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                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-15208
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:14-cr-00082-KD-B-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

JULIO ALICEA APONTE,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                         ________________________

                              (October 26, 2016)

Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Julio Aponte appeals the denial of his motion to suppress after being

convicted of possession with intent to distribute heroin. Police found heroin in
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Aponte’s luggage after obtaining his consent to search the vehicle he had been

driving, which, at the time, was disabled on the side of an interstate highway.

Aponte argues that his consent was invalid because he was unlawfully detained

without reasonable suspicion.      After conducting two hearings on Aponte’s

suppression motion, the district court found that he was not detained; that if he

was, his detention was supported by reasonable suspicion; and that his consent was

valid. The court therefore denied the motion to suppress. After careful review, we

affirm Aponte’s conviction.

                              I. BACKGROUND

A.    Procedural History

      A federal grand jury indicted Aponte on one count of possession with intent

to distribute 118 grams of heroin, in violation of 21 U.S.C. § 841(a)(1). Aponte

filed a motion to suppress the heroin. He argued that what started out as a

consensual encounter—a motorist assist by a state trooper—transformed into an

investigatory detention for which reasonable suspicion was required but lacking.

The district court held an evidentiary hearing and orally denied the motion for

reasons stated on the record. Following a bench trial, Aponte was convicted and

sentenced to 60 months’ imprisonment.

      On appeal, we issued an order remanding the case for the limited purpose of

allowing the district court “to make additional factual findings, with particular


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emphasis on whether Aponte was seized and, if so, when, as well as what facts

were known to the trooper at that time.” United States v. Aponte, No. 14-15208,

order at 10 (11th Cir. July 22, 2015). We took this action because we needed

sufficiently detailed factual findings as to whether and, if so, when Aponte was

seized, without which we could not properly review the district court’s conclusions

of law. Id. at 7–8. As allowed by our order, the district court on remand held

another evidentiary hearing and issued an order denying Aponte’s motion to

suppress.1 We then asked the parties to re-brief the appeal in light of the second

evidentiary hearing and the district court’s order on limited remand.

B.     District Court’s Factual Findings

       On the morning of March 31, 2014, Brandon Christen, an Alabama State

Trooper, was patrolling Interstate 10 eastbound in Baldwin County, Alabama,

when he observed a maroon SUV on the emergency shoulder with its flashers on.

Inside the SUV were Aponte and two passengers. Christen pulled over behind the

SUV to assist at around 9:50 a.m. When Christen approached the passenger side

of the SUV and asked what the problem was, the front-seat passenger said that the



       1
          Aponte objected in the district court and “continues to object” on appeal to the second
evidentiary hearing, which, in his view, improperly gave the government a second bite at the
apple. However, he raises this issue only in passing in a footnote of his new brief, so we
conclude that he has abandoned this issue by not adequately raising it on appeal. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“A party fails to adequately brief
a claim when he does not plainly and prominently raise it, for instance by devoting a discrete
section of his argument to those claims.” (internal quotation marks omitted)).
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SUV had a flat tire and that he was on the phone with AAA. Christen told him the

mile-marker number.

       While speaking with the front-seat passenger, Christen observed Aponte,

who was in the driver’s seat, attempting to light a cigarette. Aponte’s hands were

trembling, which Christen found suspicious given the benign basis for the trooper’s

presence. Christen asked the occupants for identification, which they provided.

Christen then asked Aponte “in an everyday, conversational tone if he would ‘mind

having a seat’ in the patrol car.” Christen did not display his weapon, touch

Aponte, or issue commands. Aponte exited the SUV without objection, walked to

the patrol car, and sat in the front-passenger seat. The passenger door remained

unlocked at all times. Christen sat in the driver’s seat.

       Once inside the patrol car, Christen began checking the three licenses.

Christen ran two separate checks, one with his computer through the National

Crime Information Center (“NCIC”), which was finished in a matter of minutes

and came back negative, and one by phone through the Blue Lightning Operations

Center (“BLOC”), 2 which took longer.


