In order for the government to use any statements you’ve made as evidence against you in a criminal trial, an officer often has to have read you your Miranda rights. (The reading of these rights is also known as “Miranda warnings” or the “Miranda advisement.”) The Miranda-warning requirement, however, applies only during “custodial interrogation.” (Miranda v. Arizona, 384 U.S. 436 (1966).)
(For a series of articles that dicusss issues related to this article, see Search and Seizure at and Around the U.S. Border.)
Being in custody means either that you have been arrested or that there has been a significant restraint on your freedom of movement. A typical interrogation is an officer questioning you in a way that is likely to produce incriminating information. (But interrogation can also occur under other circumstances—see Do officers have to read the Miranda rights before talking to a suspect?)
It isn’t always easy to know whether a court would consider a situation “custodial interrogation.” Courts consider the facts and circumstances of each situation to make that determination. (Thompson v. Keohane, 516 U.S. 99 (1995).) (For much more on this issue, see Miranda: The Meaning of "Custodial Interrogation.”)
Courts have found that the government has a strong interest in controlling and protecting U.S. borders. For this reason, courts have created what is essentially an exception to the Miranda rule for routine customs questioning at U.S. borders. ("Border" in this context includes airports.) The exception allows U.S. government officials (currently, agents of Customs and Border Protection, or CBP) to stop people at U.S. borders and require them to answer basic questions. These questions are supposed to help the officials determine whether the person is allowed to enter the country or is transporting anything illegal. (U.S. v. Hudson, 210 F. 3d 1184 (10th Cir. 2000).)
Whether a person is in custody during border questioning depends on the particular facts and circumstances. Simply being stopped for questioning at a primary or secondary inspection point isn’t considered “custody.” That’s true even though you don’t have a choice about being stopped and asked questions.
Routine border questioning, unlike custody, is:
(U.S. v. Galloway, 316 F. 3d 624 (7th Cir. 1999); U.S. v. Butler, 249 F. 3d 1094 (9th Cir. 2001).)
Routine border questioning isn’t considered “interrogation” for “custodial interrogation” purposes because of the nature of the questions. These routine questions (and requests for documentation) are part of an official’s duty to prevent both unauthorized entry into the U.S. and the smuggling of contraband. The questions typically relate to topics like the person’s:
(U.S. v. Berisha, 925 F. 2d 791 (5th Cir. 1991); U.S. v. Massie, 65 F. 3d 843 (10th Cir. 1995).)
Despite the above, customs questioning might sometimes stretch beyond routine questioning and into “interrogation.” For example, courts have found that customs questioning was no longer routine, and had turned into a custodial situation, where officials:
(U.S. v. Gonzalez-DeLeon, 32 F. Supp. 2d 925 (W.D. Tex. 1998); U.S. v. Kiam, 432 F. 3d 524 (3rd Cir. 2006).)
If immigration officials develop “probable cause” to believe that a person is involved in a crime, they will focus their questions accordingly. Questions that are clearly designed to determine whether a traveler is committing or has committed a crime aren’t part of routine border questioning—they’re criminal investigation. If a person is in custody, officials must give the Miranda warnings before they can ask such questions about suspected crime. Ultimately, though, the line between routine border questioning and interrogation can be difficult to draw. (Chavez-Martinez v. U.S., 407 F. 2d 535 (9th Cir. 1969).)
As described above, even when it comes to our established Miranda rights, courts may vary on what constitutes “custodial interrogation.” This variance means it can be hard to know what statements can be used against one in criminal or deportation proceedings. Depending on your circumstances, you may want to consult a criminal defense attorney and an immigration attorney, or one lawyer who practices in both fields. A lawyer with experience in this area should be able to explain the law that applies to your situation.