                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                               FOR THE TENTH CIRCUIT                         October 3, 2018

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                             No. 16-2267
                                                    (D.C. No. 1:12-CR-02211-MCA-1)
RICHARD DATES,                                                   (D.N.M.)

       Defendant - Appellant.



                               ORDER AND JUDGMENT*


Before TYMKOVICH, Chief Judge, MORITZ and EID, Circuit Judges.


       Defendant-Appellant Richard Dates conditionally pled guilty to distribution of

child pornography and was sentenced to ten years’ imprisonment. He reserved his right

to appeal the district court’s denial of his motion to suppress inculpatory statements that

he made during a morning exchange with federal agents. The district court denied the

suppression motion, ruling that Dates’s statements were made during a consensual

encounter, not during a Fourth Amendment seizure or custodial interrogation under

Miranda v. Arizona, 384 U.S. 436 (1966). We agree and affirm.




*
  This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                             I.

      Over Skype, an individual with the display name “walrus.blackhawk” solicited

“hardcore” images from a man in a child pornography ring. Supp. R., Vol. III, at 159–65.

That man sent walrus.blackhawk pornographic JPG images featuring children. Id. The

Department of Homeland Security (“DHS”) tracked the walrus.blackhawk username to

the email address walrusblackhawk@hotmail.com, registered to one Richard Dates living

in Grants, New Mexico. Id. at 162–65.

       DHS Agents Allen and Garcia visited Dates’s apartment on the morning of August

23, 2012. United States v. Dates, Crim. No. 12-2211, slip op. at 1 (D. N.M. 2015)

(“Order”). Both officers were dressed in plain clothes and, though armed, did not display

their firearms at any time during their interaction with Dates. Id. at 3. Agent Garcia

knocked on Dates’s door at about 7:00 a.m. See id. at 1; Supp. R., Vol. III, at 4:22–5:10.

After introducing himself and Agent Allen, Agent Garcia stated, “[w]e’d like to talk to

you about a current investigation that we’re working on—someone else that may have

your email address.” Supp. R., Vol. III, at 5:12–14. “Okay,” Dates replied, “[w]e can

talk out here.” Id. at 5:15, 19. Agent Garcia explained that he would like to discuss

whether Dates used certain email addresses to determine whether those addresses had

been compromised. Id. at 5:25–6:13. Dates stated “[w]ell, I don’t think I really want to

talk to you right now.” Id. at 6:14–15. “When would you like to talk to us about that,”

Agent Garcia asked. Id. at 6:16–17. “I don’t know,” Dates answered, “I don’t know

what you’re looking for.” Id. at 6:18, 21–22. Garcia told Dates that he would be “more

than happy” to explain the investigation in detail. Id. at 7:6. Dates explained that he had


                                             2
to leave for work soon, but nevertheless stated, “[w]ell, you can go ahead. We can talk

out here.” Id. at 7:14–15.

       Agent Garcia asked Dates if he owned a computer. Id. at 7:16–17. Dates then

stated: “I don’t want to talk to you. I don’t know what you want and I don’t want to talk

to you at this particular time.” Id. at 7:19–21. Agent Garcia explained that he was asking

whether Dates owned a computer. Id. at 7:25–8:1. Dates replied:

       MR. DATES: I don’t want to talk to you about anything. I don’t know
       what you’re driving at. So you’d have to—I—you know, you’d have to—
       you know, we can meet someplace else.

       SPECIAL AGENT GARCIA: Okay. Tell me where you would like to
       meet at.

Supp. R., Vol. III, at 8:2–5. Dates said that he would like to go to McDonald’s after he

dressed for work. See id. at 8:6–16. Agent Garcia asked if it would be okay if he waited

outside while Dates dressed. Id. at 8:23–25. Dates said yes and shut his door, locking

the agents outside his home. Order at 3. When Dates emerged a little over five minutes

later, Agent Garcia again asked Dates if he wanted to go to McDonald’s, and Dates

confirmed that he did. See Supp. R., Vol. III, at 8:23–9:10. Agent Garcia then asked:

       SPECIAL AGENT GARCIA: Do you want to go with us, or do you want
       us to follow you?

