              Case: 18-11211    Date Filed: 09/17/2019   Page: 1 of 8


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-11211
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 2:16-cr-00134-JES-MRM-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

DAVID CASWELL,

                                                              Defendant-Appellant.

                          ________________________

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

                               (September 17, 2019)

Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:

      This appeal stems from the district court’s denial of a motion to suppress

evidence discovered pursuant to a nationwide warrant out of the Eastern District of
                Case: 18-11211        Date Filed: 09/17/2019       Page: 2 of 8


Virginia, which authorized the use of a “network investigative technique” to track

down patrons of a child-pornography website. Challenges to evidence secured

under the so-called “NIT warrant” have cropped up in dozens of courts across the

country including, most recently, our own. See United States v. Taylor, No. 17-

14915(11th Cir. Aug. 28, 2019). In this iteration, David Caswell appeals his

conviction for possession of child pornography, arguing that the district court erred

in denying his motion to suppress both the evidence obtained as a result of the NIT

warrant and statements that he made to officers before he was given Miranda

warnings. We disagree. Because our recent decision in Taylor forecloses

Caswell’s NIT-warrant arguments, and because the district court did not plainly err

in concluding that he was not in custody at the time of his questioning (and thus

not entitled to Miranda warnings), we affirm. 1

                                                I

       Caswell argues that the district court erred in denying his motion to suppress

evidence obtained under the NIT warrant because (1) the magistrate judge lacked

authority to issue the warrant under Federal Rule of Criminal Procedure 41(b)

(2015) and 28 U.S.C. § 636(a) and (2) the warrant failed to meet the Fourth

Amendment’s particularity requirement. Even accepting both contentions as true,



1
 The facts are known to the parties; they are included here only as necessary to aid in our
analysis.
                                                2
                 Case: 18-11211        Date Filed: 09/17/2019       Page: 3 of 8


neither changes the outcome for Caswell because, as we found in Taylor, the good-

faith exception to the exclusionary rule applies to the FBI’s NIT-warrant

application. See Taylor, slip op. at 3–4. 2 Cf. United States v. Eldred, No. 17-3367-

cv, 2019 WL 3540415, at *8 (2d Cir. Aug. 5, 2019); United States v. Ganzer, 922

F.3d 579, 587–90 (5th Cir.), petition for cert. filed, No. 19-5339 (2019); United

States v. Moorehead, 912 F.3d 963, 971 (6th Cir.), petition for cert. filed, No. 19-

5444 (2019); United States v. Kienast, 907 F.3d 522, 527–29 (7th Cir. 2018), cert.

denied, 139 S. Ct. 1639 (2019); United States v. Henderson, 906 F.3d 1109, 1116–

20 (9th Cir. 2018), cert. denied, 139 S. Ct. 2033 (2019); United States v. Werdene,

883 F.3d 204, 214–19 (3d Cir.), cert. denied, 139 S. Ct. 260 (2018); United States

v. McLamb, 880 F.3d 685, 691 (4th Cir.), cert. denied, 139 S. Ct. 156 (2018);

United States v. Levin, 874 F.3d 316, 323–24 (1st Cir. 2017); United States v.

Horton, 863 F.3d 1041, 1050–52 (8th Cir. 2017), cert. denied, 138 S. Ct. 1440

(2018); United States v. Workman, 863 F.3d 1313, 1319–21 (10th Cir. 2017), cert.

denied, 138 S. Ct. 1546 (2018).

       Because Caswell challenges the same warrant application and affidavit that

we recently deemed adequate in Taylor, that case controls our decision here:




2
  We did not reach the question of particularity in Taylor, but we did acknowledge that the
magistrate judge in the Eastern District of Virginia exceeded her statutory authority under
§ 636(a) such that the NIT warrant was void ab initio. See Taylor, slip op. at 3. Because we
find that here, as in Taylor, the good-faith exception applies, we need not address either issue.
                                                 3
                Case: 18-11211       Date Filed: 09/17/2019       Page: 4 of 8


Although imperfect, the application and accompanying affidavit sufficiently

disclosed the bounds of the intended search. 3 Evidence gathered under the NIT

warrant does not invite the “harsh sanction” of exclusion as law enforcement’s

actions were neither “deliberate enough to yield ‘meaningfu[l]’ deterrence, [nor]

culpable enough to be ‘worth the price paid by the justice system.’” Davis v.

United States, 564 U.S. 229, 240 (2011) (first alteration in original) (quoting

Herring v. United States, 555 U.S. 135, 144 (2009)). Accordingly, the district

court did not err in denying Caswell’s motion to suppress evidence that he

possessed child pornography.

                                               II

       Caswell also asserts that his statements to the agents must be suppressed

because he was not given Miranda warnings prior to questioning. Caswell waived

this argument, however, by failing to specifically object to the magistrate judge’s

findings of fact or conclusions of law regarding his motion to suppress the

statements. He also failed to raise the issue in his motion for reconsideration.

