The opinion of the court was delivered by: Matsumoto, United States District Judge
Defendant Carlos Torres Ramirez ("defendant" or "Torres Ramirez") is charged with use of a passport secured by false statements (Count One), misuse of a passport (Count Two) and aggravated identity theft (Count 3), in violation of 18 U.S.C. §§ 1542, 1544, 1028A, respectively. (Doc. No. 6, Indictment.) Defendant moves to suppress statements he made on August 17-18, 2009 to United States Customs and Border Protection ("CBP") officers following his arrival at John F. Kennedy International Airport ("JFK").
The court held a suppression hearing on December 2, 2009 at which the government presented two witnesses: CBP Officer David Hernandez ("Officer Hernandez") and CBP Enforcement Officer Daniel Teitelbaum ("Officer Teitelbaum"). (See generally Transcript of Suppression Hearing ("Tr.").)
Having considered the appropriate burdens of production and proof, the testimony of witnesses, the suppression hearing exhibits, the parties' written submissions, including defendant's declaration dated November 4, 2009 (doc. no. 11), and having resolved issues of credibility, the court grants in part and denies in part defendant's motion. What follows sets forth the findings of fact and conclusions of law upon which this determination is based.
Defendant arrived at Terminal 4 at JFK on August 17, 2009 at 8:46 p.m. on a flight from Santo Domingo, Dominican Republic. (Tr. at 11-13; Gov. Ex. 1, Daily Passenger Inspection Log.) Upon his arrival at the primary passport inspection area, defendant presented to customs officials a United States passport, birth certificate and a United States customs declaration in the name of Luis Rosa Villanueva. (Tr. at 15-16; see Gov. Ex. 3, Passport; Gov. Ex. 4, Birth Certificate; Gov. Ex. 5, Customs Declaration.) Defendant was then referred for a secondary inspection at approximately 9:24 p.m. (Tr. at 15-16; Gov. Ex. 2, Flight Manifest.) According to Officer Hernandez, a secondary inspection was conducted to determine defendant's "admissibility" into the United States. (Tr. at 5, 17-18.)
Officer Hernandez, whose testimony the court finds credible, testified that he has been employed by CBP for approximately two years, during which time he has worked in the passenger processing unit at JFK. (Id. at 3-4.) In August 2009, Officer Hernandez was assigned to perform secondary inspections. (Id. at 6.)
According to Officer Hernandez, a secondary inspection is conducted to "further review" a passenger's "admissibility" into the United States, with databases, after a CBP officer conducting a primary inspection finds that more in-depth admissibility inquiries are required. (Id. at 5-6, 14-15.) Passengers may be denied admission to the United States when they "do not have the correct entry documents, prior overstays, [or] false claims to United States citizenship." (Id. at 5-6.) Officer Hernandez testified that verification of a passenger's identity involves review of that person's travel documents, such as passports, visas and customs declarations to ensure authenticity. (Id. at 7, 17.) Computer database queries are also employed to search for, among other things, criminal history and arrest records associated with the passenger. (Id. at 17-18.) Officer Hernandez testified that as of August 2009, he had conducted "hundreds" of secondary inspections. (Id. at 9.)
Officer Hernandez testified that he has never received any training on criminal law at "CBP or elsewhere[.]" (See id. at 5.) Nor has Hernandez recommended anyone for criminal prosecution or referred any passenger to the CBP's Criminal Enforcement Unit ("CEU"). (Id. at 9.) It is not "part of" Hernandez's job to "refer cases" to the CEU. (Id.) Instead, Officer Hernandez testified that following a secondary inspection, he reports his findings to his supervisor who, in turn, decides whether to admit the passenger into the United States. (See id. at 8.) If the supervisor decides not to admit the passenger, it would be "considered an adverse action" and the passenger "would be returned to their country." (Id.)
Officer Hernandez would first be required to take a "sworn statement" to maintain a "record" regarding the passenger's "alienage" and "inadmissibility." (Id. at 8.) As of August 2009, Officer Hernandez had taken "[b]etween 40 and 50" sworn statements. (Id. at 9.) Based on his experience, Hernandez is aware that a false claim to United States citizenship may result in criminal prosecution even though he does not make the decision to refer cases to the CEU. (Id. at 9-10, 48.)
