United States v. Jorge Nicolas Acosta

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-16167 March 25, 2004

________________________ THOMAS K. KAHN
CLERK

D. C. Docket No. 02-20238-CR-DLG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE NICOLAS ACOSTA,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(March 25, 2004)

Before TJOFLAT and CARNES, Circuit Judges, and CONWAY*, District Judge.

___________________
* Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
CARNES, Circuit Judge:

Jorge Acosta was indicted on these three drug-related counts: conspiracy to

possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846,

841(b)(1)(B); possession with intent to distribute heroin, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B); and conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(a)(1)(B)(i). After the district court denied his

motion to suppress some of his statements and part of the other evidence against

him, Acosta conditionally pleaded guilty to all three counts reserving his right to

appeal the denial of the motion. This is that appeal.

I.

An undercover officer with the United States Customs Service High

Intensity Drug Trafficking Area Group (HIDTA) informed his fellow officers that

he anticipated making a monetary exchange of $190,000, as part of a money

laundering operation, with a then-unidentified suspect near the corner of 107th

Avenue and 88th Street in Miami on the afternoon of February 26, 2002. Two

officers who worked with the anti-drug group, Kenneth Loveland and Eric Sallick,

were assigned to wait in a Publix Supermarket parking lot near 107th Avenue and

88th Street to conduct surveillance and take photographs of the exchange.

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Loveland was told by the undercover officer, who was in contact with the suspect,

that the suspect was driving a silver Nissan Xterra.

On that afternoon, Officer Loveland photographed Acosta driving a silver

Nissan Xterra through the Publix parking lot while talking on his cell phone. At

the very moment Acosta was talking on his cell phone, the undercover officer, who

was in contact with Loveland, was talking on his phone with the suspect. The

undercover officer was instructed to tell the suspect that the money exchange

would not take place that day. After he did so, Acosta drove the Xterra out of the

parking lot and to an apartment complex. Once there, he parked his Xterra next to

a gold Lexus, removed a black gym-bag with red trim from the Xterra, and gave

the bag to the driver of the Lexus. Acosta then drove away in the Xterra.

Surveillance was terminated for the evening.

The next morning officers re-established surveillance at Acosta’s residence.

The undercover officer informed the surveillance officers that the money exchange

had been rescheduled for that day and that the amount of the exchange had

increased from about $190,000 to around $300,000. While they were watching,

Acosta left his residence and drove to a bank. He then drove to the apartment

complex where he had handed off the gym-bag the night before. Acosta went into

an apartment and came out with another man, later identified as Alberto Sade,

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whose apartment it was. One of them was carrying a gym-bag that appeared to the

officers to be the same bag they had seen Acosta with the day before. The bag was

put into the Xterra, and both men got into that car.

The undercover officer informed the surveillance officers that the suspect

was on his way to deliver the money to him. The officers surveilling Acosta

decided to stop him outside Sade’s apartment before he and Sade could drive away.

They pulled their cars behind Acosta’s Xterra in the parking lot of the apartment

building and five or six officers approached the car. At least one officer had his

gun drawn, but all of the officer’s guns were re-holstered within ten-seconds.

An officer immediately told Acosta that he was not under arrest but that they

wanted to talk to him about a money laundering investigation. Acosta gave his

identification to the officers and at some point was patted down. An officer asked

Acosta if he had any money, weapons, or drugs in the car, and he said that he did

not. Acosta then gave his written consent for officers to search his car. After

consenting to the search, but before it took place, Acosta admitted to the officers

that there was money in the car. The search uncovered two bags filled with

currency totaling approximately $278,000.

The passenger in the Xterra, Sade, told the officers that he lived in the

apartment he and Acosta had just left, and he consented to the officers searching it.

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Inside the apartment the officers found a duffel-bag with a small padlock on it.

An officer asked Sade if he had the key to the lock and he replied that the bag

belonged to Acosta, who had the key. Customs Officer Sallick went outside to ask

Acosta for the key.

Officer Sallick testified at the suppression hearing that when he asked

Acosta for consent to search the duffle-bag and the key, Acosta “said ‘yes[,] [o]f

course,’ reached into his pocket and produced a set of keys and gave them to me.”

The officers did not attempt to get Acosta’s written consent to search the duffle-

bag. When they unlocked and opened the bag using the key Acosta had given

them, the officers discovered more currency and some pellets. The pellets

appeared to the officers to be (and later tests would confirm that they were) heroin.

At that point, an officer read Acosta his Miranda rights and placed him under

arrest. After he had been advised of his rights, Acosta told the officers that the

heroin belonged to him and that Sade was not involved.

After making that admission, Acosta was then taken to the United States

Customs Service HIDTA headquarters where he was interviewed. Shortly after the

start of the interview, Officer Ocasio asked Acosta to read a Miranda rights form

aloud and to initial each paragraph as he went through the form. Acosta

5
acknowledged that he understood his Miranda rights both by initialing each

paragraph of the form and also by reading the entire form aloud.

The following exchange then took place in Spanish:

OCASIO: Now, uh... do you want to waive your rights or not?

