Opinion
S3 03 Crim. 0633 (LAK)
September 15, 2003
Michael Scudder, Assistant United States Attorney, JAMES B. COMEY, UNITED STATES ATTORNEY.
Andrew Citron, Attorney for Defendant.
MEMORANDUM OPINION
Defendant is charged with a number of counts including traveling abroad with the intent to have sex with children and receipt and possession of child pornography. The case now is before the Court on defendants motion to suppress statements he made to and evidence seized by Customs agents on May 27, 1998, at the Dallas-Fort Worth Airport upon defendants return to the United States following a trip to Mexico.
The Court has dealt with most other aspects of defendant's pretrial motions in bench rulings and other orders.
Facts
The Court conducted an evidentiary hearing and now finds the following facts:Defendant Stefan Irving is a physician by training and at one time was employed as chief physician for the Middletown, New York, School District. In 1982 he was charged with sexually abusing young boys and pleaded guilty to a charge of first degree sexual assault. In recent years, and prior to his arrest in this case, he was employed as a word processor at a prominent law firm.
In 1996, a nationwide law enforcement initiative was undertaken to investigate individuals suspected of traveling to Mexico to engage in sexual acts with children. By May 1998, Irving had become a subject of the investigation, which was being conducted at least in part by agents of the United States Customs Service.
On May 27, 1998, Special Agent Robert Casey telephoned Special Agent Edwin B. Rehkopf, who then was assigned to the Dallas-Fort Worth Airport. Casey advised Rehkopf that he was conducting an investigation of Irving, whom he described as a former pediatrician and convicted pedophile. He told Rehkopf that Irving would be arriving that day from Mexico, where he had gone to visit his friend, Robert Decker, and that he had visited an orphanage while there.
After speaking to a supervisor, Rehkopf arranged for Customs inspectors who dealt with international arrivals to stop Irving and go through his luggage. When Irving arrived, he entered the sterile area where Customs declarations are collected from arriving passengers and inspections conducted. The sterile area was not open to the public, and arriving passengers in fact were not free to leave it until cleared by Immigration and Customs, although there is no evidence that this fact was communicated explicitly to them.
Upon his arrival in the sterile area, the inspectors stopped Irving and went through his luggage while Rehkopf and his partner, Special Agent Lane, watched from a distance of perhaps ten yards. The search was identical to that carried out on some but not all other arriving passengers although, of course, this one was conducted at Rehkopf s request rather than on the initiative of the inspector taken in the ordinary course of the inspector's duties.
After the inspector completed his search of Irving's luggage, he left Irving standing at his work station and walked over to Rehkopf and Lane. The inspector reported that he had found no pornography or evidence of a crime, but that there were children's books and what appeared to be drawings by children in Irving's effects.
At that point, Rehkopf and Lane approached Irving, identified themselves as Customs agents, and told him that they wanted to take him back to their office and talk to him. Irving expressed concern that he might miss his connecting flight to New York. Rehkopf responded that the agents would help him get another flight if that occurred. Irving outwardly accepted this and accompanied the agents to an office in the airport about 35 to 40 yards from the site of the initial luggage inspection. The office was a windowless room with a number of desks, telephones and computers, and the door was closed.
The agents began the interview by obtaining Irving's address and date of birth. They asked his occupation, to which he responded that he was a pediatrician but that he no longer practiced. He admitted that he was a convicted pedophile. In response to questions, he stated that he had been vacationing in Mexico for six days, that he had visited a friend, Roberto Ocasio, near Acapulco, and traveled around the Mexican coast. In response to the question whether he knew Robert Decker, Irving acknowledged that Decker was a friend, but said that he last had seen him in May 1997. He denied that Decker and Ocasio were the same person.
At some point while Irving was in the office, the agents again went through his luggage. They found drawings which Irving said had been done by Ocasio's children and several children's books, as well as a disposable camera and two 3.5 inch computer diskettes. The agents took the camera and diskettes and told Irving that they would develop the film, check the contents of the diskettes, and return them if they did not contain pornography. Irving denied that there was any pornography on them. When the agents asked him to sign a Customs form, he refused.
According to the sworn complaint, a typewritten erotic poem was recovered although it is unclear whether it was found by the inspector or the agents. The government's memorandum suggests the poem was found only on the diskettes, which implies that it was not in typewritten form. The Court relies on the complaint.
At the conclusion of the interview, it was determined that Irving had missed his connection. Agent Rehkopf escorted him to the American Airlines counter where Irving was reticketed. Irving and Rehkopf shook hands and parted, Irving going to the departure gate and Rehkopf back to the office. The entire encounter, from the point at which the agents approached Irving to the point at which they parted, lasted between 45 and 60 minutes. Subsequently, the film proved to contain no pornography, although it did contain photographs taken at Castillo Vista del Mar, a guesthouse that now figures prominently in the government's case, of boys with the defendant as well as with Decker. The search of the diskettes revealed, inter alia, images of child erotica.
