Opinion
Criminal No. 01-73 (ADM/SRN)
January 4, 2002
Mark R. Pitsenbarger, Esq., on behalf of Plaintiff.
Michael McGlennen, Esq. and John C. Brink, Esq., on behalf of Defendants Anh Tuan Nguyen and Long Nam Tran.
Nancy R. Vanderheider, Esq., on behalf of Defendant Van Thi Le.
AMENDED REPORT AND RECOMMENDATION
The above-entitled matter came before the undersigned United States Magistrate Judge on December 14, 2001, on Defendants Anh Tuan Nguyen (1) and Long Nam Tran (2)'s Joint Motion to Suppress Evidence (Doc. Nos. 76, 77, 78), and Defendant Van Thi Le (7)'s Motion for Suppression of Confessions or Statements in the Nature of Confessions (Doc. No. 111). Defendants were present and represented by counsel. Several other pretrial motions were also presented at the hearing. The undersigned will issue an Order addressing the other pretrial motions, but specifically reserves the above motions for resolution by this Report and Recommendation. All parties were permitted to submit supplemental memoranda regarding this motion for suppression of evidence.
Defendants briefed the seizure and interrogation issues, but made no arguments concerning identification procedures.
This matter will be tried before the Honorable Ann D. Montgomery, Judge for the United States District Court for the District of Minnesota. This case has been referred to the undersigned for resolution of pretrial matters pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons set forth below, this Court recommends that both Defendants Anh Tuan Nguyen (1) and Long Nam Tran (2)'s Joint Motion to Suppress Evidence, be granted in part and denied in part, and Defendant Van Thi Le (7)'s Motion for Suppression of Confessions or Statements in the Nature of Confessions be denied.
V. FACTS
An Indictment was filed on June 12, 2001, charging the following: Count (1) Defendants Anh Tuan Nguyen, Long Nam Tran, and Van Le Conspired to: (a) knowingly persuade another to travel interstate to engage in prostitution, a violation of Title 18, United States Code, Section 2422(a); (b) knowingly conduct an unlawful financial transaction involving the proceeds of criminal activity with the intent to promote criminal activity and to conceal the source and nature of the proceeds, a violation of Title 18, United States Code, Section 1956(a)(1)(A); (c) knowingly conduct an unlawful wire transfer of funds from the United States to a place outside the United States, a violation of Title 18, United States Code, Section 1956(a)(2)(A); (d) knowingly import a controlled substance, 3, 4 methylenedioxymethamphetamine (MDMA), also know as ecstasy, into the United States from a place outside the United States, a violation of Title 21, United States Code, Section 952(a); and (e) knowingly possess and possess with the intent to distribute a controlled substance, 3, 4 methylenedioxymethamphetamine (MDMA), also know as ecstasy, a violation of Title 21, United States Code, Section 841(a)(1); Counts (11-23) Defendant Anh Tuan Nguyen: Money Laundering in violation of Title 18, United States Code, Sections 2 and 1956(a)(1); Count (24) Defendant Anh Tuan Nguyen: Money Laundering in violation of Title 18, United States Code, Sections 2 and 1956(a)(1); Counts (25-34) Defendant Anh Tuan Nguyen: International Money Laundering in violation of Title 18, United States Code, Sections 2 and 1956(a)(2)(A); Count (35) Defendants Anh Tuan Nguyen and Long Nam Tran: Importation of a Controlled Substance in violation of Title 21, United States Code, Section 952(a); Count (36) Defendants Anh Tuan Nguyen and Long Nam Tran: Possession with Intent to Distribute a Controlled Substance in violation of Title 21, United States Code, Section 841(a)(1); and Count (37) Defendants Anh Tuan Nguyen, Long Nam Tran, and Van Thi Le: Criminal Forfeiture pursuant to Title 18, United States Code, Section 982(b)(1)(A) and Title 21, United States Code, Section 8513(p).
The facts leading to this indictment and underlying the instant motions occurred as follows: A. Search of Letters .
The testimony given during the December 14, 2001 criminal motions hearing supplied the basis for all of the facts recorded in this Report and Recommendation.
On July 26, 2000, United States Customs Canine Enforcement Officer Slocum and his drug detection dog Cameron were examining international mail that had arrived at O'Hare International Airport, Chicago, Illinois (O'Hare). During the examination, Cameron alerted to a small area of a larger mail tray. The larger tray measured approximately three feet by one and one half feet, and contained between 250 and 500 letters. Slocum placed Cameron in his cage and proceeded to examine the small area of letters himself. Slocum encountered two letters that he found to be particularly suspicious. One letter was addressed to "T. Davis" at Sonny's Nail Salon (Sonny's Nails), 2015 Burnsville Center, Burnsville, Minnesota. The other letter was addressed to "Mr. Kim" at 11625 Wilder Drive, Apartment 312, Eden Prairie, Minnesota.
At the December 19 hearing, Slocum testified that he has been a canine enforcement officer for sixteen and one half years.
At the date in question, Cameron had undergone training and been certified to detect ecstacy, marijuana, cocaine, hashish, heroin, and amphetamines.
