UNITED STATES of America, Plaintiff-Appellee, v. Mary Dangerfield BENGIVENGA, Defendant-Appellant.
No. 86-2394.
United States Court of Appeals, Fifth Circuit.
May 25, 1988.
845 F.2d 593
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.
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.
I. FACTS
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
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.
II. IN CUSTODY
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.
A. 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 fo
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.
B. 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 con-
stitute 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
The Supreme Court has also made it clear that focus alone does not create Miranda custody.12 Acknowledging this rule,13 our cases have held that custody arises when focus is coupled with another factor such as probable cause.14 Even this approach remains problematic because the exertion of restraint no more accompanies focus than it does probable cause. In particular, the presence of probable cause and focus often adds little to the custody equation because facts that establish these two factors tend to coalesce.15 Probable cause and focus become material to the custody inquiry only when they influence a reasonable person‘s perception of the situation.16 To consider these factors in any other light may hamper legitimate police practices that do not threaten Fifth Amendment rights.
Finally, both our third and fourth factors — the unrevealed subjective intent of the law enforcement officer and the subjective belief of the suspect — are irrelevant to the custody determination. The Supreme
Court recently stated that “[a] policeman‘s unarticulated plan has no bearing on the question whether a suspect was ‘in custo-dy’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect‘s position would have understood his situation.”17 Consideration of the sub-jective belief of the suspect may have an apparent logical soundness because “a per-son who honestly but unreasonably be-lieves he is in custody is subject to the same coercive pressures” as one whose be-lief is reasonable.18 But the Supreme Court adopted a reasonable person test be-cause it ” ‘is not solely dependent either on the self-serving declarations of the police officers or the defendant nor does it place upon the police the burden of anticipating the frailties or idiosyncracies of every per-son whom they question.’ ”19
2. Miranda Custody and Fourth Amendment Seizures
In the past, we have questioned the rela-tionship between Miranda custody and the Fourth Amendment‘s proscription of unrea-sonable seizures. See, e.g., United States v. Brunson, 549 F.2d 348, 356 n. 9 (5th Cir.), cert. denied, 434 U.S. 842, 98 S.Ct. 140, 54 L.Ed.2d 107 (1977). We know that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surround-ing the incident, a reasonable person would have believed that he was not free to leave.”20 But a Fourth Amendment sei-zure does not necessarily render a person in custody for purposes of Miranda. For example, traffic stops — stops which consti-tute a Fourth Amendment seizure21 — do not automatically place a person in custody for purposes of Miranda.22 In Brunson, 549 F.2d at 357 n. 12, a panel of this court noted that “the core meaning both of ‘sei-zure’ in the Fourth Amendment sense, and of ‘custody’ in the Miranda sense, appears to be the same: the restraint of a person‘s ‘freedom to walk away’ from the police.” The critical difference between the two con-cepts, however, is that custody arises only if the restraint on freedom is a certain degree — the degree associated with formal arrest.
C. Application of the Reasonable Person Test
A stop at a fixed checkpoint constitutes a Fourth Amendment seizure23 — a reason-able person would believe that she was not free to leave. Bengivenga was seized from the time that her bus was stopped at the checkpoint until her arrest, but her situa-tion, as understood by a reasonable person, did not at any time prior to production of the baggage claim stubs involve a degree of restraint associated with formal arrest.
1. Routine Citizenship Checks at Fixed Checkpoints
Routine citizenship checks at fixed checkpoints are characterized by the same two features important to Berkemer‘s holding that an ordinary traffic stop does not render a motorist in custody. First, traffic stops are “presumptively temporary and brief.” Berkemer, 468 U.S. at 437, 104 S.Ct. at 3149.
The vast majority of roadside detentions last only a few minutes. A motorist‘s expectations, when he sees a policeman‘s light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and regis-tration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way.
Id. Stationhouse interrogation, on the oth-er hand, frequently may be prolonged and a reasonable person might expect question-ing to continue “until he provides his inter-rogators the answers they seek.” Id. at 437-38, 104 S.Ct. at 3149. Second, traffic stops are less “police dominated” than sta-tionhouse interrogations. Id. at 438-39, 104 S.Ct. at 3149-50. The public nature of traffic stops reduces the hazard that police might resort to overbearing means to elicit incriminating responses and diminishes the motorist‘s fear of abuse by the police if he fails to cooperate. Id. at 438, 104 S.Ct. at 3149. That no more than one or two police officers usually participate in a traffic stop also mitigates a motorist‘s sense of vulner-ability. Id.