Between 9:30 p.m. and 10:00 p.m. on August 17, 2009, Officer Hernandez received defendant's passport, birth certificate and customs declaration and interviewed defendant, who first presented to Hernandez by the name on defendant's passport, "Luis F. Rosa Villanueva." (Id. at 11-17.) The first phase of the secondary inspection was conducted in Spanish, which Hernandez speaks fluently, in a "large room" with benches which were positioned across from a desk with a computer. (Id. at 19.) Other CBP officers and passengers were also present in the room. (Id. at 19-20.)
Following a review of defendant's identification documents for authenticity (Tr. at 17; see Gov Exs. 3-5), Officer Hernandez searched a computer database for criminal history associated with defendant's purported identity, pursuant to standard procedures. (Tr. at 17-18.) The criminal history search revealed that the name Luis F. Rosa Villanueva matched two identities with arrest records, including a 2005 arrest for an immigration offense of "entry without inspection." (See id. at 18, 20; Gov. Ex. 9 at CTR 100; Gov. Ex. 10 at CTR 98.) At approximately 10:00 p.m., after learning of the criminal history, Officer Hernandez asked defendant if he had ever been arrested. (Id. at 18.) Defendant answered "no." (Id.)
Based on inconsistencies between defendant's statement and data from the criminal history for his purported identity, Officer Hernandez suspected that defendant might be an "imposter[.]" (See id. at 20.) Accordingly, Officer Hernandez took defendant's fingerprints, ran them through an FBI database, and discovered that they matched the immigration violation in 2005 about which Hernandez had asked defendant. (Id.) Officer Hernandez then advised defendant of this finding. Between 10:30 p.m. and 11:00 p.m., defendant admitted that he had been arrested in 2005 and his real name was Carlos Torres, and advised Hernandez of his country of birth. (Id. at 20-21.)
Officer Hernandez testified that once defendant's fingerprints matched the previous immigration violation, and it was determined that defendant was not the "true bearer of the documents he presented[,]" defendant was not free to leave, withdraw his application for entry into the United States or return to the Dominican Republic. (Id. at 39-40.)
Officer Hernandez then advised his supervisor of defendant's statements. (Id. at 21.) At approximately 11:00 p.m., the supervisor directed Officer Hernandez to complete a "adverse action" or "expedited removal," that is, "to remove someone from the country as soon as possible[,]" and to take defendant's sworn statement, a standard practice for any adverse action including a removal. (Id. at 21-23.) The supervisor instructed Hernandez "not to ask any questions regarding the passport" or how he obtained it" because "the entire case would be reviewed in the morning by the Criminal Enforcement Unit." (Id. at 21.) Officer Hernandez did not know of any CEU personnel working at that time on that day at JFK. (Id. at 22.) Although Officer Hernandez's supervisor did not indicate whether defendant would be criminally prosecuted (id. at 22), Officer Hernandez testified that he understood defendant could "possibly be prosecuted" for falsely claiming United States citizenship (see id. at 48). Of the 40 to 50 secondary inspections that Officer Hernandez conducted that night, defendant was the only passenger whom Hernandez's supervisor advised would be referred to the CEU. (Id. at 47.)
Officer Hernandez prepared to take defendant's sworn statement by typing a series of questions regarding defendant's "alienage" and "admissibility" into a form. (Id. at 22.) Officer Hernandez explained that although defendant's fingerprints matched the fingerprints of a previously arrested and deported alien, a sworn statement was necessary to ensure that defendant was indeed removable and did not have a claim to citizenship based on alienage. (See id. at 24-25.)
Officer Hernandez then asked defendant to enter an office, described as a "small room about 12 feet by 12 feet" with several chairs, a desk and computer. (Id. at 23.) Hernandez and another CBP officer who served as a witness sat across the desk from defendant. (Id.) Defendant was not restrained in any way. (Id. at 25.)
