Second Circuit Remands for Suppression Hearing
Last week, the Second Circuit (Cabranes, Pooler, Droney) issued a non-precedential summary order remanding a case to the district court for an evidentiary hearing on a motion to suppress. The case, United States of America v. Jacques Durand, 16-4206-cr, highlights the Court’s concerns over extending the routine booking exception to the Fifth Amendment.
In 2014, United States Postal Investigation Service investigators began investigating complaints of mail theft and identity fraud in Queens and on Long Island. The investigators spoke with a complainant who provided a physical description of an individual whom the witness’s mother had observed removing mail from her mailbox, and the investigators learned that members of the complainant’s family had had credit cards issued in their names without their authorization. The banks that issued these credit cards provided the investigators with information about ATM usage by the individual in possession of the fraudulent credit cards. This information included surveillance photos of the person who used the ATM, which matched the description provided by the complainant. The banks also provided the phone numbers associated with the fraudulent credit accounts. Additionally, a letter carrier provided the investigators with the model and license plate number of a car whose driver she had observed approaching mailboxes in Long Island.
The Postal investigators located the car that matched the letter carrier’s description and arrested Durand as he was entering the car. The investigators transported Durand to an interview room and, without reading him his Miranda rights, asked him several pedigree questions: name, social security number, address, employment status, and telephone number. Durand resisted answering these questions. At first, Durand provided a phone number that had been disconnected. But when asked again, Durand provided a phone number which, when the investigators called it, caused a phone in Durand’s possession to ring. This phone number matched one of the numbers provided to the investigators by the banks who issued the fraudulent credit cards. Only then was Durand given Miranda warnings.
Durand was indicted and then tried and convicted of thirteen counts of access device fraud and one count of aggravated identity theft. At trial, the government argued that one reason for the jury to find Durand guilty was “because it was his phone” that was connected to the fraudulent accounts. This piece of evidence “broke the case wide open.”
Prior to trial, Durand filed a motion to suppress his pre-Miranda statements to investigators regarding his phone number. The district court denied the motion without conducting an evidentiary hearing, concluding that Durand’s statements merely provided pedigree information.
Miranda and the Fifth Amendment
Under Fifth Amendment jurisprudence, an investigator cannot initiate questioning in a custodial interrogation setting without providing Miranda warnings. Statements elicited by questions designed to obtain an incriminating response from the individual are inadmissible against the individual at trial unless the individual is first informed of his right to stay silent, of his right to an attorney, and of the fact that his statements may be used against him. But officers need not provide Miranda warnings before asking routine booking questions to obtain biographical information about the individual. This “routine booking question exception” to the Fifth Amendment allows investigators to ask a pedigree question before issuing Miranda warnings, unless the officer “knows or should have known the question was reasonably likely to elicit an incriminating response.”
The Second Circuit’s Decision
The Second Circuit remanded for a prompt evidentiary hearing on the issue of whether the questions that preceded the Miranda warnings were asked as part of a routine booking process, or were meant to elicit incriminating information. The court held that Durand “at least alleged a sufficient basis to raise the evidentiary issue of whether the inspectors’ questions about his phone number were reasonably likely to elicit incriminating information.” Durand demonstrated that the postal inspectors were investigating the mail and identity fraud crimes before they arrested him, and that they had already collected phone numbers which they believed would help them identify the culprit. Thus, Durand plausibly alleged that the investigators violated the Fifth Amendment by asking a question designed to confirm his link to the crimes without providing Miranda warnings. If Durand loses the suppression hearing, he can appeal the denial of the motion to the Second Circuit. If he wins, then the government should retry him without offering the suppressed evidence.
It may surprise many people to learn that many police officers do not immediately provide Miranda warnings upon a suspect’s arrest. Patrol officers often believe that Miranda warnings only need to be administered before interrogation begins. Although this understanding is broadly consistent with Miranda, which only applies to custodial interrogation, a failure to provide these warnings at the earliest possible opportunity can lead to a suppression motion when the defendant makes a statement prior to being warned. In some cases, these are spontaneous statements that are not necessarily made in response to any interrogation. Here, there seems to be no dispute that Durand provided his telephone number in response to questioning—the issue is whether he was being asked the questions for a proper booking purpose. The Court is concerned with over-extending the routine booking exception to cover this line of questioning. In particular, the questioning here had a substantive use in the investigation; it was not being asked only to fill out booking paperwork. While Durand will still need to prove that the officers asked for his phone number in order to link him to the crimes they were investigating, the Court’s decision gives him a clear roadmap for doing so and an opportunity to examine the police witnesses to explore their rationale for asking him about the incriminating phone number.