NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________
No. 19

- 3654

_____________
UNITED STATES OF AMERICA

v.

DEQUAN FORDE
,

Appellant

______________ On Appeal from District Court of the Virgin Islands

(D. C. No. 1

- 18

- cr

- 00004

- 001 ) District Court Judge: Honorable Wilma A. Lewis

Argued December 8, 2021

Before: McKEE
, RESTREPO , SMITH
, Circuit Judges

( F iled: June 1, 2022)

Matthew A. Campbell, Esq. [ARGUED] Kia D. Sears, Esq. Office of Federal Public Defender 1336 Beltjen Road Suite 202, Tunick Building St. Thomas, VI 00802

Counsel for Appellant

Daniel H. Huston, Esq. Office of United States Attorney 1108 King Street Suite 201 Christiansted, VI 008202

Gretchen C.F. Shappert, Esq. Adam Sleeper, Esq. [ARGUED ] Office of United States Attorney 5500 Veterans Drive United States Courthouse, Suite 260 St. Thomas, VI 00802

Counsel for Appellee

_______________________
OPINION *

_______________________

McKEE, Circuit Judge

.

De quan Forde appeals the d i strict c ourt’s denial of his motion to suppress

marijuana seized during a warrantless search of his checked luggage as he arrived in the

Virgin Islands from the United States mainland

. He also challenges the denial of his

motion to suppres s statements he made to C ustoms and Border Protection officers while

at the baggage claim and in secondary inspe ction

. We will affirm the d istrict c ourt’s

denial of Forde’s motion to suppress the marijuana , his statements at baggage claim, and

his spontaneous statement in secondary inspection. However , for reasons set forth below,

we will reverse the court’s denial of Forde’s motion to suppress statement s he made in

response to questioning while in secondary inspection.

I. 1

* This disposition is not an opinion of the full Court

, and under I.O.P. 5.7 does not constitute binding precedent.

1 We have appellate jurisdiction pursuant to 28 U.S.C. § 1291

. We review the district court’s “ denial of a motion to suppress for clear erro r as to the underlying factual3

Forde argues that CBP’s warrantless search of his luggage at the internal customs

border was unreasonable in violation of the Fourth Amendment

. The officers uncovered

marijuana in Forde’s luggage during a routine x

- ray examination of bags from a flight

arriving from the mainland. The y then returned it to the baggage belt so that they could

intercept whoever retrieved it. While “ [ s] earches conducted absent a warrant are per se

unreasonable under the Fourth Amendment, ” there are certain exceptions

. 2 I n United

States v. Baxter , decided after Forde’s motion was denied

, we clarified that th e border

exception to the Fourth Amendment appl ies to the Virgin Islands’ customs border

, regardless of the direction of crossing. 3 T he officers ’ warrantless inspection of Forde’s

luggage was consistent with the border exception to the Fourth Amendment.

findings, ” and we exercise plenary review over questions of law. United States v. Perez

, 280 F.3d 318, 336 (3d Cir. 2002).
2 United States v. Katzin , 769 F.3d 163, 169 (3d Cir. 2014).
3 United States v. Baxter

, 951 F.3d 128, 13 4

– 3 5 (3d Cir. 2020). Baxter concerned a package mailed from the mainland United States to the Virgin Islands rather than checked baggage on a commercial flight from the mainland United States to the Virgin Islands. Looking to the statutory and regu latory landscape, searches of mailed packages may be different than searches of passenger’s luggage. Compare 19 C.F.R. § 145.2(b) (treatment of mail between the mainland and the Virgin Islands); 19 C.F.R. § 122.144(a) (treatment of passengers travelling f rom the Virgin Islands to the mainland); 19 U.S.C. § 1467 (same); and 31 U.S.C. § 5317(b) (treatment of passengers travelling between the United States and a foreign country), with 19 C.F.R. § 122.143(a) (treatment of passengers travelling from the mainlan d to the Virgin Islands). But Forde concedes that Baxter controls the outcome of this case. See Appellant Br. 12 (“Mr. Forde recognizes that United States v. Baxter presently forecloses relief on this claim. Nevertheless, he wishes to preserve the claim for further review.” (citation omitted)); Oral Arg. at 0:58. We thus assume, without deciding, that Baxter controls the outcome here. The district court applied the good

- faith exception to the warrant requirement. Given our application of Baxter, we need not address the court’s conclusion. Rather, we will affirm the denial of Forde’s motion to suppress on alternative grounds. See United States v. MacEwan , 445 F.3d 237, 245 n.7 (3d Cir. 2006).4

Accordingly, we will affirm the district court’s denial of Forde’s motion to suppress t his

physical evidence

.

I I

.