Both letters were the size of holiday cards. Slocum stated that he found them suspicious because they were unusually heavy, and when he picked them up and pressed them, they were unusually bulky and solid for envelopes containing only cards. Slocum stated that he found other heavy letters, but on feeling them, he did not detect anything that appeared to be contraband. Slocum took both letters to a separate area, opened them, and discovered that each contained 250 green tablets. Upon testing the tablets, Slocum discovered that they were "Ecstasy." B. Questioning of Long Nam Tran .
Methylenedioxymethamphetamine.
On July 28, 2000, Daniel J. Scheuermann of the Dakota County Sheriff's Office received a call from the Minneapolis-St. Paul Postal Inspector. Scheuermann was informed of the two intercepted packages from O'Hare. Scheuermann and certain postal inspectors decided to perform a controlled delivery of the package addressed to Sonny's Nails. At 12:00 p.m., agents began surveillance, and at approximately 12:30 p.m., a uniformed postal inspector delivered the package (containing Advil tablets rather than ecstasy) to the front counter at Sonny's Nails. Two females received the package, and one wrote "return" on the back of the package and placed it in a drawer of the front desk.
At approximately 3:50 p.m., the woman who had written "return" on the package left the store. Scheuermann and two or three additional agents waited until she had reached the parking lot and then approached her. They displayed their badges and asked her if they could look in her purse. She consented, but the package was not there. When asked where the package was, she replied that she had given it to "Long."
At approximately 4:15 p.m., the postal inspector performed another mail delivery to Sonny's Nails in order to see if the package would be returned. When it was not returned, Scheuermann entered Sonny's Nails, approached Defendant Long Nam Tran, and began speaking with him. Scheuermann was not in uniform, never displayed a gun, but did display his badge and stated that he was with the Sheriff's Office. Scheuermann told Tran that he wanted to speak with him about the package that had been delivered. Scheuermann stated that Tran spoke broken English but appeared to understand. Tran was attending to a customer at that moment, but he agreed to talk, and left the customer unattended while he followed Scheuermann out of the store approximately 30 feet into the shopping center atrium.
During the interview, Scheuermann first asked Tran for his full name, address, and date of birth. Tran answered these questions and provided Scheuermann with his driver's license, which listed his home address as 10557 Prairie Lake Drive, Eden Prairie, Minnesota. Tran continued to speak in broken English, but appeared to understand, according to Scheuermann, because he supplied appropriate answers to all of the questions. When asked about the package, Tran denied any knowledge of it, and according to Scheuermann, he became nervous, began to sweat, and began to have greater difficulty communicating in English. The entire interview lasted between five and seven minutes. Scheuermann never informed Tran of Miranda rights. At no time during the interview did Tran ask for a lawyer, to leave, or for questioning to stop.
At the end of the interview, both people returned to Sonny's Nails. Scheuermann then spoke with Duc Lu, the owner of Sonny's Nails, about the package. Duc Lu was very cooperative and consented to Scheuermann's searching of the front desk. When the package was not discovered there, Duc Lu consented to the search of Tran's work station, and Tran did not object. Tran, Duc Lu, and Scheuermann all opened drawers in Tran's station, but did not discover the package. Duc Lu then discovered the package in a drawer of his own work station, which was side by side with Tran's. Duc Lu immediately gave Scheuermann the package. This entire search was conducted without a warrant, with Scheuermann instead relying entirely on consent.
Tran was immediately arrested and transported to the Burnsville police station. At approximately 7:00 p.m., Scheuermann, West St. Paul Police Officer Brian Sturgeon, and Burnsville Community Service Officer Min Dang interviewed Tran in an interview room in the police department. Dang was wearing his community service uniform, but none of the officers displayed weapons. The interview lasted approximately one and a half hours. Before informing Tran of his Miranda rights, Scheuermann asked him for his name, date of birth, and permanent residence. Tran was then Mirandized both in English and Vietnamese. Throughout the interview, Ming translated for Tran, and he answered sometimes in English and sometimes in Vietnamese. Near the end of the interview, Tran asked for an attorney. Shortly after this, Scheuermann announced that the interview would have to cease.
C. Questioning of Anh Tuan Nguyen .
On September 8, 2000, at approximately 8:30 p.m., pursuant to a search warrant, agents of the Federal Bureau of Investigation (FBI) and Minneapolis police officers searched 11625 Wilder Drive, Apartment 312, Eden Prairie, Minnesota. Defendant Nguyen was present at the time the warrant was being executed. Nguyen was dressed only in shorts and wearing no shirt or shoes. Agents informed Nguyen that he was not free to leave while the apartment was being searched, and that he should remain on the living room couch.
