IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-51308

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ELIZABETH CHAVIRA

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before GARWOOD, STEWART, and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

On March 26, 2008, Elizabeth Chavira, a United States citizen, attempted

to enter the United States from Mexico at the Paso del Norte Port of Entry in El

Paso, Texas. A minor teenage girl, P.L.D., accompanied Chavira. Customs

officers took them to a passport control secondary processing area and

questioned Chavira for thirty to forty minutes while she was hand-cuffed to a

chair. Chavira appeals her conviction under 18 U.S.C. § 1001(a) for knowingly

and willfully making a false statement to a Customs and Border Protection

officer that P.L.D. was her daughter and a United States citizen, when she knew

P.L.D. was in fact neither her daughter nor a United States citizen. Chavira

argues that the district court erred in denying her motion to suppress

United States Court of Appeals

Fifth Circuit

F I L E D

August 4, 2010

Lyle W. Cayce

Clerk

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statements made at secondary processing for the failure to give warnings

pursuant to Miranda v. Arizona, 86 S. Ct. 1602 (1966). For the reasons set out

below, we vacate her conviction and remand for a new trial.

BACKGROUND

When she applied for entry into the United States at pedestrian primary,

Chavira provided her own California birth certificate and Texas identification

to Customs and Border Protection Officer Ramirez. Chavira also provided a

Texas birth certificate for P.L.D. and told the Customs officer that the minor was

her daughter. She was unable to provide any identification for P.L.D. Chavira

told Officer Ramirez that she was in a hurry because she had a flight to catch.

Suspicious of Chavira’s claims, Officer Ramirez took Chavira and P.L.D.

to secondary processing. The secondary processing areawas, at the time, a

windowless mobile home trailer located about a ten-second walk away from the

primary pedestrian entry booths, where Chavira and the minor had applied for

entry into the United States. The then secondary processing area (used during

construction of a permanent secondary facility) was a secure area, not accessible

to the public, and surrounded by a ten-foot chain-link fence. When Officer

Ramirez brought Chavira and P.L.D. to the secondary processing trailer,

Customs and Border Protection Officers Ortiz and Fierro were already inside the

trailer. Officer Ramirez returned to primary processing after telling the two

officers that he suspected that Chavira made a false claim regarding the minor’s

citizenship.

Customs officers separated Chavira and the minor. P.L.D. was taken to

an adjacent room while Chavira remained in the first room of the trailer. The

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There is a factual dispute as to whether the door between the two rooms was open or 1

closed. The officers on the record below testified that the door was open the entire time and

Chavira could hear the officers question the minor as they went back and forth between

questioning Chavira and the minor. Chavira testified that the officers went back to question

the minor three or four times and they closed the door behind them each time. The district

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first room was “14 by 10 foot . . . a real small area.” The officers called for two

female officers to conduct a pat-down search of Chavira within five to ten

minutes of bringing her into the secondary processing trailer. After patting

Chavira down, she was told to sit in a chair at a desk. The officers handcuffed

her left hand to the chair. According to Officer Ortiz, this was policy in case they

needed her to write or sign anything with the other hand. Chavira testified that

the officers told her that the handcuffs were for officer safety. One of the officers

informed her that she was being detained for questioning and began questioning

her. Specifically, they asked Chavira:

“[q]uestions that pertain to the evidence that’s in front of us,

whether it’s a birth certificate, whether it’s an ID, or any kind of

document that might be—normally we ask, you know, ‘Where were

you born? How many kids do you have? Can you name your father's

date of birth, where they were born.’”

The officers learned that Chavira had five other children and this was the first

time Chavira had crossed the border with P.L.D. In fact, the officers had seen

Chavira cross the border multiple times, but this was the first time they

witnessed her attempt to cross with the minor. Officer Fierro followed up with

questions about the ages, genders, and names of Chavira’s other children. Then,

the officers asked the minor similar questions in the next room. The officers

repeatedly asked P.L.D. about the relationship between herself and Chavira, but

P.L.D. was non-responsive to the officers’ questions. When Officer Fierro asked

the minor whether she had any brothers or sisters, the minor told him that she

could not remember. Then, she confessed that her actual mother is a friend of

Chavira’s and that Chavira was doing her mother a favor by attempting to take

her to Dallas, Texas. Based on this confession from the minor, Officers Ortiz and

Fierro suspected that Chavira had committed a crime.

court found the door remained open.

