United States v. Francisco Corral-Franco, Maria Guadalupe Corral-Franco, and Maria Aparis Franco

immigrаtion self as an officer. Maria JONES, Before GARWOOD Aparis produced a resident alien card. The *, Judges, Circuit and HUGHES District agents defendants told the they plan- were Judge. ning to El return to Paso visiting after Chicago days. for two or GARWOOD, three Judge: Circuit government appeals The the district During questioning, suppressing court's as evidence 191 order appeared nervous and tried to avoid mak- pounds of marihuana ing eye agents. contact with the Castillo agents Border Patrol found in the defend- Guadalupe asked Maria if she had checked ants’ at the El Paso International any luggage replied and she that she had Airport. The district court ordered However, her, not. Francisco corrected pression ground on the that the marihuana stating had checked six suitcases. question illegal the fruit of ar- response questioning to similar from morning rest that occurred of Feb- Lopez, Aparis, apart Maria who was 25, 1987, ruary departure gate at a at the point, the other defendants at this first airport. We conclude that stated luggage, that she had no and then applied legally court a incorrect test stated that she had checked one suitcase. occurred, determining that an arrest then determining After citizenship of the accordingly we vacate the defendants, agents decided to let them order and remand for reconsideration go. During questioning, the brief Gomez appropriate under the test. kept eye on the six suitcases. left, After the defendants Castillo and Proceedings

Facts and Below Lopez compared notes on their conversa- approximately February At 7:10 a.m. on suspicious tions. Both were of the defend- 25, 1987, Castillo, Agents Border Patrol respons- ants’ nervousness and inconsistent Lopez, and Gomez observed the defend- es. Castillo testified that such behavior ants, (Francisco), Francisco Corral-Franco closely drug the behavior of resembled (Maria Guadalupe Maria Corral-Franco smugglers he had encountered at air- (Ma- Guadalupe), Aparis and Maria Franco port during eight years half and a as a entering Aparis), ria the El Paso Interna- agent. suspi- Border Patrol Because of the Airport six American tional Tourister behavior, agents cious the two decided to entering airport, suitcases. After agents examine the six suitcases. The did approached three defendants an airline open place or them under suitcases counter, suitcases, ticket checked in all six magnetometer, did feel the suit- boarding passes and obtained for a 7:45 solidly flight Chicago. cases and noticed that felt The noticed weight. packed equal The that one of the defendants had what the tags, baggage believed to be Colombian also noticed that the claim features. Thus, “Ramirez,” proceeding as the defendants were to which bore the name did not * Texas, Judge sitting by designation. District of the Southern District of matching numbers, baggage claim those tickets addresses, telephone the suitcases. His airline tick- information. attached identifying other Chicago and not one-way defendants were ets were that none knew round-trip had stated testified as the defendants Ramirez, and Castillo named questioned first knew, experience, that suitcas- he based when solidly agents. appears point feel containing marihuana It some often es contained Bor- Believing the suitcases arrived at the packed. take agents office, decided to drugs, the one of the defendants illegal der Patrol in the permission go Patrol office to the Border asked to the restroom. ques- could go, be Although the defendants allowed to she was until she was baggage tioned further. one of the female escorted one of the airlines. from handlers to an Meanwhile, gone had Francisco air- the other defend- shop and two port coffee During questioning, the Francisco admit- boarding gate. At at the ants were still belonged to him. ted all six suitcases that a.m., Lopez another approximately 7:20 and contained, the When asked what suitcases again and defendants agent approached the agents replied, The asked he know.” “You willing accompa- to they if be asked would know, said, explаin, and “You him to he airport Border Patrol agents to the ny the Fran- marihuana.” testified that Castillo approxi- office, one floor and is down which sometime be- made statement cisco boarding gate. yards the mately 150 a.m., he and 7:55 but also testi- tween 7:50 the to arrest agents purport did not The lug- admitted the fied that Francisco that defendants, they oral did administer gage marihuana sometime be- contained warnings. agents then went The Miranda agents and The then tween 7:30 7:35 airport Border to the with the defendants permission the him to search asked no that the There is evidence Patrol office. According luggage and he consented. to they agents defendants told the either Castillo, permis- asked for Francisco was they re- arrest or that were were under only once and he told sion to search airport Border Patrol quired go to right he had Castillo the refuse. office; any evidence that the nor is there verbally con- also testified that Francisco any or made the defendants touched around 7:35 sented to the search sоmetime gestures them. The de- coercive toward a.m., signed Francisco a.m. At 7:55 a Con- ask if apparently fendants did not form, had read and sent to which Search he return to the free to remain at or were him. read to been which gate plane. Castillo testified or board Meanwhile, Aparis initially Maria denied request at that had made such a ownership admit- of but then permitted point they would not have been Maria she owned ted that two suitcases. however, depart plane; on the there is Guadalupe ownership one. Both claimed of no defendants were evidence that advised the suitcases contained cloth- claimed that of this. or otherwise aware ing refused to further and answer then later, and About five minutes questions. They questioned not fur- were airport Bor- arrived at the three re- ther. When were defendants defendants der Patrol office. were united, the women told that Fran- two were separated from each other and ownership all cisco had claimed of warnings. again administered Miranda suitcаses, (Francisco) he told the and when acknowledged The defendants an under- truth, tell the both two women to standing rights of their and each read suitcases. admitted that he owned all six signed Warning Rights a standard form. open agreed Francisco then suit- all Castillo testified that three defendants indicating is no cases. There then consented to Francisco interview. induced or coerced to do so. The he was empty pockets part was asked to as of a search, photographer so that inventory sent for аnd he was standard $2,000, photographed could be before and carrying found to be the airline suitcases tickets, suitcases, being opened. keys photograph- to the six When the while arrived, opened ers Francisco unlocked Cir.1982), the district court stated that the suitcases and to con- found the four relevant (1) factors are: pounds tain approximately 191 of marihua- investigation had focused on the de- na. opened The suitcases were around 8:47 fendant; (2) whether subjective intent a.m., almost an hour signed after Francisco conducting officer interrogation Consent Search form. Prior to this defendant; was to (3) hold whether the time, the defendants had officially been subjective belief of the defendant was that charged arrested or committing with a his freedom had been significantly restrict- crime. ed; (4) cause had