ACOSTA: No, I’m not going to waive my rights.

OCASIO: Okay.

ACOSTA: I can collaborate, I can talk with you now...

OCASIO: Do you want to talk to us?

ACOSTA: I’ll talk with you... (UI) my interrogation...

(ellipses as found in original) Officer Ocasio attempted to explain to Acosta what

it meant for Acosta to waive his rights. Acosta then said: “I am going to cooperate

with you at this moment, right at this very instant. To me [] everything you need, I

can answer all your questions without the need to sign that I waive my rights []

because I am not going to waive my rights.” Officer Ocasio then continued

interviewing Acosta. During the interview Acosta identified the person who had

given him the bag containing the money and heroin, and to whom he was to deliver

the money he received. He also told Officer Ocasio his pay for delivering the

money was $10,000.

II.

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 After being charged, Acosta moved to suppress all physical evidence seized

from his person, the duffle-bag that was seized from Sade’s apartment, and all of

the statements Acosta made after being confronted by the officers outside Sade’s

apartment, including those he made after being arrested and read his Miranda

rights. A magistrate judge held an evidentiary hearing on the motion to suppress,

and filed a report and recommendation, which was followed by a corrected report

and recommendation. The district court held a hearing on the issues relating to the

statements that Acosta had made at the United States Customs Service HIDTA

headquarters. After that hearing, the district court issued an order adopting the

magistrate judge’s corrected report and recommendation in its entirety and denying

Acosta’s motion to suppress.

Acosta then entered a conditional guilty plea reserving his right to appeal the

denial of his motion to suppress. He was adjudicated guilty and sentenced to 46

months in prison to be followed by 4 years of supervised release.

III.

On a district court’s denial of a motion to suppress, we review its findings of

fact only for clear error and its application of law to those facts de novo. See

United States v. Blackman, 66 F.3d 1572, 1577 (11th Cir. 1995).

7
 Acosta contends that the initial stop was not the kind of stop that Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), permits to be made without probable

cause, because the officers lacked reasonable suspicion to detain him. He also

contends that even if they did have reasonable suspicion to make a valid Terry

stop, the stop matured into an arrest at some point before the officers had probable

cause, and as a result all the evidence obtained after that point should be

suppressed. W e disagree with both of his contentions.

In Terry, the Supreme Court adopted “a dual inquiry for evaluating the

reasonableness of an investigative stop.” United States v. Sharpe, 470 U.S. 675,

682, 105 S. Ct. 1568, 1573 (1985) (citing Terry, 392 U.S. at 20, 88 S. Ct. at 1879);

see also United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000). Under

Terry’s two-part inquiry, we first examine “‘whether the officer’s action was

justified at its inception,’” Powell, 222 F.3d at 917 (quoting Terry, 392 U.S. at 20,

88 S. Ct. at 1879), which turns on whether the officers had a reasonable suspicion

that the defendant had engaged, or was about to engage, in a crime, id. In the

second part of the inquiry, determining whether the stop went too far and matured

into arrest before there was probable cause, we consider “‘whether [the stop] was

reasonably related in scope to the circumstances which justified the interference in

the first place.’” Id. (quoting Terry, 392 U.S. at 20, 88 S. Ct. at 1879).

8
 A.

The officers were allowed to stop Acosta if, under the totality of the

circumstances, United States v. Sokolow, 490 U.S. 1, 7-8, 109 S. Ct. 1581, 1585-

86 (1989), “from the collective knowledge of the officers involved in the stop,”

United States v. Williams, 876 F.2d 1521, 1524 (11th Cir. 1989), they had an

objectively reasonable suspicion that Acosta had engaged, or was about to engage,

in a crime, Powell, 222 F.3d at 917. “The ‘reasonable suspicion’ must be more

than an ‘inchoate and unparticularized suspicion or hunch.’” Powell, 222 F.3d at

917 (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883). Thus, “‘[w]hile “reasonable

suspicion” is a less demanding standard than probable cause and requires a

showing considerably less than preponderance of the evidence, the Fourth

Amendment requires at least a minimal level of objective justification for making

the stop.’” Jackson v. Sauls, 206 F.3d 1156, 1165 (11th Cir. 2000) (quoting

Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675-76 (2000)). It does not

require officers to catch the suspect in a crime. Instead, “[a] reasonable suspicion

of criminal activity may be formed by observing exclusively legal activity.”

United States v. Gordon, 231 F.3d 750, 754 (11th Cir. 2000) (citing Wardlow, 528

U.S. at 125-26, 120 S. Ct. at 677; Terry, 392 U.S. at 22-23, 88 S. Ct. at 1880-81).

9
 In this case the officers had more than enough objectively reasonable

suspicion that Acosta was involved in criminal activity. The undercover officer,

who was in contact with the suspect, told the surveillance officers where the two

were to meet and that the suspect would be driving a silver Nissan Xterra to the

meeting site. At the designated time, the surveillance officers saw Acosta driving a

silver Nissan Xterra at the meeting site. At the very moment that the undercover

officer was talking on the phone with the suspect, Acosta was seen talking on his

cell phone. When the undercover officer told the suspect over the telephone that

the meeting had to be postponed, surveillance officers watched Acosta drive away.