At approximately 9:00 p.m., Sergeant Frederick McDonald of the Minneapolis Police Department arrived and proceeded to interview Nguyen. McDonald identified himself to Nguyen with his badge. INS Special Agent Chris Nissen was also present during the interview. McDonald advised Nguyen that he was not under arrest. McDonald did not read Nguyen hisMiranda rights, nor did he inform Nguyen that he did not have to speak with him. The only other non-law enforcement officer present at any time was Defendant Van Le. McDonald stated that Nguyen spoke fluent English, and supplied appropriate answers to the questions asked, further demonstrating that he understood the English language. McDonald asked Nguyen for his name, address, and date of birth. In addition, he asked Nguyen about certain items found during the search. McDonald states that Nguyen never requested a lawyer, that questioning cease, or that he be permitted to leave. McDonald also states that he made no threats or promises during the interview. He conceded, however, both that Nguyen had been instructed earlier that he was not free to leave, and that he was not appropriately dressed to leave the apartment and walk outside. When McDonald was finished questioning Nguyen, Nguyen remained seated on the couch until the search was completed. He was not arrested that night.
On October 10, 2000, Nguyen was interviewed a second time. A few days prior to October 10th, FBI Agent Minh Pham, Nissen, and McDonald went to Sonny's Nails and asked Nguyen to come to the FBI office to answer questions. All three were also present when the interview was conducted. When Nguyen arrived on October 10th he was taken to a receptionist's room for interviewing. He was first informed that he was not under arrest, and that he could end the interview and leave at any time. Nguyen agreed to answer questions. Nguyen was informed of his Miranda rights in English and Vietnamese. He then signed a waiver form in both English and Vietnamese. Nguyen refused to answer questions concerning Sonny's Nails and the people running that business, but answered all other questions. Nguyen never asked for a lawyer, or to stop the interview or to leave. The entire interview lasted approximately one and a half hours.
D. Questioning of Van Le .
Defendant Van Le was questioned on four separate occasions.
First Interview
On September 9, 2000, a search warrant was executed at the home of Duc Lu, Defendant's employer, at 10557 Prairie Lake Drive, Eden Prairie, Minnesota. At approximately 10:00 p.m., when Duc Lu agreed to speak with law-enforcement officers, Pham, Nissen, and McDonald went to his home. Le was also present at Duc Lu's home when they arrived. Although Le was not living with the Lu family at that time, she was employed by Duc Lu. The agents, who recognized Le from surveillance photographs, asked Duc Lu to ask Le if she would speak with them. Duc Lu did so, and Le agreed. At that time, Pham noticed that Lu's family members appeared to be instructing Le on what to say. As a result, Pham took Le to another room to conduct the interview. She was informed that she was not under arrest, and that she could stop the interview and leave at any time. The interview lasted approximately 15 minutes, and was conducted in Vietnamese. Duc Lu was present throughout it.
Second Interview
On November 3, 2000, at approximately 9:00 a.m., Le phoned agent Nissen and requested the return of documents that had been seized during the September 8 search. Agent Pham returned Le's call and informed her that he was not sure when she would be able to get her documents back, because the agents were "still sorting through things." At that time, Pham also asked Le if she would come in to answer some questions. He states that he is not certain whether she agreed to come and talk to him under the pretense of having her documents returned. During the interview, she did ask about the documents, but they were not returned to her.
Pham did not specify which documents had been seized. The government's supplemental memorandum, however, indicates that Le was referring to her green card.
When Le arrived, she stated that she could not speak for very long, because Defendant Anh Nguyen had given her a ride to the station and was waiting. Pham, however, informed her that one of the agents could give her a ride to work, and consequently, she agreed to the interview. Pham again informed Le that she was not under arrest, was free to leave, and did not have to answer questions. The interview lasted approximately one and a half hours. Le never asked for a lawyer, or for questioning to cease, or to leave. She did, however, refuse to answer questions concerning the possible criminal activities of her family members, or others with whom she was living.
Third Interview
On March 27, 2001, Pham and Nissen went to Sonny's Nails, and asked Le if they could speak with her. The agents had made no previous arrangements and came unannounced. She agreed to talk, and the interview took place in the Bumsville Center food court. Le was informed that she did not have to talk with the agents, and that she was free to go at any time. The interview lasted between 30 and 45 minutes.
Fourth Interview
On May 11, 2001, Pham and Nissen again went to Sonny's Nails and conducted an interview of approximately 45 minutes under the identical setting to the third interview. At the end of this interview, while Le was walking back upstairs to work, she asked Pham whether she needed an attorney. Pham responded that he could not answer that question.
II. DiSCUSSION .
A. Search of Letters .
1. Standing.
"Fourth amendment rights are personal in nature." United States v. Lewis, 738 F.2d 916, 919 (8th Cir. 1984) citing Rakas v. Illinois, 439 U.S. 128, 140 (1978). "The critical question is whether governmental officials violated any legitimate expectation of privacy . . . ." Id.citing Rawlings v. Kentucky, 448 U.S. 98, 106 (1980); United States v. Weatherd, 699 F.2d 959, 961 (8th Cir. 1983). "Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy." United States v. Jacobsen, 466 U.S. 109 (1984). "The sender and intended recipient of a package clearly have `an adequate possessory or proprietary interest in the . . . object searched' to give them standing to question the propriety of its search or seizure." United States v. Jacobsen, 683 F.2d 296, 298 n. 2 (8th Cir. 1982)rev'd on other grounds quoting United States v. Hayes, 551 F.2d 767 769-70 (8th Cir. 1977). However, there is no legitimate expectation of privacy in a package sent to a third party. See United States v. Givens, 733 F.2d 339, 342 (4th Cir. 1984).