All three were subsequently arisen to effect an arrest. indicted 841(a)(1) under 21 U.S.C. §§ listing After factors, above four possess for conspiracy pos- and for district court then stated that: “Applying ‍‌​​​​​​​‌​‌​‌‌​‌​‌​​​‌‌‌‌​​‌​​​​​‌‌​​​​‌‌‌‌​​‌​​‍session the intent to distribute more thesе factors to case, the instant the Court fifty than kilos of marihuana. The defend- finds that an arrest of all three Defendants ants were also indicted under 18 U.S.C. was effected at approximately 7:20 to 7:25 1952(a)(3) using § interstate carrier a.m.,” the when defendants were asked if to conduct activity. unlawful they would accompany agents the from the The defendants filed a motion to departure gate airport to the Border Patrol press the evidence in found the six suitcas- office. The court determined that the in- es, suppression hearing and a was held on vestigation had clearly then focused 22, May 1987.1 Castillo was only wit- three defendants. The court further found ness. The granted district court the mo- that it was then the subjective intent of the tion, finding during that the 7:20 a.m. en- agents to detain the defendants until counter, when agents, as the district agents were satisfied as to the contents of it, court characterized “instructed” the de- addition, the suitcases. In the court not- to accompany fendants them though there was direct no in ed— this office, Border Patrol restricted resрect it was the defendants’ —that the defendants’ freedom and thus effectu- “well-founded belief that freedom had ated informal “arrest” proba- for which restricted, been and that were not free ble required. cause was The court further to leave until through with found cause for the arrest Regarding them.” factor, the fourth was then lacking and that accordingly district court noted lacked Francisco’s consent to the search probable cause to arrest the defendants at luggage was as being invalid the direct the time of the 7:20 to 7:25 a.m. encounter. product of an illegal arrest and detention. Based on findings, these the district court suppressed court therefore the mari- concluded that the had effected an in huana found the suitcases. appeal This arrest particular at that time. followed. In reviewing the district court’s decision