       2
          According to Christen’s testimony at the second evidentiary hearing, a BLOC check
reveals more in-depth information regarding an individual’s criminal history and can take up to
20–25 minutes because it is a nationwide service. In his new brief, Aponte makes some
statements suggesting that Christen’s credibility is “strained” because the BLOC records check
was not mentioned at the first evidentiary hearing and was not in Christen’s contemporaneous
police reports. Though we, too, find these omissions noteworthy, the district court was in the
best position to determine witness credibility, and Aponte has not adequately raised the issue on
appeal. See Sapuppo, 739 F.3d at 680–81.
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      Meanwhile, Christen engaged Aponte in conversation about his travel plans.

Aponte, who is from Puerto Rico, spoke broken English, but, according to

Christen, they had no trouble communicating with each other. Aponte explained

that the two passengers were distant friends who had driven from Tampa, Florida,

to pick him up in Houston, Texas. Upon picking him up, they had turned around

almost immediately to head back to Tampa. Christen found it suspicious that

distant friends would travel so far to pick someone up and then immediately turn

around. While in the patrol car, Christen observed that Aponte continued to

exhibit extreme nervousness, comparable, in Christen’s view, to someone involved

in criminal activity, including trembling hands, a pulsing carotid artery in his neck,

and a crackling voice. According to Christen, Aponte’s nervousness became so

acute that he had to leave the patrol car to vomit. When he was finished, Aponte

returned to the front-passenger seat of the patrol car.

      After hearing Aponte’s travel story and watching him vomit, Christen called

for backup. Another officer arrived on the scene at around 10:04 a.m. Christen

received the BLOC report sometime between 10:10 a.m. and 10:15 a.m. Though

nothing came back on Aponte, the BLOC report reflected that the two passengers

had prior arrests for trafficking heroin.

      Thereafter, Christen requested and obtained permission from Aponte to

search the SUV. Christen returned Aponte’s identification to him at some point


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before asking for consent. Christen also obtained consent to search the vehicle

from each of the two passengers, who were still sitting in the SUV waiting for

AAA assistance. Christen then had his canine partner conduct an exterior sniff of

the vehicle. The drug-detention dog alerted to the back of the vehicle, leading to

the discovery of some luggage with three plastic bags containing a gray substance.

Christen asked Aponte what the substance was, and Aponte responded that it was

heroin. Aponte and the two passengers were arrested. Throughout these events,

no tow truck or repair vehicle had appeared and the SUV remained disabled.

C.    District Court’s Legal Conclusions

      After receiving briefing from the parties following the second evidentiary

hearing, the district court issued an order denying the motion to suppress. The

court offered three grounds for denying the motion to suppress.

      First, the district court concluded that Aponte was not seized until the point

he was arrested after the discovery of the heroin. Discussing the relevant factors

for distinguishing a seizure from a consensual encounter, as identified by this

Court in United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011), among

other cases, the court determined that a reasonable person would have felt free to

terminate the encounter with Trooper Christen. The court found that Christen was

the only officer present for most of the time; Christen did not display a weapon or

touch Aponte; Christen used a conservational, non-threatening tone of voice when


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conversing with Aponte; Aponte’s path was never blocked or impeded; Aponte,

“whatever his education, intelligence and first language, readily understood

Christen”; and the length of the encounter and Christen’s questioning were both

short. The fact that Christen retained Aponte’s driver’s license was not dispositive

of whether Aponte was seized, the court found, because the SUV was immobile

and Aponte could not have driven away.

       Second, the district court determined that, even though no detention

occurred, reasonable suspicion to detain Aponte arose during the events in the

patrol car. Specifically, the court found that Aponte’s suspicious travel story,

which was “perfectly consistent with a drug run,” plus his extreme nervousness,

including vomiting, were sufficient to give Christen a reasonable basis for

suspecting Aponte of criminal activity. Id. at 8.

