                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2257
                                   ___________

United States of America,            *
                                     *
            Appellee,                *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the
Oscar Flores-Sandoval, also known as * District of South Dakota.
Armando Polanco-Diaz, also known as, *
Daniel Sanchez-Rodriguez,            *
                                     *
            Appellant.               *
                                ___________

                             Submitted: October 17, 2006
                                Filed: January 30, 2007 (corrected 1/31/07)
                                 ___________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       Oscar Joel Flores-Sandoval was indicted for illegal reentry after deportation,
in violation of 8 U.S.C. § 1326(a). That indictment was dismissed, after this court's
opinion in United States v. Flores-Sandoval, 422 F.3d 711 (8th Cir. 2005). Flores-
Sandoval was re-indicted one week later. The district court1 denied his motion to
suppress evidence. This court affirms.


      1
       The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota, adopting the report and recommendations of the Honorable
John E. Simko, United States Magistrate Judge for the District of South Dakota.
                                            I.

        In July 2004, Flores-Sandoval was taken into custody. This court upheld the
district court's decision suppressing the fingerprints and statements obtained during
that illegal detention. Id. at 715. On October 6, 2005, the United States dismissed the
indictment. That same day, the Bureau of Immigration and Customs Enforcement
(ICE) removed its detainer and Flores-Sandoval was released from jail.

      As Flores-Sandoval walked out of jail, ICE agent Tracy Warner approached
him on the sidewalk outside the jail. Warner identified himself as an ICE agent and
asked Flores-Sandoval's name, which he provided. Warner then asked where he was
born and he replied Mexico. Questioned about his immigration status, Flores-
Sandoval stated that he had sent his documents home, had no identification, and did
not have a social security number. When asked why he did not have a social security
number or immigration documents, Flores-Sandoval admitted that he was in the
country illegally.

       Warner took Flores-Sandoval into custody. Flores-Sandoval told Warner that
his attorney had advised him not to answer questions or to give his name or
fingerprints. Flores-Sandoval inquired why he had been released; Warner showed him
a copy of the dismissed indictment. Warner asked if he wanted to call his attorney,
providing a telephone, lunch, and the number to the Federal Public Defender's office.
After placing a phone call to his attorney's office, Flores-Sandoval knocked on the
door of the holding cell and stated he was ready to give his fingerprints (he did not tell
the ICE agents that he had not spoken with his attorney).

       Flores-Sandoval's fingerprints were taken and placed into ICE's system, which
indicated that he had previously been deported. Further research showed that he had
not requested permission to reenter the country. Flores-Sandoval was re-indicted for
illegal reentry after deportation. After the district court denied his motion to suppress


                                           -2-
his statements and fingerprints, Flores-Sandoval entered a conditional guilty plea,
reserving an appeal of the denial of his motion. On appeal, Flores-Sandoval argues
that the statements and fingerprints were obtained during an illegal seizure and should
be suppressed.

                                          II.

       This court reviews for clear error a district court's factual determinations
supporting a denial of a motion to suppress, and its conclusions of law de novo.
United States v. Harper, 466 F.3d 634, 643 (8th Cir. 2006). This court reverses a
denial of a motion to suppress only if the decision "is unsupported by substantial
evidence, based on an erroneous interpretation of applicable law, or, based on the
entire record, it is clear a mistake was made." Id., quoting United States v. Annis, 446
F.3d 852, 855 (8th Cir. 2006).

       Flores-Sandoval argues that his statements and fingerprints should be
suppressed because the sidewalk encounter violated the Fourth and Fifth
Amendments. He maintains that Warner did not have reasonable suspicion to stop
and question him and that his "unMirandized statements" are not admissible. Quoting
this court's opinion, he argues that "statements made from an illegal detention are not
admissible." Flores-Sandoval, 422 F.3d at 714, quoting United States v. Hernandez-
Hernandez, 384 F.3d 562, 565 (8th Cir. 2004). The government responds that the
encounter was consensual, and therefore does not implicate the Fourth and Fifth
Amendments.

                                          A.

       There are three categories of police encounters: (1) consensual communications
involving no coercion or restraint, (2) Terry stops – minimally intrusive seizures that
are significant enough to invoke the Fourth Amendment and must be supported by
reasonable suspicion, and (3) full-scale arrests that must be supported by probable


                                          -3-
cause. United States v. Johnson, 326 F.3d 1018, 1021 (8th Cir. 2003); see generally
Terry v. Ohio, 392 U.S. 1, 20 (1968).