Before taking defendant's sworn statement, Officer Hernandez advised defendant, in Spanish, of certain "rights . . . and the purpose and consequences of th[e] interview." (Gov. Ex. 7, Record of Sworn Statement; see Tr. at 26-27, 50.) Even though Officer Hernandez's supervisor had directed him to complete an "expedited removal" and take "adverse action" against defendant, Officer Hernandez advised defendant, inter alia, that You do not appear to be admissible or to have the required legal papers authorizing your admission to the United States. This may result in your being denied admission and immediately returned to your home country without a hearing . . . .
This may be your only opportunity to present information to me . . . to make a decision . . . . If you lie or give misinformation, you may be subject to criminal or civil penalties, or barred from receiving immigration benefits or relief now or in the future. . . .
Until a decision is reached in your case, you will remain in the custody of the Immigration and Naturalization Service. (Gov. Ex. 7.) Defendant indicated that he understood the above advisory, had no questions, and was willing to answer Officer Hernandez's questions. (Id. at CTR 51.)
Officer Hernandez took defendant's sworn statement between midnight and 2:00 a.m. on August 18, 2009. (Id. at 24, 28.) During the second phase of questioning and in his sworn statement, defendant admitted, inter alia, that (i) his true name is Carlos Torres; (ii) he was born in the Dominican Republic in 1965; (iii) his parents are Dominican citizens; (iv) he has no claims to United States citizenship or residency; (v) he has no pending petitions with the United States Citizenship and Immigration Service; (vi) he is not married and has no children; and (vii) he has no immediate family members who have pending claims to United States citizenship or residency. (Gov. Ex. 7 at CTR 52.) At the point midway through the questioning on page 2 of Government's Exhibit 7, when Officer Hernandez had obtained a match on defendant's fingerprints and defendant's admission that he was not the person named in the passport he presented, that he and his parents were citizens of the Dominican Republic and that he had no claims to United States residency or citizenship, Officer Hernandez confirmed that defendant was excludable, as previously determined by his supervisor. (Id. at 41.)
Officer Hernandez asked defendant whether he presented to CBP officers a United States passport and birth certificate bearing the name of Luis F. Rosa Villanueva, to which defendant responded "yes." (Id. at CTR 53.) Defendant was also asked whether the passport had previously been used to depart the United States on August 1, 2009, to which defendant responded "Yes, that was me." (Id.) Officer Hernandez then asked defendant about the circumstances of a 2005 immigration "problem" and a 2006 arrest. (Id.) Defendant was also asked where and how long he had resided in the United States and whether he had been employed in the United States. (Id. at CTR 53-54; see Tr. at 52.) Officer Hernandez testified that he had asked defendant about his address to "validat[e] the address" defendant had written on his customs declaration form. (Tr. at 52.)
Officer Hernandez also asked defendant a series of questions to determine whether he had an asylum claim. (Id. at 29-30; see Gov. Ex. 8.) Defendant advised Hernandez that he had no fear or concern about being returned to his home country or being removed from the United States. (Gov. Ex. 8.) He also stated that he would not be harmed if he returned to his home country. (Id.)
After taking defendant's sworn statement, Officer Hernandez asked defendant to return to the public secondary area, whereupon Hernandez showed his supervisor defendant's statement. (Tr. at 31.) At approximately 1:00 a.m., Officer Hernandez's supervisor instructed Hernandez to complete the paperwork required for expedited removal. (Id.) At approximately 2:00 a.m., Hernandez began to prepare the required paperwork and a narrative summary of his investigation. (See Gov. Ex. 9; Tr. at 31-32.) Officer Hernandez completed the paperwork at approximately 5:30 a.m. and presented it to his supervisor. (Tr. at 35, 37-38; see Gov. Ex. 12.) Officer Hernandez left his shift and went home between 5:45 a.m. and 6:00 a.m. (Tr. at 38.)
Officer Hernandez's supervisor specifically advised him that defendant's case would be reviewed for prosecution by the CEU. (Id. at 46.) Based on his experience, Officer Hernandez knew that cases involving false claims to United States citizenship and re-entry after deportation would be sent for review by the CEU. (Id. at 47-48.) Officer Hernandez was also aware that the CEU would review the immigration documents presented by the defendant, ...