Finally, the next day when Acosta informed the undercover officer that he was on

his way to the rescheduled money exchange, the surveillance officers saw Acosta

preparing to depart in his car. Given those facts, the officers’ suspicion that Acosta

had engaged or was about to engage in the crime of money laundering was

objectively reasonable.

B.

Acosta also contends that even if the initial stop was a valid Terry stop, it

matured into an arrest without probable cause, so that all the evidence gathered

after that maturation point is due to be suppressed because he was arrested without

probable cause, and for the additional reason that he was questioned for a period of

10
time after being arrested before he was read his Miranda rights. Acosta’s stop-

became-an-arrest contention has to do with the second part of the Terry inquiry,

which requires us to determine “‘whether [the stop] was reasonably related in

scope to the circumstances which justified the interference in the first place.’”

Sharpe, 470 U.S. at 682, 105 S. Ct. at 1573 (quoting Terry, 392 U.S. at 20, 88 S.

Ct. at 1879). There is a difference between an investigative stop of limited

duration for which reasonable suspicion is enough, and a detention that amounts to

an arrest for which probable cause is required. The difference is one of extent,

with the line of demarcation resulting from the weighing of a “limited violation of

individual privacy involved against the opposing interests in crime prevention and

detection and in the police officer’s safety.” Dunaway v. New York, 442 U.S. 200,

209, 99 S. Ct. 2248, 2255 (1979); see also United States v. Puglisi, 723 F.2d 779,

785 (11th Cir. 1984).

To assist us in more objectively drawing the line between a Terry stop and

an arrest in an individual case, we apply four non-exclusive factors. These factors

are: “‘the law enforcement purposes served by the detention, the diligence with

which the police pursue the investigation, the scope and intrusiveness of the

detention, and the duration of the detention.’” United States v. Gil, 204 F.3d 1347,

11
1351 (11th Cir. 2000) (quoting United States v. Hardy, 855 F.2d 753, 759 (11th

Cir. 1988)); see also Sharpe, 470 U.S. at 685-86, 105 S. Ct. at 1575.

In analyzing the first factor, the law enforcement purposes served by the

detention, we have stated that “the most important [consideration] ‘is whether the

police detained [the defendant] to pursue a method of investigation that was likely

to confirm or dispel their suspicions quickly, and with a minimum of

interference.’” Gil, 204 F.3d at 1351 (quoting Hardy, 855 F.2d at 759). As we

explained in our Hardy opinion:

A Terry stop is justified to give the police an opportunity to engage in
brief and nonintrusive investigation techniques, such as noncustodial
questioning of the detained person. A Terry stop cannot be used as
the basis of a “full search” that would normally be warranted only by
the existence of probable cause, consent, or a valid arrest. Nor may
the police use an investigative stop to subject a suspect to custodial
interrogation that would ordinarily require formal arrest and Miranda
warnings.

855 F.2d at 759 (citations and internal quotations omitted). Thus, we must

determine whether these officers utilized “brief, minimally intrusive investigation

technique[s]” appropriate under Terry. Id.

The officers questioned Acosta about what was in his car, asked him for

permission to search the car, sought permission from Sade to search the apartment

that he and Acosta had just left, briefly searched the apartment, returned to ask

Acosta for permission to open a bag they found in the apartment, searched it, and

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then placed Acosta under arrest. Because this series of acts was designed to lead to

a quick and non-intrusive resolution of the officers’ reasonable suspicions, the first

factor weighs in favor of the legality of the stop.

Under the second factor we ask whether the police were diligent in pursuing

their investigation, that is, whether the methods the police used were carried out

without unnecessary delay. See Sharpe, 470 U.S. at 686-87, 105 S. Ct. at 1575-76;

Hardy, 855 F.2d at 759-60. Nothing in the record indicates that the police were

less than prompt in carrying out their on-the-scene investigation. Each

investigatory act logically led to the next act which was done without delay.

Under the third factor we ask whether the scope and intrusiveness of the

detention exceeded the amount reasonably needed by police to ensure their

personal safety. See Michigan v. Long, 463 U.S. 1032, 1047-48, 103 S. Ct. 3469,

3479-80 (1983); Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S. Ct. 330, 333

(1977) (per curiam). The Supreme Court has stated that officers may take

reasonable steps to ensure their safety so long as they possess “an articulable and

objectively reasonable belief that the suspect is potentially dangerous.” Long, 463

U.S. at 1051, 103 S. Ct. at 3482 (1983). It follows, and our prior opinions confirm,

that an investigatory stop does not necessarily ripen into an arrest because an

officer draws his weapon, United States v. Roper, 702 F.2d 984, 987-88 (11th Cir.

13
1983), handcuffs a suspect, United States v. Hastamorir, 881 F.2d 1551, 1557

(11th Cir. 1989), orders a suspect to lie face down on the ground, Courson v.