Defendants state that they have standing to object to the search of the two letters. They first explain that discovery they have received reveals that "the police claim that Nguyen twice called his sister, the receptionist at Sonny's, inquiring if a letter without a return address had arrived and directed that she give the letter to Defendant Tran." Because they are allegedly the intended recipients of this package, Defendants argue, "this is not a case of the vicarious assertion of another's Fourth Amendment rights — the vice at which the expectation of privacy standard is aimed." Instead, Defendants contend that they have standing to object to the search of the letters, despite the fact that neither letter was addressed to them.
The government asserts that Defendants do not have standing to object to the search. The government notes that the Supreme Court has renounced the "automatic standing" rule. Therefore, the mere fact that Defendants have been charged with a crime of possession does not confer upon them "automatic standing" to object to the search. The government next argues that under United States v. Murphy, 849 F.2d 1101 (8th Cir. 1988), Defendants have no reasonable expectation of privacy in a letter addressed to a third party. And the government cites United States v. Lewis, 738 F.2d 916 (8th Cir. 1984), for the proposition that a defendant does not have a reasonable expectation of privacy in a letter addressed to his or her alias.
Finally, the government states that Defendants are trying to argue inconsistent positions by claiming to have standing for purposes of the instant suppression motion, but intending to claim no knowledge of the letters when the present case reaches trial. As a result, the government concludes that the Court should find that Defendants lack standing to object to the search.
The Court recommends a finding that Defendants do possess standing to object to the search of the letters. Although defendants lack standing to object to searches of letters addressed to others, "individuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names." United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992) citing United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir. 1992).
Although the government states that the Eighth Circuit, in Lewis, established that there is no reasonable expectation of privacy in letters addressed to an alias, the Court finds that Lewis does not require concluding that Defendants in the present case lack standing. As an initial matter, the Court notes that the passage in Lewis, upon which the government relies, is a footnote preceded by the statement, "we need not address the standing issue because the validity of the challenged search warrants may be decided on other grounds." 738 F.2d at 920. Hence, while the Eighth Circuit's footnote may be well reasoned, it is clearly dicta rather than reasoning essential to the holding in Lewis. More importantly, the footnote itself concludes with the explanation that "[a] mailbox bearing a false name with a false address and used only to receive fraudulently obtained mailings does not merit an expectation of privacy that society is prepared to recognize as reasonable." Id.
In the present case, one of the letters was addressed to Sonny's Nails, an established business in a public shopping center. Hence, while certain contraband was mailed there, the business can not be classified as one "used only to receive fraudulently obtained mailings." Therefore, the Court can not conclude outright that employees of Sonny's Nails have no reasonable expectation of privacy in letters sent to that address. Nor can the Court conclude outright that Defendants have no reasonable expectation of privacy in 11625 Wilder Drive, which was their residence at the time the letters were searched. Moreover, there is nothing in the record to indicate that either "Mr. Kim" or "T. Davis" are actual third parties rather than Defendants. Therefore, Murphy does not automatically preclude Defendants from asserting a reasonable expectation of privacy in the letters, even though they were not explicitly addressed to them. The Court acknowledges that case precedent does not definitely establish either that Defendants can claim a reasonable expectation of privacy or that they can not. Given the ambiguity of the current facts, however, the Court finds it appropriate to recommend holding that Defendants do have standing to challenge the search of the letters.
The transcript of the July 28, 2000 questioning of Defendant Tran contains repeated statements by Tran that he is not aware of the existence of either a Mr. Kim or a T. Davis.
The Court also finds that the question of whether Defendants will deny possession of the letters at trial, or otherwise take an "inconsistent" position, should not determine whether they have standing to bring their motion. The Supreme Court, in Simmons v. United States, 390 U.S. 377, 390 (1968), established that a defendant's testimony in a suppression hearing could not be admitted as evidence of guilt at trial. And it consequently determined in United States v. Salvucci, 448 U.S. 83 (1980), that a defendant charged with a crime of possession does not possess "automatic standing" to argue for the suppression of evidence. In the aftermath of these cases, courts have realized that a party can plausibly take one position on standing and the opposite on possession, while maintaining internally consistent reasoning. As the Ninth Circuit explained, "subsequent recognition that `a prosecutor may, with legal consistency and legitimacy, assert that a defendant charged with possession of a seized item did not have a privacy interest violated in the course of the search and seizure' obviated the need `to prevent the vice of prosecutorial self contradiction.'" United States v. Issacs, 708 F.2d 1365, 1367 n. 1 (9th Cir. 1983) quoting Salvucci, 448 U.S. at 88-89. The court in Issacs, appropriately determined that a defendant could also have standing to object to the search of a safe that he owned, while subsequently denying knowledge or ownership of the contents of that safe. Id at 1368.