       A consensual encounter does not implicate the Fourth Amendment. United
States v. Hathcock, 103 F.3d 715, 718 (8th Cir. 1997). "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." United States v. Vera, 457 F.3d 831, 834 (8th
Cir. 2006), quoting United States v. Drayton, 536 U.S. 194, 200 (2002). "Mere police
questioning does not constitute a seizure." United States v. Barry, 394 F.3d 1070,
1074 (8th Cir. 2005), quoting Florida v. Bostick, 501 U.S. 429, 434 (1991);
Hathcock, 103 F.3d at 719; United States v. Slater, 411 F.3d 1003, 1005 (8th Cir.
2005). A consensual encounter becomes a seizure implicating the Fourth Amendment
when, considering the totality of the circumstances, the questioning is "so
intimidating, threatening, or coercive that a reasonable person would not have
believed himself free to leave." Hathcock, 103 F.3d at 718, quoting United States v.
McKines, 933 F.2d 1412, 1419 (8th Cir. 1991) (en banc); see also Johnson, 326 F.3d
at 1021; INS v. Delgado, 466 U.S. 210, 216 (1984). Flores-Sandoval contends that
the encounter was a seizure, not supported by reasonable suspicion.

       This court considers the totality of the circumstances, "not one particular
detail," to determine whether a seizure occurred. See Johnson, 326 F.3d at 1022.
Factors indicating a seizure are: the presence of several officers, a display of a weapon
by an officer, physical touching of the person, or the "use of language or tone of voice
indicating that compliance with the officer's request might be compelled." Hathcock,
103 F.3d at 718-19, quoting United States v. White, 81 F.3d 775, 779 (8th Cir. 1996);
Barry, 394 F.3d at 1075. A seizure occurs when the officer, "by means of physical
force or show of authority, has in some way restrained the liberty" of a suspect. Id.
at 1074, quoting Terry, 392 U.S. at 19.



                                          -4-
       The question is whether by the totality of the circumstances, Flores-Sandoval's
liberty was restrained in such a way that a reasonable person would not feel free to
leave. This "'reasonable person test' presupposes an innocent person." Id. at 1075,
quoting Bostick, 501 U.S. at 438.

      Flores-Sandoval contends that the following circumstances indicated that a
reasonable person in his situation would not have felt free to leave:

      (1) Warner had previously arrested Flores-Sandoval and Flores-Sandoval
      had been continuously imprisoned for the last 14 months due to that
      arrest. (2) No one had informed Flores-Sandoval that the charges against
      him had been dismissed before Warner stopped him. (3) Jail officials
      held Flores-Sandoval in custody to be picked up by Warner on a new
      detainer and did not release him until Warner arrived.2 (4) Warner
      commenced questioning Flores-Sandoval without first asking if he would
      be willing to answer questions. (5) Warner displayed ICE credentials
      and a badge to Flores-Sandoval as a show of authority and then began
      questioning him. (6) The confrontation took place on the jailhouse
      walkway near the door rather than in a neutral place. (7) Warner was
      already present and waiting for Flores-Sandoval when the jailors finally
      opened the door to release him into Warner's custody.

       In addition to these circumstances, the district court found several other facts.
Warner did not indicate that answering his questions was required. Warner, wearing
plain clothes, was the only officer present. The detainer had been released and he was
free to leave. The district court found no evidence that Warner displayed a weapon,


      2
       The district court did not find circumstance 3 as a fact. The district court
approved the magistrate judge's finding: "Agent Warner stated he was not aware of
the communication from the Marshal Service to the Jail. On the contrary, Agent
Warner testified he told the jail to drop the detainer."

                                          -5-
touched Flores-Sandoval, used language or a tone indicating that compliance would
be compelled, or that Flores-Sandoval resisted the request to identify himself. The
district court noted that there is no per se requirement than an officer inform an
individual of his right to refuse, and no presumption that consent is invalid where
given without an explicit notification of the right to refuse. The district court's
findings of fact are not clearly erroneous.

       By the totality of the circumstances, the atmosphere was not so intimidating or
threatening that a reasonable person would not have believed himself free to leave.
Agent Warner approached Flores-Sandoval, asked questions, and Flores-Sandoval
answered without resistance, even though his attorney had previously advised him not
to reveal his identity or offer his fingerprints. Flores-Sandoval was not restrained or
compelled to comply. His liberty was not restrained in such a way that a reasonable
person would have felt compelled to stay. Because the encounter was consensual, the
Fourth Amendment was not implicated, and reasonable suspicion was not required.
Hathcock, 103 F.3d at 718.

                                          B.