McMillian, 939 F.2d 1479, 1492-93 (11th Cir. 1991), or secures a suspect in the

back of a patrol car, Gil, 204 F.3d at 1351. While restriction on freedom of

movement is a factor to be taken into account in determining whether a person is

under arrest, it alone is not sufficient to transform a Terry stop into a de facto

arrest. Hastamorir, 881 F.2d at 1556.

Based on the nature of the officers’ reasonable suspicion that Acosta was

carrying a large amount of money in his car, the officers were justified in

suspecting that he may have had a weapon to protect himself and the money. It

was reasonable for one or more officers to draw a gun momentarily as Acosta

exited his car, and for the officers to frisk Acosta for weapons. During the stop the

officers prevented Acosta from returning to his car at least one time, but that was a

reasonable precaution because the car had not been fully searched for weapons at

that point.

It is not clear how long the officers kept Acosta’s driver’s license after

obtaining it from him for identification purposes, but it was reasonable for the

officer who checked Acosta’s identity to retain his license during the short period

while the identity check was being conducted. Although not clear from the record,

14
the officers may have taken and retained Acosta’s keys during the stop, and it

appears that his car was blocked-in by the officers’ cars. Even if that happened,

there is nothing to indicate Acosta asked the officers to move their cars, or to return

his keys and license. Besides, the very nature of a Terry stop includes stopping a

suspect from leaving. “[A]n investigatory stop is not an arrest despite the fact that

a reasonable person would not believe he was free to leave.” United States v.

Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995) (emphasis omitted). We conclude

that the level of restraint imposed on Acosta was reasonably necessary to effect the

stop and ensure the safety of the officers at the scene.

The fourth and final factor is whether the duration of the detention was

reasonable. There is no rigid time limitation or bright line rule regarding the

permissible duration of a Terry stop. See United States v. Place, 462 U.S. 696,

709-10, 103 S. Ct. 2637, 2645-46 (1983) (declining to adopt an “outside time

limitation” for a permissible Terry stop); see also United States v. Purcell, 236 F.3d

1274, 1279 (11th Cir. 2001), cert. denied, 534 U.S. 830, 122 S. Ct. 73 (2001). The

test is one of “common sense and ordinary human experience.” Sharpe, 470 U.S.

at 685, 105 S. Ct. 1575. In Sharpe, the Supreme Court explained that in

determining whether a detention exceeds the outer boundary for a Terry stop, we

must consider whether the police diligently pursued a means of investigation likely

15
to confirm or dispel their suspicions quickly, during which time it was necessary to

detain the defendant. Sharpe, 470 U.S. at 686, 105 S. Ct. at 1575. From our prior

discussion, it should be obvious that we believe the officers in this case did

diligently pursue a means of investigation likely to confirm or dispel their

suspicions quickly.

We also believe that the total amount of time Acosta was detained was

reasonable in relation to the purpose of the stop. Although the record is not

entirely clear, it appears that Acosta was first stopped at approximately 11:05 a.m.

and that he was arrested sometime after 11:25 a.m., at which time he signed the

consent form permitting a search of his vehicle. Acosta claims that he was

detained at least thirty minutes prior to his formal arrest, but even if we take that as

given the result is still the same. Thirty minutes duration is not beyond the pale of

reasonableness for Terry stops, as our prior decisions make clear. In Gil, a drug-

conspiracy case, we rejected the defendant’s contention that because she was

detained for approximately seventy-five minutes in handcuffs in the back of a

patrol car her detention exceeded the duration of an allowable Terry stop and

ripened into a full scale arrest. 204 F.3d at 1350. In Hardy, a drug-conspiracy

case, we approved a Terry stop of fifty minutes duration. 855 F.2d at 761. By

contrast, in Place, a drug possession case, the Supreme Court noted that, although

16
it was unwilling to set an absolute time limit, the ninety minute detention of the

suspect’s luggage in that case was too long for a Terry stop. Place, 462 U.S. at

709-10, 103 S. Ct. at 2645-46. Considering the circumstances, and in light of

existing precedent, thirty minutes was a reasonable duration for this Terry stop.

Having concluded that the officers had reasonable suspicion to justify a

Terry stop, and that the stop did not mature into de facto arrest before there was

probable cause, we turn to Acosta’s next attack on the admissibility of the evidence

obtained as a result of the stop.

IV.

Acosta contends that he was in “custody” for Miranda purposes from the

time he was first stopped and therefore the officers should have read him his rights

at that time instead of waiting until after they told him he was under arrest. The

district court did not address this issue in its order, nor did the magistrate judge in

his corrected report and recommendation. We do address the issue, because

Acosta raised it in his motion to suppress and in his briefs to us.

The right to Miranda warnings attaches when custodial interrogation begins.

See Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966);

Dickerson v. United States, 530 U.S. 428, 435, 120 S. Ct. 2326, 2331 (2000).

Normally courts apply a two-part test to determine whether a suspect is in custody

17
for Miranda purposes: “first, what were the circumstances surrounding the

interrogation; and second, given those circumstances, would a reasonable person

have felt he or she was not at liberty to terminate the interrogation and leave.”

Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995). As we have

already discussed, a suspect who is detained during a Terry stop is not free to leave

from the beginning of the stop until it ends. If we applied the general Miranda

custodial test literally to Terry stops, the result would be that Miranda warnings are

required before any questioning could occur during any Terry stop.

The Supreme Court in Berkemer v. M cCarty, 468 U.S. 420, 104 S. Ct. 3138

(1984), has indicated to the contrary. In that decision, the Court explained that the

non-threatening nature of a Terry stop is the reason for “the absence of any

suggestion in [the Court’s] opinions that Terry stops are subject to the dictates of

Miranda.” Id. at 440, 104 S. Ct. at 3150 (dictum). The holding of Berkemer is

more limited than the implications of that language, because the case involved a

traffic stop and not a Terry stop of a suspected felon. Nonetheless, the Berkemer

decision and opinion does provide guidance on the issue of when Miranda

warnings may be required before interrogation during a Terry stop.

The guidance the Berkemer decision provides stems from the fact that traffic

stops, like Terry stops generally, are indeed stops. A reasonable person knows that

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he is not free to drive away from a traffic stop until it is completed, just as a

reasonable person knows that he is not free to walk away from a Terry stop until it

is over. If the lack of freedom to leave were decisive, which is to say if every

phrase in the Miranda opinion is to be applied literally, then all traffic stops as well

as all Terry stops generally would be subject to the requirements of that decision.

Berkemer establishes that they are not.

The Court explained in Berkemer that it “decline[d] to accord talismanic

power to the phrase in the Miranda opinion,” that “Miranda by its terms applies

whenever ‘a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.’” Berkemer, 468 U.S. at 435-37, 104 S.

Ct. at 3148 (quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612). Instead of

asking whether a suspect reasonably would feel free to leave, the Berkemer Court

instead said the question should be “whether a traffic stop exerts upon a detained

person pressures that sufficiently impair his free exercise of his privilege against

self-incrimination to require that he be warned of his constitutional rights.” Id. at

437, 104 S. Ct. at 3149. Put another way, suspects “subjected to restraints

comparable to those associated with a formal arrest,” must be advised of their

Miranda rights. Id. at 441, 104 S. Ct. at 3151; see also California v. Beheler, 463

U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (per curiam).

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 The Supreme Court recognized in Berkemer that a driver detained during a

typical traffic stop is not free to leave, and is therefore “seiz[ed] within the

meaning of [the Fourth] Amendmen[t].” Berkemer, 468 U.S. at 436-37, 104 S. Ct.

at 3148. However, the Court recognized two key factors which, in the context of a

traffic stop, mitigate the pressures upon a detained person so that his ability to

exercise his privilege against self incrimination is not so impaired that he need be

warned of his constitutional rights under Miranda. First, “detention of a motorist

pursuant to a traffic stop is presumptively temporary and brief.” Id. at 437, 104 S.

Ct. at 3149. The Court distinguished traffic stops, which ordinarily “last only a

few minutes,” id., from a “stationhouse interrogation, which frequently is

prolonged, and in which the detainee often is aware that questioning will continue

until he provides his interrogators the answers they seek.” Id. at 437-38, 104 S. Ct.

at 3149. The Court explained that the brief and typically spontaneous nature of the

usual traffic stop:

reduces the danger that the driver through subterfuge will be made to
incriminate himself. One of the investigative techniques that Miranda
was designed to guard against was the use by police of various kinds
of trickery--such as “Mutt and Jeff” routines--to elicit confessions
from suspects. A police officer who stops a suspect on the highway
has little chance to develop or implement a plan of this sort.

Id. at 438 n.27, 104 S. Ct. at 3149 n.27 (internal citations omitted).

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 The second factor associated with a traffic stop that the Berkemer Court

recognized as reducing the pressure to respond to incriminating questions is that

most traffic detainees would not “feel[] completely at the mercy of the police.” Id.

at 438, 104 S. Ct. at 3149. The Court recognized that the inherent authority of

armed police officers “exert[s] some pressure on the detainee to respond to

questions,” id., but the Court concluded that this inherent authority was more than

offset by other aspects of such a stop:

Passersby, on foot or in other cars, witness the interaction of officer
and motorist. This exposure to public view both reduces the ability of
an unscrupulous policeman to use illegitimate means to elicit
self-incriminating statements and diminishes the motorist’s fear that,
if he does not cooperate, he will be subjected to abuse. The fact that
the detained motorist typically is confronted by only one or at most
two policemen further mutes his sense of vulnerability. In short, the
atmosphere surrounding an ordinary traffic stop is substantially less
“police dominated” than that surrounding the kinds of interrogation at
issue in Miranda itself . . . .

Id. at 438-39, 104 S. Ct. at 3149.

The Tenth Circuit in United States v. Perdue, 8 F.3d 1455, 1466 (10th Cir.

