            Case: 16-11098   Date Filed: 02/08/2017   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11098
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:15-cr-00260-RAL-EAJ-1



UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JETMIR QOSE,


                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (February 8, 2017)

Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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       Jetmir Qose appeals his convictions for transportation of child pornography,

18 U.S.C. § 2252(a)(1) and (b)(1), and possession of child pornography, 18 U.S.C.

§ 2252(a)(4)(B) and (b)(2). Qose raises two issues on appeal. First, he contends

the district court erred in denying his motion to suppress evidence seized during

the execution of a search warrant because the affidavit in support of the search

warrant did not contain probable cause. Qose also asserts the district court erred in

denying his motion to suppress his pre-arrest statement to law enforcement because

the statement was provided while he was in custody without being advised of his

rights under Miranda v. Arizona, 384 U.S. 436 (1966). After review,1 we affirm.

                                       I. DISCUSSION

A. Probable Cause

       “Probable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.” United States v. Brundidge, 170

F.3d 1350, 1352 (11th Cir. 1999). Our staleness doctrine “requires that the

information supporting the government’s application for a warrant must show that

probable cause exists at the time the warrant issues.” United States v. Bervaldi,

226 F.3d 1256, 1264 (11th Cir. 2000). Because “[t]here is no particular rule or


       1
          In reviewing a district court’s ruling on a motion to suppress, we review factual findings
for clear error and the application of law to those facts de novo. United States v. Capers, 708
F.3d 1286, 1295 (11th Cir. 2013).
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time limit for when information becomes stale . . . staleness is an issue which must

be decided on the peculiar facts of each case.” Id. at 1265 (quotations

omitted). When determining staleness, courts should consider the length of time,

“nature of the suspected crime (discrete crimes or ongoing conspiracy), habits of

the accused, character of the items sought, and nature and function of the premises

to be searched.” Id. “[I]f an affidavit recites activity indicating protracted or

continuous conduct, time is of less significance.” Id. (quotations omitted). Stale

information can establish probable cause if “the government’s affidavit updates,

substantiates, or corroborates the stale material.” United States v. Jimenez,

224 F.3d 1243, 1249 (11th Cir. 2000) (quotations omitted).

       The affidavit in support of the search warrant was not based upon stale

information. Although the investigation was initiated in September 2014, it was

confirmed in March 2015 that Besim Qose was still the subscriber to the internet

used by Jennifer123654. Federal agents conducted surveillance on the Qose

residence the same month they executed the search warrant and confirmed that

Qose resided in the condominium and typically left for work at approximately 6:30

a.m.

       Even assuming the information within the affidavit was stale, however, the

agents who executed the warrant acted in good faith. Consequently, exclusion of

the evidence seized is not appropriate. The Supreme Court has established a good-


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faith exception to the judicially created exclusionary rule for evidence seized in

violation of the Fourth Amendment. United States v. Martin, 297 F.3d 1308,

1312-13 (11th Cir. 2002) (citing United States v. Leon, 468 U.S. 897, 923 (1984)).

This exception provides that courts generally should not render inadmissible

evidence obtained by law enforcement acting in reasonable reliance upon a search

warrant that is later found to be unsupported by probable cause. Id. at 1313. The

focus of a Leon inquiry is the law enforcement agent; thus, the court must consider

whether the officer acted reasonably and in an honest belief that he obtained a

valid search warrant before conducting a search. United States v. Taxacher, 902

F.2d 867, 871-72 (11th Cir. 1990).

      Even if Agent Cumming’s affidavit was in some way lacking, Qose does not

contend, nor does the record show, that the district court erred in concluding that

the good-faith exception also justified denying the motion to suppress. See United

States v. Robinson, 336 F.3d 1293, 1295 (11th Cir. 2003) (reviewing de novo

whether the good-faith exception applies, and reviewing the underlying facts upon

which that determination is based for clear error). The record does not

demonstrate the agents acted in bad faith or were objectively unreasonable in

relying on the warrant. No evidence indicated Agent Cumming’s affidavit

contained any knowing or reckless falsities or the magistrate judge who issued the

warrant acted as a “rubber stamp” and failed to evaluate the information placed


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before him. Neither does the evidence establish Agent Cumming’s affidavit was

so inadequate in detail as to preclude the issuing judge from finding probable

cause. See Leon, 468 U.S. at 923 (providing while searches conducted pursuant to

warrants will rarely require suppression, there are four situations in which

suppression would be appropriate: (1) if the magistrate issuing a warrant was

“misled by information in the affidavit that the affiant knew was false or would

have known was false except for his reckless disregard of the truth;” (2) where “the

issuing magistrate wholly abandoned his judicial role;” (3) where the “warrant [is]

based on an affidavit so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable;” and (4) where a “warrant [is] so

facially deficient . . . that the executing officers cannot reasonably presume it to be

valid”). As such, the district court did not err in concluding that a factual basis

indicated that child pornography would be found at the Qose residence and Agent

Cumming’s reliance on the validity of the warrant was objectively reasonable.

