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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11131
________________________
D.C. Docket No. 3:17-cr-00444-WKW-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO GONZALEZ-ZEA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(April 30, 2021)
Before NEWSOM and BRANCH, Circuit Judges, and RAY,* District Judge.
BRANCH, Circuit Judge:
*
Honorable William M. Ray, II, United States District Judge for the Northern District of
Georgia, sitting by designation.
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Immigration and Customs Enforcement (“ICE”) agents in the process of
staking out a residence in search of an ICE fugitive, whose social security number
had been linked to a utility account at the address in question, stopped a car leaving
the residence in the early morning hours of September 26, 2017. Guillermo
Gonzalez-Zea was driving that car. ICE agents asked Gonzalez-Zea for his name
and requested identification. Gonzalez-Zea produced an ID card issued in Mexico
and admitted that he did not have any identification issued by the United States
because he was here illegally. The officers explained that they were looking for an
ICE fugitive, and Gonzalez-Zea stated that he lived alone, but he gave the officers
permission to search his house. During the search of the residence, the officers
discovered multiple firearms in plain view and arrested Gonzalez-Zea for
possession of a firearm and live ammunition by an illegal alien in violation of
18
U.S.C. §§ 922(g)(5) and 924(a)(2). Gonzalez-Zea moved to suppress the evidence,
and the district court denied his motion.
On appeal, Gonzalez-Zea argues that the district court should have granted
his motion to suppress because: (1) the ICE officers did not have the requisite
individualized reasonable suspicion to stop him; (2) the ICE officers unlawfully
prolonged the stop; and (3) Gonzalez-Zea’s consent to search his home was
involuntary. After careful review and with the benefit of oral argument, we affirm.
2
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I. Background
Between 5:00 and 6:00 a.m. on September 26, 2017, three ICE officers,
Purdy, Skillern, and Hinkle, staked out a house in Heflin, Alabama (the “Heflin
house”). The officers sought to apprehend Jose Rodolfo Alfaro-Aguilar, a
Honduran national and an ICE fugitive with a warrant for his deportation. 2 ICE
agents believed Alfaro-Aguilar might be at the Heflin house because a few months
earlier a social security number associated with Alfaro-Aguilar had been used to
connect a utility service at the Heflin house—although there was no evidence that
the utility was connected in Alfaro-Aguilar’s name. The ICE investigation also
revealed that the same social security number was associated with another
individual by the name of Jose Sanchez who had 26 aliases and who was
associated with 15 possible addresses, with the Heflin address being the most
recent location.3
During the stakeout, all three ICE officers wore ICE badges and bulletproof
vests with ICE printed on the front and the back and carried holstered firearms.
2
Alfaro-Aguilar did not appear at his scheduled June 2016 immigration hearing, but his
counsel indicated that Alfaro-Aguilar had departed the United States. Following that hearing,
the immigration judge issued an order of removal for Alfaro-Aguilar. Approximately a year
later, the ICE officers received the lead in this case that the social security number used by
Alfaro-Aguilar was used to connect a utility service at the Heflin house.
3
Although Gonzalez-Zea argues that the social security number was associated with “26
other individuals,” that contention is undermined by the record. The record confirms that the
social security number was associated with two individuals—the fugitive Alfaro-Aguilar and
Jose Sanchez. While Jose Sanchez had 26 documented aliases, he counts as only one individual.
3
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Sometime before dawn, Officer Purdy saw a man leave the house, get into a car,
and leave the residence. Unable to tell whether the driver was the fugitive Alfaro-
Aguilar, Officer Skillern activated his lights and siren and pulled the car over to
ascertain whether the driver was the fugitive, while another officer continued to
surveil the residence.