1993), took heed of the Supreme Court’s discussion in Berkemer and applied it to

Terry stops. In the Perdue case the suspect, along with his pregnant fiancee, were

stopped in “an isolated, rural area not subject to the public’s scrutiny,” he was

forced or ordered to the ground, and as the officers kept their guns drawn on him

and his fiancee, he was questioned while lying face down, as police helicopters

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circled overhead. Id. at 1464-66. Aggressive physical force and handcuffs may

have been used as well. Id. at 1458-59, 1464. The Tenth Circuit determined that

all of the circumstances surrounding the detention and questioning would lead a

reasonable person in the detainee’s position to feel he was completely at the mercy

of the police. Id. at 1466 (citing Berkemer, 468 U.S. at 437, 104 S. Ct. at 3149).

As a result, even though the stop was within the bounds of Terry, the Court

decided that it was the kind of “highly intrusive, ‘non-arrest’ encounter[]” in

which the Berkemer Court had indicated Miranda warnings might be required. Id.

The case we have before us is different from the Purdue case. Instead of

being detained in a remote area far from public scrutiny, Acosta was stopped in the

parking lot of an apartment building in broad daylight. The officers’ actions were

visible to anyone in the area who chose to look. Instead of being questioned at

gunpoint, Acosta was questioned after any weapons were quickly put back into

their holsters. Instead of being forced to lie face down, Acosta remained standing

the entire time. No physical force was used against him. He was not even

handcuffed. He was not even placed in a police car at the time. He was assured

that he was not under arrest. And, of course, there was no pregnant fiancee with

guns pointed at her, and no police helicopters circling overhead.

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 The restraint to which Acosta was subjected during the Terry stop is the

minimal amount necessary for such a stop or close to it. The stop did not involve

the type of “highly intrusive” coercive atmosphere that may require Miranda

warnings even before a formal arrest is made. The totality of the circumstances

were such that a reasonable person in Acosta’s position would not have believed

that he was utterly at the mercy of the police, away from the protection of any

public scrutiny, and had better confess or else. No Miranda warnings were

required at the time.

V.

Acosta contends that the district court erred in denying his motion to

suppress the heroin found in the duffle-bag that was inside Sade’s apartment.

Neither the district court in its order, nor the magistrate judge in his corrected

report and recommendation, discussed the search of the duffle-bag. At the

conclusion of the suppression hearing, however, the magistrate judge concluded

that the search of the bag was justified on the basis of the consent given by Sade

for the officers to search his entire apartment. We need not reach the issue of

whether Sade’s consent to the search of his apartment was enough to relinquish

Acosta’s rights as to the duffle-bag contained in the apartment, because the

23
undisputed evidence in the record shows that Acosta himself consented specifically

to the search of the bag.

Officer Sallick testified at the suppression hearing that when asked for the

key and consent to search the duffle-bag, Acosta “said, ‘yes[,] [o]f course,’ reached

into his pocket and produced a set of keys and gave them to me.” There was no

contrary testimony or evidence at all, and no reason to believe that the magistrate

judge or district court could have had any basis for not crediting Officer Sallick’s

undisputed testimony. We “do not insist that trial courts make factual findings

directly addressing each issue that a litigant raises,” Zack v. Comm’r, 291 F.3d

407, 412 (6th Cir. 2002), but instead adhere to the proposition that “findings

should be construed liberally and found to be in consonance with the judgment, so

long as that judgment is supported by evidence in the record,” Gilbert v. Sterrett,

509 F.2d 1389, 1393 (5th Cir. 1975) (citation and quotation marks omitted).1 The

corrected report and recommendation, as adopted by the district court, did find as a

fact that “statements made by the defendant prior to his arrest were made freely

and voluntarily.” Acosta’s statement consenting to a search of the duffle-bag was

made before his arrest.

1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.

24
 “A consensual search is constitutional if it is voluntary; if it is the product of

an ‘essentially free and unconstrained choice.’” United States v. Purcell, 236 F.3d

1274, 1281 (11th Cir. 2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

225, 93 S. Ct. 2041, 2047 (1973)). Voluntariness is a question of fact based on the

totality of the circumstances. Id. (citation omitted). “The government bears the

burden of proving both the existence of consent and that the consent was not a

function of acquiescence to a claim of lawful authority but rather was given freely

and voluntarily.” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989)

(citing United States v. Massell, 823 F.2d 1503, 1507 (11th Cir. 1987)). As we

stated in Blake, determining whether consent was “voluntary is not susceptible to

neat talismanic definitions; rather, the inquiry must be conducted on a case-by-case

analysis.” 888 F.2d at 798 (citing Schneckloth, 412 U.S. at 224-25, 93 S. Ct. at

2046).

Applying these principles, and construing the record in the light most

favorable to the judgment, we conclude that Acosta did consent to the search of the

duffle-bag, and his consent was voluntary. The district court did not err in refusing

to suppress the results of that search.

VI.

