United States v. Jacques Durand ( 2021 )

20-1992
United States v. Jacques Durand
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
21st day of June, two thousand twenty one.
Present: ROSEMARY S. POOLER,
STEVEN J. MENASHI,
Circuit Judges.
MARY KAY VYSKOCIL,
District Judge. 1
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 20-1992-cr
JACQUES DURAND,
Defendant-Appellant.
_____________________________________________________
Appearing for Appellant: Allegra Glashausser, Federal Defenders of New York, Inc., New
York, N.Y.
Appearing for Appellee: Andrew D. Grubin, Assistant United States Attorney (Kevin
Trowel, J. Matthew Haggans, Assistant United States Attorneys,
on the brief), for Mark J. Lesko, Acting United States Attorney for
the Eastern District of New York, Brooklyn, N.Y.
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Judge Mary Kay Vyskocil, United States District Court for the Southern District of New York,
sitting by designation.
Appeal from the United States District Court for the Eastern District of New York
(Glasser, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
Jacques Durand appeals from the June 16, 2020 order of the United States District Court
for the Eastern District of New York (Glasser, J.) denying his motion to suppress a cellphone
number he provided to police. In June 2016, Durand was convicted of thirteen counts of access
device fraud and one count of identity theft. After his conviction, Durand appealed from the
district court’s denial of his motion to suppress. We held that the district court erred in failing to
hold an evidentiary hearing to determine whether certain questions to Durand were permissible
under the pedigree exception to Miranda v. Arizona, 384 U.S. 436 (1966). United States v.
Durand, 767 F. App’x 83, 88 (2d Cir. 2019) (“Durand I”). The district court held an evidentiary
hearing on June 21, 2019 and concluded that the questioning fell within the pedigree exception,
and even if the questioning had violated Miranda, the cellphone number would have inevitably
been discovered. United States v. Durand, 467 F. Supp. 3d 66, 71, 74 (E.D.N.Y. 2020) (“Durand
II”). We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.
In reviewing the denial of a motion to suppress, we review the district court’s factual
findings for clear error, and its application of law to fact de novo. United States v. Pabon, 871
F.3d 164, 173 (2d Cir. 2017). We first address whether the questions put to Durand after he
requested counsel during his interrogation fall within the “safeguards [that] come into play
whenever a person in custody is subjected to either express questioning or its functional
equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980). “The collection of biographical
or pedigree information through a law enforcement officer’s questions during the non-
investigative booking process that typically follows a suspect’s arrest, however, does not
ordinarily implicate the prophylactic protections of Miranda, which are designed to protect a
suspect only during investigative custodial interrogation.” Rosa v. McCray, 396 F.3d 210, 221
(2d Cir. 2005). In Pennsylvania v. Muniz, the Supreme Court held that “a routine booking
question exception . . . exempts from Miranda’s coverage questions to secure the biographical
data necessary to complete booking or pretrial services.” 496 U.S. 582, 601-02 (1990) (internal
quotation marks omitted).
In examining whether the number should have been suppressed, we look to three
questions: (1) whether Durand was questioned as part of the booking process; (2) whether the
questions were reasonably related to the officer’s administrative concerns; and (3) whether the
officers should have known their questions were likely to produce incriminating information. See
Rosa, 396 F.3d at 221. If the answers to any of these three questions is no, the phone number is
not subject to the pedigree exception. While the district court found the answer to all three was
yes, we conclude that the officers should have reasonably expected their questions regarding
Durand’s cellphone number would produce incriminating information.
“Without obtaining a waiver of the suspect’s Miranda rights, the police may not ask
questions, even during booking, that are designed to elicit incriminatory admissions.” Muniz, 496
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U.S. at 602 n.14. Rosa sets forth an objective inquiry “[t]o determine whether the police abused
the gathering of pedigree information in a manner that compels Miranda protection . . . Should
the police have known that asking the pedigree questions would elicit incriminating
information?” 396 F.3d at 222. The district court erred in determining that the inspectors lacked
reason to know that the answer to their question was likely to incriminate Durand. While a
request for phone number will often be acceptable in the booking context, the booking exception
does not create categorical exemptions from Miranda for particular questions. Instead, “courts
should carefully scrutinize the factual setting of each encounter of this type” as “[e]ven a
relatively innocuous series of questions may . . . be reasonably likely to elicit an incriminating
response.” United States v. Avery, 717 F.2d 1020, 1025 (6th Cir. 1983). In this case, the officers
had already developed a short list of phone numbers likely connected to the case. The lead postal
inspector testified that if he had not turned Durand’s cellphone over to local police, “[he] would
have kept the phone . . . because [he] would have looked to get either a search warrant or gather
some information relative to the phone.” App’x at 70. The inspectors also did not simply request
a number but tested Durand’s answers, challenged him on his failure to initially provide a correct
number, and specifically asked for the number of the cellphone in his possession. Finally, any
administrative need for the cellphone number in the context of a booking was minimized by the
plan to hold Durand’s phone and not return it to him. In the factual setting of this encounter, we
conclude that the inspectors should have understood their follow-up questions regarding
Durand’s cellphone number were likely to incriminate him. The questioning violated Miranda.
However, the district court also held that the inspectors would have inevitably discovered
the cellphone number even without Durand’s answer during the booking interview. We agree. To
demonstrate inevitable discovery, the government must prove, by a preponderance of the
evidence, that “each of the contingencies necessary to the legal discovery of the contested
evidence would be resolved in the government’s favor.” United States v. Heath, 455 F.3d 52, 60
(2d Cir. 2006). Our analysis of inevitable discovery proceeds in two steps. “First, the court must
evaluate the progress of the investigation at the time of the government misconduct to determine
whether an active and ongoing investigation . . . was in progress.” In re 650 Fifth Ave. & Related
Properties, 830 F.3d 66, 103 (2d Cir. 2016) (internal quotation marks omitted). “At this step, the
government must establish that the investigation was not triggered or catalyzed by the
information unlawfully gained by the illegal search but, rather, that the alternate means of
obtaining the challenged evidence was, at least to some degree, imminent, if yet unrealized.” Id.(internal quotation marks and alterations omitted). “Second, the court must, for each particular
piece of evidence, specifically analyze and explain how, if at all, discovery of
that piece of evidence would have been more likely than not inevitable absent the unlawful
search.” Id. (internal quotation marks and alterations omitted). Here, prior to receiving the
number during questioning, the inspectors had already focused their investigation on Durand,
found evidence linking him to the crimes, and had an interest in his phone.
Prior to the booking interview, the inspectors had developed probable cause to arrest
Durand and obtain subscriber information for his cellphone. At the time of his arrest, the
evidence established that a postal carrier had observed the driver of a Nissan Maxima, who
appeared to be Durand, was following a postal carrier. The Nissan Maxima was registered to an
individual connected to Durand. Complainants had identified an individual stealing from their
mailboxes who matched Durand’s description. Surveillance videos from ATMs associated with
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fraudulent transactions also matched these descriptions. As discussed above, the inspectors had
already developed a short list of numbers connected to the crime and testified to their interest in
learning more about Durand’s phone. Durand’s statement regarding his cellphone number was
not the catalyst for the investigation; indeed, the warrant application for Durand’s cellphone
contains no evidence developed after his interview. Given the evidence tying to Durand to the
crime, the inspectors’ interest in his phone, and the limited numbers at issue, we find that it was
more likely than not inevitable that the government would have at the least sought and been able
to obtain subscriber information for the phone seized during the arrest. Accordingly, we find that
the district court did not err in denying Durand’s motion to suppress.
We have considered the remainder of Durand’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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