       MR. DATES: No, I’ll go with you.

       SPECIAL AGENT ALLEN: Okay.

       SPECIAL AGENT GARCIA: Okay. Great. Very good. Why don’t you
       come in here, Mr. Dates. Come sit back here and I’ll sit back here with
       you. Then I can go up town with you and let you know what’s kind of
       going on. How’s that?



                                            3
       MR. DATES: All right.

Id. at 9:11–20.

       Within two minutes on the drive to McDonald’s, Dates revealed that

walrusblackhawk@hotmail.com was his email address. Id. at 12:3. Dates later

confirmed that walrus.blackhawk was his Skype display name. Id. at 79:20. During the

ride, Dates periodically told Agent Allen to slow down or at what streets to make a turn.

See, e.g., id. at 13:4–15. Agent Garcia questioned Dates about the substance of his Skype

conversations, including whether Dates had ever seen child pornography. See id. at

24:14–25:12. Dates replied, “I don’t want to talk about that—whether I’ve seen it or—

you know, that’s none of your business at this point.” Id. at 25:10–15. Garcia asked

whether Dates had ever participated in Skype conversations about child pornography.

See id. at 25:17–20. “I wouldn’t want to answer anything like that,” Dates replied. Id. at

25:21–22. “When you say you wouldn’t want to, does that mean—” Garcia began. Id. at

25:23–24. “No. It means what I said,” Dates repeated. Id. at 26:2.

       Agent Allen parked at McDonald’s and then stood outside the car while Agent

Garcia continued to ask Dates questions. After Dates unequivocally stated that he wanted

a lawyer and asked to be driven home, Agent Garcia stepped outside the car to confer

with Agent Allen. See id. at 40:3–42:5. Agent Garcia returned to ask Dates if he would

like a coffee or to use the restroom and Dates said no. See id. at 42:23–43:8. The agents

then drove Dates back to his home. See id. at 48:2–5 (Dates giving agents directions

back to house).




                                            4
       Using the statements Dates made during the drive to McDonald’s, Agents Allen

and Garcia obtained a search warrant for Dates’s home. See Order at 6–7. The warrant

permitted DHS agents to search Dates’s residence for devices capable of accessing the

internet. See I ROA, at 57. The search uncovered two laptop computers and a four

gigabyte thumb drive—each containing child pornography. See Supp. R., Vol. III, at

236.

       A federal grand jury indicted Dates on September 5, 2012. Dates was later

charged in a second superseding thirteen-count indictment on June 24, 2014. See I ROA,

at 77–83 (Indictment). All thirteen charges involved the receipt, advertisement,

distribution, and possession of “visual depiction[s] . . . of . . . minor[s] engag[ed] in

sexually explicit conduct,” in violation of 18 U.S.C. §§ 2251–2252, 2256 (2012). See id.

       Dates moved to suppress the statements that he made to Agents Garcia and Allen

during the car ride to McDonald’s. See I ROA, at 17–25 (Motion to Suppress). The

district court denied Dates’s motion in a written order, ruling in relevant part that the

encounter was consensual and so did not implicate the Fourth Amendment or Miranda.

Order at 4. The district court found that the agents were wearing plain clothes, did not

brandish their firearms, did not touch Dates, and spoke politely using a non-threatening

tone of voice. Id. at 3. The court also found that the agents did not object when Dates

locked them outside his home for about five minutes while he dressed. Id. In addition,

the court found that Dates proposed the McDonald’s meeting place, “chose to ride with

the agents rather than take his own car,” and chose the route to McDonald’s. Id. When

Dates unequivocally asserted his right to speak to a lawyer, he was returned home. Id.


                                               5
The district court noted that although Agent Garcia’s questions were “persistent and

intrusive,” the “encounter [was] consensual, both at its inception and throughout.” Id. at

4.

       Dates conditionally pled guilty to Count Two of the second superseding

indictment. See Supp. R., Vol. VII, at 20 (Plea Agreement). He reserved his right to

appeal the denial of his suppression motion. Id. at 26. The court sentenced Dates to ten

years’ imprisonment. Id. at 31–36 (Criminal Judgment). This appeal followed.