Discussion suppression on a hearing, we follow To rule that “the trial purely determine court’s whether the factual were arrested during must be accepted clearly the 7:20 unless a.m. encoun- ter,2 erroneous, or court looked to a four influenced an incorrect factor test that has often view of the been used law.” United States v. Maldo determine person nado, 809, (5th Cir.1984). has been “in 735 F.2d 813 In custody” for purposes. Miranda Citing event, the latter remand is normally the States 765, United v. 665 appropriate F.2d 769 course. See Pullman-Stan- government 1. The appeal has not on this preclude raised raising authorize of such matter any question standing as to the defend- on remand. suppression ant seek any part of all or matter, marihuana. We do not address that nor 2. The district court determined that in earli- However, whether it has waived. been our er encounter at about 7:10 "no Fourth opinion herein is not itself intended to either Amendment seizure occurred." 540 Beto, 1284, Brown v. Cir.1971); 468 F.2d 1781, 273, 102 S.Ct. Swint, 456 U.S. dard v. States v. Car (5th Cir.1972); United (1982). 1286 1792, L.Ed.2d 66 17, 72 n.&1789 denied, ollo, (5th Cir.), cert. 50, 52 507 F.2d court conclude We 143, 874, 105 S.Ct. 46 L.Ed.2d 423 96 U.S. in test factor applying the four erred Estelle, 1265, Alberti v. (1975); 524 F.2d application of The court’s this case. denied, (5th Cir.1975), cert. 1267 understandable, as certainly test is (1976); 3181, 954, 49 L.Ed.2d 1193 96 S.Ct. hearing it was time of the Nash, 563 F.2d 1166, 1168 v. Fifth Amendment Circuit in of this law Warren, Cir.1977); States v. (5th Unitеd in Fourth applied it also cases and we (5th Cir.1978) (en banc), 1058, 1071 ‍‌​​​​​​​‌​‌​‌‌​‌​‌​​​‌‌‌‌​​‌​​​​​‌‌​​​​‌‌‌‌​​‌​​‍578 F.2d However, since then cases. Amendment part grounds, on other 612 F.2d rev’d in test, as “four factor” rejected we denied, Cir.) (en banc), cert. (5th 446 887 Supreme Court longer compatible “no 2928, 956, 64 L.Ed.2d 815 100 S.Ct. U.S. it with the replaced and have precedent,” Williams, States v. (1980); 594 United to determine Cir.1979); United (5th 86, 12 F.2d 92 n. formally arrested not an individual 908, (5th Henry, 604 F.2d 916-19 States v. purposes of custody for is nevertheless Alvarado Gar Cir.1979); States v. United Arizona, 436, U.S. 86 S.Ct.