In the present case, the government is free to argue to the jury that it should reject Defendants' denial of ownership of the letters. However, Defendants' argument for standing is a separate issue. It is based on the claim that they have a reasonable expectation of privacy in the letters, because they were mailed to legitimate business and residential addresses, and Defendants were the intended recipients. That claim does not require that Defendants admit to ownership or knowledge of the letters' contents. And it does not render a subsequent denial of ownership a legally inconsistent position. As a result, the Court recommends finding that Defendants do have standing to bring their suppression motion.
(2) Legality of Search .
That searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should by now, require no extended demonstration.United States v. Ramsey, 431 U.S. 606, 616 (1977). Nevertheless, border searches without a warrant or probable cause must be made by authorized persons. United States v. Soto-Soto, 598 F.2d 545 548-89 (9th Cir. 1979). "Accordingly, there can be no constitutional violation for the border search of incoming mail by a customs inspector." United States v. Ani, 138 F.3d 390, 392 (9th Cir. 1998).
"Except as provided in paragraph (e), Customs officers and employees may open and examine sealed letter class mail subject to Customs examination which appears to contain matter in addition to, or other than, correspondence, provided they have reasonable cause to suspect the presence of merchandise or contraband." 19 C.F.R. § 145.3(a)
At the December 14 hearing, testimony was given by David Gooding, a supervisory inspector with the United States Customs Service (Customs) who has been assigned to O'Hare since 1987, and specifically worked at the international mail branch from March 2000 to January 2001. Gooding explained that O'Hare is a port of entry for international mail arriving on direct flights from foreign countries. He explained that when international flights arrive, the United States Postal Service (Postal Service) supervises airline employees as they unload international mail bags and containers, and drive them to the international mail facility. He stated that the airline has two hours in which to sort the mail and place it on conveyor belts where it is examined by Customs. After the mail is cleared by Customs, it is delivered to the Postal Service to be delivered as domestic mail.
Gooding conceded that he could not tell simply by looking at the packages in question, that they had originally landed at O'Hare when arriving from a foreign country, rather than arriving at another port of entry first. He also conceded that the government had not presented a copy of the flight manifest to demonstrate that the flight carrying the envelopes came directly to O'Hare. But because of the stamps from the Netherlands, he believed the packages came directly. Further, Gooding explained that normally at O'Hare, the only mail examined at the international mail facility, is mail that has arrived on a direct flight from a foreign country. Gooding also stated that Customs always inspects incoming foreign mail at its port of entry. Gooding was then posed with the hypothetical situation of an international flight that first entered the United States at New York, and then proceeded directly to Chicago. Gooding answered that in such an instance, the international mail would not continue on the plane to Chicago. Rather, he stated that it would be cleared by Customs in New York, and then presented to the Postal Service to be delivered to the addressee as domestic mail. Further, he stated that he has never heard of an instance in which domestic mail has been presented to Customs at the international mail branch at O'Hare for examination by Customs a second time.
At the time of the hearing, only one envelope was available for examination. Since that time, the government has presented copies of both envelopes to the Court, and both envelopes contain Dutch stamps.
Gooding stated that there are two exceptions. First, flights from the far east initially land in Alaska to refuel before arriving at O'Hare. However, Customs does not inspect this mail until it arrives at O'Hare. Second, during holiday season, Canadian mail that would normally be sent by air, instead arrives at O'Hare by truck, and is only inspected by Customs once it reaches O'Hare.
Defendants contend that the search of the letters was in violation of the Fourth Amendment. They explain,
First, there is no evidence in this record that the search of the letters was a "border" search, such as would relieve the Government of its obligation to prove the search was conducted on probable cause and met some exception to the warrant requirement. Second, this is not a search in which a "well-trained narcotics detection dog" provided probable cause.
The government responds that this was a border search, and consequently, Customs required neither a warrant nor probable cause to examine the letters. The government concedes that it did not establish which particular direct international flight brought the letters to O'Hare. It maintains, however, that it established by a preponderance of the evidence that the letters arrived at O'Hare on a direct flight from the Netherlands. The government explains that both envelopes were postmarked in the Netherlands and bore Dutch stamps. In addition, Inspector Gooding established that had the flight first arrived at another port of entry, such as New York, Customs agents would have examined the letters there and then handed them over to the Postal Service in New York, which would then deliver them. The letters would not have been sent on to Chicago to be examined by Customs agents there. Because, the letters were still on the plane as international mail at the time the Customs inspectors received them in Chicago, the government concludes that Chicago must have been the port of entry for the flight.
The Court recommends finding that the letters were searched pursuant to a border search. Consequently, it was not necessary to first obtain a warrant, and the evidence is admissible. Goodings' testimony demonstrated by a preponderance of the evidence, that O'Hare was the port of entry for the flight that brought the letters to the United States. He clearly indicated that, based on his experience with Customs procedures, the letters would have already been given over to the post office if the plane had touched down and been examined at a previous United States port.
