Borderline Reasonable: The Circuit Split and the Application of Miranda Rights

• Author: Border Patrol Agents - Lauren Fritz
• Position: Michigan State University College of Law
• Pages: 105-150

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights

rst published online 11 November 2013

105

Borderline Reasonable:

The Circuit Split and the Application of Miranda

Rights by Border Patrol Agents

L F. F

Michigan State University College of Law

E-mail: fritzlau@msu.edu

Miranda v. Arizona requires that an individual in custody “be warned prior to any

questioning” that he or she has the right to remain silent, anything he or she says can

be used against that individual in a court of law, that he or she has the right to the

presence of an attorney, and, if the individual cannot aord an attorney, one will

be appointed for him or her prior to any questioning if the individual so desires. An

interaction between law enforcement ocials and an individual generally triggers

Miranda’s prophylactic warnings when the interaction becomes a “custodial inter-

rogation.” For Miranda to apply, the defendant must be in custody and subject to

interrogation. Many scholars and circuits are currently split on what constitutes a

“custodial interrogation” in border situations, when a situation is no longer routine,

and at what point law enforcement personnel must give Miranda warnings. By ana-

lyzing the circuit split of the application of Miranda rights during border situations,

lower courts will have direction when deciding similar issues and, more importantly,

the analysis will signal to the Supreme Court that judicial guidance needs to be

developed.

Keywords: Civil Rights and Discrimination, Constitutional Law, Criminal Law and

Procedure, International Law, Miranda Rights, Circuit Split, Border Rights, Custodial

Interrogation.

I. Introduction

Imagine a Puerto Rican woman ying into New York City from the Do-

minican Republic. After getting o the plane, an armed guard imme-

diately takes her to the secondary inspection area,1 ensures that she is

1. A secondary inspection area is an area where people not readily admissible after

primary inspection are sent for a more detailed inspection so as not to interfere

with the ow of trac over the bridge. United States v. Silva, 715 F.2d 43, 45 (2d

Cir. 1983).

The Indonesian Journal of International & Comparative Law Volume I Issue 1 (2014) at 105–150

Lauren Fritz

106

not free to leave, and questions her. ese questions include the woman’s

place of birth, citizenship, date of birth, parents and siblings’ names, and

arrest record. e guard searches her name on a computer database and

takes her ngerprints. e border agents detain the woman for a total of

ninety minutes without providing a reading of her prophylactic Miranda

rights. In scenarios like this, it is natural to contemplate when question-

ing goes far enough to require notication of a traveler’s constitutional

rights. What constitutes “custodial interrogation” in border situations?

When does a routine citizenship check become non-routine? ese essen-

tial questions are in need of a denitive answer. In fact, the United States

Circuit Courts of Appeals are split on this contentious question.

e facts of the scenario above are comparable to the facts in Unit-

ed States v. FNU LNU.2 In FNU LNU, the Second Circuit held that a

reasonable person in the defendant’s position would not have considered

what occurred to be the equivalent of a formal arrest.3 It follows that the

defendant was not in “custody” and that, for this reason alone, Miranda

warnings were not required.4

Miranda v. Arizona requires that an individual in custody “be

warned prior to any questioning”5 that he or she has the right to remain

silent, anything he or she says can be used against that individual in a

court of law, that he or she has the right to the presence of an attorney,

and, if the individual cannot aord an attorney, one will be appointed

for him or her prior to any questioning if the individual so desires.6 An

interaction between law enforcement ocials and an individual generally

triggers Miranda’s prophylactic warnings when the interaction becomes a

2. United States v. FNU LNU, 653 F.3d 144, 146-47 (2d Cir. 2011). Defendant

arrived in New York traveling from Dominican Republic using someone else’s

passport. Id. at 146. Unfortunately for the defendant, the other individual had a

warrant out for her arrest making defendant a target. Id. Defendant was instantly

escorted to a secondary inspection room where she was not free to leave. Id. Af-

ter being questioned, searched in databases, and ngerprinted for approximately

ninety minutes, the customs ocer had still not administered the defendant’s Mi-

randa rights. Id. at 147.

3. Id. at 154.

4. Id. at 155.

5. Miranda v. Arizona, 384 U.S. 436, 479 (1966).

6. Id. at 479.

The CIircuit Split and The Application of Miranda Rights by Border Patrol Agents

Lauren Fritz

107

“custodial interrogation.”7 For Miranda to apply, the defendant must be

in custody and subject to interrogation.8 Many scholars and circuits are

currently split on what constitutes a “custodial interrogation” in border

situations, when a situation is no longer routine, and at what point law

enforcement personnel must give Miranda warnings.9 By analyzing the

circuit split of the application of Miranda rights during border situations,

lower courts will have direction when deciding similar issues and, more

importantly, the analysis may signal to the Supreme Court that judicial

guidance needs to be developed.

is article focuses on the application of Miranda rights during bor-

der situations. Part II provides a frame of reference or background into

the evolution of Miranda rights and their current status. Part III discusses

the duties and responsibilities of border patrol agents. Additionally, it

discusses the border patrol exception to the Fourth Amendment and the

function of the border agents’ broad discretion in regards to the Fifth

7. FNU LNU, 653 F.3d at 148.

8. Cruz v. Miller, 255 F.3d 77, 80–81 (2d Cir. 2001) (recognizing custody and inter-

rogation as separate elements of the Miranda determination).

9. Jon Adams, Rights at United States Borders, 19 BYU J. P. L. 353 (2004-2005)

(arguing routine border searches can violate the Fifth Amendment privilege

against self-incrimination, especially when no Miranda warnings have previously

been given); United States v. Kiam, 432 F.3d 524 (3d Cir. 2006) (holding that

the defendant was not entitled to Miranda warnings prior to border inspection at

time he sought entry into the United States because a person seeking entry into

the United States does not have a right to remain silent and each alien seeking ad-

mission into the United States must convince a border inspector of his or her ad-

missibility);United States v. Galloway, 316 F.3d 624, 632 (6th Cir. 2003) (ruling

that a secondary customs inspection, upon defendant’s return to the United States,

during which defendant was asked detailed questions about his trip, including

where he traveled and what items he purchased, did not constitute a custodial in-

terrogation, and thus Miranda warnings were not required); FNU LNU, 653 F.3d

at 144 (determining that the defendant was not in custody for Miranda purposes

when she was questioned by the ocer and in order to decide whether the defen-

dant was in custody, the court must consider the circumstances surrounding the

encounter with law enforcement authorities and the analyze whether a reasonable

person in the suspect’s position would have understood herself to be subjected

to restraints comparable to those associated with a formal arrest); United States

v. Moya, 74 F.3d 1117, 1120 (11th Cir. 1996) (holding that aliens at the bor-

der are entitled to Miranda warnings before custodial interrogation; however, the

questioning at the border has to rise to a “distinctly accusatory” level before it will

amount to custody requiring Miranda warnings).