Second Circ. Deals a Blow to Miranda Protections

     MANHATTAN (CN) — During an early-morning search of her home, federal authorities subjected a Connecticut woman to a coercive interrogation without Miranda warnings, but prosecutors can still use that interview to nail her for insurance fraud, the Second Circuit ruled on Friday.
     Physical therapist Danielle Faux’s brush with the law began after she packed her bags for a Mexican vacation with her husband in the early hours of Dec. 8, 2011, “just as the sun was coming up.”
     Her husband, Nicholas Corwin, was loading the car when roughly 10 to 15 armed officers from four government agencies told him they were there to execute a search warrant.
     As they entered Faux’s house, FBI agents Matthew McPhillips and Lucile Fontes escorted her to the dining room for a marathon, two-hour interview that has troubled every federal judge presented with the case.
     U.S. District Judge Stefan Underhill suppressed Faux’s statements as the fruits of a search that violated her Fourth Amendment rights.
     Unanimously overruling that decision, the Second Circuit found that authorities barely stayed on the right side of the Constitution.
     “It can hardly be denied that the conditions of the interview exerted coercive pressure on Faux: armed law enforcement personnel entered her home at dawn, her vacation plans were abruptly canceled, and she was accompanied by an agent when she moved about her home; however, the circumstances did not rise to the level of a ‘custodial interrogation,’ which is defined narrowly in our case law as circumstances akin to formal arrest,” Chief U.S. Circuit Judge Dennis Jacobs wrote for the three-judge panel.
     “The government stepped right up to the limits of constitutionally permissible conduct and, based on the facts accepted by the district court, just managed to toe the line,” his 22-page opinion continues.
     Faux wound up canceling her trip South of the Border, and today’s ruling gives prosecutors more grist to try to convict her of 54 charges of health care fraud, obstruction of a federal audit and making a false statement on a federal tax return.
     The indictment stems from two businesses operating out of 27 Lois Street in Norwalk, Conn.: a physical therapy practice in Faux’s name and a gym she co-owned, Achieve Rehab and Fitness.
     Prosecutors say that Faux, 48, illegally billed her personal training clients as physical therapy clients to insurers.
     But the sheer number of officers present for the search on Faux’s home gave the circuit “considerable pause,” leaving the judges to wonder whether the tactics fit the suspected crime.
     “It is unclear from the record how many rooms are in Faux’s 4,900-square-foot house, but it is probable that 10 to 15 agents would be more than enough to occupy every room simultaneously,” the opinion says.
     This made the judges skeptical that Faux was “free to leave” her questioning, as prosecutors insisted.
     “If a reasonable person is interrogated inside his own home and is told he is ‘free to leave,’ where will he go?” the judges asked. “The library? The police station?
     “Moreover, the need for so many officers to execute this search warrant is not readily apparent,” the opinion continues. “Nothing in the record suggests that Faux was suspected of being particularly dangerous; she was being investigated for a paperwork fraud scheme, and the warrant was to search primarily for documents rather than (for example) weapons or drugs.”
     Though the court noted interrogations inside a home can sometimes qualify as “custodial,” the judges found that this did not rise to that level despite their criticism of the search.
     “True, the two-hour interview was conducted while officers swarmed about her home,” the opinion states. “But she was told 20 minutes into the interview that she was not under arrest; she was never told that she was not free to leave; she did not seek to end the encounter, or to leave the house, or to join her husband; the tone of the questioning was largely conversational; there is no indication that the agents raised their voices, showed firearms, or made threats. Her movements were monitored but not restricted, certainly not to the degree of a person under formal arrest. She was thus never ‘completely at the mercy of’ the agents in her home.”
     Faux’s attorney and the U.S. Attorney’s Office for the District of Connecticut both declined requests for comment.

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