full Court, and under I.O.P. 5.7 does not
constitute binding precedent.
1 We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review the district
court’s “denial of a motion to suppress for clear error as to the underlying factual

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Forde argues that CBP’s warrantless search of his luggage at the internal customs
border was unreasonable in violation of the Fourth Amendment. The officers uncovered
marijuana in Forde’s luggage during a routine x-ray examination of bags from a flight
arriving from the mainland. They then returned it to the baggage belt so that they could
intercept whoever retrieved it. While “[s]earches conducted absent a warrant are per se
unreasonable under the Fourth Amendment,” there are certain exceptions.2 In United
States v. Baxter, decided after Forde’s motion was denied, we clarified that the border
exception to the Fourth Amendment applies to the Virgin Islands’ customs border,
regardless of the direction of crossing.3 The officers’ warrantless inspection of Forde’s
luggage was consistent with the border exception to the Fourth Amendment.
findings,” and we exercise plenary review over questions of law. United States v. Perez,
280 F.3d 318, 336 (3d Cir. 2002).
2 United States v. Katzin, 769 F.3d 163, 169 (3d Cir. 2014).
3 United States v. Baxter, 951 F.3d 128, 134–35 (3d Cir. 2020). Baxter concerned a
package mailed from the mainland United States to the Virgin Islands rather than
checked baggage on a commercial flight from the mainland United States to the Virgin
Islands. Looking to the statutory and regulatory landscape, searches of mailed packages
may be different than searches of passenger’s luggage. Compare 19 C.F.R. § 145.2(b)
(treatment of mail between the mainland and the Virgin Islands); 19 C.F.R. § 122.144(a)
(treatment of passengers travelling from the Virgin Islands to the mainland); 19 U.S.C.
§ 1467 (same); and 31 U.S.C. § 5317(b) (treatment of passengers travelling between the
United States and a foreign country), with 19 C.F.R. § 122.143(a) (treatment of
passengers travelling from the mainland to the Virgin Islands). But Forde concedes that
Baxter controls the outcome of this case. See Appellant Br. 12 (“Mr. Forde recognizes
that United States v. Baxter presently forecloses relief on this claim. Nevertheless, he
wishes to preserve the claim for further review.” (citation omitted)); Oral Arg. at 0:58.
We thus assume, without deciding, that Baxter controls the outcome here. The district
court applied the good-faith exception to the warrant requirement. Given our application
of Baxter, we need not address the court’s conclusion. Rather, we will affirm the denial
of Forde’s motion to suppress on alternative grounds. See United States v. MacEwan, 445
F.3d 237, 245 n.7 (3d Cir. 2006).

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Accordingly, we will affirm the district court’s denial of Forde’s motion to suppress this
physical evidence.
II.
Forde also argues that the court erred in admitting statements he made in response
to CBP questioning without being given Miranda warnings. “[T]he Fifth Amendment
prohibits a prosecutor from using ‘statements . . . stemming from custodial
interrogation’” in the absence of Miranda warnings.4 A defendant is in custody when a
reasonable person would not feel at liberty to terminate the interrogation and leave.5 This
standard is objective, based on the circumstances of the interrogation rather than the
subjective views of the officers or suspect.6
The district court concluded that Miranda did not apply because the questioning,
both at baggage claim and in secondary inspection, occurred in the context of a border
search. However, the border exception does not apply when questions “cease to have a
bearing on the grounds for admissibility and instead only further a potential criminal
prosecution.”7 Here, admissibility was resolved before Forde was questioned at the
4 Renda v. King, 347 F.3d 550, 557 (3d Cir. 2003) (quoting Miranda, 384 U.S. at 444).
5 United States v. Ludwikowski, 944 F.3d 123, 131 (3d Cir. 2019).
6 Stansbury v. California, 511 U.S. 318, 323 (1994).
7 United States v. Kiam, 432 F.3d 524, 530 (3d Cir. 2006) (rejecting a standard based on
whether questions were routine or non-routine, since “courts have gone to great pains to
label almost all questioning ‘routine’”). Kiam assumes that the official has a genuine
interest in and authority to ascertain the admissibility of people and their effects. Id. at
529–30 (“A person seeking entry into the United States does not have a right to remain
silent. . . . [He] must convince a border inspector of his . . . admissibility to the country
by affirmative evidence. . . . [And] the border inspector is accordingly entitled to ask
questions and require answers.”). As with Baxter, it is not obvious that Forde was
required to affirmatively prove his admissibility to the officials. Cf. 19 C.F.R. § 122.143