A routine checkpoint stop involves “brief detention,” limited questioning and possi-bly production of a relevant document.24 The degree of restraint associated with ar-rest is more enduring and less circumspect.
2. Investigation of Drug Smuggling
Once the agents discovered the suit-cases suspected of containing marijuana, their activity shifted from a routine check-point stop aimed at detecting illegal aliens to an investigation of drug smuggling. That Bengivenga and her companion were the only passengers destined for the same town as the suitcases which smelled of marijuana coupled with their nervous be-havior during the search of the luggage bins made them prime suspects. But the agents, believing that they did not possess probable cause, engaged in further conduct more analogous to a noncustodial investiga-tive stop than a formal arrest.
Officers possessing reasonable articula-ble suspicion of a person‘s participation in criminal activity may seize the suspect in accord with the Fourth Amendment to con-duct an investigative stop — a narrow intru-sion involving limited detention accompa-nied by brief questioning and, if justified, a frisk for weapons.25 Such investigative stops do not render a person in custody for purposes of Miranda. Berkemer, 468 U.S. at 439-40, 104 S.Ct. at 3150. When Agent Ramos boarded the bus and asked the two women their destination and whether they had any luggage, he was conducting a non-custodial investigation. The women‘s an-swers did not completely allay his suspicion because they reconfirmed that their desti-nation coincided with the destination of the luggage. Neither did the questions asked at this time exhaust the permissible scope of investigative questioning. In accord with a policy designed to assure the safety of the agents and the other passengers, Ramos requested the women to exit the bus. As in Berkemer, 468 U.S. at 441-42, 104 S.Ct. at 3151, where an officer asked a motorist to step out of his car and to per-form a sobriety test, simply asking passen-gers to step off a bus and inquiring about ownership of luggage does not render a suspect in custody.
The agents then escorted Bengivenga and her companion to the nearby check-point trailer to continue the questioning. Several factors counteract the effect that moving a suspect from a bus to a building maintained by law enforcement personnel would ordinarily have on a reasonable per-son‘s perception of the situation and the degree of restraint imposed. First, the trailer was only a short distance from the bus. Second, the conduct of the agents remained subject to the public scrutiny to the extent that the bus driver was actually present in the trailer drinking coffee. The agents did not completely isolate the wom-en in an interrogation room. Third, the
Other than being moved to the nearby trailer, the objective facts do not indicate that the border agents imposed a degree of restraint associated with formal arrest. The agents did not communicate the basis for their suspicions. Their reluctance to assert restraint stemmed from their belief that they did not possess probable cause until after they matched the baggage claim stubs to the three suitcases. At no time during the minute and a half that elapsed in the trailer before formal arrest was Ben-givenga given any reason to believe that her detention would be other than tempo-rary. Nor did the nature of the question-ing intensify once inside the trailer. The incriminating baggage claim stubs inad-vertently surfaced in response to a request to see Bengivenga‘s bus ticket, a question likely to be routinely asked of any bus passenger who becomes the object of an investigative stop. Rather than successive confrontations with the border agents, Ben-givenga was subjected to no more than a routine citizenship check that quickly pro-gressed from an investigative stop to her formal arrest. At no time prior to produc-tion of the baggage claim stubs did this situation, as understood by a neutral and reasonable person in Bengivenga‘s position, involve the degree of restraint associated with formal arrest.
III. NONTESTIMONIAL EVIDENCE AND THE FRUIT OF THE POISONOUS TREE DOCTRINE
Assuming Bengivenga was in custody at the time of the interrogation in the trailer, we would affirm her conviction because a Miranda violation would not require sup-pression of the evidence introduced at her trial.
A. Nontestimonial Evidence
The privilege against self-incrimina-tion “applies only when the accused is com-pelled to make a testimonial communica-tion that is incriminating.” Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976) (emphasis in original). This privilege ordinarily does not apply to nontestimonial evidence. See, e.g., Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966) (suspect may be compelled to supply incriminating blood samples). A violation of Miranda rules, rules fashioned to se-cure the Fifth Amendment‘s privilege dur-ing custodial interrogation,27 necessitates only the exclusion of testimonial evidence from the prosecution‘s case in chief.28 The bus ticket and baggage claim stubs are nontestimonial physical evidence and would not be excludable even if they had been obtained in violation of Miranda.
