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United States v. Salinas

United States District Court, D. Hawaii

October 7, 2019



          J. Michael Seabright, Chief United States District Judge.


         Defendant Felina S. Salinas (“Salinas”) is charged by indictment with bulk cash smuggling, in violation of 31 U.S.C. § 5332(a) (Count 1), and accessory after the fact to bulk cash smuggling, in violation of 18 U.S.C. § 3 and 31 U.S.C. § 5332(a) (Count 2). ECF No. 24. These charges arise from a United States Customs and Border Protection (“CBP”) inspection of an outbound private aircraft en route from Honolulu to the Philippines carrying two crew members and four passengers, including Salinas. See ECF No. 1. Salinas moves to suppress statements she made to CBP officers in a Signature Flight Support hangar at Honolulu's Daniel K. Inouye International Airport on February 13, 2018, at 11:10 a.m.[1]

         The court held an evidentiary hearing on the Motion to Suppress on September 18, 2019. The court has considered the record and filings in this case, the supporting and opposing memoranda, the arguments of counsel, and the credibility of the witnesses testifying at the hearing. Based on the following, the court finds and concludes that Salinas was not “in custody” on February 13, 2018 at 11:10 a.m. for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). Statements that Salinas made to CBP officers at 11:10 a.m. are admissible even though she was not given Miranda warnings at the time. Accordingly, the Motion to Suppress is DENIED.


         A. Factual Background

         Six witnesses testified during a September 18, 2019 evidentiary hearing: CBP Officers Ernest Durante (“Durante”), Wendy Suellan Lau-Castro (“Lau-Castro”), Marvin Mendoza (“Mendoza”), Vernon Kaahanui (“Kaahanui”), and Joseph Barino (“Barino”); and HSI Special Agent Ann Mylene Haney (“Haney”). The court also admitted 17 exhibits into evidence. The record and testimony of these witnesses are generally consistent as to the facts which are critical to determining whether Salinas' 11:10 a.m. statements resulted from a “custodial interrogation” for purposes of Miranda. Accordingly, based on its review of the evidence and testimony presented at the hearing, the court finds the following facts by a preponderance of the evidence. See, e.g., Missouri v. Seibert, 542 U.S. 600, 608 n.1 (2004) (noting that the prosecution has the burden of proving, by a preponderance of the evidence, admissibility and voluntariness of statements).

         At approximately 9:30 p.m. on February 12, 2018, Chief CBP Officer Scott Weatherly (“Weatherly”) notified Durante that a private aircraft scheduled to depart Honolulu at 6 a.m. on February 13, 2018 was suspected of currency smuggling and directed Durante and his Anti-Terrorism Contraband Enforcement Team (“ATCET”) to inspect the plane. ATCET is charged with the interdiction of narcotics, undeclared currency, and other contraband at the border from inbound and outbound aircraft, cargo, and passengers-its role is limited to conducting inspections. HSI is the Department of Homeland Security's criminal investigatory arm. A routine ATCET inspection includes announcing that an inspection is being conducted, having passengers complete currency declaration forms, examining all luggage, and asking passengers to identify their luggage.

         Between 5:00 a.m. and 5:40 a.m. on February 13, 2018, Durante, Barino, Kaahanui, and Lau-Castro arrived at the Signature Flight Support area located on the property of the Daniel K. Inouye International Airport in Honolulu. At that time, it was raining and dark. CBP officers determined that luggage was already loaded in the cargo section of the plane, and that the passengers were neither in the lounge nor on the plane. Shortly thereafter, a car pulled up next to the plane, four individuals got out, and they boarded the plane.

         After the plane door closed, at approximately 5:45 a.m., Durante banged on the door, ordered the flight crew to open the door, boarded, and announced that CBP would conduct an inspection. Durante directed the passengers-one of whom was Salinas-to disembark and go to the Signature lounge, where they joined a few Signature employees and at least two other individuals who were neither Signature employees nor passengers.

         Barino walked the passengers to the lounge and once there, had them fill out CBP 503 currency declaration forms.[2] Salinas declared $40, 000. Barino had her complete a second form-FinCEN Form 105, with Lau-Castro's assistance-on which Salinas again declared $40, 000, and 1, 000 Philippine pesos. The forms were completed by approximately 6:15 a.m.

         Meanwhile, at approximately 5:50 a.m., Kaahanui and a Signature employee began unloading luggage from the cargo of the plane for screening through the x-ray van that was brought to the plane. Because of heavy rain, at approximately 6:10 a.m., Kaahanui and the Signature employee determined that they would not use the x-ray van and proceeded to take the luggage to the Signature hangar for manual inspections. At approximately 6:15 a.m., Kaahanui discovered weapon parts in a duffle. Barino then entered the hangar to assist with the inspection and at 6:30 a.m. found more weapon parts in a gray suitcase. Kaahanui and Barino continued to inspect the remaining luggage.[3]

         At approximately 6:15 a.m., Durante and Lau-Castro boarded and began to inspect the plane. Lau-Castro discovered currency in two bags-a red backpack and a black carry-on suitcase. The black suitcase had bundles of currency rolled up in black socks. Durante and Lau-Castro checked one or two socks and saw $100 bills rolled up. At approximately the same time that the currency was found, (1) Barino informed Durante that Salinas declared $40, 000 and that no other passenger declared more than $10, 000, and (2) Kaahanui informed Durante that he had found some weapon parts in a duffle. Durante paused or stopped the inspection inside the plane, and then he and Lau-Castro left the currency in the bags, did not attempt to identify who owned the bags, left the bags on the plane, and exited the plane. Durante called his supervisor to inform him that they had found currency and weapon parts and asked for assistance. Following this request and at various times throughout the morning, CBP Officers Robert Tapia, Marvin Mendoza, Adam Wong, as well as Weatherly and Supervisory CBP Officer John Beyer arrived at the scene.

         Initially, passengers in the Signature lounge could see into the hangar through a large window on one wall of the lounge. After weapon parts were found, the bags were set out on the floor of the hangar. Barino went back into the Signature lounge and asked the passengers who owned the duffle bag and gray suitcase. A male passenger stated that the bags were his. That passenger was allowed to remain in the lounge and his bags were left in the hangar. At some later time, the window screen was lowered, blocking the passengers' view into the hangar.

         Around 7:30 a.m., HSI Special Agents Haney and James Chambers arrived.[4] Haney testified that upon learning of events, she knew that someone was trying to smuggle undeclared cash but did not know the name or gender of that person. Durante showed Haney and Chambers the bags of currency inside the plane, told them that the passengers had filled out currency forms, and that Salinas declared $40, 000. Haney testified that she was satisfied that a large amount of undeclared cash was inside the black carry-on suitcase. That is, Haney testified that she had probable cause to believe that someone committed a crime, but she did not know who committed it. At that point, Haney told Durante to continue the inspection while Chambers contacted the United States Attorney's Office.[5] The bags were left on the plane, and at approximately 7:55 a.m., Mendoza arrived and helped Durante take photos of both the outside and inside of the plane, and of the bags with currency. At that time, Durante and Mendoza checked at least two of the socks and found that each contained approximately $10, 000.

         Between 8:00 a.m. and 8:20 a.m., Lau-Castro, with Haney as witness, took the two female passengers and one female guest in the lounge, one at a time, to the restroom for a pat-down. No. handcuffs were used, and no weapons were displayed. Haney did not identify herself as an HSI Special Agent and did not ...

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