The driver, Gonzalez-Zea, pulled over promptly. Officer Skillern asked
Gonzalez-Zea for his name, which Skillern recognized “didn’t match the person
[they] were looking for.” Officer Skillern asked Gonzalez-Zea for identification to
confirm his identity, and Gonzalez-Zea gave him an identification card issued by
Mexico. Officer Skillern asked Gonzalez-Zea if he had any other forms of
identification, and Gonzalez-Zea said that he did not. When Officer Skillern asked
“why he wasn’t able to have an Alabama driver’s license or any other United
States issued ID,” Gonzalez-Zea stated that he was in the country illegally. This
colloquy occurred about a minute into the encounter.
At that point, Officer Skillern was “pretty positive” that Gonzalez-Zea was
not the fugitive he was looking for, and he explained to Gonzalez-Zea that the
officers were seeking a fugitive and asked whether anyone else lived in the house.
Gonzalez-Zea stated that he lived there alone, but he granted the officers
permission to go inside and “take a look” around. According to Officer Skillern,
Gonzalez-Zea “didn’t have any objection at all” when asked for his consent and
4
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their conversation was “friendly” and “cordial.” The record confirms that none of
the officers drew their weapons during their encounter with Gonzalez-Zea, he was
not patted down or searched, and he was not handcuffed. The officers did not read
him his Miranda rights at this time, or tell him that he had a right to refuse to
consent, or that he was free to go.
Gonzalez-Zea drove his own car back to the house, and the officers followed
in their cars. Gonzalez-Zea unlocked the door to the house and entered the house
with the officers. As the officers walked around, they asked Gonzalez-Zea
questions about his living arrangements—whether anyone else lived there with
him, how many rooms there were, and which room was his. Once the officers
entered Gonzalez-Zea’s bedroom, they saw two guns in plain view: a shotgun in
the corner and a rifle in an open closet. Officer Hinkle then read Gonzalez-Zea his
Miranda rights. After being read his rights, Gonzalez-Zea indicated he was willing
to answer the officers’ questions, and when asked if there were other weapons in
the home, he showed officers where another firearm was located in a drawer.
5
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Gonzalez-Zea was charged with one count of possession of a firearm and
live ammunition by an illegal alien under
18 U.S.C. §§ 922(g)(5) 4 and 924(a)(2). 5
He moved to suppress the evidence, alleging that it was recovered after “an
unlawful traffic stop and unreasonable detention” and that his consent to search
was not voluntary. After an evidentiary hearing, the magistrate judge issued a
Report and Recommendation (“R&R”) recommending that the district court deny
the motion to suppress. The district court adopted the R&R over Gonzalez-Zea’s
objections.
The district court found that the officers had reasonable suspicion to “believe
the man they saw leaving the house [Gonzalez-Zea]. . . was the fugitive” they were
seeking. Thus, “[t]hey were therefore permitted to stop and identify him.” The
district court also found that the officers did not unreasonably extend the stop
because they did not “detour from their search for [the fugitive],” and all their
questions related to whether Gonzalez-Zea was the fugitive or whether the fugitive
lived in the house. Finally, the district court found that, based on the totality of the
4
Section 922(g) provides in relevant part that: “It shall be unlawful[] for any person . . .
who, being an alien . . . is illegally or unlawfully in the United States . . . to possess in or
affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce.”
18 U.S.C. § 922(g)(5)(A).
5
Section 924(a)(2) provides that “[w]hoever knowingly violates [18 U.SC. § 922(g)]
shall be fined as provided in this title, imprisoned not more than 10 years, or both.”
6
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circumstances, Gonzalez-Zea’s consent to search the house was voluntary.
Gonzalez-Zea appealed.
II. Standard of Review
“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. Jordan,
635 F.3d
1181, 1185 (11th Cir. 2011) (quotation omitted). We construe the facts in the light
most favorable to the party that prevailed below, here, the government. United
States v. Gordon,
231 F.3d 750, 754 (11th Cir. 2000).
III. Discussion
A. Whether the officers had reasonable suspicion to stop Gonzalez-Zea
Gonzalez-Zea argues that the officers did not have the requisite
individualized, reasonable suspicion necessary to conduct an investigatory stop.