Miranda cia, (5th Cir.1986). 422, 781 F.2d 425-26 (1966). See United 16 L.Ed.2d Brunson, 549 F.2d States v. Bengivenga, F.2d 593 States v. denied, (5th Cir.), cert. n. 9 test, onе Cir.1988). the latter Under 54 L.Ed.2d 107 U.S. if, custody is formally arrested deemed case, (1977), we ob a Fourth Amendment if, person in the only “a reasonable applied district court had served that understood suspect’s position would prong” test for Miranda the Carollo “four restraint on a to constitute the situation a custody there was to determine whether degree which freedom of movement purposes for Fourth Amendment seizure Id. arrest.” formal associates with the law ques- treated those parties that the and had pur person” for thеse The “reasonable Although being we tions as the same. guilty of criminal poses is one “neither every sei- opinion as whether reserved nor overly apprehensive and thus conduct custody for Miranda pur- equated zure of the circum insensitive to seriousness underlying thought poses,3 “that we Id. stances.” enough justify the inquiries are similar Amend- Bengivenga a Fifth While was ap- parties in their and the district court case, is also think its rationale ment we States proach to this case.” Id. United In pur- Amendment controlling for Fourth (5th Cir.1981), Roberson, 84, 86 v. 650 F.2d Bengivеnga used its “reasonable poses. test to determine applied the four factor we effect, to, distinguish be- in person” test justi- so as to there was an arrest variety investigative stop of the an tween being incident challenged as fy the search Ohio, 1, Terry v. U.S. 88 in 392 authorized so, only doing we relied on In thereto. (1968) 1868, and its 889 20 L.Ed.2d Nash, S.Ct. Williams, Warren, which had degree of restraint associ- progeny, exclusively for Miranda applied test all are, These Morin, arrest. ated with formal Similarly, 665 F.2d purposes. in concepts. all, Fourth Amendment 769, both applied the factor test (adding we four arose in Moreover, factor) “four test determining our factor” wheth- ‍‌​​​​​​​‌​‌​‌‌​‌​‌​​​‌‌‌‌​​‌​​​​​‌‌​​​​‌‌‌‌​​‌​​‍in an additional context. Terry stop Fifth or an arrest Amendment-Miranda a seizure was a er Montos, 215, v. purposes, relying 421 F.2d United Amendment See States for Fourth denied, Warren, 1022, applied the cert. (5th Cir.), solely 397 U.S. had 223 which And, in (1970); purposes. Unit Miranda 1262, only for 532 test L.Ed.2d Johnson, v. (5th 834 F.2d Phelps, 443 F.2d ed v. States Bengivenga purposes; held instead rejected possi- Bengivenga, expressly for Miranda 3. we Brunson, passage degree implication in "the associ- from a had to be of ble later that the restraint any police opposed at 357 n. seizure 549 F.2d to a mere formal as ated with arrest" calling movement into restriction on freedom of play stop. Terry custody equated the Fourth Amendment Roberson, finding court in Cir.1987),similarly to arrest had oc agents’ curred at that time relied on the employed to hold four factor test determining subjective in intent not to allow the defend arrest had occurred that an depart flight on their challenged incident ants without first seizure wаs satisfying agents’ suspicions relied in this connec- about to arrest. Johnson Roberson, Williams, luggage, although there was no evidence tion Warren, being Miranda that this intent been revealed to the latter two solely Bengivenga, Yet in relying on defendants. we ruled the former two cases and Accordingly, plain subjective is that “the unrevealed it intent of cases. Miranda factor test in the law enforcement officers” in this re of the four that our use entirely spect is is “irrelevant.”4 See also Amendment cases Fourth Mendenhall, reflection of our use outgrowth and States 1870, 1877 6, (1980). we have now in cases. As S.Ct. n. 64 L.Ed.2d 497 test Miranda Similarly, test with the “rea- replaced the four factor the district court likewise relied cases, and person” investigation test in Miranda sonable on