       Flores-Sandoval contends that the unMirandized statements he made on the
sidewalk were inadmissible. However, "police officers are not required to administer
Miranda warnings to everyone whom they question." United States v. LeBrun, 363
F.3d 715, 720 (8th Cir. 2004) (en banc), quoting Oregon v. Mathiason, 429 U.S. 492,
495 (1977). The protections of Miranda apply to custodial interrogations. See United
States v. Black Bear, 422 F.3d 658, 661 (8th Cir. 2005); Miranda v. Arizona, 384
U.S. 436, 444 (1966); Minnesota v. Murphy, 465 U.S. 420, 430 (1984). A custodial
interrogation is defined as "questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom in any
significant way." Maine v. Thibodeau, 475 U.S. 1144, 1146 (1986), quoting
Miranda, 384 U.S. at 444 (1966). "The ultimate inquiry to determine custody for
Miranda purposes is whether there was a formal arrest, or restraint on freedom of

                                         -6-
movement of the degree associated with a formal arrest." Black Bear, 422 F.3d at
661.


      In making this determination, the court first considers the totality of the
circumstances confronting Flores-Sandoval and then determines whether a reasonable
person in his position would consider his "freedom of movement restricted to the
degree associated with formal arrest." United States v. Czichray, 378 F.3d 822, 826
(8th Cir. 2004). This determination is "based on the objective circumstances, not on
subjective views of the participants." Black Bear, 422 F.3d at 661; see LeBrun, 363
F.3d at 720.


       Factors indicating custody are: (1) whether the suspect was informed that he
was free to leave and that answering was voluntary; (2) whether the suspect possessed
freedom of movement; (3) whether the suspect initiated contact or voluntarily
acquiesced; (4) whether strong arm tactics or strategies were employed; (5) whether
the atmosphere was police dominated; or, (6) whether the suspect was placed under
arrest at the end of questioning. United States v. Griffin, 922 F.2d 1343, 1349 (8th
Cir. 1990). These factors, however, are not exclusive, and custody "cannot be
resolved merely be counting up the number of factors on each side of the balance and
rendering a decision accordingly." Czichray, 378 F.3d at 827.


       While Flores-Sandoval was not informed that he was free to leave, he had been
released from jail and was free to leave, he voluntarily replied to the questions posed
to him, and the district court found no evidence that Warner coerced Flores-Sandoval's
responses through physical or verbal coercion. Further, even if Flores-Sandoval were
in custody, "a Miranda violation does not demand the suppression of derivative
physical evidence if the non-Mirandized statement was voluntary." United States v.
Villalba-Alvarado, 345 F.3d 1007, 1008 (8th Cir. 2003). The district court found that
the absence of Miranda warnings did not render the fingerprints inadmissible. "The


                                         -7-
Fifth Amendment's Self Incrimination Clause offers no protection against compulsion
to submit to fingerprinting." Id. at 1019, quoting Pennsylvania v. Muniz, 496 U.S.
582, 590 (1990). As Flores-Sandoval's encounter was consensual and he was not in
custody, the district court properly denied his motion to suppress.


                                          C.


       In addition to the Fourth and Fifth Amendment arguments, Flores-Sandoval
contends that Warner's conduct violates 8 U.S.C. § 1357(a)(1) authorizing
immigration officials "to interrogate any alien or person believed to be an alien as to
his right to be or to remain in the United States." See also 8 C.F.R. §§ 287.7,
287.8(c)(2)(i). Flores-Sandoval contends the government cannot show that the ICE
agent had reason to believe he was an alien other than as learned from the initial
illegal detention.


       As a jurisdictional matter – rather than as an evidentiary matter – the body and
identity of a person cannot be suppressed as fruit of an unlawful detention. See
Flores-Sandoval, 422 F.3d at 715, quoting INS v. Lopez-Mendoza, 468 U.S. 1032,
1039 (1984); see also United States v. Guevara-Martinez, 262 F.3d 751, 753 (8th Cir.
2001). This court's previous opinion anticipates that ICE may retake custody of
Flores-Sandoval. Flores-Sandoval, 422 F.3d at 715. ICE obtained his statements and
fingerprints by consensual methods that did not violate the Fourth and Fifth
Amendments. See id.; Guevara-Martinez, 262 F.3d at 755. The statements and
fingerprints were not taken during an illegal detention. See United States v. Perez-
Perez, 337 F.3d 990, 994 (8th Cir. 2003); Flores-Sandoval, 422 F.3d at 715;
Guevara-Martinez, 262 F.3d at 756. For these reasons, the statements and
fingerprints are "untainted evidence" of identity, which the government may use. See
United States v. Rodriguez-Arreola, 270 F.3d 611, 619 (8th Cir. 2001).



                                         -8-
                                  III.


The judgment of the district court is affirmed.


                ______________________________




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