Specifically, he argues that he did not commit any traffic violation, and the
officers’ decision to stop any vehicle that left the residence under surveillance to
determine if the driver was the fugitive that they were searching for is not the sort
of particularized, reasonable suspicion required by the Fourth Amendment.
The Fourth Amendment prohibits “unreasonable searches and seizures.”
U.S. Const. amend. IV. “Evidence obtained in violation of the Fourth Amendment
must be suppressed.” Jordan,
635 F.3d at 1185. Whether a search or seizure is
7
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reasonable “depends upon all of the circumstances surrounding the search or
seizure and the nature of the search or seizure itself.” United States v. Montoya de
Hernandez,
473 U.S. 531, 537 (1985).
The Fourth Amendment does not prohibit a police officer, “in appropriate
circumstances and in an appropriate manner [from] approach[ing] a person for
purposes of investigating possibly criminal behavior even though there is no
probable cause to make an arrest”—these brief investigative detentions are
commonly referred to as “Terry stop[s].” See Terry v. Ohio,
392 U.S. 1, 22 (1968).
Terry and its progeny allow an officer to, “consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” Illinois v. Wardlow,
528 U.S. 119, 123
(2000). Such investigatory stops are also authorized based on a reasonable
suspicion of past criminal activity, including where an officer has “a reasonable
suspicion, grounded in specific and articulable facts, that a person [the officer]
encounter[s] was involved in or is wanted in connection with [another crime].”
United States v. Hensley,
469 U.S. 221, 229 (1985) (upholding a brief Terry stop of
a person believed to be the individual on a police-issued wanted flyer “to check
identification, . . . to pose questions to the person, or to detain the person briefly
while attempting to obtain further information”); United States v. Kapperman,
764
F.2d 786, 792 (11th Cir. 1985) (holding that a Terry stop of a vehicle was
8
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supported by reasonable suspicion where officers had an objective reason to
believe that there may have been a fugitive inside the vehicle).
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 (1985) (citing Terry,
392 U.S. at 20). Under Terry’s two-part inquiry, we first
examine “whether the officer’s action was justified at its inception,” which turns
on whether the officers had a reasonable suspicion that the defendant had engaged
in, was engaging in, or was about to engage in, a crime. Terry,
392 U.S. at 20. In
the second part of the inquiry, we consider “whether [the stop] was reasonably
related in scope to the circumstances which justified the interference in the first
place.” Id.; see also Jordan
635 F.3d at 1186.
Reasonable suspicion “is not concerned with ‘hard certainties, but with
probabilities.’” United States v. Lewis,
674 F.3d 1298, 1304 (11th Cir. 2012)
(quoting United States v. Cortez,
449 U.S. 411, 418 (1981)). To show that an
officer has reasonable suspicion, the officer “must be able to articulate more than
an ‘inchoate and unparticularized suspicion or “hunch” of criminal activity.’”
Wardlow,
528 U.S. at 123 (quoting Terry,
392 U.S. at 27). “While 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.”
Id.
9
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Reasonable suspicion may “be based on commonsense judgments and inferences
about human behavior.”
Id. at 125. “[W]e look to the totality of the circumstances
to determine the existence of reasonable suspicion.” Jordan,
635 F.3d at 1186.
Here, construing the facts in the light most favorable to the government as
the prevailing party, it is clear that the officers had reasonable suspicion to stop
Gonzalez-Zea’s car and conduct an investigatory Terry stop under the totality of
the circumstances. The officers knew that a social security number associated with
the fugitive Alfaro-Aguilar had been used recently to connect a utility service at
the Heflin house. Thus, they had a specific, articulable, objective basis for
believing that the fugitive could be found at that location. Additionally, when the
officers observed Gonzalez-Zea leaving the house, it was in the pre-dawn hours of
September 26, 2017. Given the time of day, the officers possessed an objective,
reasonable suspicion that any man leaving the house was either the fugitive, or as a
resident of the house, may have known the fugitive and his whereabouts. This
information provided officers with sufficient particularized, reasonable suspicion
