                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                   May 26, 2006
                                No. 05-14312                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                      D. C. Docket No. 05-20200-CR-DLG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

RONEL CHRISPIN,

                                                             Defendant-Appellant.


                          ________________________

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

                                 (May 26, 2006)

Before ANDERSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

     Ronel Chrispin appeals the district court’s denial of his motion to suppress
evidence obtained during a weapons frisk prior to his arrest for being an illegal

alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A) and for

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We

affirm.

                                          I.

      After hearing testimony of Miami-Dade County Police Officer Lorente at the

suppression hearing, the magistrate judge set forth the following facts in his written

report and recommendation. At approximately 10:30 P.M. on January 8, 2005,

Officer Lorente was patrolling in his marked police cruiser when he observed

Chrispin walk out of a dark alleyway into a poorly lit parking lot adjacent to

several closed businesses. Officer Lorente knew that there had been a lot of crimes

(“smash and grab” burglaries) reported in the area where Chrispin was walking.

Officer Lorente pulled into the parking lot, stopped his cruiser about fifteen to

twenty feet from Chrispin, and turned on the flashing lights on the cruiser’s roof.

Officer Lorente then exited the cruiser and asked Chrispin “to please come to him.”

Chrispin obliged. The magistrate judge found that “[n]either the police car nor

[the] officer blocked the defendant from leaving the area.”

      Officer Lorente did not ask for identification from Chrispin but did politely

ask Chrispin several questions about what he was doing that night. Chrispin told



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Officer Lorente that he was coming from the 163rd Street Mall seven blocks away,

although the alleyway did not provide direct access to the mall because of fences

and other obstructions. Officer Lorente’s questioning took “only a short while”; he

did not touch Chrispin; and he did not remove his firearm from its holster. During

the questioning, however, Chrispin became increasingly nervous, put his hands in

his pockets several times (which Officer Lorente eventually asked him not to do),

and paused to think before answering even the most simple questions. After

observing Chrispin’s uncomfortable demeanor, Officer Lorente asked Chrispin if

he had any weapons or drugs and then asked if he could frisk Chrispin. Chrispin

did not say anything but simply turned around and put his hands on Officer

Lorente’s cruiser.

      Officer Lorente then frisked Chrispin. During the search, Officer Lorente

felt what he thought to be a pocket knife in Chrispin’s pocket. Upon retrieving the

item, Officer Lorente discovered that it was a loaded .22 caliber Derringer-type

handgun. Officer Lorente then arrested Chrispin.

      The magistrate judge recommended that Chrispin’s motion to suppress the

evidence of the firearm be denied. The magistrate judge determined that “[i]n view

of all the surrounding circumstances, a reasonable person would have believed he

was free to leave during [Chrispin’s] encounter with the police” and that “[t]he



                                          3
encounter . . . did not constitute a seizure of [Chrispin].” The magistrate judge also

determined that Chrispin had “consented to be frisked” and that even if he had not,

Officer Lorente “had articulable suspicion that [Chrispin] may be dangerous” to

justify the frisk because he was in a high crime area late in the evening, was seen

emerging from a dark alleyway near closed businesses, and was nervous

throughout Officer Lorente’s questioning.

      The district court adopted the magistrate judge’s report and

recommendation, thereby denying Chrispin’s motion. Chrispin later entered a

conditional guilty plea, reserving the right to appeal the denial of his motion. The

court sentenced Chrispin to concurrent 37-month sentences for each offense.

                                           II.

      “Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000). We also construe the facts in the light most favorable

to the prevailing party below—here, the government. See id.

      Chrispin argues that Officer Lorente stopped him without reasonable

suspicion in violation of his Fourth Amendment rights as interpreted in Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). The government responds that Chrispin



                                            4
voluntarily submitted to Officer Lorente’s questioning and gave consent to allow

Officer Lorente to search him. We agree with the government on both issues.

                                          A.