                                            II.

       When reviewing a district court’s denial of a motion to suppress, we look at “the

evidence in the light most favorable to the government,” and “accept the district court’s

findings of fact unless they are clearly erroneous.” United States v. McNeal, 862 F.3d

1057, 1061 (10th Cir. 2017) (quoting United States v. Lopez, 849 F.3d 921, 925 (10th Cir.

2017)). We review de novo the ultimate legal determination that suppression is

unwarranted. Id.

       On appeal, Dates seeks to suppress his statements on two grounds: First, that the

morning encounter with federal agents was an unreasonable seizure; and second, that the

encounter constituted a custodial interrogation in violation of Miranda.1 We consider

each in turn.


1
  Dates does not appeal two arguments he made below: (1) that his inculpatory statements
were given involuntarily in violation of the Fifth Amendment, see I ROA, at 20; and (2)
that his statements were obtained after he had invoked his right to consult counsel, id. at
22–23. The district court ruled that Dates’s statements during the car ride were voluntary
and that his right to counsel under the Fifth and Sixth Amendments had not yet attached.
Order at 4–5. Because Dates does not appeal either ruling, we consider the agents’

                                             6
                                              A.

       The Fourth Amendment protects “[t]he right of the people to be secure in their

persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. Before assessing

whether the actions of law enforcement constituted an unreasonable seizure, we first ask

whether a seizure occurred. There are three types of police-citizen encounters: (1) a

consensual encounter, which does not constitute a seizure and therefore does not

implicate the Fourth Amendment; (2) an investigative detention, which must be justified

by reasonable suspicion of criminal activity; and (3) an arrest, which must be justified by

probable cause. See United States v. Roberson, 864 F.3d 1118, 1121 (10th Cir. 2017);

United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017). The district court

determined that Dates’s car ride to McDonald’s with Agents Garcia and Allen was a

consensual encounter and therefore did not constitute a seizure. Order at 4.

       “[M]ere police questioning does not constitute a seizure.” Florida v. Bostick, 501

U.S. 429, 434 (1991). Rather, a police-citizen encounter is a seizure “[o]nly when” the

officer restrains the freedom of the suspect by “physical force,” id. (quoting Terry v.

Ohio, 392 U.S. 1, 19 n.16 (1968)), or by show of authority and the suspect “submi[ts] to

the assertion of authority” by an officer, California v. Hodari D., 499 U.S. 621, 626

(1991) (emphasis omitted). To determine whether law enforcement seized a suspect

through a show of authority, we ask “whether the officer’s words and actions would have

conveyed . . . to a reasonable person . . . that the defendant was not free to leave.” Id. at

conduct only as it may pertain to Dates’s Fourth Amendment and Miranda claims. See
Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 827 F.3d 1256, 1268 (10th Cir. 2016);
Fed. R. App. P. 28(a)(8).

                                              7
628. That inquiry is an “objective one.” Id. We examine the characteristics of the

officer’s actions and the effect that they would have on a reasonable person—not the

defendant’s subjective perceptions. See Bostick, 501 U.S. at 438. Unless the officer’s

actions are “so intimidating” that a reasonable person would not feel free terminate the

encounter, the suspect has not been seized. See I.N.S. v. Delgado, 466 U.S. 210, 216

(1984).

       This court considers the totality of the circumstances in assessing whether a

reasonable person would have felt free to terminate an encounter with law enforcement.

See United States v. Lopez, 443 F.3d 1280, 1286 (10th Cir. 2006). In Lopez, we

enumerated a non-exhaustive list of factors to distinguish a seizure from a consensual

encounter, including:

       the location of the encounter, particularly whether the defendant is in an
       open public place where he is within the view of persons other than law
       enforcement officers; whether the officers touch or physically restrain the
       defendant; whether the officers are uniformed or in plain clothes; whether
       their weapons are displayed; the number, demeanor and tone of voice of the
       officers; whether and for how long the officers retain the defendant’s
       personal effects such as tickets or identification; and whether or not they
       have specifically advised defendant at any time that he had the right to
       terminate the encounter or refuse consent.

