### FI LED U.S . COURT OF APPEALS ELEVENTH CI RCUIT March 25, 2004 THOMAS K. KAHN

CLERK [P UBLI SH] IN THE UNIT ED STATES COURT OF APPEALS FOR THE ELE VEN TH C IRCU IT

________________________ No. 02-16167

________________________ D. C. Dock et

No. 02- 202 38- CR-DLG
UN ITE D S TA TE S O F A M ER ICA , Plain tiff-A ppe llee,
versus JO RG E N ICO LA S A CO ST A, De fend ant-A ppe llant.

________________________ Appeal from the United States Distri ct Court for the Southern Dist

rict of Flori da

_________________________ (March 25, 2004) Before TJOF LAT and CA RNE S, Circuit Judges, and CO NW AY *, Distric t Judge.

___________________ * Honorable Anne C. Conway, United States District Judge for the Middle District of Florida, sitting by de signation.2

CAR NES , Circuit

Judge: Jorg e A costa wa s ind icted o n the se thr ee dr ug- related cou nts: co nsp iracy to possess with intent t o dist ribut e heroi n, in vi olation of 21 U.S.C. §§ 846, 841( b)( 1)( B); poss ess ionwith inte nt to di stri but e he roi n, in vi olati on of 21 U.S. C. §§ 8 41( a)(1 ), 84 1(b )(1) (B) ; and con spira cy to c om mit m one y laun derin g, in viola tion o f 18 U.S .C. § 195 6(a) (1)( B)( i). A fter th e distr ict cou rt den ied h is motion to sup press some o f his statements and part of the o ther evidence against him, Acosta con dition ally ple aded guilty to all th ree c oun ts rese rvin g his righ t to app eal the den ial of th e mo tion. T his is th at app eal. I. An undercover off

icer with theUnited States Customs ServiceHigh Intensit y Drug Trafficking Area Grou p (HID TA) informed his fellow officers t hat he anticipated making a monetary exchange of $190,000, as part of a money laun derin g op eratio n, w ith a th en-u nide ntified susp ect ne ar the corn er of 107 th Ave nu e and88 t h St

re et i n Mi am i ont he af

t er no onof Fe br uary26 , 20 02
. Two offic ers who worked with t he anti -drug group, Kenneth Loveland and Eric Sal lic k, were assi gned to wait

in a Publix Supermarket parking l ot near

107th Avenue and 88th Stre et to co ndu ct sur veillan ce an d tak e ph otog raph s of th e exc han ge.3

Lo velan d w as told by th e un derc ove r off icer, w ho w as in c onta ct w ith the susp ect, that th e sus pect w as dr iving a silve r N issan Xte rra. On that afternoon, Officer Loveland photographed Acosta drivi ng a silver Ni ss anXt er

ra thr ou gh t he Pub l i x p ar

ki ng l ot whi l e t alki ng onhi s c el l ph on e. At the ver y moment Acosta

was tal king on his cellphone, t he undercove r offi cer, who was in cont act wit

h Loveland, was tal king on his phone with t he suspec t. The undercover

offic er was ins tructed to t ellthe sus pect t hat t he money exchange would not take plac e that day. Aft er he di d so, Acost a drove t he Xterra

out of t he park ing lo t and to an apar tmen t com plex . On ce the re, he park ed h is X terra n ext to a gold Lexus, removed a bl ack gym-bag wit h red trim from theXterra, and gave the bag to the driver of the Lexus. Acosta then drove away in the Xterra
. Su rveilla nce w as term inated for th e eve ning
. Th e nex t mo rnin g officers re-e stablis hed surv eillanc e at A costa ’s resid ence . The undercover

offic er inf

ormed the s urveil lance offic ers t hat t he money exchange had been rescheduled for that day and that t

he amount of the exchange had incre ased fr om about $190,000 to around $300,000. While the y were watching, Acosta l eft hi s resi dence and dr ove to a ba nk. He then dr ove to t

he apart ment
com plex wh ere h e had han ded off th e gym -bag the n ight b efor e. A costa we nt into an apartment and came out with another man, l ater i dentifi ed as Alberto Sade,4