the fact that the had then distinguished between doing Again, so have in focused on the defendants. how full-fledged, stops ever, albeit Terry-type Bengivenga teaches that this is rele informal, arrests, it is inconceivable only may vant insofar as it “influence a apply the four factor continue to we would person’s perception reasonable of the situa Amendment cases. some, Fourth all, tion.” Here but not of the “fo apparent cus” was to the defendants. conclude that We therefore Hence, application of the four factor test whether the appropriate test to determine may exagger have led the district court to arrested in the had been fact significance proper of “focus” in ate gate departure encounter to 7:25 a.m. 7:20 case, prior particularly as our four trip airport Border Patrol office factor decisions have indicated that is “the Bengi test of is the “reasonable compelling” most of the four factors. See district court erred venga, and that the Brown, 468 F.2d at 1286.5 factor” test for this employing the “four court’s find- error in this We conclude that the district purpose. The district court’s ing arrested at ulti that the defendants were regard may well have influenced its departure gate en- the 7:20 to 7:25 a.m. determination that the defendants mate trip airport Border departure counter and the to the arrested at the were de facto Thus, of example, Patrol office was not made on the basis gate at 7:20 a.m. for the Moreover, (correct- change if she wanted to her had asked the other 4. even if the defendants name, ly) that were not then free to if understood about her and then asked both answer leave, such restraint would not of itself neces- drugs.” carrying "were 670 F.2d at 588-89. 491, arrest, sarily equivalent be to that of an as 1319, Royer, Florida v. 460 U.S. 103 S.Ct. Cf. Terry stop. Bengivenga. opposed to a 1322, (1983) (agents L.Ed.2d 229 announced 75 transporting they suspected him of to defendant degree of focus revealed to 5. We ‍‌​​​​​​​‌​‌​‌‌​‌​‌​​​‌‌‌‌​​‌​​​​​‌‌​​​​‌‌‌‌​​‌​​‍note that the tickets and identifica- narcotics and retained his tion; appears to be less on this the record than that Hill, here accompany them to he was then asked as States v. such cases United "large as a which one witness described a room Morin, (5th Cir.1980), 626 F.2d 429 closet”). storage (5th Berry, v. F.2d 765 Cir. United States 1982) 665 (Unit Hill, B). In we relied on the fact that the district court here We also observe agent before assеrted de arrest the that had twice the regarded probable apparently the absence of facto requested, and the defendant had the as factor indicative of arrest under cause a refused, permission person to search his twice However, it is four factor under that test test. 431, 9, 626 F.2d at 435 n. 436 n. for narcotics. presence probable indica- the of cause which is stopped twice 10. In the defendant was Garcia, 781 tive of de arrest. See Alvarado facto arrest, time re- before the "informаl” the first 426; Warren, at 1071-72. Un- F.2d at 578 F.2d fusing request bag by an to search his officer test, person” presence or the der the "reasonable detail," "on who said he was the narcotics only relevant to the absence of cause is (while using being second time informed the the rest may per- extent that it "influence a reasonable room) suspected carrying that he was of Bengivenga. perception of the situation.” son’s Here, narcotics, being ticket identification and probable cause is accord- the absence of from and retained. 665 F.2d at then taken him ingly arrest. neutral or indicative of no either Berry, already exposed In had 767. identification, his use of false to one defendant 542 findings new of and test sideration person” “reasonable prescribed motion, appropriate conse- by pression its re- influenced apparently and was thereon, any for further factor order quent four discredited now on the liance may called as accordingly proceedings remand is in connection therewith