Bengivenga also urges that her acts of producing the bus ticket and baggage claim stubs constitute statements for Miranda purposes. We hold, however, that Bengi-venga‘s act of producing her bus ticket is not a statement for Miranda purposes. Every passenger on the bus must purchase a ticket. The implicit admission of the existence and possession of a bus ticket that accompanies the act of its production does not rise “to the level of testimony within the protection of the Fifth Amend-
Whether the act of producing the bag-gage claim stubs could be a statement for Miranda purposes in some other context is beside the mark for the prosecution inde-pendently established the existence and possession of the stubs. As Bengivenga produced her bus ticket, an act we hold to be nontestimonial, Agent Ramos observed baggage claim stubs inside her ticket en-velope. The fact that Bengivenga complied with the subsequent request by Agent Ra-mos to produce those stubs does not alter the nontestimonial nature of his observa-tions. At trial, Agent Ramos testified only to the observations he made before Bengi-venga produced the baggage claim stubs and to the fact that he linked those stubs to the suitcases containing marijuana. The prosecution thereby established the exist-ence of the stubs and their possession by Bengivenga without reference to how they were produced.
B. The Fruit of the Poisonous Tree Doctrine
Even nontestimonial evidence, ac-cording to Bengivenga, must be suppressed if it is tainted by custodial interrogation that occurs in violation of Miranda. This contention is contrary to the rule that a mere violation of Miranda‘s “prophylac-tic” procedures does not trigger the fruit of the poisonous tree doctrine. The deriva-tive evidence rule operates only when an actual constitutional violation occurs, as where a suspect confesses in response to coercion.29 None of the tactics employed by the agents were “so offensive to a civi-lized system of justice that they must be condemned.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). Agent Ramos politely requested Bengivenga and her companion to accompa-ny him to the nearby checkpoint trailer where they were questioned for about a minute and a half. Bengivenga remained resolute throughout her entire encounter with the agents; she never admitted own-ership of the suitcases. None of the evi-dence introduced at Bengivenga‘s trial should have been excluded under the deriv-ative evidence rule because the record is simply barren of any evidence of coercion.30
IV. CONCLUSION
The agents were not required to adminis-ter Miranda warnings before questioning Bengivenga. At no point prior to produc-tion of the baggage claim stubs was she in custody. Even if Bengivenga was placed in custody upon entering the checkpoint trailer, the evidence introduced at trial should not have been suppressed because it was nontestimonial and the derivative evi-dence rule was not triggered by an actual constitutional violation. For these reasons, the conviction appealed from is
AFFIRMED.
ALVIN B. RUBIN, Circuit Judge, concurring:
I concur in the result and all of the opin-ion except Part III, which discusses an issue that we need not now decide.
GOLDBERG, Circuit Judge, with whom POLITZ, JOHNSON and WILLIAMS, Circuit Judges, join dissenting:
Today the majority chooses to reject this Circuit‘s longstanding test for determining whether a suspect is in custody.1 Judge
The majority states, and I agree, that a person is in custody when the police have imposed a restraint on liberty of a degree a reasonable person would associate with an arrest. To my mind, however, applying this standard, Ms. Bengivenga was in cus-tody from the moment that she crossed the threshold of the checkpoint trailer. From that moment forward, a reasonable person would have found the circumstances indis-tinguishable from a formal arrest, and the inherently coercive aspects of custodial questioning came into play. I also disagree with the majority‘s conclusions that the Fifth Amendment exclusionary rule does not apply because the baggage claim stubs were non-testimonial in and of themselves, and, that they cannot be excluded as fruit of the poisoned tree, because there was only a Miranda violation, not a constitu-tional violation. It was the act of produc-ing the ticket and the baggage stubs that was testimonial, not the documents them-selves, and that act of production occurred in an inherently coercive context. Without the act of production to link the ticket stubs to Ms. Bengivenga, the stubs them-selves were meaningless.