Id. at 1284 (quoting United States v. Spence, 397 F.3d 1280, 1283 (10th Cir. 2005)).

       Applying the Lopez factors, the district court determined that Dates’s morning

encounter with law enforcement was consensual because a reasonable person in Dates’s

position would have felt free to terminate the interview with the agents. See Order at 3–

4. The district court found that Agents Garcia and Allen wore plain clothes, did not

brandish their weapons, and did not touch Dates. Order at 3. The court also found that


                                             8
Dates stopped the agents at the threshold of his home rather than inviting them inside,

locked the agents outside for just over five minutes while he dressed, selected

McDonald’s as the location of their breakfast meeting, and decided to ride in the agents’

car after he was given the choice to drive himself. Id. The district court noted that

although Agent Garcia’s questions were “persistent and intrusive,” the “encounter [was]

consensual, both at its inception and throughout.” Id. at 4.

       Considering the totality of the circumstances, we agree with the district court that

a reasonable person in Dates’s position would have felt free to terminate the encounter

with law enforcement. We therefore affirm the district court’s conclusion that Dates’s

inculpatory statements were given during a consensual encounter, not a Fourth

Amendment seizure.

       Dates contends that the encounter was a seizure due to Agent Garcia’s persistent

and deceptive questioning amid Dates’s “repeated attempts to end the conversation.”

Aplt. Br. at 16. Dates also argues that the location of the exchange—the threshold of his

home, then the backseat of the agents’ car—enhanced the coercive force of Agent

Garcia’s questions. See id. at 17. According to Dates, these circumstances, taken

together, establish that he was seized. See id. at 17–18. We disagree.

       Starting with the persistent nature of Agent Garcia’s questions, the Supreme Court

has “held repeatedly” that police questioning is not a seizure “so long as the officers do

not convey a message that compliance . . . is required.” Bostick, 501 U.S. at 434, 437

(quoting Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality)). Here, Agent Garcia did




                                             9
not objectively convey to Dates that compliance with the DHS investigation was

required. His persistent questions were in response to Dates’s conflicting answers.

       For example, after Agents Garcia and Allen introduced themselves as federal

agents and explained that they wanted to speak with Dates, he replied “[o]kay . . . [w]e

can talk out here.” When Agent Garcia explained that someone may have stolen Dates’s

email address, Dates replied, “I don’t think I really want to talk to you right now.” After

Agent Garcia offered to explain the nature of the investigation and assured Dates that he

only needed a few minutes, Dates changed his mind: “Well, you can go ahead. We can

talk out here.” When Dates was asked about his computer, he changed his mind again,

stating, “I don’t want to talk to you. I don’t know what you want and I don’t want to talk

to you at this particular time.” Agent Garcia explained: “Well, I mean, that’s what I’m

asking you. Do you own a computer?” Dates replied, “I don’t want to talk to you about

anything. I don’t know what you’re driving at.” But then Dates continued: “[Y]ou

know, we can meet someplace else.”

       While Agent Garcia’s questions were persistent, they also reflect a reasonable

effort to understand whether or not Dates wanted to cooperate. Agent Garcia did not

badger or harass Dates; rather, each time Dates indicated he did not want to talk he

subsequently changed his mind, allowing Agent Garcia to ask additional questions.

Moreover, after offering to meet the agents at McDonald’s, Dates broke off the interview

by locking the agents outside his home for five minutes while he prepared for work.

During that period of time, outside of the agents’ presence, a reasonable person in Dates’s

position could have reconsidered his decision. But when Dates came back outside he


                                            10
resumed the conversation by confirming to the agents that he wanted to go to

McDonald’s. Agent Garcia then gave him the choice to drive alone, but Dates instead

decided to ride with the agents in their car. Two minutes into the drive came the “crucial

admission,” Aplt. Br. at 15: Dates revealed that “walrusblackhawk” was his email

address. Under these circumstances,2 we cannot conclude that Agent Garcia “convey[ed]

a message that compliance with [his] requests [was] required.” See Bostick, 501 U.S. at

435.