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After learning that the minor was not actually Chavira’s daughter,

Officers Ortiz and Fierro returned to questioning Chavira. They told Chavira

that, “We know [P.L.D.] is not your daughter,” and that “[s]he told us you were

not her mother.” They demanded Chavira “[t]ell [them] the truth.” “[W]ithin

a couple of seconds, she stated that ‘I’m doing a friend a favor . . . and she is not

my child. She is not an American or a United States citizen.’” As soon as

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Chavira confessed, the officers immediately read her her Miranda rights. She

then requested an attorney, and there is no evidence that she said anything else

after the Miranda warnings.

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In total, the officers questioned Chavira for thirty to forty minutes.

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Officer Ortiz later admitted that during this time Chavira was not free to leave.

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The sequence of these events is also disputed. The officers describe the sequence as 2

set out above. Chavira testified that Officer Fierro called her father after talking to P.L.D.,

talked to him about Chavira’s children, and then accused her of not telling the truth. Officer

Fierro testifed that he called her father after giving Chavira Miranda warnings, and only to

determine what should be done with the luggage that Chavira had.

 She signed a form acknowledging she had been advised of her rights. The form also

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had a separate signature blank following the printed statement that she was willing to answer

questions; she did not sign that blank; in that blank Officer Fierro filled in the statement

“requested an attorney.”

The details of precisely how long Chavira was questioned are not clear. For example,

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Officer Fierro testified that Chavira was sitting in the chair subject to questioning for thirty

minutes. The waiver of Miranda rights form reads:

“8. Time interview began 1830 hrs [handwritten] 9. Time subject or suspect

advised of right to remain silent and fact any statement could be used against

him in court and name of officer furnishing advice CBPO E Ortiz 1905 hrs 

[handwritten]”

Officer Ortiz testified that Chavira spent thirty-five minutes in secondaryprocessing. Chavira

testified that the officers questioned her for forty or fifty minutes. The district court resolved

the conflicting testimony by making a factual finding that questioning lasted thirty to forty

minutes.

In fact, there is some evidence that she was not free to leave after her birth certificate

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had been taken and it was decided to take her to secondary processing. Officer Ramirez, with

whom she applied for entry, testified on cross examination:

“Q. Okay. And you testified that you asked her, ‘Please follow me.’

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Officer Ortiz admitted on cross examination that he did not advise Chavira of

her rights because he wanted her to confess to the crime first; that his purpose

was to get her to make incriminating statements.

As noted, the Government charged Chavira with violating 18 U.S.C. §

1001(a) by knowingly and willfully making a materially false, fictitious or

fraudulent statement or representation to a Customs and Border Protection

Officer. Chavira filed a motion to suppress the statements she made to the

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A. Yes, ma’am.

Q. Now, at that moment, was Ms. Chavira free to decline that invitation?

A. Did she decline the invitation?

Q. No. Was she -- was she free to say, ‘Ah, that's okay. I don't want to follow

you’?

A. Yes, uh-huh.

Q. She was?

A. Yes.

Q. If she -- didn't you still have a copy of the birth certificate that she had given

you?

A. I had it with me.

Q. Yeah. So you are telling the Court that you asked her to follow you for

further inspection, but yet she was free to decline your invitation.

A. Up to a certain point, they are.

Q. What if she had left? What would you have done?

A. Detained her.”

 Section 1001(a) reads: 6

(a) Except as otherwise provided in this section, whoever, in any matter within

the jurisdiction of the executive, legislative, or judicial branch of the

Government of the United States, knowingly and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or

device a material fact;

(2) makes any materially false, fictitious, or fraudulent

statement or representation; or

(3) makes or uses any false writing or document knowing

the same to contain any materially false, fictitious, or fraudulent

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Customs and Border Protection Officers in secondary based on the failure to

administer Miranda warnings. After an evidentiary hearing, the district court

denied Chavira’s motion to suppress. The trial court set the case for a bench

trial based on stipulated facts. The parties stipulated:

1. Ms. Elizabeth Chavira is a citizen of the United States.

2. On March 26, 2008, Ms. Chavira applied for entry into the

United States from Mexico at the Paso Del Norte Port of

Entry pedestrian primary lane.

