                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                FILED
                                                                   U.S. COURT OF APPEALS
                                            No. 10-14764             ELEVENTH CIRCUIT
                                        Non-Argument Calendar        SEPTEMBER 21, 2011
                                      ________________________            JOHN LEY
                                                                           CLERK
                           D.C. Docket No. 1:09-cr-00393-CAP-LTW-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                          Plaintiff-Appellee,

                                                  versus

PHILIP EMANUEL,

llllllllllllllllllllllllllllllllllllllll                          Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (September 21, 2011)

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

         Philip Emanuel appeals his conviction after he conditionally pleaded guilty

to one count of receiving child pornography, in violation of 18 U.S.C. §
2252(a)(2) and (b). Specifically, Emanuel challenges the district court’s denial of

his motions to suppress all evidence obtained from him–primarily depictions from

his computer, written statements, and oral admissions–during police officers’

interview with Emanuel at his home. On appeal, Emanuel first argues that his

consent was not voluntary, and in any event, the computer was retained by the

police for a unreasonable period of time, and this retention exceeded the scope of

the consent. Emanuel also argues that the delays of the police violated his

constitutional possessory rights in the computer. He finally argues that his

statements to police were inadmissible because he was in custody and did not

receive the Miranda1 warnings, and also because the statements were not

voluntary.

      At the interview, Emanuel told the police that the computer contained

images of minors similar to a pornographic picture that his ex-wife had found in

her home. According to the officers, whose testimony the district court found

credible, the tone of the interview was “cordial and conversational” and “very laid

back.” Emanuel allowed the police to take his computer, and he wrote a consent

statement in which he authorized the release of the computer for analysis, asked

for help with his problems, and asked that the computer be returned “sooner than


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

                                                2
later.” Emanuel did not revoke this consent or later speak to the officers about

retrieving his computer. As a result of administrative and departmental delays, the

officer obtained a search warrant for the computer 34 days after it was taken, and

the analysis of the computer was completed approximately ten months after the

warrant was obtained.

         We review a district court’s denial of a defendant’s motion to suppress

under a mixed standard of review, reviewing the district court’s findings of fact for

clear error and the district court’s application of law to those facts de novo.

United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). The court’s

factual findings are construed in the light most favorable to the prevailing party.

Id. at 1235-36.

1. Credibility

      Where there is conflicting testimony, we defer to a magistrate judge’s

credibility determinations “unless [the judge’s] understanding of the facts appears

to be unbelievable.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.

2002) (quotation omitted). Additionally, the district court, as factfinder, is entitled

to substantial deference in reaching credibility determinations with respect to

witness testimony. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir.

2003).

                                           3
      As to the issue of credibility in the instant case, the testimony of the

officers, Allen and Molnar, conflicted with Emanuel’s testimony with respect to

many aspects of the interview, specifically, the tone of the interview, the behavior

of the officers, and statements attributed to the officers. Given the substantial

level of deference to the factfinder, we defer to the magistrate’s credibility

determination, because the magistrate’s understanding of the facts of the interview

does not appear to be unbelievable. See Ramirez-Chilel, 289 F.3d at 749; McPhee,

336 F.3d at 1275. Emanuel has failed to show that the magistrate’s understanding

of the facts is not plausible or permissible, and therefore the officers’ testimony as

to the facts of the interview should provide the basis for the determination of

voluntariness. See id.



2. Free and Voluntary Consent; Scope of Consent

      Emanuel argues that he did not voluntarily give the officers consent to seize

and search his computer or to possess the computer for 11 months, but instead

contends that his consent and his written statement were “the result of coercion

and threats” by the officers. He also asserts that he specifically limited the time

for the police to hold the computer by stating that he wanted it returned “sooner

than later,” and he contends that he made attempts to retrieve his computer from

                                           4
the police.

       The Fourth Amendment, which is applicable to the states through the

Fourteenth Amendment, protects individuals from unreasonable searches and

seizures by law enforcement officers. United States v. Davis, 313 F.3d 1300, 1302

(11th Cir. 2002). Under these amendments, “a search conducted without a warrant

issued upon probable cause is per se unreasonable subject only to a few

specifically established and well-delineated exceptions.” United States v. Garcia,

890 F.2d 355, 360 (11th Cir. 1989) (quotations and ellipsis omitted). “One of the

well-established exceptions to the probable cause and warrant requirements is a

search which is conducted pursuant to voluntary consent.” Id. “A consensual

search is constitutional if it is voluntary; if it is the product of an essentially free

and unconstrained choice.” United States v. Acosta, 363 F.3d 1141, 1151 (11th

Cir. 2004) (quotations omitted). “Voluntariness is a question of fact based on the

totality of the circumstances,” and the government bears the burden of proving the

existence and voluntariness of the consent. Id.