Furthermore, O'Hare need not have been the actual port of entry in order for the search to be classified as a border search. "A border search need not take place at the actual border. Because of the nature of international travel and transportation, courts have held that border searches may be conducted at places considered the `functional equivalent' of a border. United States v. Cardona, 769 F.2d 625 (9th Cir. 1985) citing Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973); United States v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982)cert. denied 461 U.S. 961 (1983). Further, courts have observed that,
[A]n airport that serves as the final destination for a nonstop flight may be deemed to be the functional equivalent of the border because of:
(1) the existence of reliable indications that the thing to be searched is of international origin and has not been changed in any way since entering the United States; and (2) the degree of regularity with which searches at the point in question are conducted such that the intrusion is minimal, the existence and function of the checkpoint are known in advance, and there is little discretionary enforcement activity.United States v. Gaviria, 805 F.2d 1108, 1112 (2nd Cir. 1986).
In United States v. King, 517 F.2d 350, 351 (5th Cir. 1975), letters containing an opium derivative first entered the United States in San Francisco. They were then routed to Birmingham, Alabama without having been inspected. Id. In Birmingham, a postal inspector handed them over to Customs agents who searched them without first obtaining a warrant. Id. In upholding the search, the Fifth Circuit determined that the letters had been searched at the functional equivalent of the border. Id. at 354-55. Relying on the rationale from Almeida-Sanchez, the court explained,
Appellants here could have had no reasonable expectation that their letters, mailed from abroad, would remain uninspected. See United States v. Odland, 502 F.2d 147 (7th Cir. 1974), United States v. Doe, 472 F.2d 982, 985 (2nd Cir. 1973). Having had no control over the envelopes from the time they entered the postal system until the time they were delivered, appellants naturally could not have known whether the envelopes had been opened, and if so, at what point in the postal process. Appellants were thus no more inconvenienced by the search in Alabama than they would have been by one in California.Id.
This reasoning applies equally well in the present case. All of the evidence from the hearing indicates that the only inspection of the letters took place at O'Hare, and that the letters were never removed from the plane prior to its arrival there. Hence, even if O'Hare was not the port of entry, Defendants were no more inconvenienced by the search at O'Hare than they would have been by a search conducted at whatever sight was actually the flight's port of entry.
Therefore, the evidence from the hearing demonstrates that the search qualifies as one occurring at the border or at the "functional equivalent." As a result, there was no constitutional violation, and the evidence that was seized is admissible. Furthermore, the canine alert, and peculiar weight and bulkiness of the letters provided sufficient reasonable suspicion to justify the opening of the letters. As a result, the Court recommends that the evidence be admitted.
Because this was a border search, the issue of probable cause, and the potential question of the detection dog's qualification become moot points.
While there clearly was reasonable suspicion in this instance, the Court notes that even if there had not been, Defendants would not necessarily be entitled to exclusion of the evidence found. See United States v. Hensel, 699 F.2d 18, 29 (1st Cir. 1983) ("The exclusionary rule was not fashioned to vindicate a broad, general right to be free of agency action not `authorized' by law, but rather to protect certain specific, constitutionally protected rights of individuals.")
B. Admissibility of Statements .
" Miranda v. Arizona established that `a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins.'" Dormire v. Wilkinson, 249 F.3d 801, 804 (8th Cir. 2001) quoting Davis v. United States, 512 U.S. 452, 457 (1994).
Custody occurs either upon formal arrest or under any other circumstances where the suspect is deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 3144-45, 82 L.Ed.2d 317 (1984). In determining whether a suspect is "in custody" at a particular time we examine the extent of the physical or psychological restraints placed on the suspect during the interrogation in light of whether a "reasonable person in the suspect's position would have understood his situation" to be one of custody. Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151; United States v. Carter, 884 F.2d 368, 370 (8th Cir. 1989).United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990). "[t]he term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject." Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
In Oregon v. Elstad, 470 U.S. 298 (1984), the United States Supreme Court addressed the issue of what evidence must be suppressed as the fruit of a Miranda violation. The Eight Circuit has since analyzedElstad when addressing instances in which a subsequent Mirandized confession appears to be the fruit of a previous statement obtained in violation of Miranda. In United States v. Carter, 884 F.2d 368, 372-73 (8th Cir. 1989) the Eighth Circuit made the following observation:
The Court distinguished presumptive coercion resulting from the absence of Miranda warnings from actual coercion through the use of coercive or improper methods by the police. Id. 470 U.S. at 307-08, 105 S.Ct. at 1292-93. Thus, statements obtained in violation of Miranda, although they must be suppressed as presumptively coercive, may yet be deemed voluntary in fact. Id. at 307, 105 S.Ct. at 1292. If the unwarned statement is voluntary, then a subsequent warned confession may be admissible if the prior statement is not the result of "deliberately coercive or improper tactics." Id. at 314, 105 S.Ct. at 1296. Of course, the second statement must be voluntary as well before it may be admitted. Id. at 318, 105 S.Ct. at 1297-98; United States v. Wauneka, 770 F.2d at 1440.
Regardless of compliance with Miranda, a statement is still inadmissible on due process grounds if it is given involuntarily. See e.g., United States v. Brown, 66 F.3d 124, 126 (6th Cir. 1995) United States v. Anderson, 929 F.2d 96, 102 (2nd Cir. 1991). In addressing what constitutes a voluntary statement, the United States Supreme Court has stated, "[w]e hold that coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986). To determine if a statement is voluntary the court considers whether under the totality of the circumstances, the suspect's "will [was] overborne and his capacity for self-determination critically impaired." Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir. 1988) quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961). "A confession is not voluntary if it was extracted by threats, violence, or direct or implied promises." Id.
