           Case: 12-14783   Date Filed: 04/09/2013   Page: 1 of 10




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14783
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:11-cr-00010-RWS-SSC-1



UNITED STATES OF AMERICA,

                      Plaintiff-Appellee,

versus

AUDIEL LARA-MONDRAGON,

                      Defendant-Appellant.

                       ________________________

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

                              (April 9, 2013)

Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
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      Audiel Lara-Mondragon appeals his conviction for possession of a firearm

by an illegal alien, in violation of 18 U.S.C. § 922(g)(5). On March 2, 2011, six

law enforcement agents, acting on information that Lara-Mondragon was the

owner of a semi-automatic rifle that was wanted in connection with an ongoing

investigation, arrived at his residence without a warrant. Three of the agents

encountered his wife, Hortencia Lara, at the front porch, while the remaining three

agents positioned themselves along both sides of the residence. When questioned

by the agents about her legal status, Lara admitted that both she and Lara-

Mondragon were illegally present in the United States. She was then detained and

removed from the front porch. Lara-Mondragon remained inside the residence

with his three children and refused to exit. Approximately 25 minutes later, a

female arrived at the residence to pick up her young child, who had been entrusted

to Lara-Mondragon and his wife for caretaking. Lara-Mondragon eventually

exited his residence with the child and his own children, at which time the agents

arrested him, conducted a search of the residence, and discovered the rifle.

      Lara-Mondragon later pleaded guilty to one count of possession of a firearm

by an illegal alien, but reserved the right to appeal the district court’s denial of his

motion to suppress evidence—including the rifle—obtained during the encounter.

On appeal, he does not contest the validity of the arrest or post-arrest search. He

argues only that the district court erred by: (1) finding that the three agents who


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strayed from his front door during the initial encounter had a legitimate police

purpose for doing so, and thus concluding that the encounter qualified as a

consensual “knock and talk”; and (2) concluding that the agents’ presence on his

property for approximately 25 minutes after they detained his wife was authorized

under Terry v. Ohio, 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1884–85 (1968).

      A motion to suppress evidence presents a mixed question of law and fact.

United States v. Bautista-Silva, 567 F.3d 1266, 1271 (11th Cir. 2009). We review

the district court’s factual findings for clear error, and its application of the law to

the facts de novo. Id. Further, all facts are construed in the light most favorable to

the prevailing party below. Id. Finally, we afford substantial deference to the

factfinder’s credibility determinations. United States v. McPhee, 336 F.3d 1269,

1275 (11th Cir. 2003). The district court is in a better position to judge the

credibility of witnesses before it, and we will not disturb a finding of fact “unless it

is contrary to the laws of nature, or is so inconsistent or improbable on its face that

no reasonable factfinder could accept it.” United States v. Ramirez-Chilel, 289

F.3d 744, 749 (11th Cir. 2002) (internal quotation marks omitted). After careful

review, we affirm.

                                            I.

      On appeal, Lara-Mondragon first contends that the district court erred in

finding that the three agents who strayed from his front door during the initial


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encounter acted for a proper purpose and without their weapons drawn; therefore,

the court’s conclusion that the encounter was a consensual “knock and talk” is

untenable. We disagree.

      The Fourth Amendment, which prohibits unreasonable searches and seizures

by the government, is not implicated by consensual encounters with police. United

States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006). Police conduct in such

instances is analogized to, and delimited by, the regular conduct of ordinary private

citizens. See id. This means that, absent express orders from the person in

possession, “[o]fficers are allowed to knock on a residence’s door or otherwise

approach the residence seeking to speak to the inhabitants just a[s] any private

citizen may.” Id. (alteration in original). While a “knock and talk” may, by the

terms of its designation, presuppose an encounter at the residence’s front door,

officers may move away from the front door so long as they do so for a legitimate

purpose unconnected to a search of the premises. See id. at 1205 (noting that

officers may depart from the front door as part of a legitimate attempt to contact

the occupants of a residence). Importantly, as has long been recognized, officer

safety is a concern whenever officers and arrestees or potential arrestees are in

close proximity. See, e.g., United States v. Robinson, 414 U.S. 218, 226, 94 S. Ct.

467, 472 (1973) (adopting search-incident-to-arrest rule in part for reasons of

officer safety).


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      If the citizen’s cooperation is induced by “coercive means” or if a reasonable

person would not “feel free to terminate the encounter,” however, then the

encounter is no longer consensual, a seizure has occurred, and the citizen’s Fourth

Amendment rights are implicated. See United States v. Drayton, 536 U.S. 194,

201, 122 S. Ct. 2105, 2110 (2002).

      In determining whether a police-citizen encounter was consensual or
      whether a seizure has occurred, we consider the following factors:
      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.

United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (internal quotation

marks omitted). These factors are not applied rigidly, however, but are instead

used as guidance. Id. “The ultimate inquiry remains whether a person’s freedom

of movement was restrained by physical force or by submission to a show of

authority.” Id. “The government bears the burden of proving voluntary consent

based on a totality of circumstances.” Id.