       Relevant factors in the determination of voluntariness include the presence

of coercive police procedures, the extent of the person’s cooperation with the

officers, the person’s awareness of his right to refuse consent, the person’s

education and intelligence, and the person’s belief that no incriminating evidence

                                             5
will be found. United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001).

“While knowledge of the right to refuse consent is one factor to be taken into

account, the government need not establish such knowledge as the sine qua non of

an effective consent.” Id. at 1281-82 (quotation omitted). In most cases, we will

accord the district court “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.” Garcia, 890 F.2d at 359. Because

the trial court usually bases its findings on credibility choices resulting from

conflicting testimony, relying on the demeanor of witnesses, we “will not overturn

the trial judge’s finding that [the] consent was voluntary, unless it is clearly

erroneous.” Id.

      “A consensual search is confined to the terms of its authorization. The

scope of the actual consent restricts the permissible boundaries of a search in the

same manner as the specifications in a warrant.” United States v. Strickland, 902

F.2d 937, 941 (11th Cir. 1990) (citations omitted). Further, “[w]hen an individual

gives a general statement of consent without express limitations, the scope of a

permissible search is not limitless. Rather it is constrained by the bounds of

reasonableness: what a police officer could reasonably interpret the consent to

encompass.” Id. As this Court has held,

                                           6
      whether there were any limitations placed on the consent given and
      whether the search conformed to those limitations is to be determined
      by the totality of the circumstances. The trial court’s factual
      determinations as to these two issues are also due deference on appeal
      and will not be overturned unless clearly erroneous.

United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (citation omitted).

      The record supports the magistrate’s conclusion that Emanuel voluntarily

consented to the seizure and search of his computer. Accepting the magistrate’s

findings that the officers, and not Emanuel, testified credibly, the interview

occurred in Emanuel's home, Emanuel was not prevented from leaving, and

Emanuel did not ask to leave or ask the officers to leave. Emanuel invited the

officers inside and cooperatively responded to their questions and requests.

Emanuel was not threatened, coerced, restrained, handcuffed, patted down,

required to answer questions, physically intimidated, or promised leniency.

Although the officers were armed, they never removed their weapons from the

holsters. The overall tone of the interview was “cordial,” “conversational,” and

“very laid back.” Even though Emanuel exhibited signs of anxiety, he complied

with the officers’ request for consent to release the computer by composing his

own consent statement. Emanuel acknowledged that he had a problem, verbally

asked for help, and reiterated in his consent statement that he was asking for help

by releasing the computer. Even though the officers did not appear to inform

                                          7
Emanuel of his right to refuse the search, his level of education, intelligence, and

work experience diminish the importance of this factor. Emanuel knew there was

child pornography on his computer, yet he admitted this to the officers, and

nevertheless indicated that he wanted to release the computer to obtain help with

his problems. Considering the totality of the circumstances, the relevant factors,

and the magistrate’s credibility determination, the district court did not clearly err

in finding that Emanuel freely and voluntarily consented to the seizure and search

of the computer. See Acosta, 363 F.3d at 1151; Purcell, 236 F.3d at 1281.

      In addition, the record supports the finding that the retention of the

computer by the police and the overall timing for the completion of the

examination was within the scope of Emanuel’s voluntary consent. Although in

his written consent, Emanuel requested that the computer be returned “sooner than

later,” he did not place any specific time limit for the completion of the forensic

examination. Also, the evidence showed that neither Emanuel nor his attorney

revoked, limited, or modified the consent. Emanuel’s testimony that he did not

contact Allen because he did not have Allen’s card, and that he attempted to

contact Molnar by telephone, even though he actually saw Molnar in person, is

unconvincing to show an attempt to revoke, especially given Emanuel’s level of

education and intelligence. Also, Emanuel’s attorney did not revoke or limit the

                                           8
consent, even though he spoke to Molnar after the interview. Although the scope

of Emanuel’s consent was not limitless, given the absence of a specific time limit

or a revocation, the police officers could reasonably interpret the original consent

to encompass the administrative delays encountered both before and after the

warrant was obtained. See Strickland, 902 F.2d at 941. It does appear that the

administrative confusion between Allen and Molnar, and the technical weakness

of the APD forensics department, did not reflect favorably on the APD and did

delay the investigation both before and after the warrant. However, these delays

were unexpected and unintended, and there is no showing that the officers

intentionally delayed the investigation or acted in bad faith, which might negate

the reasonableness of the delays. Further, Sheikh testified that the average

turnaround time for a forensic computer examination was three to six months.