I. THE HALLMARKS OF CUSTODY
A. Inherent Coercion
The Fifth Amendment guards only against coerced confessions. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), however, the Court not-ed the natural tendency of custodial inter-rogation to overbear the will of suspects, saying, “Even without employing brutality, [or] the ‘third degree[,]’ ... the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.” 384 U.S. at 455, 86 S.Ct. at 1617-18. Because of this inher-ent coercion we now apply a conclusive presumption that evidence produced by custodial interrogation was coerced, unless the suspect was informed of his rights. 384 U.S. at 478, 86 S.Ct. at 1630.
Today the majority fashions and applies a new standard for determining whether a suspect is in custody. In determining how to apply that standard, a page of history may be worth a pound of logic. We must look to the concerns that informed Mi-randa to determine when a factual situa-tion contains those elements of inherent coercion that led the court to require Mi-randa warnings.
B. Privacy and Duration
The Miranda Court carefully examined police practices and focused on certain ele-ments inherent in custody that rendered it coercive. In police manuals current at the time, two elements were noted to be partic-ularly effective at overbearing the will of a suspect: privacy and the prospect of ques-tioning for an indefinite period.
First, the Court noted the efficacy of privacy saying:
The officers are told by the manuals that the “principal psychological factor con-tributing to successful interrogation is privacy — being alone with the person un-der interrogation.”
Id. at 449, 86 S.Ct. at 1615 (quoting Inbau & Reid, Criminal Interrogation and Con-fessions 1 (1962)). The Court noted that the manuals further advised:
If at all practicable, the interrogation should take place in the investigator‘s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indig-nant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behav-
Id. (quoting O‘Hara, Fundamentals of Criminal Investigation 99 (1956)).
Second, the Court noted that the manuals focused on the prospect of indefinite inter-rogation. They encouraged the investiga-tor to be “patien[t],” and to “persever[e]“:
Where emotional appeals are employed to no avail, [the investigator] must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadi-ly and without relent, leaving the subject no prospect of surcease.
Id. at 451, 86 S.Ct. at 1615 (quoting O‘Hara at 112).
Both privacy and the prospect of indefi-nite interrogation were the hallmarks of custodial interrogation which led the Court to apply a conclusive presumption to custo-dial interrogation, saying that:
Without proper safeguards the process of in custody interrogation of persons suspected or accused of crimes contains inherently compelling pressures which work to undermine the individual‘s will to resist and to compel him to speak where he would not otherwise do so free-ly.
Id. at 467, 86 S.Ct. at 1624. The Court therefore held that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any sig-nificant way,” that individual must be ad-vised of his constitutional rights. Id. at 478, 86 S.Ct. at 1630.
Determining why a suspect must receive Miranda warnings only begins the inquiry into when and under what circumstances such warnings are necessary. The majori-ty takes note of these whys, but comes to an erroneous conclusion about when. They note the importance of privacy and indefi-nite duration, but fail to see that these hallmarks of inherently coercive custody are present in the factual situation of this case.
II. DEFINING CUSTODY BY REFER-ENCE TO INHERENT COERCION
As the majority explains, not all Fourth Amendment seizures constitute custody. For example, a traffic stop constitutes a seizure, but does not entitle a suspect to Miranda warnings. Similarly, a police of-ficer may ask an airline passenger for his or her ticket on the main concourse of the airport or in the baggage claim area, with-out that individual being deemed in custo-dy.2 A suspect‘s freedom must be more than restricted. It must be restricted in a “significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The “restraint” must be “of the degree associated with a formal arrest.” Berkemer v. McCarty, 468 U.S. at 440, 104 S.Ct. at 3150, 82 L.Ed.2d 317 (1984).
This distinction between seizure and cus-tody creates a necessarily circular inquiry. Custody is defined not by any extrinsic characteristic. The locution “restraint of the degree associated with formal arrest” does little more than establish the distinc-tion. It does not draw the line. The major-ity quite properly seeks a way out of this conundrum by looking to the dangers of custody highlighted in Miranda. They fo-cus on privacy and the prospect of indefi-nite duration, but draw the line in a way that leaves the Fifth Amendment at the mercy of police discretion.
