The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the motion to suppress statements filed by Defendant Juan Carlos Vasquez-Hernandez. ECF No. 12.
On Sunday, January 9, 2011, at approximately 5:25 a.m., Defendant was contacted by United States Border Patrol Agent Simon Yeaman walking with two other men twenty five to fifty yards north of the border in an area known to border patrol agents as "White Cross." White Cross is an area located three miles east of Otay Mesa Port of Entry and north of the United States/Mexico International Boundary. White Cross is a mountainous area with deep ravines on both sides. The area contains an official border marker but no fence. There are no residences or businesses in the immediate area. The area presents dangers to border patrol agents, including isolated terrain, and bandits.
Border Patrol Agent Simon Yeaman identified himself as a border patrol agent in English and in Spanish and told the three men to stop and to sit down. Two of the individuals stopped and sat down. Defendant in a slightly different area passively resisted. Defendant did not sit down, looked left, and looked right. Agent Yeaman repeated his commands. Defendant sat down.
Border Patrol Agent Brown arrived on the scene. The two agents handcuffed the three individuals to each other and walked them approximately 300 yards on a dirt road to the border patrol vehicles. At the vehicles, Agent Brown asked the three men their citizenship and nationality. All responded "Mexico" and stated that they had no documents to legally enter the United States. The three individuals, including the Defendant were arrested and transported to the Chula Vista border patrol station.
At 11:05 a.m., Defendant was brought to an interview room for questioning by Border Patrol Agent Serrano. Agent Serrano asked the Defendant biographical questions including whether he was under the influence of drugs or alcohol. Defendant stated that he had been drinking alcohol. Agent Serrano postponed the interview pursuant to border patrol policy. Defendant was taken to the holding cell for sleep, water, and food.
At approximately 1:24 p.m., Agent Serrano resumed the interview. Defendant stated that he was ready to answer questions. Defendant was read his Miranda rights in the Spanish language, stated that he understood, and stated that he was willing to answer questions without an attorney present. Defendant signed an advice of rights form. Defendant stated that he was born in Mexico City and that he had no legal immigration documents.
On Monday, January 10, 2011, Defendant appeared before the Magistrate Judge in the District Court for the Southern District of California. Federal Defenders was provisionally appointed and the initial appearance was continued to January 12, 2011.
On Wednesday, January 12, 2011, the Defendant made his initial appearance, Federal Defenders was confirmed as counsel, bond was set, and a preliminary hearing was scheduled.
2. Initial Statements to Border patrol agent
Defendant contends that Miranda warnings were necessary prior to any questioning at the White Cross area. Defendant contends that he was not free to leave and that the questioning was designed to elicit incriminating responses. Defendant further asserts that he was intoxicated and that his statements were not voluntary. The Government contends that the Defendant's statements in the field to Agent Brown were made during the course of a lawful detention and are admissible.
Warnings under Miranda v. Arizona, 384 U.S. 436 (1966) are required prior to "custodial interrogation." Id. at 444. Whether a defendant was constitutionally entitled to a Miranda warning is an issue of law and whether a person is "in custody" for the purposes of Miranda is essentially a question of fact. United States v. Galindo-Gallegos, 244 F.3d 728, 730 (9th Cir. 2001).
A Terry stop is a brief investigatory stop which is an exception to the probable cause requirement of the Fourth Amendment. "Beginning with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1758, 80 L.Ed.2d 247 (1984), the Court has recognized that a law enforcement officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. (citation omitted.) To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer's actions must be justified at its inception, and ... reasonably related in scope to the circumstances which justified the interference in the first place." Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185 (2004). "A brief but complete restriction of liberty, if not excessive under the circumstances, is permissible during a Terry stop and does not necessarily ...