      “There are three broad categories of police-citizen encounters for purposes

of our Fourth Amendment analysis: (1) police-citizen exchanges involving no

coercion or detention; (2) brief seizures or investigatory detentions; and (3)

full-scale arrests.” United States v. Perez, No. 05-12404, __ F.3d __, 2006 WL

696507, at *4 (11th Cir. March 21, 2006) (citing United States v. Hastamorir, 881

F.2d 1551, 1556 (11th Cir. 1989)). The district court in the present case found that

the encounter between Officer Lorente and Chrispin was of the first type: a

consensual encounter involving no coercion or detention. The Supreme Court has

explained consensual encounters as follows:

             Law enforcement officers do not violate the Fourth
             Amendment’s prohibition of unreasonable seizures
             merely by approaching individuals on the street or in
             other public places and putting questions to them if they
             are willing to listen. Even when law enforcement
             officers have no basis for suspecting a particular
             individual, they may pose questions, ask for
             identification, and request consent to search luggage—
             provided they do not induce cooperation by coercive
             means.

United States v. Drayton, 536 U.S. 194, 200–01, 122 S. Ct. 2105, 2110 (2002)

(internal citations omitted). The critical inquiry is whether “a reasonable person

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would feel free to terminate the encounter.” Id. If so, “then he or she has not been

seized,” id., and there can be no Fourth Amendment violation.

      We have stated that the following factors are relevant to determining

whether a seizure has occurred:

             whether a citizen’s path is blocked or impeded; whether
             identification is retained; the suspect’s age, education and
             intelligence; the length of the suspect’s detention and
             questioning; the number of police officers present; the
             display of weapons; any physical touching of the suspect,
             and the language and tone of voice of the police.

United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991). In this case, all

of the factors weigh in favor of our conclusion that the encounter between Officer

Lorente and Chrispin was not a seizure to which the Fourth Amendment applies.

Although Officer Lorente did pull his cruiser to within a fifteen to twenty feet of

Chrispin in the parking lot, Chrispin’s path was not blocked by the vehicle.

Officer Lorente did not retain Chrispin’s identification and questioned Chrispin

only briefly. Officer Lorente was the only officer present, and he did not unholster

his firearm. Officer Lorente did not touch Chrispin until after he asked if he could

frisk Chrispin and Chrispin turned around and put his hands on the cruiser.

Finally, Officer Lorente was polite throughout his interaction with Chrispin.

      Chrispin does not dispute any of these fact-findings. Based on our own

review of Officer Lorente’s testimony, we find no clear error in any them.

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Accordingly, we conclude that the encounter between Officer Lorente and Chrispin

was consensual and that a reasonable person would have felt free to terminate it.

                                          B.

      “Searches conducted by means of consent are valid so long as the consent is

voluntary.” United States v. Kapperman, 764 F.2d 786, 793 (11th Cir. 1985). “In

order for consent to a search to be deemed voluntary, it must be the product of an

essentially free and unconstrained choice.” United States v. Garcia, 890 F.2d 355,

360 (11th Cir. 1989). The district court determined that Chrispin’s consent was

voluntary, and we may overturn that finding only if it is clearly erroneous. See

Kapperman, 764 F.2d at 793. We decline to do so.

      This Court has previously found a search consensual where no verbal

consent was given, but the defendant’s body language indicated his assent to the

search. See United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002)

(“Although the officers did not receive any explicit verbal consent from

Ramirez-Chilel to enter [the residence], the officers did receive some sort of

implied consent to enter from Ramirez-Chilel’s body language . . . .”). In the

present case, although Chrispin did not express his verbal assent to be searched, his

body language—turning away from Officer Lorente and placing his hands on the

police cruiser as if preparing to be searched—gave implied consent. There is no



                                          7
evidence that his decision to do so was not freely made or without constraint.

Accordingly, we conclude that Chrispin voluntarily consented to be searched.

      That conclusion does not end our inquiry because the extent of a consensual

search must be confined to the scope of the consent given. United States v. Blake,

888 F.2d 795, 798 (11th Cir. 1989). The Supreme Court has made clear that “[i]f a

police officer lawfully pats down a suspect’s outer clothing and feels an object

whose contour or mass makes its identity immediately apparent, there has been no

invasion of the suspect’s privacy beyond that already authorized by the officer’s

search for weapons.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130,

2137 (1993). That is exactly what happened in this case.

      The scope of Chrispin’s consent was to allow Officer Lorente to check him

for weapons or drugs that were immediately apparent. Officer Lorente conducted a

pat-down frisk of Chrispin to check for those items. During the search, Officer

Lorente felt an object that he thought was a weapon, and he retrieved it. The object

was, in fact, a weapon, although a more dangerous one than the officer initially

thought. We conclude that in these circumstances, the extent of the search was

consistent with the scope of the consent.

      AFFIRMED.




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