3. Accompanying Ms. Chavira was a minor female (PLD).

4. Ms. Chavira said PLD was her daughter and presented on her

behalf as proof of her relation, a Texas birth certificate in the

name of [G.E.D].

5. The Primary Customs and Border Protection Officer (CBPO)

requested a picture ID from minor PLD and Ms. Chavira said

she did not have one because her (PLD's) school does not issue

picture Ids.

6. The Primary CBPO asked Ms. Chavira if PLD spoke English.

Ms. Chavira said no because minor PLD had lived in Mexico

all her life.

7. The Primary CBPO suspected Ms. Chavira had made a false

claim regarding minor PLD and referred both of them to

secondary passport control inspection (PCS).

8. At the PCS inspection, Ms. Chavira admitted she was not the

mother of minor PLD; minor PLD was not a U.S. citizen; she

was doing minor PLD's mother a favor by attempting to bring

her (minor PLD) to the United States; and the Texas birth

certificate she presented at primary inspection on behalf of

minor PLD belonged to her real U.S. citizen daughter who's

[sic] true name appeared on the birth certificate.

statement or entry;

shall be fined under this title [or] imprisoned not more than 5 years . . .

18 U.S.C. § 1001(a).

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9. The minor PLD is in fact a native and citizen of Mexico

without any legal documentation to enter the United States

and she was denied admission by the Primary CBPO.

The Government presented no other evidence at the bench trial beyond the

stipulated facts. The district court made findings of fact that were identical to

the stipulated facts above. Relying on these facts, the trial court determined

that Chavira was guilty of violating section 1001(a)(2) of Title 18. The court

sentenced her to three years probation, 100 hours of community service and

parenting classes.

DISCUSSION

The issue before this court is whether Chavira’s Fifth Amendment rights

were violated when customs officers questioned her at secondary processing

without first giving her the warnings required under Miranda v. Arizona, 86 S.

Ct. 1602 (1966). The Government must administer Miranda warnings before

custodial interrogations. United States v. Bengivenga, 845 F.2d 593, 595 (5th

7

Cir. 1988) (en banc). Generally speaking, Miranda describes a custodial

interrogation as questioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his freedom in any

significant way. Miranda, 86 S. Ct. at 1612. The ultimate inquiry is whether

there is a formal arrest or a restraint on freedom of movement of a degree

associated with formal arrest. Bengivenga, 845 F.2d at 596. The Court

examines how the reasonable man in the suspect’s position would have

understood the situation. Id. Specifically, “[t]he 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

Assuming the facts found by the trial court are not clearly erroneous, we review this 7

issue de novo, as a matter of law. United States v. Harrell, 894 F.2d 120, 122–23 (5th Cir.

1990).

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circumstances.” Id. The subjective intent of neither the officer nor the

defendant is relevant to the custody determination. Id. at 597. Chavira does not

argue that she was under formal arrest; therefore, the issue is whether the

reasonable person in Chavira’s situation would have understood the situation

to constitute a restraint on freedom to the degree the law associates with formal

arrest.

A. The Reasonable Man Test

In Bengivenga, the en banc panel determined that routine citizenship

checks at fixed checkpoints are characteristic of ordinary traffic stops, and not

the type of “stationhouse interrogation” that renders a person in custody.

Bengivenga, 845 F.2d at 598. In that case, the court compared the type of

custody associated with criminal investigation to the average immigration

questioning. See id. Routine immigration questioning involves a brief detention

and questioning limited in scope to the relevant issue of entry. See id. at

598–99. We are aware of no law requiring customs officers to allow admission

if the applicant refuses to answer these routine questions or produce relevant

documents to show entitlement to admission. See id.; United States v. Moya, 74

F.3d 1117, 1120 (11th Cir. 1996). As in Bengivenga, the questioning at the

primary processing here did not amount to custodial interrogation. The

questioning at the primary pedestrian entry involved a brief detention and the

production of relevant documents. Bengivenga, 845 F.2d at 598. It was a fixed

checkpoint and the stop and questioning should not have surprised the

reasonable person. See id. at 599. It was brief and subject to the scrutiny of

other travelers. Id.

