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                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                  No. 12-13265
                            ________________________

                    D.C. Docket No. 2:11-cr-00345-AKK-JEO-1



UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

EDDIE MICKENS,
a.k.a. Eddie Davis, Jr.,

                                                              Defendant-Appellant.

                            ________________________

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

                                 (August 29, 2014)

Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Eddie Mickens was convicted of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1), after a police officer saw him remove a firearm

from his waistband and throw it beneath a nearby vehicle. The primary question

presented in this appeal is whether Mickens had been seized at the time the officer

saw him discard the weapon.

                                          I.

      On November 19, 2010, a number of Birmingham police officers were

patrolling the city’s North Avondale neighborhood, near the Tom Brown Village

housing project. They were part of what’s called a “high cop unit,” and they were

in the area in response to civilian complaints. During the afternoon, the officers

proceeded to a parking lot across from the housing project that was reputed to be a

hotbed of drug activity. The parking lot was located at the rear of a strip mall.

Although the evidence on this point varied, apparently there were between 15 and

30 people, including the defendant Eddie Mickens, standing in that parking lot

when the police arrived.

      The police came in numbers. Testimony differed on this point as well, but

somewhere between 6 and 10 police cars arrived on the scene. All of the cars were

marked but none of them had its lights or sirens on. The cars entered single-file,

and the first one or two stopped shortly after entering the parking lot which, one of




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the officers would later recount, “sort of jammed up the entrance,” making it

“impossible for cop cars to surround the area.”

      Officer Steppe and his partner, Officer Blackmon, were in the first or second

car to enter the parking lot. Within ten to twenty seconds after they drove into the

lot and while they were still in the car, Steppe saw Mickens pull a handgun from

his waistband and toss it underneath a nearby car. Steppe then pulled his car up to

the vehicle that Mickens was standing next to, retrieved the discarded weapon (a

Charter Arms .38 special revolver), and approached Mickens. He asked Mickens if

he had a permit for the weapon, and when Mickens stated that he did not, Steppe

arrested him for violating state firearms laws. Mickens had not been advised of

his Miranda rights. Steppe testified that the questioning lasted a couple of minutes

and that he never drew his gun or turned on his car’s emergency lights. Mickens

later pleaded guilty in municipal court to carrying a firearm without a permit, a

crime that does not require the possession to have been knowing.

      Other officers detained other people in the lot, but Steppe’s partner,

Blackmon, testified that he did not consider every person there to be under general

detention. Steppe admitted that the parking lot was “not that big,” and when

questioned whether “[t]en police cars would pretty much surround the entire area,”

he answered, “possibly.” Blackmon also testified, however, that it “was

impossible for cop cars to surround the area and basically cordon it off” and that he


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did not “remember anybody telling [the people in the parking lot] you’re not free

to go anywhere.” Steppe testified that when he and the other officers pulled up,

some of the people in the lot “attempted to kind of walk away.” Both Mickens’

stepdaughter and her friend, who were in the parking lot when the police cars

drove up, did simply walk away.

      A federal grand jury indicted Mickens for knowingly possessing a firearm as

a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the

evidence that the police had obtained against him. Initially, Mickens objected only

to the presentation of evidence the police had obtained through Officer Steppe’s

questioning, arguing that he had been in custody at that time and that Steppe’s

failure to read Mickens his Miranda rights violated the Fifth Amendment. After an

evidentiary hearing, the magistrate judge issued a report recommending that the

motion to suppress be denied. Mickens objected to the report and

recommendation, raising for the first time the argument that he had been seized

when the police arrived at the parking lot. The district court overruled Mickens’

objections and adopted the magistrate judge’s report and recommendation.

      After being convicted by a jury, Mickens filed this appeal. His principal

contention is that the officer’s testimony about him having the pistol and throwing

it under a car should have been suppressed because at the moment “the officers

entered the alley in force” he was seized without probable cause. The government


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does not contend that there was probable cause to seize Mickens before he

discarded the firearm, but instead argues that he was not seized at that point. The

question is whether the simultaneous arrival of a number of police cars in the

parking lot where Mickens and others were standing amounted to a seizure for

Fourth Amendment purposes.

                                          II.

      A district court’s denial of a motion to suppress involves a mixed question of

law and fact; we review the factual findings for clear error and the application of

the law to the facts de novo. United States v. Franklin, 694 F.3d 1, 7 (11th Cir.

2012). In doing so, we view the evidence in the light most favorable to the party

that prevailed below, in this case, the government. See United States v. Perez, 443

F.3d 772, 774 (11th Cir. 2006).

      “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. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 2110 (2002).