B. Statement to Law Enforcement

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

criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda

v. Arizona, the Supreme Court established a law enforcement agent may not

conduct a custodial interrogation of a suspect before informing him of his rights




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against self-incrimination. 384 U.S. 436, 473-74 (1966). Statements made in

violation of Miranda are not admissible at trial. Id. at 444-45.

      We described the test for determining whether an interaction is custodial 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 and

citations omitted). Although the location of an interview is not necessarily

dispositive in determining whether a person is in custody, courts are much less

likely to find a custodial encounter when the interrogation occurs “in familiar or at

least neutral surroundings, such as the suspect’s home.” Id. at 1348 (quotation and

brackets omitted).

      We consider several factors in determining whether a suspect is in 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

compelled.” United States v. Street, 472 F.3d 1298, 1309 (11th Cir. 2006)
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(quotation omitted). An interviewee’s “status as a suspect, and the coercive

environment that exists in virtually every interview by a police officer of a crime

suspect,” does not automatically create a custodial situation. United States v.

Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000).

      The district court did not err in denying Qose motion to suppress his

statement to police. The court’s conclusion the interview was not custodial was

based upon the record: Qose admitted he was told twice the interview was

voluntary and he was free to leave; the agents’ weapons were holstered; at no time

did an agent physically touch Qose; the interview occurred in the parking lot of his

residential community; Qose voluntarily entered the vehicle; he was not

handcuffed or restrained in any way; his requests for water and temperature change

during the interview were honored; he never asked to leave and never requested a

lawyer; and he was provided with a telephone. In addition, Qose signed a consent

form “freely and voluntarily without fear of threats; coercion, or promises of any

kind,” allowing the FBI to assume his online identity. The court emphasized the

fact Qose told his employer he would be late to work—instead of stating he would

not be in that day—as evidence of Qose’s belief he was not under arrest. Whether

or not Qose requested a lawyer was an issue of credibility, and the court credited

the testimony of Agent Cumming and Detective Wagoner on that point.




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      Moreover, even if a Miranda violation occurred, any error in admitting the

statement would be harmless beyond a reasonable doubt given the overwhelming

evidence of Qose’s guilt. See United States v. Arbolaez, 450 F.3d 1283, 1292

(11th Cir. 2006) (“The admission of statements obtained in violation of Miranda is

subject to harmless error scrutiny.”). Even discounting Qose’s statement, the

parties stipulated beyond a reasonable doubt that an undercover agent downloaded

13 files containing child pornography from user Jennifer 123654 on a P2P file

sharing program located in Florida. The IP address Jennifer 123654 was using was

registered to Besim Qose, who lived in the same home as Jetmir Qose. A search

warrant was executed at the residence, and agents seized a Lenovo laptop computer

named “Jetmir-PC” within the Microsoft Windows operating system. Qose’s

mother informed agents that neither she nor her husband use Qose’s laptop, their

household internet is secured with a password, and she was not aware of anyone

outside the family having the password.

      The parties further stipulated that computer contained numerous files

detailing chats between Qose and P2P users, including a chat providing the

undercover agent the password to access Qose’s child pornography. At least 42

images depicting child pornography were located on the computer, which also

utilized a media player application to access a child pornography video nine times.

The Samsung hard drive contained multiple video files depicting child


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pornography, and the Seagate hard drive contained at least one image downloaded

by the undercover agent who accessed Jennifer 123654’s files on the P2P program

as well as numerous video fragments containing child pornography. Thus, even

assuming the court did err in admitting Qose’s statement, the remaining evidence is

so overwhelming that it is clear beyond a reasonable doubt that the statement did

not affect the verdict, and any error was thus harmless.

                                 II. CONCLUSION

      In conclusion, the district court did not err in denying Qose’s motion to

suppress evidence obtained during execution of the search warrant because the

affidavit in support of the warrant was not based upon stale information. In

addition, even if the information in the affidavit was stale, the district court did not

err in denying the motion because the agents acted in reasonable reliance in

executing the warrant. The district court also did not err in denying Qose’s motion

to suppress his statement. Qose was not in custody at the time he spoke to law

enforcement. Moreover, even if the court did err in admitting the statement, such

error is harmless in light of the overwhelming evidence of guilt against Qose.

Accordingly, we affirm Qose’s convictions.

      AFFIRMED.




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