test, and that make here- may and not inconsistent appropriate court the district be that for so appropriate with. thereunder, and determine and REMANDED. VACATED test, four factor than under rather were de ar- the defendants facto dissenting: HUGHES, Judge, District statement Francisco’s prior to rested being the dis- remanded for This case is mari- contained that the evidence court to reconsider trict connection, do not we in this huana. And newly-enunciat- light suppression reopening court from district preclude the Bengivenga, v. in United States ed test appropri- that evidence, it deem should Cir.1988), determining for F.2d 593 845 ate.6 I dis- been an arrest. there has sent. Conclusion have reached the could is va- The district court suppression order Accordingly, originally the “rea- it under same result did is remanded recon- cause and the

cated voluntarily, They hearing with the "A. officers went only at the 6. The forms) warning yes, (other signed sir. consent than Castillo, Agent testimony who was was the gate departure arrest present "Q. the asserted read not You earlier that testified airport Bor- there to from warnings upstairs, nor on the walk is that correct? course, (we recognize, of Yes, der Patrol office hearsay may they agreed accompany "A. at such generally be considered office. officers to the Matlock, 415 U.S. hearings, States v. them, see "Q. told it a fact that officers Isn’t (1974)). 988, None L.Ed.2d 242 accompany down- us’ and took them “You (or any presented testified of the defendants stairs? evidence), although so their testi- done (Em- operate.” way we "A. That’s not against them ‍‌​​​​​​​‌​‌​‌‌​‌​‌​​​‌‌‌‌​​‌​​​​​‌‌​​​​‌‌‌‌​​‌​​‍mony been used not havе could added.) phasis on the mer- (apart impeachment) at trial prov- government has the burden While the States, 390 U.S. v. United its. Simmons voluntarily accompanied ing that the defendants 974-76, (1968). 19 L.Ed.2d S.Ct. (at if is crucial least the government’s context, puzzled are we Mendenhall, case), finding 7:20 a.m. encounter that at the court's 1870, 1879, 64 L.Ed.2d S.Ct. to accom- the defendants the pany "instructed” say (1980), it court did office. Patrol Border testimony or determined discredited Castillo’s simply no evidence There is burden; carry this government failed to that the rather, "required" dо or "told” were "instructed” affirmatively as a fact—but found it only point. evidence on anything at that evidentiary support without —that following cross-examina- is the this score accompa- to “instructed" (who present Agent Castillo was not tion of ny court, observe that them. We also encounter): during this a.m., finding relied on arrest at 7:20 in an rights they Verbally "Q. their read them flight “departed at defendants’ the fact area, loading in the terminal there in the (this was scheduled them” 7:45 departure without area? time; just is no of there Yes, “A. "Q. sir. actually depаrted). plane But when the they apparently to asked them Then arrest, clearly under the asserted was file office. come with (not by the one view of the evidence resolved usually Negative, them We ask sir. "A. if court) Francisco’s statement district office, willing accompany they us to the are luggage contained marihuana that the regarding the con- pending interview further cause) (which gave rise to doubtless consented, they luggage. of tents After possible to when it was still came at a time they rights verbally they given their wеre (further, appear that plane it does not catch the Border Pa- officers down escorted or that had been tickets taken the defendants’ office. trol office, aware, arriving they before remand, there). escorted, luggage was On that their politely, they "Q. are So then findings clarify office, also its court should Customs back are escorted respects. by agents? these Office those two Bengivenga; sonable test of legal standard, the worded because the facts of specifically trial court found that the Cor- this case mandate under either ral-Francos’ belief that were under the Morin or Bengivenga test. To hold arrest at 7:20 a.m. when were led otherwise is inconsistent with Florida v. from the airport concourse to the border Royer, 103 S.Ct. patrol office was well-founded. trial (1983), L.Ed.2d 229 a factually closer case court’s conclusion that the defendants’ be- than In America, Mendenhall. a non-para- justified liefs were require- satisfies the noid innocent (1) traveler who stopped is innocent, ment similarly that an situated minutes plane before his depart is to be- individual would have believed he was not cause he looks nervous and given has con- free to leave. flicting accounts about how much checked; he (2) has is led to another floor A chief reason for adopting objective of by three into a law of prevent was Mendenhall over enforcement office out public view; reliance self-serving on po- declarations of (3) has had luggage seized; (4) has Mi- lice Bengivenga, officers. at 598. In the warnings randa аdministered; (5) has air- Corral-Francos, case of the immigration line tickets money away taken in the eight officer with years one-half of office; (6) has no boarding chance of experience field testified that the Corral- plane his until his luggage inspected, is Francos were not free to custody. leave would reasonably think police he is in anything, If cus- this is the most reliable testi- tody under Arizona, Miranda v. mony. Insisting U.S. that the trial court refor- (1966). L.Ed.2d 694 mulate its verbiage of a It was not until after their plane had person” analysis de- when the evi- parted that Corral-Franco unequivocally signed dence the con- shows that the officer form, sent and even if subjectively they could making believed he was have an ar- made the airplane, trip their rest and the court found this would effective- seriously been ly disrupted conveyed the absence of through their agent’s luggage at places light conduct destination. unnecessary se- of facts, question mantic these on exercise the trial court. were under arrest would be answered af- The emphasis in footnote 6 on the trial firmatively any particular under articula-

court’s express failure to his disbelief of tion of the standard. Castillo’s characterization of the encounter troublesome; is finding Judge Goldberg As said in “instructed” Bengivenga, strong implication carries a the new standard must Castillo be applied consist- was not ently credible. The court could with the rely underlying principles in Mi- the common-sense people inference randa v. done, or- Arizona. Unless this is dinarily do voluntarily jeopardize may courts their reach conflicting results on travel arrangements casual, polite strikingly re- similar facts.

quests interrogation for an in an office out sight shortly before flight is to

depart.

Although the trial court Bengivenga

applied the four-part test of which

was held legally test, abe incorrect

case was not remanded for application

of a presumably

because judge’s

port the new rules, articulation of the leav-

ing a legally proper result. This case need remanded,

not be spite newly-

Case Details

Case Name: United States v. Francisco Corral-Franco, Maria Guadalupe Corral-Franco, and Maria Aparis Franco

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 22, 1988

Citation: 848 F.2d 536

Docket Number: 87-1483

Court Abbreviation: 5th Cir.