to conduct an investigatory stop of Gonzalez-Zea. See Hensley,
469 U.S. at 229;
Kapperman,
764 F.2d at 792.
To the extent Gonzalez-Zea argues that the ICE officers had to observe a
traffic violation or suspicious behavior specific to Gonzalez-Zea before stopping
10
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his vehicle, 6 his argument is unpersuasive because “[t]he touchstone of the Fourth
Amendment is reasonableness, not individualized suspicion.” Lewis,
674 F.3d at
1306 (quoting Samson v. California,
547 U.S. 843, 855 n.4 (2006)). In fact, “[t]he
Supreme Court has rejected efforts to limit investigative stops to situations in
which the officer has personally observed suspicious conduct.” United States v.
Aldridge,
719 F.2d 368, 371 (11th Cir. 1983). Rather, because reasonable
suspicion “is not concerned with ‘hard certainties, but with probabilities,’” Lewis,
674 F.3d at 1304, the investigative lead linking the social security number used by
the fugitive Alfaro-Aguilar to a recently opened utility account at the Heflin house
and the officer’s observation of a male leaving the house in the pre-dawn hours
were sufficient to justify the brief investigatory stop of the vehicle in order to
confirm whether the driver was the fugitive the ICE officers were seeking.
Gonzalez-Zea also cites a number of traffic-stop cases for the proposition
that police cannot conduct a random traffic stop to check a driver’s license or
question a driver about his citizenship status without any reasonable suspicion of
6
Gonzalez-Zea acknowledges in his brief that this was a Terry stop, not a traffic stop.
This contention is supported by the testimony of the ICE officers at the hearing on the motion to
suppress that the vehicle stop was an investigatory stop to determine whether the male driver was
the fugitive they were seeking—not a traffic stop. The ICE officers further testified that, even if
they had witnessed a traffic violation, they lacked the authority to pull a vehicle over for a traffic
violation or to issue traffic citations. Nevertheless, while this case is not a traffic-stop case, as
we explained in Lewis, “cases involving traffic stops are nonetheless relevant in evaluating the
reasonableness of investigatory detentions more generally.”
674 F.3d at 1306 n.5.
11
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criminal activity. As explained above, the Terry stop here was supported by the
officers’ reasonable suspicion, grounded in specific, articulable facts, that the
fugitive they were looking for could be at the house in question, and that Gonzalez-
Zea—a male seen leaving the house in the early morning hours—could have been
that fugitive or could have known the fugitive’s whereabouts. In short, this case is
a far cry from the cases cited by Gonzalez-Zea wherein traffic stops based on a
suspicion of mere potential general criminality were held to violate the Fourth
Amendment. See, e.g., United States v. Brignoni-Ponce,
422 U.S. 873, 874 (1975)
(explaining that “the Fourth Amendment forbids stopping vehicles at random to
inquire if they are carrying aliens who are illegally in the country” and “stopping
or detaining persons for questioning about their citizenship on less than a
reasonable suspicion that they may be aliens”); United States v. Yousif,
308 F.3d
820, 827–28 (8th Cir. 2002) (holding that the police violated the defendant’s
Fourth Amendment rights by stopping every car that went through a checkpoint to
look for drugs without having an articulable, reasonable suspicion that the vehicle
or its occupants are subject to seizure for a violation of the law); United States v.
Jiminez-Medina,
173 F.3d 752, 755 (9th Cir. 1999) (holding that an officer did not
have reasonable suspicion to stop a vehicle simply because it was driving slowly,
was a certain vehicle type, was on a known alien-smuggling corridor at an odd
hour, and the driver seemed preoccupied).