The situation changed when Officer Ramirez took Chavira to secondary

processing. Considering all the circumstances here, we hold that Chavira was

subjected to custodial interrogation at secondary processing when she made the

statements referenced in paragraph 8 of the stipulation. First, well before the

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officers elicited those statements from Chavira, the officers had already made

the determination that P.L.D. was not Chavira’s child. There was no reasonable

immigration related purpose behind further questioning other than to elicit

incriminating statements for potential prosecution. Crucially, the case changed

from a routine immigration case to an essentially criminal law enforcement case.

Thus, Officer Ortiz testified that after the officers realized that Chavira was not

P.L.D.’s mother and P.L.D. was not a United States citizen, they accused

Chavira of being untruthful but “did not advise her [Chavira] of her rights

because she hadn’t made a confession to the crime” and they “were trying to get

her to make incriminating statements.”

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A reasonable person in Chavira’s situation would have realized that the

officers were asking something more than routine immigration questions.

Chavira had crossed at this particular border multiple times. Officer Ramirez,

the agent at primary pedestrian entry, testified that he was familiar with

Chavira because she crossed so frequently. Presumably, this incident was the

first time Officer Ramirez had referred Chavira to secondary. Further, officers

asked questions unrelated to her entry: the names, ages and number of her

children. They told Chavira that they knew she was not telling the truth and to

confess. These facts suggest to the reasonable person in Chavira’s situation that

The Government argues in its brief that even if Chavira was in custody, no 8

interrogation occurred. It is for the above reason, however,that we find Chavira was subjected

to custodial interrogation. “[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 suspect.” Rhode Island v. Innis, 100 S. Ct. 1682,

1689–90 (1980). This is not the type of routine booking question contemplated by Pennsylvania

v. Muniz, 110 S. Ct. 2638, 2650 (1990). When the subject of the questioning transformed from

routine questioning about immigration to questions calculated and intended to elicit a

criminally incriminating response, the officers began interrogating Chavira for purposes of

Miranda. See Innis, 100 S. Ct. at 1690 n.7 (the intent of the police is relevant and may have

bearing on whether the police should have known their words were reasonably likely to evoke

an incriminating response).

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something more than routine immigration questioning was occurring and so

such a person likely would feel constrained. See United States v. Ozuna, 170

F.3d 654, 659 (6th Cir. 1999) (relying on the fact that the questioning remained

limited in scope to immigration to hold the defendant was not in custody).

Additionally, there was evidence that Chavira was in actuality not free to leave.

Officer Ramirez testified that once he had referred her to secondary, had she

attempted to leave, he would have detained her.

Second, Chavira’s freedom of movement was severely restrained to the

degree a reasonable person would associate with arrest. Chavira’s birth

certificate and Texas identification were both confiscated. Had she wanted to

leave, she would have to first retrieve her belongings from the Government.

Likewise, the minor in her care, P.L.D., was also detained. Had Chavira wanted

to leave, she would either have had to leave P.L.D. or try to convince the

Government to release her. What’s more, Chavira was searched and then

handcuffed to a chair in a windowless fourteen by ten foot room, in a secured

area not accessible to the public. See United States v. Harrell, 894 F.2d 120, 125

(5th Cir. 1990) (identifying the lack of physical restraints comparable to formal

arrest as a factor in holding the defendant was not subject to custodial

interrogation). Under all these circumstances, thirty to forty minutes of

increasingly accusatory questioning would indicate to the reasonable person in

Chavira’s situation that her freedom had been restrained to the degree

associated with formal arrest. See Bengivenga, 845 F.2d at 600 (Bengivenga’s

detention at checkpoint lasted ninety seconds).

B. Comparison to Existing Case Law

The Bengivenga court examined four factors in its analysis of custodial

interrogation at secondary processing:

“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

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drinking coffee. The agents did not completely isolate the women in

an interrogation room. Third, the number of agents did not increase.