25
 We turn now to the final issue: whether the officer who questioned Acosta

at the United States Customs Service HIDTA headquarters, violated his rights by

continuing the questioning after Acosta had arguably invoked his rights. The

applicable law is well settled. When a person undergoing a custodial interrogation

states that he wishes to remain silent the questioning must end, and if he expresses

a desire to consult with an attorney, the questioning must cease until one is

provided for him. Miranda, 384 U.S. at 473-74, 86 S. Ct. at 1627-28; see also

Coleman v. Singletary, 30 F.3d 1420, 1423 (11th Cir. 1994).

However, it is also well settled that law enforcement officers have no duty to

stop an interrogation where the suspect’s invocation of either of those rights is

equivocal. The Supreme Court has held that: “If the suspect’s statement is not an

unambiguous or unequivocal request for counsel, the officers have no obligation to

stop questioning him.” Davis v. United States, 512 U.S. 452, 461-62, 114 S. Ct.

2350, 2356 (1994). And we have held that: “[T]he same rule [applies] to a

suspect’s ambiguous or equivocal references to the right to cut off questioning as

to the right to counsel.” Coleman, 30 F.3d at 1424. “A suspect must articulate his

desire to cut off questioning with sufficient clarity that a reasonable police officer

in the circumstances would understand the statement to be an assertion of the right

to remain silent. If the statement is ambiguous or equivocal, then the police have

26
no duty to clarify the suspect’s intent, and they may proceed with the

interrogation.” Id.

This case is one in which the arrestee made contradictory statements about

whether he wished to invoke his rights or was willing to continue answering

questions. Acosta was at the United States Customs Service HIDTA headquarters

being questioned after he was arrested. He already had been read his rights once

and apparently had not indicated, ambiguously or otherwise, that he wished to

invoke them. Agent Ocasio, was doing the questioning (Agent Miles was also

present). After Acosta had already made a number of incriminating statements,

Agent Ocasio decided to back up Acosta’s earlier oral waiver of rights with a

written one. A written waiver form was brought in, and after each statement of a

Miranda right was read to Acosta, he was asked whether he understood; he

acknowledged that he did by replying “Okay,” or “Exactly,” or “Perfectly.” 2

But Acosta refused to sign the waiver form. He said, “that waiver (UI) I’m

not going to sign it.” Ocasio replied: “Huh? No. if you don’t want to sign it. I’m

not telling you that you have to sign it, (UI).” To that, Acosta responded: “No, no,

no, I’ll sign this for you that those are my rights.” Ocasio then had Acosta read out

2
The facts we recount in connection with this issue are either drawn straight from the
district court’s findings, which it entered after conducting an evidentiary hearing, or they are
lifted from the transcript of the interrogation. The accuracy of that transcript is uncontested, and
it formed the basis for most of the district court’s findings.

27
loud the entire form stating all of his rights and had him initial each part to indicate

that he understood his rights.

After Acosta had finished reading out loud the statement of his rights and

initialing the form to indicate that he understood them, the following transpired:

OCASIO: Now, uh... do you want to waive your rights
or not?

ACOSTA: No, I’m not going to waive my rights.

OCASIO: Okay.

ACOSTA: I can collaborate, I can talk with you now...

OCASIO: Do you want to talk to us?

ACOSTA: I’ll talk with you... (UI) my interrogation...

OCASIO: You know what it means to waive
your rights, right? Do you understand
what that means?

ACOSTA: No, I understand what the rights are.
What happens is that, maybe...

OCASIO: Well, (UI), what, what it means...

ACOSTA: ...(UI)...

OCASIO: ...to waive, what, the word waive does
not mean that you are going to waive
all your rights com... completely...

ACOSTA: I understand, but that...

28
 OCASIO: ...because as you read here, what that
means, uh, that is, what it means is
that if, if you’re talking to us and it
comes to a point where you do not
want to talk any more, you can stop,
you can stop talking, and not say
anything else, okay?

ACOSTA: No, I mean, I’ll tell you something, I
am willing to talk whatever, why?

(ellipses as found in original)

Agent Ocasio then explained to Acosta that he wanted him to understand

what he was reading and not get confused. Acosta replied that he understood his

rights but wanted to “avoid any misunderstandings in the future.” Acosta

attempted to explain:

When I tell you, “I waive my rights...” I can
waive any right that any... uh, any right that you
tell me. “Oh, what is this?” “No, you, you
signed here. You don’t have rights to
anything.”

The conversation continued and Acosta acknowledged the drugs that had been

found in his possession.

Agent Ocasio then returned to the question of whether Acosta would sign

the form:

OCASIO: Right? Okay. What I’m telling you is
the following, okay. Whether you
sign this or not sign this, and you’re

29
 going to cooperate with us and you’re
going to talk with us in any, of, you
know, you have to understand that if
you’re going to talk with us we have
to know that, we wa... we want to say
that you are talking with us today, on
this day.

ACOSTA: In other words, this is being recorded.
In this recording I tell you...

OCASIO: Uh-hum.

ACOSTA: ...I am going to cooperate with you at
this moment, right at this very instant.
To me ev... everything you need, I can
answer all your questions without the
need to sign that I waive my rights...

OCASIO: Okay.

ACOSTA: ...because I am not going to waive my
rights.

OCASIO: This thing is running, right?

MILES: Yes.