The “crucial test is whether, taking into account all of the circumstances

surrounding the encounter, the police conduct would have communicated to a

reasonable person that he was not at liberty to ignore the police presence and go

about his business.” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387


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(1991) (quotation marks omitted). See also United States v. Baker, 290 F.3d 1276,

1278 (11th Cir. 2002) (A restraint on liberty only rises to constitutional dimensions

where the police “exert a show of authority that communicates to the individual

that his liberty is restrained, meaning he is not free to leave.”). In making this

determination, courts should consider the following factors:

      [W]hether 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.

Perez, 443 F.3d at 778 (quoting United States v. De La Rosa, 922 F.2d 675, 678

(11th Cir. 1991)).

      Of the eight Perez factors, the only one that favors Mickens’ position that he

was seized when he threw the firearm under a car is the number of officers present.

One factor, the age, education, and intelligence of the suspect, is unknown. The

remaining six factors, all measured up to the point that Mickens threw the firearm,

support the district court’s conclusion that he had not been seized before that time.

      The first Perez factor and arguably the most important one, is that Mickens’

path was not blocked or impeded. The evidence presented at the suppression

hearing and the trial reveals that there are two entrances to the parking lot in which

Mickens and others were standing: an alleyway off of 41st Street and a larger

driveway adjoining the Airport Highway. The police cars approached the parking
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lot from the alleyway, and when Officer Steppe stopped his car, which was the first

or second one in line, it backed up the other police cars preventing them from

entering the lot and surrounding those inside it. The police did not block off the

other driveway into and out of the parking lot on the Airport Highway side. And

as counsel for the government explained at oral argument, the parking lot is

bordered to the rear by an open lawn that leads to the Tom Brown Village housing

project. The fact that some people did leave the scene when the officers arrived

drives home the point that Mickens’ path was not blocked or impeded.

      All of the other Perez factors also weigh against Mickens’ contention that he

was seized before he threw the pistol. His identification had not been requested

much less retained. He had not been questioned for any period of time, much less

for a long time, at that point. Only ten to twenty seconds had passed since the

police car had pulled into the parking lot. None of the officers had displayed their

weapons, none had touched Mickens, and none had spoken with him up to that

point. The totality of the facts and circumstances lead us to conclude, as they led

the district court to conclude, that Mickens had not been seized when he threw the

firearm under a car. See Drayton, 536 U.S. at 203–04, 122 S.Ct. at 2112 (holding

that officers did not seize the defendants when they boarded a passenger bus and

began asking questions); United States v. Jordan, 635 F.3d 1181, 1187 (11th Cir.

2011) (holding that the initial encounter between police and a defendant was not a


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seizure because, among other things, the encounter lasted only one or two minutes,

the police did not block or impede the defendant’s path, the officers did not ask for

identification or brandish their weapons, and the officers did not touch the

defendant).1

       After Mickens discarded the firearm, the officer retrieved it and asked

Mickens if he had a permit for it. Mickens admitted that he did not, thus implicitly

admitting that the firearm was his or had been in his possession. In the district

court, Mickens moved to suppress that statement on the ground that he had not

been read his Miranda rights before the officer asked him about having a permit.

The court denied that motion and the evidence came in at trial. Because Mickens

did not raise that issue in his brief to this Court, it has been abandoned. Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal

claim or argument that has not been briefed before the court is deemed abandoned

and its merits will not be addressed.”); United States v. Nealy, 232 F.3d 825, 830

(11th Cir. 2000) (“Defendant abandoned the indictment issue by not raising the

issue in his initial brief.”); Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir.

1995) (“Issues not clearly raised in the briefs are considered abandoned.”). The

issue was brought up at oral argument, but that is too late. See Mesa Air Group,

       1
          Mickens’ argument that the police action “creat[ed] a situation where no one on the
scene could leave the area,” is refuted by the fact that some people did leave the parking lot
when the police arrived. Jessica Stephens, a friend of Mickens’ stepdaughter, testified at trial
that she and the stepdaughter “walked off when the police came.”
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Inc. v. Delta Air Lines, Inc., 573 F.3d 1124, 1130 n.7 (11th Cir. 2009) (holding

that an argument not made in a party’s brief but raised at oral argument is

considered waived); McFarlin v. Conseco Services, LLC, 381 F.3d 1251, 1263

(11th Cir. 2004) (“A party is not allowed to raise at oral argument a new issue for

review.”); United States v. Cuchet, 197 F.3d 1318, 1321 n.6 (11th Cir. 1999)

(declining to address an issue that the appellant did not brief and raised for the first

time at oral argument).

      AFFIRMED.




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