whose apart

ment it was. One of the m was carrying a gym-bag t hat appe ared t o the officers to be the same bag they had seen Acosta with the day before. The bag was put in to the Xte rra, a nd b oth m en g ot into that ca r. The undercover officer informed the survei llance off icers t hat the suspect
wa s on his w ay to d eliver the m one y to h im. T he o fficer s sur veillin g A costa decid ed to stop him outs ide S ade’s apar tmen t befo re he and Sad e cou ld dr ive aw ay. They pull ed their cars behind Acost a’s Xte rra i n the par king lot of the a partment build ing a nd f

ive o r six o fficer s app roac hed the ca r. A t least o ne o fficer had his gun draw n, bu t all of th e off icer’s g uns we re re -ho lstered with in ten -seco nds
. An officer immediatel y told Acosta that he was not under arrest but t hat they
wa nted to talk to him abo ut a m one y laun derin g inv estiga tion. A costa gav e his identif icati on to the office rs and at some point was patt ed down. A n officer asked Ac osta if he h ad an y mo ney, w eapo ns, o r dru gs in the ca r, and he sa id tha t he d id not. Acosta then gave his written consent f or officers to search his car . After consenting to t

he search, but bef

ore it took place, Acosta admitted to the offi cers that th ere w as m one y in th e car . Th e sear ch u nco vere d tw o ba gs fille d w ith
curr ency totalin g ap pro xim ately $ 278 ,000
. The passenge r in t

he Xterra , Sade, told t

he offi cers t

hat he l ived i n the apar tmen t he an d A costa had just lef t, and he co nsen ted to the o fficer s sear chin g it.5

Insid e the a partm ent th e off icers f oun d a d uffe l-bag with a sm all pad lock on it. An officer asked Sade if he had the key t o the lock and he repli ed that t he bag belonged to A costa, who h ad the key. Custom s Officer Sa llick went outside to ask Ac osta f or th e key
. Officer Salli ck testi fied at t he suppression hearing t hat when he asked Aco sta for co nsent to search the du ffle-bag and th e key, A costa “said ‘ye s[,] [o]f course,’ r eached into his pocket and produced a set of keys and gave them to me.” The officers did not at

tempt to get Acosta’ s written consent to search t

he dufflebag. When they unlocked and opened the bag using the key Acosta had given them , the o fficer s disc ove red m ore c urre ncy a nd s om e pelle ts. Th e pelle ts app eare d to th e off

icers to be (a nd la ter tests wo uld c onf irm th at they we re) h eroin
. At that point, an officer read A costa his Mirandarights and plac ed him under
arres t. Aft er he had be en advis ed of his right s, Acost a tol d the off icer s that the heroin be longed t o him and that Sade was not involve d. After making that admissi on, Acosta was then taken to the Unite d States Customs Servi ce HIDTA headquarters where he was inte rviewed. Shortly afte r the start of the inte rview, Officer Ocasio asked Acosta to re ad a Mirandarights form alou d an d to in itial each para grap h as h e w ent th rou gh th e for m. A costa6

acknow ledged that he und erstood his Miranda rights both by i nitia ling each para grap h of

the fo rm a nd a lso b y read ing th e entir e for m alo ud. The foll owing exchange t hen took pl ace i n Spanish: OCASI O: No w, u h... do you wa nt to w aive y our righ ts or n ot? ACOST A: No, I’m n ot going to w aive my rights. OCASI O: Okay. ACOST A: I can collab orate , I can talk w ith yo u no w... OCASI O: Do yo u wan t to talk to us? ACOST A: I’ll talk w ith yo u... (U I) m y inter rog ation
... (ellipses as found in original ) Officer Ocasio att empted to explain t o Acosta what it mea nt fo r A costa to w aive h is righ ts. A costa then said: “I am g oing to co ope rate with you at this m om ent, rig ht at th is ver y insta nt. T o m e [] ev eryth ing y ou n eed, I can answer all your quest ions without the need t o sign that I waive my ri ghts [] because I am not going to waive my rights. ” Officer Ocasio then continued intervi ewing Acosta. During the intervie w A costa identified t he person who had given him the bag containing the money and heroin, and to whom h e was to deliver the money he received. He al so tol d Officer Ocasio hi s pay for

deli vering t

he
mo ney w as $1 0,00 0. II.7

After being charged, Acosta moved to suppress allphysical e vidence seiz ed from his pe rson, t

he duffl e-bag t

hat was se ized f

rom Sade’s a

partment , and al l of the statem ents A costa m ade after being confr onted by the o fficers o utside S ade’s apartment, including those h e made after being arrested and read h is Miranda rights. A mag istrate judge held an evidentiary hearing o n the motion to su ppress, and filed a report and recommendation, which was followed by a corrected report and recommendation. The di stri ct cour t hel d a hearing on the i ssues r elating to t he st at eme nt s that