      In this case, the district court did not err in its conclusion that the initial

encounter between the agents, Lara-Mondragon and Lara constituted a consensual

“knock and talk” that did not implicate the Fourth Amendment. The lead

investigator testified that the agents initiated the encounter to investigate (1) the

location of a rifle that was displayed in an illegal alien’s photograph, (2) where that


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person was holding that rifle, and (3) who informed the agents that the rifle

belonged to appellant. As the agents approached Lara-Mondragon’s residence, he

immediately retreated into his home and appeared to lock the door. With this

evidence as backdrop, and mindful of the ever-present concern for officer safety in

such situations, the district court did not err in finding that the three agents who

positioned themselves alongside the residence did so for legitimate safety reasons.

Moreover, the lead agent testified that no weapons were drawn during the

encounter.

      Lara-Mondragon’s further contention that the encounter was coercive is

meritless. The agents did not block Lara-Mondragon’s path, as evidenced by his

retreat into his house, nor did they obstruct his wife’s movement until she was

subsequently detained on admission that she and Lara-Mondragon were illegally

present in this country. Although six agents were present, including three

alongside the perimeter of the residence, no weapons were drawn. Until the

moment that his wife was handcuffed—at which time the encounter undisputedly

ceased to be a consensual “knock and talk”—she was targeted only with questions,

not commands. The agents did not request any identifying documentation or

physically handle his wife in any way. In short, the agents’ conduct during the

initial encounter did not restrain the movement of Lara-Mondragon or his wife, and




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it lacked the use or showing of coercive force. The district court’s conclusion was

sound.



                                          II.

      Next, Lara-Mondragon challenges the district court’s conclusion regarding

the validity of the agents’ presence on his property during the 25 minutes that

immediately followed his wife’s detention until the arrival of the other child’s

mother—that is, from approximately 3:55 p.m. to 4:20 p.m. He maintains that the

duration of his wife’s detention and the agents’ accompanying presence on his

property were not authorized under Terry.

      Absent probable cause to make an arrest, “[l]aw enforcement officers may

briefly detain a person for an investigatory stop if they have a reasonable,

articulable suspicion based on objective facts that the person has engaged, or is

about to engage, in criminal activity.” United States v. Diaz-Lizaraza, 981 F.2d

1216, 1220 (11th Cir. 1993). Reasonable suspicion requires more than a hunch; it

requires that the totality of the circumstances create some minimal level of

objective justification for the belief that the person is engaged in unlawful conduct.

Id. at 1220–21. “The reasonableness of the officers’ conduct must be judged

against an objective standard: would the facts available to the officer at the

moment of the seizure or search warrant a man of reasonable caution in the belief


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that the action taken was appropriate.” United States v. Blackman, 66 F.3d 1572,

1576 (11th Cir. 1995) (internal quotation marks omitted).

      “In Terry, the Supreme Court adopted a dual inquiry for evaluating the

reasonableness of an investigative stop.” United States v. Acosta, 363 F.3d 1141,

1144 (11th Cir. 2004) (internal quotation marks omitted). First, the courts examine

whether the police action was justified at its inception. Id. Second, the courts

consider whether the stop was “reasonably related in scope to the circumstances

which justified the interference in the first place.” Id. at 1145 (internal quotation

marks omitted). To determine whether the manner and length of an investigatory

detention during a Terry stop was reasonable under the second prong, we apply

four non-exclusive factors. Id. at 1146. The factors are: (1) the purpose of the

detention; (2) the diligence of the police in conducting the investigation; (3) the

scope and intrusiveness of the detention; and (4) the duration of the detention. Id.

“There is no rigid time limitation or bright line rule regarding the permissible

duration of a Terry stop,” id. at 1147, but detentions of less than one hour have

been repeatedly upheld as reasonable. See, e.g., United States v. Sharpe, 470 U.S.

675, 688, 105 S. Ct. 1568, 1576 (1985) (finding 20 minutes to be reasonable);

Courson v. McMillian, 939 F.2d 1479, 1492 (11th Cir. 1999) (finding 30 minutes

to be reasonable); United States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988)

(finding 50 minutes to be reasonable).


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      Here, the agents’ presence on Lara-Mondragon’s property for 25 minutes

following the detention of his wife was reasonable. First, the legitimacy of the

detention’s purpose—that is, to further investigate the legal status of Lara-

Mondragon and his wife—is not in dispute. Second, the lead investigative agent

testified that shortly after Lara-Mondragon’s wife was handcuffed, he was in

regular and continuing contact with: (1) law enforcement authorities, to check on

the legal status of Lara-Mondragon; and (2) the U.S. Attorney’s office, to discuss

the development of probable cause and the possibility of securing a warrant to

search the residence. Moreover, the investigator diligently remained in contact

with the U.S. Attorney’s office until his attention shifted to the removal of a child

from the residence when the child’s mother arrived on the property approximately

25 minutes after Lara-Mondragon’s wife was detained––that is, until the moment

that Lara-Mondragon concedes the agents’ presence was justified by exigent

circumstances.

      Third, with respect to Lara-Mondragon, whose Fourth Amendment rights

alone are presently at issue, the agents’ presence was limited in scope and

intrusiveness. Although they remained on his property during the contested period,

they positioned themselves away from the residence and they did not attempt to

enter, demand entry, or search the interior. Finally, the 25-minute duration of the

agents’ presence is well within the bounds of reasonableness demarcated in


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previous cases. See Sharpe, 470 U.S. at 688, 105 S. Ct. at 1576; Courson, 939

F.2d at 1492; Hardy, 855 F.2d at 761.

      For the above reasons, we affirm the district court’s denial of Lara-

Mondragon’s suppression motion, as well as his conviction.

      AFFIRMED.




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