Despite the problems, the officers could still reasonably assume that the original

voluntary consent, which had not been limited or revoked, encompassed such

unexpected and unintended administrative and departmental delays.



3. Violation of Possessory Interest

      Emanuel argues that the delays in obtaining the warrant and in completing

the examination of the computer were unreasonable and infringed on his

                                          9
possessory interests under the Fourth Amendment.

       In United States v. Mitchell, we explained that an otherwise lawful seizure

can violate the Fourth Amendment and infringe upon an owner’s possessory

interests if the police act with unreasonable delay in securing a search warrant.

565 F.3d 1347, 1350 (11th Cir. 2009). “The reasonableness of the delay is

determined in light of all the facts and circumstances, and on a case-by-case

basis.” Id. at 1351 (quotations omitted). The reviewing court must carefully

balance the government’s interests against the defendant’s possessory interest in

the item. Id. In Mitchell, police officers seized the hard drive from the

defendant’s computer, without obtaining his consent. Id. at 1349.

      Because Emanuel gave his voluntary consent to the seizure and search of his

computer, Mitchell is inapposite, and the delay before obtaining the warrant did

not violate Emanuel’s constitutional possessory rights. Similarly, the detention of

the computer after the warrant was obtained was based on Emanuel’s consent, and

did not violate Emanuel’s possessory rights.

4. Custody Determination and Voluntariness of Oral Statements

      Emanuel argues that during the interview, he was under sufficient restraint

to think that he was in custody and his oral statements should be suppressed

because he was not given the Miranda warnings. He also contends that, even if he


                                         10
was not in custody, the coercive actions of the officers and the totality of the

interview resulted in statements that were not voluntary and should be suppressed.

      The Fifth Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V. The

Supreme Court in Miranda “established that custodial interrogation cannot occur

before a suspect is warned of [his] rights against self-incrimination.” United

States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007). Statements made in

violation of Miranda are not admissible at trial. Miranda, 384 U.S. at 444-45, 86

S.Ct. at 1612. We have described the test for determining custody as follows:

      A defendant is in custody for the purposes of Miranda when there has
      been a formal arrest or restraint on freedom of movement of the
      degree associated with a formal arrest. Whether [a defendant] was in
      custody prior to his formal arrest depends on whether under the
      totality of the circumstances, a reasonable man in his position would
      feel a restraint on his freedom of movement to such extent that he
      would not feel free to leave. The test is objective: the actual,
      subjective beliefs of the defendant and the interviewing officer on
      whether the defendant was free to leave are irrelevant. Under the
      objective standard, the reasonable person from whose perspective
      ‘custody’ is defined is a reasonable innocent person.

United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (quotations, citations,

alteration, and emphasis omitted). We are to consider several factors in determining

custody, “including whether the officers brandished weapons, touched the suspect,

or used language or a tone that indicated that compliance with the officers could be


                                          11
compelled.” United States v. Street, 472 F.3d 1298, 1309 (11th Cir. 2006) (quotation

omitted).

      If a court determines that the requirements of Miranda have been met, it must

then determine that any confessions or incriminatory statements made by a defendant

were voluntary in order to admit such statements at trial. United States v. Bernal-

Benitez, 594 F.3d 1303, 1317-18 (11th Cir.), cert. denied, 130 S. Ct. 2123 (2010).

There are “two constitutional bases for the requirement that a confession be voluntary

to be admitted into evidence: the Fifth Amendment right against self-incrimination

and the Due Process Clause of the Fourteenth Amendment.” Dickerson v. United

States, 530 U.S. 428, 433, 120 S. Ct. 2326, 2330 (2000). With respect to the

admissibility of incriminatory statements and confessions made by a defendant to

police, we consider

      the totality of the circumstances, including the details of the
      interrogation and the defendant’s characteristics, when deciding whether
      a confession was voluntary. [This Court] focus[es] on whether the
      police overreached, considering factors such as the accused’s lack of
      education, or his low intelligence, the lack of any advice to the accused
      of his constitutional rights, the length of detention, the repeated and
      prolonged nature of the questioning, and the use of physical punishment
      such as the deprivation of food or sleep.

Bernal-Benitez, 594 F.3d at 1319 (citation, quotations, and alteration omitted).




                                         12
      After a review of the record and considering the totality of the

circumstances, we conclude that the interview was not a custodial interrogation,

Emanuel was not entitled to the Miranda warnings, and any statements made by

Emanuel were voluntary.

      In conclusion, the district court did not err in denying Emanuel’s motions to

suppress, and we affirm.

      AFFIRMED.2




      2
            Emanuel’s request for oral argument is denied.

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