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Accordingly, for all the above reasons, we conclude that the officers had
reasonable suspicion to justify the stop of Gonzalez-Zea’s vehicle. 7
We now must turn to the second step of the Terry inquiry—whether the stop
was reasonably related in scope to the circumstances which justified the
interference in the first place—which leads us to Gonzalez-Zea’s second issue.
B. Whether the officers unlawfully prolonged the stop
Gonzalez-Zea argues that, even if the initial stop was valid, the officers
unlawfully prolonged it when they asked for Gonzalez-Zea’s identification and
inquired as to whether he had any identification issued by the United States.
According to him, the stop should have ended as soon as the officers observed that
7
Gonzalez-Zea also argues that the officers’ reliance on the reports linking the social
security number to the Heflin house was unreasonable because the number was associated with
both Alfaro-Aguilar and Sanchez (who had 26 aliases). In other words, he argues that the
officers had to rule out all other possible users of the social security number before they could
have a legitimate, reasonable suspicion that the fugitive Alfaro-Aguilar was using the social
security number and might be located at the Heflin house. Gonzalez-Zea’s argument conflates
the concepts of what evidence is necessary to establish probable cause versus what is sufficient
for reasonable suspicion—a much lower threshold. The Supreme Court has stated repeatedly
that officers do not have to rule out every possibility of innocent conduct in order to possess
reasonable suspicion to conduct an investigatory stop. See United States v. Arvizu,
534 U.S. 266,
277 (2002) (“A determination that reasonable suspicion exists [for an investigative stop] . . . need
not rule out the possibility of innocent conduct.”); Wardlow,
528 U.S. at 125–26 (explaining that
even where there are “innocent reasons” for certain conduct, where officers have specific,
articulable, reason to believe that criminal activity was, is, or is about to be afoot, Terry
authorizes the officers to detain individuals to resolve that ambiguity). As discussed above,
under the totality of the circumstances, the ICE officers had a reasonable suspicion to justify the
stop in this case. See United States v. Simmons,
172 F.3d 775, 779 (11th Cir. 1999) (holding that
police officers possessed reasonable suspicion and did not act unreasonably in detaining the
defendant to investigate whether he was the subject of a warrant for a person with a similar
name, even though the warrant was from a county on the other side of the state and the date of
birth did not match the defendant’s).
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he did not match the physical description of Alfaro-Aguilar and at the latest when
Gonzalez-Zea told the officers his name, which did not match the fugitive’s.
As explained previously, a Terry stop must also be “reasonably related in
scope to the circumstances which justified the interference in the first place.”
Terry,
392 U.S. at 20; see also Jordan
635 F.3d at 1186. Thus, an initially lawful
investigatory stop may become unlawful if it is “prolonged beyond the time
reasonably required to complete” the purpose of the stop. Rodriguez v. United
States,
575 U.S. 348, 355–57 (2015); Florida v. Royer,
460 U.S. 491, 500 (1983)
(plurality opinion) (“An investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop.”).
As discussed previously, the officers had a reasonable suspicion that
Gonzalez-Zea could be the fugitive alien sought by ICE. Therefore, the officers
stopped the vehicle leaving the Heflin house and immediately began asking a
series of questions to dispel promptly and quickly with the task of confirming
Gonzalez-Zea’s identity. Officer Skillern asked Gonzalez-Zea for his name and
for identification to confirm the name he gave.8 These identification questions
8
To the extent Gonzalez-Zea argues that the officers were not permitted to ask him for
supporting identification and should have just accepted the name he supplied to the officers at
face value, his argument is unpersuasive. As the Supreme Court has emphasized, “questions
concerning a suspect’s identity are a routine and accepted part of many Terry stops.” Hiibel v.