       Finally, the district court determined that Christen was independently

authorized to conduct a search of the SUV because the two other passengers had

consented to the search. One of the passengers stated that the SUV was owned by

his girlfriend. In so finding, the court determined that Christen would have asked

the passengers for consent to search regardless of whether Aponte had exited the

SUV.




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                             II. STANDARD OF REVIEW

      The denial of a motion to suppress presents mixed questions of law and fact.

United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009). “We review

findings of fact for clear error, and we review de novo the application of law to

those facts.”     Id.    We construe all facts in the light most favorable to the

government, the prevailing party below. Jordan, 635 F.3d at 1185.

                                      III. DISCUSSION

      The Fourth Amendment prohibits “unreasonable searches and seizures,”

U.S. CONST. amend. IV, and, in general, evidence seized in violation of the Fourth

Amendment must be suppressed. Jordan, 635 F.3d at 1185. To trigger Fourth

Amendment scrutiny, then, a “search” or “seizure” must have occurred.

Otherwise, the encounter is “consensual” and does not implicate the Fourth

Amendment.       See id. at 1185–86.         “A seizure under the Fourth Amendment

happens when the officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen.” United States v. Franklin, 323 F.3d

1298, 1301 (11th Cir. 2003).

      We     have       categorized     police-citizen   encounters   into     three   types:

(1) consensual encounters; (2) brief seizures or investigatory detentions; and (3)

full-scale arrests.     Jordan, 635 F.3d at 1185.          So long as the encounter is

consensual, officers may ask questions of individuals, ask to examine an


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individual’s identification, and request consent to search without implicating the

Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2388

(1991) (stating that these actions are permissible “as long as the police do not

convey a message that compliance with their requests is required”). The test for

distinguishing a consensual encounter from a seizure or an arrest is whether “a

reasonable person would feel free to decline the officers’ requests or otherwise

terminate the encounter.” United States v. Drayton, 536 U.S. 194, 202, 122 S. Ct.

2105, 2111 (2002) (internal quotation marks omitted). This test “is objective and

presupposes an innocent person.” Id. (internal quotation marks omitted; emphasis

in original). If a reasonable person would feel free to terminate the encounter, no

seizure has occurred, and the Fourth Amendment is not implicated.

      To determine whether an encounter is consensual or coercive, courts must

consider “all the circumstances surrounding the encounter.” Id. at 201, 122 S. Ct.

at 2111 (quotation marks omitted). These circumstances include

            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.

Jordan, 635 F.3d at 1186 (quoting United States v. Perez, 443 F3d 772, 778 (11th

Cir. 2006)); see also Drayton, 536 U.S. at 203–05, 122 S. Ct. at 2112–13

(discussing similar factors). These factors are not exhaustive and are not meant to
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be applied rigidly. Jordan, 635 F.3d at 1186. Rather, they are simply guidance for

the holistic inquiry into whether a reasonable person would feel free to decline the

officers’ requests or terminate the encounter. Id.

      Regarding the second category of police-citizen encounters, brief seizures

and investigatory detentions, the Fourth Amendment permits an officer “to conduct

a brief, investigatory stop when the officer has a reasonable, articulable suspicion

that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct.

673, 675 (2000) (citing Terry v. Ohio, 392 U.S. 1, 19–20, 88 S. Ct. 1868, 1879

(1968)). “Reasonable suspicion is a less demanding standard than probable cause,

but requires ‘at least a minimal level of objective justification for making the

stop.’” Franklin, 323 F.3d at 1301 (quoting Wardlow, 528 U.S. at 123, 120 S. Ct.

at 676). Courts “must look at the totality of the circumstances of each case to see

whether the detaining officer has a particularized and objective basis for suspecting

legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750

(2002) (internal quotation marks omitted).