Agent Rehkopf frankly admitted during the hearing that the object of the interview was to obtain evidence to help incriminate Irving. It is undisputed also that the agents did not give Miranda warnings. But there was no show of force in obtaining or conducting the interview. The agents were in plainclothes. Although they had firearms and handcuffs, these were in an attached case and were not displayed or mentioned to Irving. Irving never was told in so many words that he was obliged to accompany the agents to the office or to answer questions. After his initial expression of concern about missing his ongoing flight was addressed by Agent Rehkopf's offer to help him get a new flight if that occurred, Irving evidenced no reluctance to cooperate and answer questions. The discussions were entirely in a conversational tone, and no voices were raised. There were no threats, explicit or implicit.
Tr. at 17.
Discussion
The Statements Made During the Interview
Irving argues that the statements he made to the agents must be suppressed because they were made while he was in custody and without Miranda warnings. The government responds that the interview was entirely appropriate in view of the broad power to question persons crossing international borders and, in any case, respected Miranda because Irving never was in custody.
"Miranda v. Arizona, 384 U.S. 436 . . . (1966), requires the suppression of any statements made by a defendant while he is in custody unless the defendant first has been warned concerning his legal rights." The ultimate question is whether there was "a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." This is a mixed question of fact and law that depends upon the totality of the circumstances followed by "application of the controlling legal standard to the historical facts." Whether Irving was in custody, moreover, is a purely objective assessment with respect to which the subjective states of mind of both the agents and of Irving are immaterial. In consequence, the agents' motive has no bearing on the determination.
United States v. Wilson, 901 F. Supp. 172, 174 (S.D.N.Y. 1995).
Thompson v. Keohane, 516 U.S. 99, 112 (1995) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)) (internal quotations omitted).
Id. n. 11.
E.g., United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992).
United States v. Ventura, 85 F.3d 708, 711 (1st Cir. 1996).
As Irving contends, questioning of an arriving international traveler at a U.S. point of entry typically occurs, and in this case did occur, in a secure area from which travelers may not depart before Customs and Immigration officials have completed their duties in connection with securing our borders. But "questions from officials are especially understood to be a necessary and important routine for travelers arriving at American entry points." As the First Circuit has said, "[t]his understanding cuts against the potentially coercive aspect of the Customs inquiry, and lessens the need for Miranda warnings." Indeed, "even secondary inspection does not per se constitute custodial interrogation." Accordingly, the fact that Irving was questioned in a private office off the sterile area of the Dallas-Fort Worth entry point is insufficient as a matter of law to render the circumstances custodial.
Id.
Id.
Id.
Id.
Having thus cleared the underbrush, the Court turns to the totality of the circumstances. In this case, Agents Rehkopf and Lane identified themselves to Irving in a place that, although not public in the ordinary sense of the word, was public in the sense that it was an entry hall through which all arriving international passengers flowed in the ordinary course. The agents wore no uniforms, and there were no guns or handcuffs in view. No force was used or threatened. No orders were given. When Irving expressed concern about the possibility of missing his connection, the agents addressed that concern by offering to help him get a later flight if that proved necessary, a response that was more suggestive of persuasion than compulsion. The room to which they took Irving was an ordinary office with desks, chairs, phones and computers rather than a location with cells or other facilities indicative of a detention function. Thus, absent whatever weight ought be given to the common understanding about entry points, the case for the proposition that this was a custodial interrogation is quite thin. Moreover, this understanding will not bear the weight that Irving would place upon it.
The Court accepts Irving's contention that a reasonable person in his position would have understood that he could not leave the sterile area until he was cleared by Immigration and Customs. But that is not equivalent to saying that a reasonable person in his position would have understood that he could not leave until he answered questions from Agents Rehkopf and Lane. Irving already had answered any questions posed to him by the inspector, who also had finished searching Irving's luggage. The agents did not tell him, in words or in substance, that he had to answer their questions before he could leave. Indeed, a reasonable person in Irving's position would have understood their reaction to his concern about missing his flight as an attempt to persuade him to remain which, by its very nature, would have suggested that he had the option of declining their request. Bearing in mind that "[t]he fundamental question is whether the agents acted in a manner that conveyed `the message that they would not [have] permit[ted] the accused to leave,'" this Court finds and holds that Irving was not in custody at any point during his interaction with Customs personnel on May 27, 1998.
Wilson, 901 F. Supp. at 174 (quoting Campaneria v. Reid, 891 F.2d 1014, 1021 n. 1 (2d Cir. 1989), cert. denied, 499 U.S. 949 (1991)).