Acos ta had mad e at t

he Un it ed S tate s Cu st oms Servi ce HIDTA headquarters. After t

hat hea ring, the di stri ct cour

t is sued an orde r adopting the magist rate judge’ s corre cted r eport a nd recommendat ion in its entiret y and denying Acosta’s mo tion to suppress. Acosta t hen ente red a conditiona l guilty pl ea res erving hi s right to appea l the denialof his motion to s uppress. He was adjudic ated gui lty and sent enced t o 46
mo nths in pr ison to be follo we d by 4 yea rs of sup ervis ed re lease. III. On a district

court’ s denia l of a motion to s uppress, we review it s findings of fact only for clear error and its application of law to those facts de novo
. See United States v. Bla ckman , 66 F.3d 1572, 1577 (11th Cir. 1995).8

Ac osta c onte nds that th e initial s top w as no t the k ind o f stop that Terry v. Oh io , 392 U.S . 1, 88 S. C t. 186 8 (1 968 ), per mits to be m ade w ithou t pro bab le cause, because the officers lacked reaso nable suspicion to detain him . He also contends that

even if they di d have rea sonablesuspic ion to makea vali d Terry stop , the sto p m ature d into an ar rest at s om e po int be fore the o fficer s had pro bab le cause, and as a r esult

allthe evi dence obt ained a fter that point s hould be sup pres sed. W e disa gree with both of h is con tentio ns. In Terry , theSupreme Court adopted “a dua l inquiry for e valuating the reasonableness of an investigative stop.” United States v. Sharpe , 470 U.S. 675, 682, 105 S. Ct. 1568, 1573 (1985) ( citing Terry , 392 U.S. at 20, 88 S. Ct. at 1879); see also Un ited S tates v . Po we ll , 222 F.3d 913, 917 (11th Cir. 2000). Under Terry ’s two-part i nquiry, we first examine “‘whether t

he officer’ s acti on was justi fied at its inception,’” Po we ll , 222 F.3d at 917 (quoti ng Terry , 392 U.S. at 20, 88 S. Ct. at 1879), which turns on whether t he offi cers ha d a reas onable s uspici on that th e defend ant h ad en gag ed, o r w as ab out to eng age, in a crim e, id. In the second part of the inquiry, dete rmining whether the stop went too far and matured into arres t before ther e was probable cause, we consider “‘ whether [the stop] was
reaso nab ly relate d in s cop e to th e circu msta nces wh ich ju stified the in terfer ence in the firs t place. ’” Id. (quoti ng Terry , 392 U.S. at 20, 88 S. Ct. at 1879).9 A. The officers were all owed to st op Acosta i f, under the t otal ity

of the circu msta nces , United States v. Sokolow , 490 U.S. 1, 7-8, 109 S. Ct . 1581, 1585- 86 ( 198 9), “fr om the co llective kno wle dge of th e off icers in volv ed in the sto p,” Unit ed St at es v . Wil li ams , 876 F.2d 1521, 1524 (11th C ir. 1989), t hey had an objecti vely reasonabl e suspicion t hat Acosta had engaged, or was about to engage, in a cr ime, Po we ll , 222 F.3d at 917. “The ‘reas onable suspici on’ must be more than an ‘inchoat e and unparticularized suspic ion or hunch.’” Po we ll , 222 F.3d at 917 (quoti ng Terry , 392 U.S . at 27 , 88 S . Ct. at 1 883 ). Th us, “‘[w ]hile “re ason able suspicion” is a less demand ing standard than p robable cause an d requires a sho win g co nsid erab ly less th an p repo nde ranc e of th e evid ence , the F our th Amendment requir es at leas t a minimal le vel of obj ective justifi cati on for making the stop.’ ” Jack son v. S auls , 206 F.3d 1156, 1165 (11th Cir . 2000) (quoting Ill inois v. Wardlow , 528 U.S. 119, 123, 120 S. Ct. 673, 675-76 (2000) ). It does not requir e offi cers to catc h the sus pect in a cri me. Instead, “ [a] r easonabl e suspi cion of criminal a ctivi ty may be formed by observing exclusi vely legalactivi ty.” United States v. Gordon , 231 F.3d 750, 754 (11th Cir . 2000) (c iting Wardlow , 528 U.S . at 12 5-2 6, 12 0 S . Ct. at 6 77; Terry , 392 U.S. at 22-23, 88 S. Ct. at 1880-81).10