A. The Hallmarks of a Non-Custodial Seizure
To understand where the majority‘s analysis goes awry requires a careful understanding of the relationship between Miranda and the more recent case of Ber-kemer v. McCarty, 468 U.S. at 420, 104 S.Ct. at 3138. The majority treats the questioning of Ms. Bengivenga as an ordi-nary traffic stop. In Berkemer, the Su-preme Court noted, as we have already, that:
Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mer-cy of the police.... Most importantly, the typical traffic stop is public.... Passersby, on foot or in other cars wit-ness the interaction of the officer and motorist. This exposure to public view both reduces the ability of an unscrupu-lous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist‘s fear that, if he does not cooperate, he will be subject to abuse.
Id. at 437-39, 104 S.Ct. at 3149.
The Court was particularly concerned that if these two factors should evaporate the traffic stop would lose its non-custodial character. Otherwise, traffic stops “might open the way to widespread abuse. Police-men [might] simply delay formally arrest-ing detained motorists, and ... subject them to sustained and intimidating interro-gation at the site of their initial detention.” Id. at 440, 104 S.Ct. at 3150. To prevent this, the court emphasized that “If a motor-ist who has been detained pursuant to a traffic stop thereafter is subjected to treat-ment that renders him ‘in custody’ for prac-tical purposes, he will be entitled to the full panoply of protection prescribed by Mi-randa.” Id. The Court specifically es-chewed a per se rule that traffic stops are non-custodial, and pointed out that, “police and lower courts will continue occasionally to have difficulty deciding when a suspect has been taken into custody.” Id. at 441, 104 S.Ct. at 3151.
B. A Non-Custodial Seizure With All the Hallmarks of Custody?
The majority takes great pains to demon-strate that this particular border stop was both public and brief. I cannot agree. The Berkemer Court pointed out that when a traffic stop takes place on the street, the presence of passersby guards against actu-al police misbehavior and undercuts the police dominated environment. This char-acteristic of a traffic stop disappeared as soon as Ms. Bengivenga was escorted to the trailer. Ms. Bengivenga was isolated from view of her fellow travelers on the bus and from other travelers who might pass through the checkpoint. It was mid-night, and if the bus left, she would be left in an unfamiliar place at least till morning. Granted, she was not taken into an interro-gation room, and the bus driver was present when Ms. Bengivenga produced the ticket. Still, the questioning in the trailer was in no way akin in its public character to questioning, on a public thor-oughfare open to the plain view of all who should happen to pass by. Furthermore, Ms. Bengivenga was not driving her own car, nor was she capable of leaving under her own power at the close of questioning.
The majority also argues that this inter-rogation took only a minute and a half, and was therefore brief. To rely upon a stop-watch to make this sensitive and subtle determination is not the correct approach. The phrase used by the Supreme Court in Berkemer, was “presumptively temporary and brief.” Berkemer, 468 U.S. at 437, 104 S.Ct. at 3149. I cannot see how the fact that it only took ninety seconds for Ms. Bengivenga to produce incriminating evi-dence after being brought to the trailer suggests that a reasonable person once brought to a checkpoint trailer would ex-pect brief detention. Although the actual length of questioning is relevant to wheth-er Ms. Bengivenga‘s will was actually over-born, it has no relevance to the inherent coerciveness of the situation. Indeed, it may indicate just how coercive the situa-tion was. The Constitution does not give police officers a free minute and a half to
The majority notes that citizenship checks, even once the individual is moved to a secondary checkpoint, take, on the average, three and a half minutes. They make, however, the unwarranted further assumption that the same presumption of brevity applies to border searches for drugs. Unlike a citizenship check, which is necessarily brief, either the individual can prove citizenship, or he cannot, a drug re-lated detention may take much longer, even in the absence of probable cause. At the time of this case, plenary border searches were allowed in this Circuit,3 and the Su-preme Court has held that extended deten-tion at the border without sanitary facili-ties is permissible when based on reason-able suspicion of drug smuggling. United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (sixteen hours). See also, United States v. Oyekan, 786 F.2d 832, 833-34, 836 (8th Cir.1986) (four hours). A reasonable, though innocent, person in Ms. Bengiven-ga‘s position could therefore have feared that her stay in the checkpoint trailer would last quite a long time.
For these reasons, I believe that the character of the questioning changed as soon as Ms. Bengivenga was moved from the area outside the bus to the checkpoint
trailer. At that point the questioning was no longer public, and there was the pros-pect of extended interrogation. The major-ity‘s analysis takes a long first step toward allowing police officers to blur the line, between a brief traffic stop and custodial detention, that was central to the Court‘s opinion in Berkemer.