      Initially, there is no dispute that the encounter between Trooper Christen and

Aponte began consensually—this was not a traffic stop, but a motorist assist

unrelated to investigatory activity. Cf. Cady v. Dombrowski, 413 U.S. 433, 441, 93

S. Ct. 2523, 2528 (1973) (noting that state police officers may have substantial

contact with citizens on public highways as part of exercising “community


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caretaking functions”). Aponte and his two passengers were in a disabled vehicle

on the side of a public interstate highway, and Christen stopped to offer assistance.

Therefore, our inquiry is whether, in view of the totality of the circumstances, the

consensual encounter became a brief seizure or investigatory detention and, if so,

when. If so, we must then ask whether reasonable suspicion justified the inception

and length of the seizure. The answers to these questions, in turn, determine the

validity of Aponte’s consent to search.

      Aponte primarily contends that he was seized at the point when Christen

asked for and retained his driver’s license and then asked him to sit in the patrol

car. Indeed, this Court has recognized that, while no one factor is dispositive,

“retention of documents such as a driver’s license and an airline ticket has been

treated as highly significant on the question of whether a seizure has occurred.”

United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984). For example, in

United States v. Thompson, we held that a seizure occurred when an officer, who

had approached the defendant’s car on foot while it was parked in an airport

parking lot, asked for and retained the defendant’s driver’s license while

questioning the defendant. 712 F.2d 1356, 1358–60 (11th Cir. 1983). We held

that a reasonable person would not have felt free to terminate the encounter

because if the defendant “had tried to drive away he could have been arrested for

driving without a license.” Id. at 1360.


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      By contrast, in United States v. De La Rosa we held that an officer’s

retention of the defendant’s driver’s license did not result in a seizure where the

defendant had returned home for the evening and was not anticipating using the car

in the near future. 922 F.2d 675, 678 (11th Cir. 1991). Officers had followed the

defendant to his apartment and, after he parked, approached the defendant and

asked for his identification. Id. at 677. Before returning the defendant’s license,

an officer asked for and received permission to search the defendant’s vehicle,

where the officer found a notebook related to narcotics transactions. Id. We held

that a reasonable person would have felt free to leave in these circumstances,

distinguishing Thompson on grounds that, unlike the defendant in Thompson, the

defendant in De La Rosa “had already exited his vehicle and was proceeding

toward his home for the evening. Thus, temporary retention of the license did not

preclude [the defendant] from terminating the encounter by going into his

apartment.” Id. at 678 & n.2.

      Here, we agree with the district court that, based on its factual findings,

Aponte was not “seized” within the meaning of the Fourth Amendment at any time

before giving his consent to search the SUV. The court correctly found that,

because the SUV was disabled at the time of the encounter and no tow truck had

arrived, the circumstances were much closer to those in De La Rosa than to those

in Thompson. Unlike the defendant in Thompson, Aponte could not have simply


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attempted to terminate the encounter by driving away because the SUV was

disabled.   Instead, like the defendant in De La Rosa, a reasonable person in

Aponte’s position would have felt free to end the encounter without his license,

remain in (or return to) the SUV, and wait for AAA assistance, as he would have

done regardless of whether his driver’s license was temporarily retained.

      Though Trooper Christen’s retention of Aponte’s license was accompanied

by his asking Aponte to have a seat in the patrol car, our review of the other

relevant factors indicates that Aponte was free to refuse Christen’s request.

Christen was the only officer present during the initial stages of the encounter, he

spoke in relaxed and conversational speech, he did not raise his voice, and he

phrased his inquiries as requests rather than demands. He also did not display his

weapon, touch or pat down Aponte, act in an intimidating manner, or tell Aponte to

sit in the back of the patrol car. Thus, the facts show that Aponte was free to

refuse Christen’s request to sit in the front seat of the patrol car, and that his

decision to do so was voluntary and not mere submission to a show of authority.

      Furthermore, the events in the patrol car do not undermine our conclusion

that the encounter was consensual. Christen engaged in some limited discussion

with Aponte about his travel plans, but he did not ask Aponte about criminal

activity or directly suggest that Aponte was being investigated for wrongdoing.

