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United States v. Nogueira

October 6, 2009


The opinion of the court was delivered by: John Gleeson, United States District Judge


On September 1, 2009, the government submitted a motion in limine requesting that Detective Jose Vargas of the New York City Police Department be permitted to testify to questions he asked the defendants regarding their telephone numbers during their arrest processing on November 20, 2008. On September 3, 2009, defendant Manuel Nogueira filed an opposition to the government's application and requested that his statement of his telephone number be suppressed. At the final pretrial conference on September 9, 2009, the government indicated that the other three defendants had provided a telephone number in response to Detective Vargas's questioning, but Nogueira had not. As a result, I deemed the motion moot as to Nogueira. At the conference, the other three defendants were permitted to adopt Nogueira's opposition to the motion in limine and to supplement Nogueira's arguments with ones of their own. On September 10, 2009, I granted the government's motion and denied the defendants' motions to suppress their statements providing their telephone numbers. The reasons for that order are set forth below.


The relevant facts are not in dispute. All four defendants were arrested on November 20, 2008. During their arrest processing, all were asked by Detective Vargas for personal information, including their telephone numbers. While Nogueira did not provide a telephone number, defendants Aybar, Ciman and Ricart each did. The defendants were not read their rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to the questions regarding their telephone numbers.


The government contends that a defendant's telephone number is pedigree information that should be admitted under the routine booking exception to Miranda'sexclusionary rule. I agree.

A. The Routine Booking Exception

It is well-established that the police must inform an individual of his or her rights under Miranda prior to conducting a custodial interrogation. Generally, statements made by the defendant in response to a custodial interrogation must be suppressed unless they are preceded by a knowing, voluntary waiver of his or her Miranda rights. Miranda, 384 U.S. at 478-79. However, a plurality of the United States Supreme Court has recognized a routine booking exception to that rule, which permits certain questions to be asked "to secure the 'biographical data necessary to complete booking or pretrial services.'" Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)(citations omitted). "In Miranda . 'the Supreme Court was concerned with protecting the suspect against interrogation of an investigative nature rather than the obtaining of basic identifying data required for booking and arraignment.'" United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986)(quoting United States ex rel. Hines v. LaVallee, 521 F. 2d 1109, 1112-13 (2d Cir. 1975), cert. denied, 423 U.S. 1090 (1976). Furthermore, routine booking questions also provide the information needed by the court "to determine the amount of bail to be fixed." Id. (quoting Hines, 521 F.2d at 1112).

That the routine booking exception is the law in this Circuit is abundantly clear.See Hines, 521 F. 2d at 1112-13 (question regarding arrestee's marital status permissible); Gotchis, 803 F. 2d at 78-79 (question regarding defendant's employment permissible); United States v. Carmona, 873 F. 2d 569, 573-74 (2d Cir. 1989)(question as to defendant's name and reason for being in United States permissible); Rosa v. McCray, 396 F. 3d 210, 220-23 (2d Cir. 2005)(question as to arrestee's true hair color permissible).

Although the complete list of routine booking questions is not clear from the case law, there are certain questions that are so central to the booking and bail process that their permissibility cannot be in doubt. It must be that questions asked at the time of booking regarding an arrestee's name, aliases,*fn1 date of birth, address, place of employment and marital status fall within the purview of this exception. The answers to these questions impart to the magistrate judges and pretrial services officers critical information about the defendant's identity, contact information, ties to the community and, if applicable, prior criminal record --considerations crucial in determining if the defendant should be released on bail.

Just as an address is indisputably of great significance for the bail inquiry,*fn2 so must be a telephone number. Indeed, now that cellular telephones have become ubiquitous, a defendant's telephone number is at least as useful and necessary as his address to a pretrial services officer who needs to contact or supervise the defendant.

In short, the questions regarding the defendants' telephone numbers amounted to routine booking questions necessarily and appropriately asked during the arrest and booking process.

B. The Intent of the Officer

The defendants argue that, at the time he posed the question to the defendants, Detective Vargas intended to elicit an incriminating response and therefore the ...

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