(1) Nguyen's First Statement.
Defendant asserts that he was subjected to custodial interrogation during the search of 11625 Wilder Drive without a Miranda warning. As a result, Defendant argues that all of his statements given at that time must be suppressed.
The government concedes that Nguyen was in custody during this interview. It maintains, however, that the answers to McDonald's initial booking questions should not be suppressed, because they were voluntary.
The Court recommends finding that Nguyen's answers to the booking questions should be admitted. See United States v. Brown, 101 F.3d 1272, 1274 (8th Cir. 1996) (holding that "routine biographical data is exempted from Miranda's coverage). All other statements given during the interview, however, were obtained in violation of Miranda. Nguyen was clearly subjected to custodial interrogation. He had been told by multiple armed law enforcement agents that he was to remain on the couch, and McDonald asked him questions directly. As a result, these additional statements should be suppressed.
(2) Nguyen's Second Statement.
Defendant argues that his statements given during the October, 18, 2000 interview should be suppressed "as involuntary, obtained in violation of his Fifth and Sixth Amendment rights under the Miranda decision, and as the illegal fruit of his first unconstitutionally obtained statement."
The government responds that Nguyen was not in custody at the time he made these statements. Nevertheless, the government explains, he was still advised of his Miranda rights, and signed a waiver form. Therefore, the government concludes, there can be no violation ofMiranda. Further, the statements were not obtained in violation of the Fifth Amendment, because Nguyen was not threatened or otherwise coerced into making the statements. Instead, the government asserts, he came to the station voluntarily, and remained there although he had been informed that he was free to leave. Finally, the government asserts that because Nguyen's first statement was voluntary, and he received Miranda warnings before making his second statement, the second statement can not qualify as the fruit of the illegally obtained first statement.
The Court recommends finding that these statements are admissible. The interview was conducted before Nguyen was ever indicted. Consequently, the Sixth Amendment does not apply. See United States v. Moore, 122 F.3d 1154, 1555 (8th Cir. 1997) (citing Kirby v. Illinois, 406 U.S. 682 (1972) for holding that "the Sixth Amendment attaches only `at or after the time that adversary judicial proceedings have been initiated . . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'").
Further, the interview was clearly voluntary. Although agents had asked him to come in for questioning, he was told he was not under arrest, was free to end questioning at any time, and was free to leave. Moreover, Nguyen was read his Miranda rights before the interview began. As a result, the Court concludes that neither was his will overborne, nor was his capacity for self-determination critically impaired. See United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999) (finding that statements were not coerced in instance where officers provided Miranda warning, encouraged suspect to cooperate, and did not arrest suspect at end of questioning).
Finally, this second interview should not be suppressed as the fruit of the original unwarned statement from September 8, 2000. First, Nguyen has offered no explanation for how the statements he made on September 8, 2000 actually led to his making subsequent statements on October 18, 2000. Moreover, the October 18, 2000 statements can not be suppressed as fruit of the poisonous tree unless Nguyen can demonstrate that the September 8 statement was involuntary. See United States v. Layne, 973 F.2d 1417, 1420 (8th Cir. 1992) (finding that "a confession made after proper Miranda warnings and a valid waiver need not be suppressed solely because police obtained an earlier voluntary, but unwarned admission") citing Hamilton v. Nix, 781 F.2d 619, 624-25 n. 7 (8th Cir. 1985) cert. denied, 483 U.S. 1023 (1987). Nguyen has failed, however, to demonstrate that this was the case. While he clearly was in custody at that time, he did not testify that McDonald made any threats or promises, or that he otherwise employed coercive tactics. While the situation during the search was clearly intimidating, Nguyen has not demonstrated that his will was overborne.
(3) Tran's Statement at Burnsville Center.
Defendant Tran argues that he was subject to custodial interrogation at the time of his interview in the atrium of Burnsville Center. Defendant states that he only cooperated and agreed to talk, because he was acting in acquiescence to Scheuermann's apparent authority. Consequently, Defendant states that he was entitled to Miranda warning. Because he did not receive those warnings, Defendant concludes that his statements can not be used against him, and must be suppressed.
The government contends that Tran was not in custody during the interview. Rather, he voluntarily agreed to talk with Scheuermann. As a result, Tran was not in custody, and, consequently, was not entitled to Miranda warnings. Further, the government observes, Sheuermann made no threats, and committed no other improperly coercive acts. As a result, Trans' statements were voluntary and should be admissible as evidence.
The Court recommends finding that Tran's statements are admissible. He was not in custody during the questioning. Rather, he was free to leave at any time. As a result, the strictures of Miranda do not apply. Therefore, Tran's statements can only be suppressed if they were given involuntarily. Under the totality of the circumstances, however, the statements were clearly voluntary. Tran was free to leave at any time. The interview took place in public view, rather than in an interrogation room or an otherwise isolated setting. The interview also lasted less than 10 minutes. As a result, the Court concludes that Tran's will was not overborne.