Thus, we review this objection for plain error only. See 11th Cir. R. 3-1 (stating

that although “[a] party failing to object to a magistrate judge’s findings or



3
  Caswell insists that the outcome here should be different because he “raises arguments about
the good-faith exception that were not addressed by the defendant in Taylor” and introduces
additional documents into evidence. Reply Br. at 1 (section heading). Having reviewed the
record and briefs, however, we find that Caswell fails to raise any arguments that are not
foreclosed by our opinion in Taylor.
                                               4
               Case: 18-11211      Date Filed: 09/17/2019    Page: 5 of 8


recommendations . . . waives the right to challenge on appeal the district court’s

order based on unobjected-to factual and legal conclusions,” we “may review on

appeal for plain error if necessary in the interests of justice”). Plain error is error

that is “clear or obvious” and has “affected the defendant’s substantial rights,”

which ordinarily requires a defendant to demonstrate “a reasonable probability

that, but for the error, the outcome of the proceeding would have been

different.” United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019)

(quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)). When

these criteria are met, we “should exercise [our] discretion to correct the forfeited

error if the error seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Molina-Martinez, 136 S. Ct. at 1343 (citation and quotation

marks omitted). As we have previously explained, “[a]n error is not plain unless it

is contrary to explicit statutory provisions or to on-point precedent in this Court or

the Supreme Court.” United States v. Schultz, 565 F.3d 1353, 1357 (11th Cir.

2009).

      Relevant to Caswell’s claim, 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. In Miranda v. Arizona, the Supreme Court concluded that,

pursuant to this decree, statements made during a “custodial interrogation” are not




                                            5
               Case: 18-11211     Date Filed: 09/17/2019    Page: 6 of 8


admissible at trial unless the defendant was first advised of his rights, including the

right against self-incrimination. 384 U.S. 436, 444 (1966),

      An individual is considered to be “in custody” for Miranda purposes when

there is either a “formal arrest or restraint on freedom of movement of the degree

associated with a formal arrest.” United States v. Brown, 441 F.3d 1330, 1347

(11th Cir. 2006) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). 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). Instead, courts must consider on a case-by-case basis

whether, under the totality of the circumstances, an objectively reasonable person

would have felt free to leave the scene. Brown, 441 F.3d at 1347. Factors relevant

to this analysis include “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. Luna-Encinas, 603 F.3d 876, 881 (11th Cir.

2010) (citation and quotation marks omitted). Another “powerful factor” is

whether officers “[u]nambiguously advis[e]” the interviewee “that he is free to

leave and is not in custody.” Brown, 441 F.3d at 1347. And, while the location of

the interview is “not dispositive,” courts are less inclined to find a custodial

encounter “when the interrogation occurs in familiar or at least neutral


                                           6
              Case: 18-11211     Date Filed: 09/17/2019    Page: 7 of 8


surroundings.” Id. at 1348 (citation and quotation marks omitted). The custody

inquiry presumes an objectively reasonable interviewee—“the actual, subjective

beliefs of the defendant and the interviewing officer on whether the defendant was

free to leave are irrelevant.” Id. at 1347 (quoting United States v. Moya, 74 F.3d

1117, 1119 (11th Cir. 1996)).

      Caswell argues that he was interrogated while in custody because he was

repeatedly questioned about his use of Playpen and possession of child

pornography, was accused of being untruthful, and was told that law enforcement

knew he had accessed child pornography. Caswell also points out that six or seven

officers executed the search warrant, that he was questioned for nearly three hours,

and that he was not permitted to call his wife when he asked to do so. Caswell

contends that because no reasonable, innocent person would have felt free to leave

under the same circumstances, he was in custody and thus entitled to Miranda

warnings. Because the agents failed to give the warnings, he asserts, the district

court should have suppressed his statements.

      There is no plain error here. To be sure, this is not the clearest case of a

non-custodial interview. As Caswell points out, there were six or seven officers

present, accusing him of lying, for up to three hours. That being said, under the

totality of the circumstances, a reasonable person likely would have felt free to

leave: Caswell had agreed to speak with the officers on his own back patio, was


                                          7
              Case: 18-11211     Date Filed: 09/17/2019   Page: 8 of 8


not under arrest, and was not physically restrained. See Luna-Encinas, 603 F.3d at

881. The officers also told him “[u]nambiguously” that he was free to leave, could

refuse to talk to them, and was not going to be arrested that day. See Brown, 441

F.3d at 1347. Caswell points to no “on-point precedent” finding a custodial

interview on facts such as these; accordingly, it was in no way “clear or obvious”

error for the district court to conclude that he was not in custody for Miranda

purposes. Schultz, 565 F.3d at 1357; Corbett, 921 F.3d at 1037 (citation omitted).

Therefore, the district court did not plainly err in determining that Caswell was not

entitled to Miranda warnings or in denying his motion to suppress the statements

made during the interview.

      AFFIRMED.




                                          8