       Dates also argues that his statement to Agent Garcia, “we can meet somewhere

else”—rather than being consent to in fact meet somewhere else—was really “a request

to end the confrontation.” Aplt. Br. at 14–15. Perhaps that is what Dates subjectively

meant, but the objective meaning of his statement was a suggestion that the conversation

continue away from his front door. Indeed, Dates may have proposed McDonald’s and

decided to ride with the agents because he sought privacy. See, e.g., United States v.

Jones, 523 F.3d 1235, 1242 (10th Cir. 2008) (noting that it “was perfectly sensible for

[Agent] Bridge to be cognizant of Jones’s privacy and ask to speak inside his car, thus

preventing passersby from learning of Jones’s methamphetamine use”); United States v.

Little, 18 F.3d 1499, 1504 n.5 (10th Cir. 1994) (en banc) (acknowledging that some

persons could feel “more ‘coerced’ in a public setting, where they might be embarrassed

to decline police requests in the hearing and view of others”). We conclude that Dates’s

offer to meet the agents at McDonald’s supports the conclusion that the morning

2
 We focus our attention on the circumstances that preceded Dates’s admission regarding
his email address, as it only is those circumstances that could have possibly constituted a
seizure at the time of the admission.

                                            11
encounter was consensual because it demonstrates that he was dictating the location

where the conversation would occur.

       Next, Dates points to the agents’ use of deception as turning the encounter from

consensual to a seizure. However, the deception does not change our conclusion. The

question is whether the agents’ false statements would have made a reasonable person

feel unable to “decline the [agents’] requests or otherwise terminate the encounter.”

Bostick, 501 U.S. at 436. We conclude that the agents’ false statements implying that

Dates was a putative victim of online identity fraud rather than a criminal suspect would

not have conveyed to the reasonable person that they were not free to leave. Indeed,

unlike false statements that incriminate the suspect, see, e.g., Oregon v. Mathiason, 429

U.S. 492, 495–96 (1977) (falsely telling the suspect that his fingerprints were found at a

crime scene); Frazier v. Cupp, 394 U.S. 731, 737–38 (1969) (falsely telling the suspect

that his confederate has confessed), the agents’ purported ignorance of Dates’s criminal

activity would, if anything, make the reasonable person feel greater freedom to terminate

the encounter.

       Dates does not identify any precedent where deception by law enforcement turned

a consensual encounter into a Fourth Amendment seizure. Instead, Dates cites cases such

as United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011), which involves whether a

defendant has voluntarily consented to a warrantless search, id. at 1278. For example, in

Harrison, we held that a defendant’s consent to search was involuntary where officers

deceived the defendant into thinking that they needed access to his apartment to search

for a bomb. See id. at 1281. Under such circumstances, we concluded, the defendant


                                            12
could “deny consent to search and accept the risk that a bomb had been planted in the

apartment,” or “consent to search.” Id. at 1280. Consent under those circumstances

could not be deemed to be voluntary. Id. Here, Dates has waived his voluntariness

argument by not raising it before this court. See supra n.1. We therefore find these cases

inapposite. More fundamentally, Dates does not argue that the agents’ deception would

render a reasonable person unable to terminate the encounter, which is the pertinent

inquiry in this case.

       Additionally, Dates contends that the location of the morning encounter—the

threshold of his home and then in the backseat of the agents’ car—suggests that a seizure

occurred. We are unpersuaded.

       Dates’s actions at his home fortify the district court’s conclusion that a reasonable

person in Dates’s position would have felt free to terminate the exchange with law

enforcement. Dates chose to “speak to [the agents] at the threshold of his apartment,

rather than inviting them inside,” and then “shut the front door, locking the agents outside

for several minutes while he dressed.” Order at 3. Those acts suggest that a reasonable

person in Dates’s position would have understood he did not have to comply with the

agents’ requests for information.

       We also reject Dates’s suggestion that he was “lured” into the agents’ car. Aplt.