Sixth Judicial Dist. Ct. of Nev.,
542 U.S. 177, 186 (2004); see also United States v. Diaz-
Lizaraza,
981 F.2d 1216, 1221 (11th Cir. 1993) (explaining that “[d]uring a Terry stop, officers
may ask a suspect to identify himself or herself” and concluding that “the agents’ request for
identification and basic personal information was reasonable”). For this reason, Gonzalez-Zea’s
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were related in scope to the circumstances that justified the stop in the first place—
confirming whether the driver of the vehicle was the fugitive.
Further, when Gonzalez-Zea produced an identification card from another
country, Officer Skillern asked him whether he had any United States
identification, and when Gonzalez-Zea stated that he did not, Officer Skillern
asked why he did not have any United States identification. Gonzalez-Zea argues
that this additional identification inquiry “was a diversion from the purpose of the
stop[] and an “impermissible foray into investigating unrelated criminal activity.”
We disagree. Asking for an alternate form of identification simply was another
identification-related inquiry that was part of the task of verifying Gonzalez-Zea’s
identity, which was the purpose of the Terry stop. Although Gonzalez-Zea stated
that he was in the United States illegally in response to Officer Skillern’s
questions, at no point during the stop did the officers investigate another crime or
ask questions unrelated to verifying Gonzalez-Zea’s identity and locating the
fugitive. The record establishes that Officer Skillern acted diligently and the
overall Terry stop did not exceed the time needed to handle the matter for which
related argument that the officers were not permitted to ask him for his name or identification
because they should have been able to confirm from a “cursory visual inspection” that he was not
the fugitive Alfaro-Aguilar similarly fails.
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the stop was made—verifying whether Gonzalez-Zea who was seen leaving the
Heflin house was the fugitive and attempting to locate the fugitive. 9
Accordingly, for all these reasons, we conclude that the officers did not
unlawfully extend the stop.10
C. Whether Gonzalez-Zea voluntarily consented to the officers’ search of
the house
Gonzalez-Zea argues that the district court erred when it found that he
voluntarily consented to the officers’ search of his house because the totality of the
circumstances weigh against the voluntariness of his consent. Specifically, he
asserts that his consent was the product of an illegal road-side seizure. Further, he
argues that even if his seizure was valid, his consent was not voluntary because the
officers were armed, the stop occurred during the pre-dawn hours in a rural area,
9
To the extent that Gonzalez-Zea relies on our post-Rodriguez interpretation in United
States v. Campbell,
912 F.3d 1340 (11th Cir. 2019), as to what renders a traffic stop
unreasonably prolonged, we note that following briefing and oral argument in this case, a
majority of this Court voted to grant rehearing en banc in Campbell, and as a result we vacated
the underlying panel decision,
981 F.3d 1014 (2020). Accordingly, Campbell is no longer good
law and will not be discussed further.
10
In arguing that the Terry stop was unreasonably prolonged, Gonzalez-Zea also appears
to challenge whether the overall manner and length of the investigatory detention was
reasonable. See United States v. Acosta,
363 F.3d 1141, 1146 (11th Cir. 2004) (explaining that
when evaluating the overall reasonableness of the scope of a Terry stop, we apply “four non-
exclusive factors”: (1) “the law enforcement purposes served by the detention”; (2) “the
diligence with which the police pursue the investigation”; (3) “the scope and intrusiveness of the
detention”; and (4) “the duration of the detention.” (quoting United States v. Gil,
204 F.3d 1347,
1351 (11th Cir. 2000)). To the extent that Gonzalez-Zea challenges the reasonableness of the
manner and length of the detention, his argument fails as all four Acosta factors are satisfied in
this case for the same reasons that the stop was not unreasonably prolonged.
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the officers did not return his identification card, they left their red-and-blue lights
on, and he was never told he was free to leave or that he had the ability to refuse
consent. 11 We disagree.