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baggage claim because it was CBP officers’ “intention to arrest” whoever claimed the
checked luggage.8
However, the CBP officers never communicated their intent to arrest the owner of
the luggage to Forde. There was no show of authority that would cause a reasonable
person to believe that s/he was not free to leave.9 Because Forde was not deprived of his
freedom of action in any significant way, he was not in custody, and Miranda did not
apply.10 Thus, we will affirm the district court’s denial of Forde’s motion to suppress his
statements at the baggage claim, but we do so on alternate grounds.11
Nevertheless, the district court erred in declining to suppress Forde’s responsive
statements in secondary inspection. It is undisputed that Forde was in custody during his
detention and questioning by CBP officers during that secondary inspection. The inquiry
there was not focused on determining the admissibility of Forde’s luggage. The officers
knew it contained contraband that would not be admitted into the Virgin Islands. Rather,
that inquiry was the epitome of a custodial interrogation aimed at confirming Forde’s
association with the contraband and, thus, his guilt. Accordingly, the border exception to
Miranda did not apply and Forde’s statements pertaining to the suitcase during that
(treatment of passenger flights from the mainland to the Virgin Islands to be similar to
flights within the United States). It is thus not obvious that Kiam is the proper lens
through which to analyze the facts of this case. But Forde again concedes that it is, and
we thus assume Kiam applies.
8 App. 212.
9 See United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999) (requiring a showing that
the authorities did or said something in a manner conveying to the suspect they cannot
leave to establish custody without any formal arrest).
10 Miranda, 384 U.S. at 444.
11 See United States v. Belle, 593 F.2d 487, 499 (3d Cir. 1979) (affirming the district
court’s refusal to suppress a post-arrest statement on different grounds).

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investigation should have been suppressed as they were clearly obtained in violation of
the Fifth Amendment. Therefore, we will reverse the district court’s order denying
suppression of these statements.
III.
Lastly, Forde argues that his utterance “that’s weed” in secondary inspection
should be suppressed because it was both involuntary and fruit of his illegal questioning
during the secondary inspection.12 When CBP officers opened his suitcase and exposed
the laundry bag containing marijuana, Forde blurted out, “that’s weed.”13 That statement
was spontaneous and not made in response to CBP’s questioning.14 Moreover, Forde has
not offered anything that would support a conclusion that his statement was anything
other than the product of a free and rational will. The district court did not err in refusing
to suppress that statement.
IV.
In summation, for the reasons stated above, we will affirm the district court’s
denial of Forde’s motion to suppress the physical evidence, the statements he made to
CBP officers at the baggage claim and the spontaneous statement (“that’s weed”)15 that
he made while in secondary inspection. We will reverse the district court’s denial of
12 See Wong Sun v. United States, 371 U.S. 471, 488 (1963) (holding evidence stemming
from Fourth Amendment violations must be excluded from trial as fruit of the poisonous
tree).
13 App. 52.
14 See United States v. Calisto, 838 F.2d 711, 717 (3d Cir. 1988).
15 Calisto, 838 F.2d at 717.

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Forde’s motion to suppress the responsive statements he made during secondary
inspection that were made in the absence of the required Miranda warnings.
Inasmuch as some of the evidence that forms the basis of Forde’s conviction
should not have been admitted, we will vacate the judgment of conviction and remand for
further proceedings consistent with this opinion.16
16 On remand, the district court will exercise its discretion in ruling upon any motion to
withdraw the guilty plea based upon our partial reversal of the denial of the defendant’s
motion to suppress. The court’s discretion will be guided by the usual factors for ruling
upon such a motion when it is made after sentencing.

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