Moreover, as the district court found, the length of any questioning was short—the


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district court noted that Christen’s similar questioning of the other occupants

“lasted barely 40 seconds”—and there was no evidence that any other matter was

discussed. In addition, the patrol car was unlocked, so Aponte was able to open

the door and leave, as he did when he needed to vomit. And, while Aponte spoke

in broken English, the district court credited Christen’s testimony that he and

Aponte had no trouble communicating with each other. Aponte disputes that

finding, but we find nothing in the video evidence that shows that the district court

clearly erred. Finally, Christen returned Aponte’s license before asking for his

consent to search the vehicle, which, in other circumstances, we have found

relevant to whether an encounter is consensual. Cf. United States v. Ramirez, 476

F.3d 1231, 1239–40 (11th Cir. 2007) (holding that the return of a defendant’s

driver’s license after a traffic stop can convert what was a brief seizure into a

consensual encounter, even where the officer questions the defendant about

criminal activity immediately thereafter).

      Taken together, the circumstances show that, despite Trooper Christen’s

retention of Aponte’s driver’s license, his request to have Aponte sit in the front

seat of the patrol car, and his questioning of Aponte about his travel plans in the

patrol car, a reasonable person in Aponte’s position would have felt free to refuse

the officer’s requests or otherwise terminate the encounter with the officer. See

Drayton, 536 U.S. at 202, 122 S. Ct. at 2111; De La Rosa, 922 F.2d at 678.


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Therefore, the encounter was consensual, no seizure occurred, and Aponte’s

subsequent consent to search was not the product of an unlawful detention.

Because we conclude that no seizure occurred, we do not address the district

court’s alternative grounds for denying the motion to suppress.

       Finally, Aponte argues that Trooper Christen violated Miranda 3 and

Missouri v. Seibert4 by questioning him about the gray substance found in his

luggage. 5 We have held that Seibert prohibits officers from using a “two-step

interrogation technique . . . in a calculated way to undermine the Miranda

warning.”     United States v. Street, 472 F.3d 1298, 1313–14 (11th Cir. 2006)

(quoting Seibert, 542 U.S. 600, 622, 124 S. Ct. 2601, 2616 (2004) (Kennedy, J.,

concurring in result)) (noting that Justice Kennedy’s concurrence is controlling

because Seibert was a plurality decision and Justice Kennedy concurred in the

result on the narrowest grounds). As we explained in Street,

              That means that if an officer employs a strategy of
              deliberately questioning an in-custody suspect without
              any Miranda warnings in order to get a confession,
              planning to later warn the suspect and get him to repeat
              his confession, the post-warning confession is
              inadmissible unless the officer took specific curative
              steps to ensure that the mid-interrogation warnings
              achieved the purpose the Miranda decision intended.

       3
         Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
       4
         Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601 (2004).
       5
         This issue was raised in Aponte’s initial brief after the first evidentiary hearing and,
though it was not raised in his new brief following the second evidentiary hearing, it does not
appear that he intended to abandon this issue.
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Id. at 1314.

      Here, no violation of Seibert or Miranda occurred. Trooper Christen asked a

single question about the gray substance because, he said, he did not know what it

was and was concerned it might be dangerous. After Aponte responded that it was

heroin, Christen ceased questioning Aponte at the scene. Christen did not use a

“two-step interrogation technique” in a calculated way to undermine Miranda. See

Street, 472 F.3d at 1313–14. The purpose of the question was to ensure officer

safety, not to elicit a confession. See United States v. Newsome, 475 F.3d 1221,

1224–25 (11th Cir. 2007) (“The public safety exception allows officers to question

a suspect without first Mirandizing him when necessary to protect either

themselves or the general public.”). The district court properly rejected this claim

in denying the motion to suppress.

                                        IV.

      For the reasons stated, the district court did not err in denying Aponte’s

motion to suppress. Accordingly, we affirm Aponte’s conviction.

      AFFIRMED.




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