[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 26, 2006
No. 05-14312 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20200-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONEL CHRISPIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 26, 2006)
Before ANDERSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Ronel Chrispin appeals the district court’s denial of his motion to suppress
evidence obtained during a weapons frisk prior to his arrest for being an illegal
alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A) and for
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We
affirm.
I.
After hearing testimony of Miami-Dade County Police Officer Lorente at the
suppression hearing, the magistrate judge set forth the following facts in his written
report and recommendation. At approximately 10:30 P.M. on January 8, 2005,
Officer Lorente was patrolling in his marked police cruiser when he observed
Chrispin walk out of a dark alleyway into a poorly lit parking lot adjacent to
several closed businesses. Officer Lorente knew that there had been a lot of crimes
(“smash and grab” burglaries) reported in the area where Chrispin was walking.
Officer Lorente pulled into the parking lot, stopped his cruiser about fifteen to
twenty feet from Chrispin, and turned on the flashing lights on the cruiser’s roof.
Officer Lorente then exited the cruiser and asked Chrispin “to please come to him.”
Chrispin obliged. The magistrate judge found that “[n]either the police car nor
[the] officer blocked the defendant from leaving the area.”
Officer Lorente did not ask for identification from Chrispin but did politely
ask Chrispin several questions about what he was doing that night. Chrispin told
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Officer Lorente that he was coming from the 163rd Street Mall seven blocks away,
although the alleyway did not provide direct access to the mall because of fences
and other obstructions. Officer Lorente’s questioning took “only a short while”; he
did not touch Chrispin; and he did not remove his firearm from its holster. During
the questioning, however, Chrispin became increasingly nervous, put his hands in
his pockets several times (which Officer Lorente eventually asked him not to do),
and paused to think before answering even the most simple questions. After
observing Chrispin’s uncomfortable demeanor, Officer Lorente asked Chrispin if
he had any weapons or drugs and then asked if he could frisk Chrispin. Chrispin
did not say anything but simply turned around and put his hands on Officer
Lorente’s cruiser.
Officer Lorente then frisked Chrispin. During the search, Officer Lorente
felt what he thought to be a pocket knife in Chrispin’s pocket. Upon retrieving the
item, Officer Lorente discovered that it was a loaded .22 caliber Derringer-type
handgun. Officer Lorente then arrested Chrispin.
The magistrate judge recommended that Chrispin’s motion to suppress the
evidence of the firearm be denied. The magistrate judge determined that “[i]n view
of all the surrounding circumstances, a reasonable person would have believed he
was free to leave during [Chrispin’s] encounter with the police” and that “[t]he
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encounter . . . did not constitute a seizure of [Chrispin].” The magistrate judge also
determined that Chrispin had “consented to be frisked” and that even if he had not,
Officer Lorente “had articulable suspicion that [Chrispin] may be dangerous” to
justify the frisk because he was in a high crime area late in the evening, was seen
emerging from a dark alleyway near closed businesses, and was nervous
throughout Officer Lorente’s questioning.
The district court adopted the magistrate judge’s report and
recommendation, thereby denying Chrispin’s motion. Chrispin later entered a
conditional guilty plea, reserving the right to appeal the denial of his motion. The
court sentenced Chrispin to concurrent 37-month sentences for each offense.
II.
“Because rulings on motions to suppress involve mixed questions of fact and
law, we review the district court’s factual findings for clear error, and its
application of the law to the facts de novo.” United States v. Bervaldi, 226 F.3d
1256, 1262 (11th Cir. 2000). We also construe the facts in the light most favorable
to the prevailing party below—here, the government. See id.
Chrispin argues that Officer Lorente stopped him without reasonable
suspicion in violation of his Fourth Amendment rights as interpreted in Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). The government responds that Chrispin
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voluntarily submitted to Officer Lorente’s questioning and gave consent to allow
Officer Lorente to search him. We agree with the government on both issues.
A.