Forde also argues that the court erred in admitting statements he made in response

to CBP questioning without being given Miranda warnings

. “[T]he Fifth Amendment

prohibits a prosecutor from using ‘statements . . . stemming from custodial

interrogation’” in the absence of Miranda warnings. 4 A defendant is in custody when a
reasonable person would not fee l at liberty to terminate the interrogation and leave. 5 This

standard is objective

, based on the circumstances of the interrogation rather th an the

subjective views of the officers or suspect

. 6

The district court concluded that Miranda did not apply because the questioning,

both at baggage claim and in secondary inspection, occurred in the context of a border

search. However, t he border exception does not apply when questions “ cease to have a
bearing on the grounds for admissibility and instead only further a potential criminal

prosecution.” 7 H ere , admissibility was resolved before Forde was questioned at the

4 Renda v. King , 347 F.3d 550, 557 (3d Cir. 2003) (quoting Miranda

, 384 U.S. at 444 )

. 5 United States v. Ludwikowski , 944 F.3d 123, 131 (3d Cir. 2019).

6 Stansbury v. C

alifornia , 511 U.S. 318, 323 (1994)

. 7 United States v. Kiam , 432 F.3d 524, 530 (3d Cir. 2006) (rejecting a standard based on whether questions were routine or non

- routine, since “courts have gone to great pains to label almost all questioning ‘routine ’” )

. Kiam assumes that the official has a genuine interest in and authority to asce rtain the admissibility of people and their effects. Id. at 529

– 30 (“A person seeking entry into the United States does not have a right to remain silent.

. . . [He] must convince a border inspector of his . . . admissibility to the country by affirmativ e evidence. . . . [And] the border inspector is accordingly entitled to ask questions and require answers.”). As with Baxter , it is not obvious that Forde was required to affirmatively prove his admissibility to the officials. Cf. 19 C.F.R. § 122.1435

baggage claim because it was CBP officers ’ “ inten tion to arrest ” whoever claimed the

checked luggage. 8

However, the CBP officers never communicated their intent to arrest the owner of

the luggage to Forde

. The re was no show of authority that would cause a reasonable

person to believe that s/he was not free to leave. 9 B ecause Forde was not deprived of his

freedom of action in any significant way , he was not in custody

, and Miranda did not

apply. 10 Thus, we will affirm the district court’s denial of Forde’s motion to suppress his

statements at the baggage claim

, but we do so on alternate grounds. 11

Nevertheless

, t he district court erred in declining to suppress Forde’s responsive

statements in secondary inspection. It is undisputed that Forde was in custody during his

detention and questioning by CBP officers during that secondary inspection

. The inquiry

there was not focused on determining the admissibility of Forde’s luggage. The officers

knew it contained contraband that would not be admitted into the Virgin Islands . Rather,

that inquiry was the epi tome of a custodial interrogation aimed at confirming Forde’s

association with the contraband and

, thus, his guilt. Accordingly, the border exception to

Miranda did not apply and Forde’s statements pertaining to the suitcase during that

(tr eatment of passenger flights from the mainland to the Virgin Islands to be similar to flights within the United States). It is thus not obvious that Kiam is the proper lens through which to analyze the facts of this case. But Forde again concedes that it is, and we thus assume Kiam applies.
8 App. 21 2.
9 See United States v. Leese , 176 F.3d 740, 743 (3d Cir. 1999) (requiring a showing that the authorities did or said something in a manner conveying to the suspect they cannot leave to establish custody without any formal arrest).
10 Miranda

, 384 U.S. at 444.
11 See United States v. Belle , 593 F.2d 487, 499 (3d Cir. 1979) (affirming the district court’s refusal to suppress a post

- arrest statement on different grounds).6

investigation shoul d have been suppressed as they were clearly obtained in violation of

the Fifth Amendment. Therefore, we will reverse the district court’s order denying

suppression of these statements.

I II

. Lastly, Forde argues that his utterance “ t hat’s weed ” in secondary inspection

should be suppressed because it was both involuntary and fruit of his illegal questioning

during the secondary inspection. 12 When CBP officers opened his suitcase and exposed

the laundry bag containing marijuana

, Forde blurted out, “that’s weed.” 13 That statement

was spontaneous and not made in response to CBP ’s questioning. 14 Moreover, Forde has

not offered anything that would support a conclusion that his statement was anything

other than the product of a free and rational will. T he district court did not err in refusing

to suppress that statement.

I V

.
In summation, f

or the reasons stated above

, we will affirm the district court’s

denial of Forde’s motion to suppress the physical evidence, the statements he made to

CBP officers at the baggage claim a nd the spontaneous statement (“that’s weed”) 15 that

he made while in secondary inspection. We wil l reverse the district court’s denial of

12 See Wong Sun v. United States , 371 U.S. 471, 488 (1963) (holding evidence stemming from Fourth Amendment violations must be excluded from trial as fruit of the poisonous tree)

. 13 App. 52.
14 S ee United States v. Calisto , 838 F.2d 711 , 717 (3d Cir. 1988).
15 Calisto , 838 F.2d at 717

.7

Forde’s motion to suppress the responsive statements he made during secondary

inspection that were made in the absence of the required Miranda warnings.

Inasmuch as some of the evidence that forms the basis of Forde’s conviction

should not have been admitted, we will vacate the judgment of conviction and remand for

further proceedings consistent with this opinion. 16

16 On remand, the district court will exercise its discretion in ruling upon any motion to withdraw the guilty plea based upon our partial reversal of the denial of the defendant’s motion to suppress. The court’s discretion will be guided by the usual factors for ruling upon such a motion when it is made after sentencing.