As an initial matter, as discussed previously, we conclude that the ICE
officers had reasonable suspicion to conduct an investigatory stop with Gonzalez-
Zea and that the officers did not prolong the stop. Accordingly, it follows
necessarily that Gonzalez-Zea’s consent to the search of the Heflin house was not
the product of an illegal seizure. Consequently, we consider his alternative
argument that, even if his seizure was valid, his consent was the product of the
allegedly coercive circumstances.
A warrantless search “conducted pursuant to valid consent is constitutionally
permissible.” Schneckloth v. Bustamonte,
412 U.S. 218, 222 (1973). In order to be
valid, consent must be voluntarily given.
Id. Consent is voluntary “if it is the
product of an ‘essentially free and unconstrained choice.’” United States v.
Benjamin,
958 F.3d 1124, 1134 (11th Cir. 2020). Voluntariness of consent “is a
question of fact to be determined from the totality of all the circumstances.”
Schneckloth,
412 U.S. at 227. The government bears the burden of proving that
11
To the extent that Gonzalez-Zea also argues that the officers should have informed him
of his Miranda rights and that their failure to do so mitigates the voluntariness of his consent, his
argument fails. We have previously held that a consent to search is not a self-incriminating
statement and that the failure to give a defendant a Miranda warning does not render the
defendant’s consent to search invalid. United States v. Hidalgo,
7 F.3d 1566, 1568 (11th Cir.
1993).
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“the consent was . . . freely and voluntarily given.” Id. at 222 (quoting Bumper v.
North Carolina,
391 U.S. 543, 548 (1968)). A district court’s determination that
consent was voluntary is a finding of fact that will not be disturbed on appeal
absent clear error. United States v. Spivey,
861 F.3d 1207, 1212 (11th Cir. 2017).
“Normally, we will accord the district judge a great deal of deference regarding a
finding of voluntariness, and we will disturb the ruling only if we are left with the
definite and firm conviction that the trial judge erred.”
Id.
When evaluating the totality of the circumstances underlying consent, we
look at several factors, including “the presence of coercive police procedures, the
extent of the defendant’s cooperation with the officer, the defendant’s awareness of
his right to refuse consent, the defendant’s education and intelligence, and the
defendant’s belief that no incriminating evidence will be found.” United States v.
Purcell,
236 F.3d 1274, 1281 (11th Cir. 2001).
Almost all of these factors point in one direction—that Gonzalez-Zea
voluntarily consented to the search. The ICE officers did not coerce Gonzalez-Zea
into providing his consent. Rather, after Gonzalez-Zea stated that he lived alone,
the ICE officers simply asked if they could search the Heflin house. Gonzalez-Zea
agreed without any hesitation, drove his own vehicle back to the house, unlocked
the house to let the officers in, and cooperated throughout the search. He was
neither in custody nor restrained in any manner at the time he gave consent.
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Further, testimony at the suppression hearing confirmed that Gonzalez-Zea “didn’t
have any objection at all,” when asked for his consent and his interaction with the
ICE officers was “friendly” and “cordial.” Although the officers were armed
during the interaction with Gonzalez-Zea, they never removed their weapons.
Officers routinely carry weapons while on duty and, therefore, the mere presence
of a weapon on an officer does not render an encounter with an officer unduly
coercive and is insufficient to render a defendant’s consent involuntary. See
United States v. Drayton,
536 U.S. 194, 205 (2002) (explaining, in the context of
determining whether an individual was seized or engaged in a consensual
encounter with immigration officers, that “[t]he presence of holstered firearm is
unlikely to contribute to the coerciveness of the encounter absent active
brandishing of the weapon”).
Likewise, the fact that the red-and-blue police lights were activated on
Officer Skillern’s vehicle during his interaction with Gonzalez-Zea did not affect
the voluntariness of Gonzalez-Zea’s consent. Leaving police lights on is simply
not a display of force or coercive conduct on the part of an officer that could affect
an individual’s decision to freely and voluntarily consent to a search. See
Schneckloth,
412 U.S. at 233 (noting that involuntary consent is consent that is
“coerced by threats or force, or granted only in submission to a claim of lawful
authority”).