Only five people were present in the trailer—the bus driver, the two

women and the two agents. Changing the locus of the questioning

to the trailer had the advantage of eliminating the potentially

embarrassing presence of other bus passengers. With Agent

Santana preoccupied with completing a baggage receipt form for the

bus driver, it was unlikely that the agents might team up to

overbear Bengivenga's will. Finally, a reasonable person in

Bengivenga's position would have understood that so long as the bus

driver remained in the trailer the bus would not depart and if

everything checked out she would shortly rejoin the other

passengers on the bus.”

Id. at 599–600. In Chavira’s case, the trailer was a thirty-second walk from

primary pedestrian processing. However, the questioning occurred in a

windowless, secured area that was not accessible to the public. The purpose of

a need for a public setting was explained in Bengivenga. Interrogations in public

settings are less police dominated than stationhouse interrogations; the public

nature reduces the hazard that officers will resort to overbearing means to elicit

incriminating responses and diminishes the individual’s fear of abuse for failure

to cooperate. Id. at 598. Handcuffed to a chair in a windowless trailer, Chavira

was in a police dominated setting. The trial record reflects that anywhere from

two to four agents questioned Chavira. Separating Chavira and the minor,

questioning them in separate rooms, comparing answers and confronting

Chavira with the minor’s answers and accusing Chavira of being untruthful, all

while deliberately withholding Miranda warnings because she had not yet

confessed to a crime, bear the hallmarks of traditional custodial interrogation

that Bengivenga lacked.

We have addressed the Bengivenga factors in United States v. Harrell. 894

F.2d 120, 123–24 (5th Cir. 1990). There, the defendant was taken to a secondary

processing room that was separated from the public by glass enclosures. Id. at

124. While he was questioned for over an hour, he was not accused of any crime

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so as to heighten apprehension. Id. The evidence used against him was elicited

a few moments into the questioning. Id. This court narrowly held that

“investigatorial questioning by agents during those first few minutes at the

immigration checkpoint [cannot] be fairly described as a ‘custodial

interrogation.’” Id. This case does not present the same “advance notice, public

scrutiny, and limited intrusion” that the Harrell court based its holding on. Id.

Whereas the defendant in Harrell had advance notice of a brief checkpoint stop,

Chavira did not have notice of a detention that would result in her handcuffed

to a chair for half an hour. Whereas the questioning in Harrell took place behind

a glass wall subject to public scrutiny, Chavira was interrogated in a fourteen

by ten foot windowless room in the presence of only Government agents.

Whereas those “first few minutes” resulted in limited intrusion, Chavira was the

focus of intense questioning for thirty or forty minutes before she confessed,

warning being deliberately withheld to elicit that confession. Id.

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CONCLUSION

The trial court erred by denying Chavira’s motion to suppress her

statements elicited by the Customs and Border Patrol at secondary processing.

Of course, the trial court’s error is subject to the harmless error doctrine.

Harrell, 894 F.2d at 123. We recognize that the stipulation – wholly apart from

anything contained in its paragraph 8 and without consideration of anything

stated by Chavira at the secondary inspection – might be sufficient to sustain

her conviction. However, the problem is that the district court, as the trier of

fact, expressly relied on the entire stipulation, including the statements recited

in paragraph 8 which we hold inadmissible under Miranda (and nothing said by

A panel of this court addressed a similar situation in the unpublished case United 9

States v. Delgado-Arroyo, 358 F. App’x 530 (5th Cir. 2009) (per curiam). In that case though,

the panel found it unnecessary to decide whether statements elicited without Miranda

warnings were the product of custodial interrogation because the defendant’s second, warned

confession was voluntary. Id. at 533.

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the trial court indicates it likely would have convicted absent the facts stated in

paragraph 8 of the stipulation). We are therefore constrained to hold that the

error was prejudicial.

The denial of the defendant’s motion to suppress statements elicited

without Miranda warnings is REVERSED, the trial court’s judgments of guilt

and sentence are VACATED, and this case is REMANDED for a new trial.

REVERSED and REMANDED.

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