(4) Van Le's Statements.
Defendant contends that all her statements were involuntary and must be suppressed. Defendant states that Pham coerced her into making statements. She explains that she is a recent immigrant from Vietnam, and Pham, who also immigrated from Vietnam, "knows that Vietnam is a communist country and the individual rights and freedoms that are so respected in this country carry no weight in Vietnam." Pham was able to compel Defendant to speak with him, she argues, because he knew that she was not yet educated regarding her individual rights in the United States.
Moreover, Defendant states that Pham exploited her dependance on her employer Duc Lu, by asking him to set up the first interview. In addition, the first interview was conducted just after Duc Lu's house was searched, and while the search team was still dressed in raid jackets and displaying arms. Defendant explains that "[w]hile Agent Pham informed Ms. Le of her right to leave and refuse to cooperate, those words carry little meaning when said by an agent of the government and in light of the preceding search."
Defendant argues that the three subsequent interviews were also colored by the coercive nature of the first interview. She concludes,
The interplay of Ms. Le's characteristics, Agent Pham's knowledge of those characteristics and his advantageous use of them results in Ms. Le being forced to agree to the interviews. Ms. Le was not only in fear of losing her employment, but also the loss of a roof over her head and food to eat. If she did not cooperate, what would Mr. Luu do? She felt pressured to cooperate with Agent Pham due to Luu's insistence that she do it in the first place, followed by the unannounced visits to her workplace, also owned by Mr. Luu.
The government responds that Defendant's statements are admissible, because they were voluntary and not obtained in violation of Miranda. Defendant was never in custody, according to the government, and consequently, she was not entitled to Miranda warnings. In addition, the government asserts that Pham did not threaten or otherwise improperly coerce her. In response to the issues of Defendant's potential fear of government agents, as a result of having lived in Vietnam, and her fear of losing her employment, the government states, "Van Le, however, did not offer any evidence that she in fact held these beliefs or that Pham was aware of these beliefs." Consequently, the government maintains that Defendant's motion to suppress her statements should be denied.
Although Le did not raise the Miranda issue, the government chose to discuss it in its responsive memorandum. Because Le herself did not formally raise Miranda as a basis for suppression, however, the Court will not address it.
The Court recommends denying Defendant's motion. Defendant failed to demonstrate that Pham, or any of the other agents involved, applied improperly coercive measures. While Duc Lu asked Defendant if she would speak with Pham, the involuntariness test focuses on improper police behavior, rather than influences from private parties. See Snethen v. Nix, 885 F.2d 456, 459 (8th Cir. 1989) (admitting suspect's inculpatory statements despite his allegation that they resulted from prodding by his mother, because "inculpatory remarks encouraged by influences other than `coercive police activity' are not inadmissible"); Colorado v. Connelly, 479 U.S. at 166 (holding that "[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause).
Pham conceded that Defendant may have come to the second interview in the hopes of obtaining the seized documents. Nevertheless, he informed her, before her arrival, that he was not sure when the documents would be returned. Moreover, he never indicated to her that she needed to answer his questions in order to have them returned. Defendant does not allege that Pham made any promises or threats at any of the interviews. In short, while Defendant states that her status as a new immigrant led to a particularly intimidating atmosphere, she does not allege that Pham committed any improper acts. And while involuntariness is evaluated based on the totality of the circumstances, the focus, nevertheless, is on whether the governmental agent(s) involved exerted improper pressure. Therefore, there are no grounds for suppressing her statements as involuntary.
Based upon the foregoing, and all the files, records and proceedings herein, it is recommended that:
(1) Defendants Anh Tuan Nguyen and Long Nam Tran's Joint Motion to Suppress Evidence (Doc. Nos. 76, 77, 78) be DENIED regarding the search of the letters;
(2) Defendants Anh Tuan Nguyen and Long Nam Tran's Joint Motion to Suppress Evidence (Doc. Nos. 76, 77, 78) be GRANTED regarding all statements obtained during the September 8, 2000 interview of Anh Tuan Nguyen, other than routine booking information, and DENIED regarding all other statements made by Anh Tuan Nguyen and Long Nam Tran;
(3) Defendants Anh Tuan Nguyen and Long Nam Tran's Joint Motion to Suppress Evidence (Doc. Nos. 76, 77, 78) be DENIED regarding identification procedures;
(4) Defendant Van Thi Le's Motion for Suppression of Confessions or Statements in the Nature of Confessions (Doc. No. 111) be DENIED.
ORDER
The government has moved ex parte and in camera to delay disclosure of their informants and their informants' identifications of the defendants.Based on the motion of the government and the record in this case, the Court finds that the government has a legitimate interest in protecting the identity and safety of its informants.
Accordingly, IT IS HEREBY ORDERED that:
1. The government may delay disclosure of their informants and their informants' identifications of the defendants;
2. The government must disclose the identification evidence one week before trial (i.e., by January 7, 2002);
3. The government's ex parte motion will remain sealed permanently. However, the government must disclose all witnesses who are either material to the case or will be testifying at trial by January 7, 2002.