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Additionally, while the fact that the defendant’s identification was not
returned at the time he consented to the search “is a factor we . . . consider in
evaluating the totality of the circumstances,” “it is not a litmus test for voluntary
consent.” Purcell,
236 F.3d at 1282. Here, there is no indication that the officers
gave Gonzalez-Zea back his identification card at or before the time they asked for
his consent to search the house. Nevertheless, in light of the friendliness of the
encounter, Gonzalez-Zea’s lack of any objection to the search, and the absence of
any coercive behavior by the officers, under the totality of the circumstances, the
failure to return Gonzalez-Zea’s identification card is insufficient to render his
consent involuntary.12
While Gonzalez-Zea takes issue with the fact that the ICE officers failed to
advise him expressly that he had a right to refuse consent, the Supreme Court “has
rejected in specific terms the suggestion that police officers must always inform
citizens of their right to refuse when seeking permission to conduct a warrantless
12
Gonzalez-Zea cites two cases—United States v. Pruitt,
174 F.3d 1215, 1220 (11th Cir.
1999), and the Tenth Circuit’s decision in United States v. Mendez,
118 F.3d 1426, 1430 (10th
Cir. 1997)—in support of his contention that his consent was rendered involuntary by the
officers’ failure to return his identification card. Pruitt, however, did not involve the issue of the
voluntariness of the defendant’s consent because the defendant did not consent to a search.
174
F.3d at 1218. And in Mendez, the Tenth Circuit addressed the issue of the officer’s retention of
the driver’s identification in the context of determining whether a traffic-stop became a
consensual encounter, not when determining whether the driver’s consent to search the vehicle
was voluntary.
118 F.3d at 1430–31. Mendez certainly does not stand for the per se rule that an
officer’s retention of an individual’s identification renders an individual’s consent involuntary.
Id. at 1432. Moreover, even if Mendez stood for such a rule, we would not be bound by it. See
Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (“Under the established federal
legal system the decisions of one circuit are not binding on other circuits.”).
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consent search.” Drayton,
536 U.S. at 206; Schneckloth,
412 U.S. at 234
(“[N]either this Court’s prior cases, nor the traditional definition of ‘voluntariness’
requires proof of knowledge of a right to refuse as the sine qua non of an effective
consent to search.”). Rather, the Supreme Court has emphasized repeatedly “that
the totality of the circumstances must control, without giving extra weight to the
absence of this type of warning.” Drayton,
536 U.S. at 206–07. Here, although
the ICE officers did not inform Gonzalez-Zea of his right to refuse consent, there is
no claim (or evidence of record) that the officers took any action that would have
suggested to Gonzalez-Zea that he had no right to refuse the request to search the
house. Given the lack of any coercive behavior on the part of the ICE officers,
“[t]he mere fact that [the officers] did not inform [Gonzalez-Zea] of his right to
refuse consent . . . is insufficient to render [his] consent involuntary.” United
States v. Zapata,
180 F.3d 1237, 1242 (11th Cir. 1999).
Relatedly, Gonzalez-Zea argues that his consent was involuntary because the
officers did not inform him that he was free to go, but the Fourth Amendment does
not require that a defendant be advised that he is “free to go before [his] consent to
search may be deemed voluntary.” Ohio v. Robinette,
519 U.S. 33, 40 (1996).
Thus, the absence of this notification does not render Gonzalez-Zea’s consent
involuntary, particularly in light of the totality of the circumstances discussed
above.
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Accordingly, for the above reasons, we conclude that the district court did
not clearly err in finding that, based on the totality of the circumstances, Gonzalez-
Zea voluntarily consented to the search of the Heflin house.
IV. Conclusion
For these reasons, we affirm the district court’s denial of Gonzalez-Zea’s
motion to suppress.
AFFIRMED.
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