“There are three broad categories of police-citizen encounters for purposes
of our Fourth Amendment analysis: (1) police-citizen exchanges involving no
coercion or detention; (2) brief seizures or investigatory detentions; and (3)
full-scale arrests.” United States v. Perez, No. 05-12404, __ F.3d __, 2006 WL
696507, at *4 (11th Cir. March 21, 2006) (citing United States v. Hastamorir, 881
F.2d 1551, 1556 (11th Cir. 1989)). The district court in the present case found that
the encounter between Officer Lorente and Chrispin was of the first type: a
consensual encounter involving no coercion or detention. The Supreme Court has
explained consensual encounters as follows:
Law enforcement officers do not violate the Fourth
Amendment’s prohibition of unreasonable seizures
merely by approaching individuals on the street or in
other public places and putting questions to them if they
are willing to listen. Even when law enforcement
officers have no basis for suspecting a particular
individual, they may pose questions, ask for
identification, and request consent to search luggage—
provided they do not induce cooperation by coercive
means.
United States v. Drayton, 536 U.S. 194, 200–01, 122 S. Ct. 2105, 2110 (2002)
(internal citations omitted). The critical inquiry is whether “a reasonable person
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would feel free to terminate the encounter.” Id. If so, “then he or she has not been
seized,” id., and there can be no Fourth Amendment violation.
We have stated that the following factors are relevant to determining
whether a seizure has occurred:
whether a citizen’s path is blocked or impeded; whether
identification is retained; the suspect’s age, education and
intelligence; the length of the suspect’s detention and
questioning; the number of police officers present; the
display of weapons; any physical touching of the suspect,
and the language and tone of voice of the police.
United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991). In this case, all
of the factors weigh in favor of our conclusion that the encounter between Officer
Lorente and Chrispin was not a seizure to which the Fourth Amendment applies.
Although Officer Lorente did pull his cruiser to within a fifteen to twenty feet of
Chrispin in the parking lot, Chrispin’s path was not blocked by the vehicle.
Officer Lorente did not retain Chrispin’s identification and questioned Chrispin
only briefly. Officer Lorente was the only officer present, and he did not unholster
his firearm. Officer Lorente did not touch Chrispin until after he asked if he could
frisk Chrispin and Chrispin turned around and put his hands on the cruiser.
Finally, Officer Lorente was polite throughout his interaction with Chrispin.
Chrispin does not dispute any of these fact-findings. Based on our own
review of Officer Lorente’s testimony, we find no clear error in any them.
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Accordingly, we conclude that the encounter between Officer Lorente and Chrispin
was consensual and that a reasonable person would have felt free to terminate it.
B.
“Searches conducted by means of consent are valid so long as the consent is
voluntary.” United States v. Kapperman, 764 F.2d 786, 793 (11th Cir. 1985). “In
order for consent to a search to be deemed voluntary, it must be the product of an
essentially free and unconstrained choice.” United States v. Garcia, 890 F.2d 355,
360 (11th Cir. 1989). The district court determined that Chrispin’s consent was
voluntary, and we may overturn that finding only if it is clearly erroneous. See
Kapperman, 764 F.2d at 793. We decline to do so.
This Court has previously found a search consensual where no verbal
consent was given, but the defendant’s body language indicated his assent to the
search. See United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002)
(“Although the officers did not receive any explicit verbal consent from
Ramirez-Chilel to enter [the residence], the officers did receive some sort of
implied consent to enter from Ramirez-Chilel’s body language . . . .”). In the
present case, although Chrispin did not express his verbal assent to be searched, his
body language—turning away from Officer Lorente and placing his hands on the
police cruiser as if preparing to be searched—gave implied consent. There is no
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evidence that his decision to do so was not freely made or without constraint.
Accordingly, we conclude that Chrispin voluntarily consented to be searched.
That conclusion does not end our inquiry because the extent of a consensual
search must be confined to the scope of the consent given. United States v. Blake,
888 F.2d 795, 798 (11th Cir. 1989). The Supreme Court has made clear that “[i]f a
police officer lawfully pats down a suspect’s outer clothing and feels an object
whose contour or mass makes its identity immediately apparent, there has been no
invasion of the suspect’s privacy beyond that already authorized by the officer’s
search for weapons.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130,
2137 (1993). That is exactly what happened in this case.
The scope of Chrispin’s consent was to allow Officer Lorente to check him
for weapons or drugs that were immediately apparent. Officer Lorente conducted a
pat-down frisk of Chrispin to check for those items. During the search, Officer
Lorente felt an object that he thought was a weapon, and he retrieved it. The object
was, in fact, a weapon, although a more dangerous one than the officer initially
thought. We conclude that in these circumstances, the extent of the search was
consistent with the scope of the consent.
AFFIRMED.
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