Br. at 17. The district court expressly found that “Defendant [Dates], rather than the

agents, proposed that he meet with the agents at a McDonald’s restaurant. Defendant

chose to ride with the agents rather than take his own car.” Order at 3. Indeed, when

Dates was asked at his sentencing hearing whether he “told [the agents that he] wanted to


                                             13
ride with them,” Dates replied, “[y]eah. I thought it would be simpler than trying to take

two cars.” Supp. R., Vol. IV, at 376. In other words, Dates was not coerced into

accompanying the agents to McDonald’s; he simply thought it made more sense for the

three men to ride to McDonald’s together.

       Dates next argues that the car ride was a seizure because he was unable to exit a

moving vehicle. But the Court has held that police may question a suspect in a

constraining situation that the suspect voluntarily entered, such as a bus. See United

States v. Drayton, 536 U.S. 194, 201–04 (2002) (holding that plain clothes police officers

did not seize bus passengers after they boarded the bus and began asking questions

without advising that the passengers had a right to not cooperate). Though exit is

sometimes not possible aboard a vehicle, there is no seizure because the defendant’s

“freedom of movement” is “restricted by a factor independent of police conduct—i.e., by

his being a passenger.” Bostick, 501 U.S. at 436.

       True, the commercial bus setting presented in Drayton and Bostick has a less

coercive atmosphere than a law enforcement vehicle. But that fact is insufficient to

establish a seizure. Because Bostick’s “free to terminate” inquiry turns on the objective

understanding of a reasonable person, the reason why the suspect voluntarily entered the

vehicle is more significant than the kind of vehicle involved. The defendants in Drayton

boarded the bus purely for transportation purposes and without the expectation of police

questioning; Dates entered the police vehicle and traveled with the agents to McDonald’s

precisely to have a conversation about his online activities. A reasonable person in

Dates’s situation, after having entered a vehicle of his own free will to talk to federal


                                             14
agents, would understand that he was similarly free to terminate the conversation and go

about his day—which Dates in fact did. Cf. United States v. Chee, 514 F.3d 1106, 1114

(10th Cir. 2008) (ruling that “[t]he fact that the interrogation moved from one topic to

another [more incriminating] topic that Mr. Chee did not expect” does not establish a

custodial interrogation under Miranda because, among other things, the suspect freely

left the police station).

       Considering these circumstances in their totality, we conclude that Dates’s

encounter with law enforcement was consensual, and that therefore the Fourth

Amendment was not implicated.

                                              B.

       Dates also seeks suppression on the ground that his statements were given during a

non-Mirandized custodial interrogation. Aplt. Br. at 18. Given the coercive nature of a

custodial police interrogation, the United States Supreme Court has held that certain

warnings must be given to a suspect to protect the Fifth Amendment privilege against

self-incrimination. See Miranda, 384 U.S. at 444. “It is well established,” however,

“that ‘police officers are not required to administer Miranda warnings to everyone whom

they question.’” United States v. Erving L., 147 F.3d 1240, 1246 (10th Cir. 1998)

(quoting Mathiason, 429 U.S. at 495). Rather, Miranda warnings are required only when

a suspect is in “custody,” that is, deprived of “freedom of action . . . to a degree

associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984)

(quotation marks omitted). Though this analysis considers the “totality of the

circumstances,” the court “ignore[s] the subjective views of the interrogating officers”


                                              15
and focuses “only on what a reasonable person would have understood from the

situation.” See United States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007).

       Generally speaking, identifying a Fourth Amendment seizure (the analysis we

performed above) and a custodial interrogation under Miranda are “analytically distinct

inquiries.” See id. at 1273. But if a citizen-police encounter is not a Fourth Amendment

seizure because a reasonable person in the suspect’s position would feel free to terminate

the encounter, then that suspect cannot have been deprived of freedom in a degree akin to

a formal arrest. Since we conclude that Dates was not seized, we also conclude he was

not subjected to a custodial interrogation.

                                              III.

       For the reasons stated above, we affirm the district court’s order denying Dates’s

motion to suppress.


                                                     Entered for the Court


                                                     Allison H. Eid
                                                     Circuit Judge




                                              16