The Search
In United States v. Montoyade Hernandez, the Supreme Court wrote that "[r]outine searches of the persons and effects of entrants [into the United States] are not subject to any requirement of reasonable suspicion, probable cause, or warrant. . . ." Irving, however, argues that this was no "routine" search of an entrant. Rather, it was a search undertaken at the instance of an agent conducting a criminal investigation for the purpose of finding incriminating evidence.
473U.S. 531 (1985).
Id. at 538. Irving so concedes. Def. Mem. 20.
In United States v. Tsai, the Ninth Circuit held that the subjective motivation for border or entry point search does not impose a warrant or other requirement on an otherwise routine search. Rather, "[t]he `critical factor' in determining whether a border search is `routine' is the `degree of intrusiveness it poses.'" Whether the customs agent or inspector initiates a search randomly or based on information acquired from an independent source (including other law enforcement officials) is immaterial in the border context.
282 F.3d 690 (9th Cir. 2002).
Id. at 694 (quoting United States v. Molina-Tarazon, 279 F.3d 709, 713-14 (9th Cir. 2002)).
See United States v. Smith, 643 F.2d 942 (2d Cir. 1981) (rejecting subjective test into motives of airport security personnel for searching a passenger after receiving a request from DEA agents); United States v. Roberts, 86 F. Supp.2d 678 (S.D. Texas, 2000), affd, 274 F.3d 1007 (5th Cir. 2001).
Certainly the initial search of Irving's luggage by the inspector was routine. The evidence established it was no different from searches conducted all the time, whether on hunches, at random, or because of some suspicion on the part of the inspector. The only possible distinction between that search and those conceded by Irving to be routine is the immaterial consideration of motive. Hence, insofar as Irving's argument is addressed to the children's books and the drawings found by the inspector in the initial inspection, it quite plainly is without merit.
This is true also of the second luggage search conducted in the office by Agents Rehkopf and Lane, putting aside for one moment their seizure and the subsequent inspection of the contents of the camera and the computer diskettes. While they looked through the luggage in a different place, and thought significant certain items that the inspector did not think to mention to them, they did nothing that the inspector had not done already. The degree of intrusiveness was no different than that to which arriving passengers are subjected every day in every international airport in the nation.
The inspector did not mention the camera or the diskettes.
The seizure and subsequent inspection of the contents of the camera and computer diskettes was more intrusive. But that is not dispositive.
Several courts have compared personal notebook computers to closed containers for the purposes of the Fourth Amendment analysis. Inspection of the contents of closed containers comes within the scope of a routine border search and is permissible even in the absence of reasonable suspicion or probable cause. Indeed, "[t]he opening of luggage, itself a closed container, is the paradigmatic routine border search." Hence, the agents were entitled to inspect the contents of the diskettes even absent reasonable suspicion. Indeed, any other decision effectively would allow individuals to render graphic contraband, such as child pornography, largely immune to border search simply by scanning images onto a computer disk before arriving at the border.
E.g., United States v. Runyan, 275 F.3d 449, 458 (5th Cir. 2001); United States v. Al-Marri, 230 F. Supp.2d 535, 541 (S.D.N.Y. 2002); Roberts, 86 F. Supp.2d at 688-89; United States v. David, 756 F. Supp. 1385, 1390 (D. Nev. 1991).
Roberts, 86 F. Supp.2d at 689. See also United States v. Soto-Teran, 44 F. Supp.2d 185, 190 (E.D.N.Y. 1996) (opening and initial scanning of a sealed letter upheld as part of a routine customs inspection).
It appears that no court has reached the question whether the development and inspection of undeveloped film is within the scope of a routine border search. Undeveloped film may contain contraband, in this case potentially latent images. The camera and film thus are closed containers. Given the strong national interest in the security of our borders, development of the film was routine in the requisite sense of that term. But the Court does not rest on this determination alone either with respect to the film or the diskettes.
Border searches that are sufficiently intrusive to take them beyond routine nevertheless are proper if undertaken upon reasonable suspicion. Reasonable suspicion is a "particularized and objective basis for suspecting the particular person" of smuggling contraband. "Reasonableness is determined by weighing the warranted suspicion of the border official against the offensiveness of the intrusion."
See United States v. Charleus, 871 F.2d 265, 267 (2d Cir. 1989).
Montoya de Hernandez, 473 U.S. at 541.
United States v. Asbury, 586 F.2d 973, 976 (2d Cir. 1978).
In this case, the agents had reasonable suspicion for searching the contents of the computer diskettes and the undeveloped film. They knew Irving was a convicted pedophile, was carrying children's books and drawings, and was returning from an orphanage in Mexico. He was a middle-aged man traveling alone. In these circumstances, there was a reasonable basis for suspecting that the camera, film, and computer diskettes contained pornographic images. Accordingly, the search was constitutional even if it was more intrusive than routine.
Conclusion
For the foregoing reasons, the motion to suppress the statements made and the evidence seized on May 27, 1998 is denied in all respects.SO ORDERED.