OCASIO: Okay, okay, well, that is all I want
you to understand.

ACOSTA: Right, I understand it perfectly.

OCASIO: What I’m going to do here is that I,
look... He says he agrees, he’s going
to cooperate with us, his, he knows
this is being recorded on tape. He
says that, uh, but he’s not going to

30
 sign the, the... the bottom of the form
here, you know? So I told him that’s
fine, you know?

MILES: Okay.

OCASIO: That’s what he wants, it’s fine.

MILES: Okay.

OCASIO: That’s not a problem with us.

MILES: Yeah. Just put, uh...

OCASIO: So I’m going to make a note down here...

MILES: ...yeah, just put it’s, uh, “Verbally
agrees to cooperate. W ill not sign.”

OCASIO: Yeah.

MILES: Just put the date and time in the box
where they belong there, though.

(ellipses as found in original) The questioning then continued without any further

reference to the waiver of rights.

The one thing that is clear from all of this is that Acosta refused to sign a

written waiver of his rights. However, the Supreme Court’s decision in North

Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755 (1979), and a number of our

decisions, establish that an arrestee’s refusal to sign a waiver of rights form is not

enough to constitute an invocation of rights. See Jones v. Dugger, 928 F.2d 1020,

31
1027 (11th Cir. 1991) (“A refusal to sign a written waiver form does not

conclusively indicate that the suspect wishes to remain silent.”); United States v.

Boon San Chong, 829 F.2d 1572, 1574 (11th Cir. 1987) (the defendant’s “refusal

to sign the waiver form did not render subsequent questioning improper”); United

States v. Eirin, 778 F.2d 722, 728 (11th Cir. 1987) (“Merely refusing to sign a

waiver of rights form without an attorney’s guidance is not synonymous with an

affirmative request for assistance of counsel.”).

We have to go beyond Acosta’s refusal to sign the written form in order to

ascertain whether he unequivocally and unambiguously invoked his rights. The

closest Acosta came to doing that was when he was asked whether he wanted to

waive his rights and said: “No, I’m not going to waive my rights.” If that had been

all Acosta had said, it might well have been clear enough, but when Agent Ocasio

assented by simply uttering “Okay,” Acosta volunteered: “I can collaborate, I can

talk with you now...” (ellipses as found in original) When Ocasio sought to clarify

those two inconsistent statements, as he had the right to do, by asking if Acosta

wanted to talk with the officers, Acosta said he would. Typical of the ambiguity in

what Acosta said about whether he wanted to talk or waive his rights is his

statement that: “I am going to cooperate with you at this moment, right at this very

instant. To me ev... everything you need, I can answer all your questions without

32
the need to sign that I waive my rights [] because I am not going to waive my

rights.” (ellipsis as found in original)

Relying primarily upon the transcript of the interrogation, but also

considering the testimony of Officer Ocasio at the evidentiary hearing on this

issue, the district court found that Acosta had waived his Miranda rights without

prodding by the officers, indeed that there was “a complete absence of any

coercive conduct on the part of the officers.” It noted Officer Ocasio’s testimony

giving his impression that Acosta had been “hung up” on one particular Spanish

word and had refused to sign the waiver because he thought that if he signed, in

Ocasio’s words, “he wouldn’t have rights to anything.”

However, the district court also correctly observed that the test is an

objective one and “asks, would a reasonable, native Spanish-speaking officer in

Agent Ocasio’s place have understood Acosta’s statements as invoking his right to

silence, or his right to an attorney?” The court concluded that, “when considered

in the appropriate context,” a reasonable officer in Ocasio’s position would not

have interpreted Acosta’s statements as expressing a desire to invoke his right to

remain silent. The district court also appears to have adopted Officer Ocasio’s

interpretation of Acosta’s statements, because in recounting the totality of the

circumstances the court parenthetically stated that Acosta “refused to sign the

33
Rights Form out of concern that he would be waiving rights not otherwise

identified in the form.”

Officer Ocasio’s impression about the statements Acosta made in connection

with his refusal to sign the waiver, which the district court adopted, may be

accurate. Or the truth may be that Acosta was willing to talk with the officers and

answer their questions, and do so without an attorney being present, but he didn’t

want to sign a written waiver of his rights because he thought that a signed waiver

might be irrevocable. Either of those two constructions are at least as plausible as

one that views Acosta’s statements as indicating that he did not wish to talk to the

officers either then or ever without an attorney present. However, it matters not

which interpretation of Acosta’s seemingly self-contradictory statements is the best

one. What matters is that there are competing reasonable interpretations of what

Acosta meant, and they point in different directions. We have noted before, albeit

in a different context, that the existence of “two reasonable, competing

interpretations” is “the very definition of ambiguity.” Doe v. Bush, 261 F.3d 1037,

1062 (11th Cir. 2001). The existence of three plausible, differing interpretations

instead of two only deepens the ambiguity. Because Acosta did not

unambiguously and unequivocally invoke his right to remain silent or his right to

34
counsel while being questioned, the district court did not err in denying his motion

to suppress.

AFFIRMED.

35