United States v. Francisco Corral-Franco, Maria Guadalupe Corral-Franco, and Maria Aparis Franco

HUGHES, District Judge,

dissenting:

This case is being remanded for the district court to reconsider the evidence on suppression in light of the newly-enunciated test in United States v. Bengivenga, 845 F.2d 593 (5th Cir.1988), for determining whether there has been an arrest. I dissent.

The district court could have reached the same result it did originally under the “rea *543 sonable person” test of Bengivenga ; the trial court specifically found that the Corral-Francos’ belief that they were under arrest at 7:20 a.m. when they were led from the airport concourse to the border patrol office was well-founded. The trial court’s conclusion that the defendants’ beliefs were justified satisfies the requirement that an innocent, similarly situated individual would have believed he was not free to leave.

A chief reason for adopting the objective test of Mendenhall was to prevent over reliance on self-serving declarations of police officers. Bengivenga, at 598. In the case of the Corral-Francos, an immigration officer with eight and one-half years of field experience testified that the Corral-Francos were not free to leave his custody. If anything, this is the most reliable testimony. Insisting that the trial court reformulate its findings in the verbiage of a “reasonable person” analysis when the evidence unequivocally shows that the officer subjectively believed he was making an arrest and the court found this was effectively conveyed to the defendants through the agent’s conduct places an unnecessary semantic exercise on the trial court.

The emphasis in footnote 6 on the trial court’s failure to express his disbelief of Castillo’s characterization of the encounter is troublesome; the finding of “instructed” carries a strong implication that Castillo was not credible. The court could rely on the common-sense inference that people ordinarily do not voluntarily jeopardize their travel arrangements on casual, polite requests for an interrogation in an office out of sight shortly before their flight is to depart.

Although the trial court in Bengivenga applied the four-part test of Morin, which was held to be a legally incorrect test, the case was not remanded for the application of a “reasonable person” test presumably because the district judge’s findings support the new articulation of the rules, leaving a legally proper result. This case need not be remanded, in spite of the newly-worded legal standard, because the facts of this case mandate suppression under either the Morin or Bengivenga test. To hold otherwise is inconsistent with Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983), a factually closer case than Mendenhall. In America, a non-paranoid innocent traveler who (1) is stopped 25 minutes before his plane is to depart because he looks nervous and has given conflicting accounts about how much luggage he has checked; (2) is led to another floor of the airport by three agents into a law enforcement office out of the public view; (3) has had luggage seized; (4) has Miranda warnings administered; (5) has airline tickets and money taken away in the office; and (6) has no chance of boarding his plane until his luggage is inspected, would reasonably think he is in police custody under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). It was not until after their plane had departed that Corral-Franco signed the consent form, and even if they could have made the airplane, their trip would have been seriously disrupted by the absence of their luggage at the destination. In light of these facts, the question whether they were under arrest would be answered affirmatively under any particular articulation of the standard.

As Judge Goldberg said in Bengivenga , the new standard must be applied consistently with the underlying principles in Miranda v. Arizona. Unless this is done, courts may reach conflicting results on strikingly similar facts.