I also object for another reason. By declaring this search non-custodial, the ma-jority misses an opportunity to clarify the law. Every police officer must determine for himself when a traffic stop becomes custodial. The burden is always on the police to show that evidence is admissible and that a confession is voluntary. How-ever, Berkemer tells us that so long as the stop is on the street, and short, it is pre-sumptively non-custodial. To my mind, that presumption ends as soon as the sus-pect is removed from the public thorough-fare to a squad car, checkpoint trailer or station house. To reestablish a presump-tion of voluntariness, the police must in-form the suspect of his rights, or of the fact that he is not under arrest.4
The majority, however, leaves it unclear what factors are dispositive in this case. Does entering the trailer matter at all? Is the presence of the bus driver in the trailer dispositive? I would simplify matters and hold that when a suspect is moved to a secondary checkpoint on suspicion of drug smuggling (as distinct from a citizenship check), he or she is in custody and should be informed of his or her rights. Even if one does not adopt such a per se rule, I believe that Ms. Bengivenga, purely on the facts of this case, was in custody.5
Because the majority finds that Ms. Ben-givenga was not in custody, they needed go no further to affirm the conviction. Still, they reach out to redefine testimony to exclude the production of baggage stubs. In so doing they misread the primary case they cite for support. The majority argues that production of the ticket was non-testi-monial, because all passengers carry tick-ets. In so doing, they focus on the content of the requested papers. This is complete-ly inconsistent with the approach adopted in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and fol-lowed in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984).
Fisher rejected the approach followed in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), which fo-cussed on the content of a requested doc-ument. Fisher held that the Fifth Amend-ment applies only to the act of production. The issue is whether the act of producing a document conveys sufficient information to be considered testimonial. The Court said:
The act of producing evidence in re-sponse to a subpoena nevertheless has communicative aspects of its own, wholly aside from the content of the papers produced. Compliance with the subpoe-na tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer‘s belief that the papers are those described in the subpoe-na.... The elements of compulsion are clearly present but the more difficult is-sues are whether the tacit averment of the taxpayer are both “testimonial” and “incriminating” for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to cate-gorical answers; their resolution may in-stead depend on the facts and circum-stances of particular cases.
Id. 425 U.S. at 410, 96 S.Ct. at 1581. In Fisher the existence, possession and con-trol of the requested documents were not an issue. Production of the documents conveyed no information in and of itself. However, the Court stated that an act of production that did convey information would be testimonial.
This approach was followed in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), where the district court held that requiring defendant to pro-duce the business records of a sole proprie-torship would force him to admit that the documents existed, that they were in his possession and that they were authentic. The Supreme Court concluded that defend-ant could not be compelled to produce those records.
This case is indistinguishable from Doe. The police knew that the seized luggage contained drugs, but they needed some-thing to link them to Ms. Bengivenga. Baggage stubs alone do not suffice to link a person to a bag. The baggage stubs must be in possession of the suspect to convey any information at all. Where as here, the physical evidence would be mean-ingless without the physical act of produc-tion, that act must be deemed testimonial.
The majority further attempts to distin-guish production of the ticket from produc-tion of the ticket stubs. Without doubt, production of the ticket itself was testimo-nial, as defined in Fisher. The agent re-quested the ticket and Ms. Bengivenga pro-duced it. Possession of a ticket to Alice confirmed that Ms. Bengivenga was indeed going to Alice, the destination of the mari-juana laden suitcases. In the ticket en-velope were baggage stubs that linked Ms. Bengivenga to the suitcases. The majori-ty‘s focus on the content of the documents produced causes them to mistakenly treat the stubs as a fruit of the tainted testimo-ny rather than as the testimony itself. The act of production of the ticket envelope
*
It is, therefore, with great regret that I dissent from the majority opinion, the au-thor of which has earned, over the years, my respect for both his analysis and judg-ment. In this case, however, I am forced to conclude that a reasonable person, in Ms. Bengivenga‘s position, would have felt compelled to answer any questions put to her by the officers, unless apprised in ad-vance of her constitutional rights, and that the act of producing the ticket and bag-gage stubs conveyed enough information to be deemed testimonial.
On this rationale I would reverse Ms. Bengivenga‘s conviction.