In th is case the o fficer s had mo re tha n en oug h ob jective ly reas ona ble suspicion that

Acosta was involved in criminalactivi ty. The undercover office r, who was i n c on t ac twi t h the su sp ec t , t ol d the surv ei l l an ce of fi ce rs whe re t he t wo were to meet

and that the sus pect would be drivi ng a silver Nissa n Xterra to the meeti ng sit e. At t

he desi gnated time, t

he survei lla

nce offi cers s aw Acosta dri ving a silver Nissa

n Xterra at the meeting site . At the very moment that t he undercover offic er w as talk ing o n the pho ne w ith the susp ect, A costa wa s seen talkin g on his cell phone. When the undercover officer told the suspec t over the t elephone that the m eeting had to be pos tpon ed, su rveilla nce o fficer s w atche d A costa driv e aw ay. Finally, t he next da

y when Acosta i nformed the undercover offic er that he was on his w ay to th e resc hed uled mo ney e xch ang e, the s urv eillanc e off icers s aw Ac osta prep aring to de part in his ca r. G iven thos e fac ts, the o fficer s’ sus picio n tha t Ac osta had engag ed or w as about to engag e in the crime of mo ney laundering w as objecti vely reasonabl e. B. Acosta al so conte nds that even if the i niti al stop was a vali d Terry stop , it matured into an arre st without probable ca use, so that

all t he evidence gathered afte r that maturation point

is due to be suppres sed beca use he was ar

rest ed without probable cause, and for t he additionalreason t

hat he was que sti oned for a pe riod of11

time after being arrested before h e was read his Mirandaright s. Acost a’s s topbecame-an-arrest

contention has to do with the second part of the Terry inquiry, wh ich re quir es us to de term ine “‘w heth er [th e stop ] wa s reas ona bly re lated in scope to the circumstances which justi fied the interference in the first plac e.’” Sharpe , 470 U.S. at

682, 105 S. Ct. at 1573 (quoting Terry , 39 2 U.S. at 20, 88 S. Ct. at 1879). There i s a differe nce between an investi gative stop of limited dur ation for w hich reaso nab le sus picio n is en oug h, an d a d etentio n tha t amo unts to
an ar rest fo r w hich pro bab le cau se is re quir ed. T he d iffere nce is one of ex tent, with thelineof demarcation r esulting from t he weighing of

a “l imit ed viol ati on of indivi dual privacy i nvolved aga inst the opposing inte rest s in crime preve ntion a nd detecti on and in the police off icer’ s safety .” Dunaw ay v. New Y ork , 442 U.S. 200, 209 , 99 S . Ct. 2 248 , 225 5 (1 979 ); see also United S tates v. Puglisi , 723 F.2d 779, 785 (11 th C ir. 19 84)
. To assist us i n more objectively drawing the line bet ween a Terry stop and an arrest in an individual ca se, we apply four non-exclusi ve factors . These factors are: “‘th e law enfo rcem ent p urp oses serv ed b y the d etentio n, the dilige nce w ith which the pol ice pur sue theinvestigation, t he scope and intr

usivene ss of t

he detenti on, and the durati on of the detenti on.’” Un ited S tates v . Gil , 204 F.3d 1347,12

1351 (11th Cir . 2000) (quoting United States v. Hardy , 855 F.2 d 75 3, 75 9 (1 1th Cir. 1 988 )); see also Sharpe , 470 U.S . at 68 5-8 6, 10 5 S . Ct. at 1 575
. In analyzing t

he fir st fa ctor, the l aw enforcement purposes s erved by t

he detention, we have stated that “themost important [c onsider ati on] ‘i s whether t he polic e deta ined [the d efen dan t] to pu rsue a me thod of in vestig ation that w as like ly to confirm or dispe l the ir sus pici ons quickly, and wit h a minimum of interfe rence.’ ” Gil , 204 F.3d at 1351 (quoti ng Hardy , 85 5 F. 2dat 75 9)
. As w e explained in our Hardy opinion: A Terry stop is justif

ied to give the p olice a n op por tunity to en gag e in brief and nonintrusive investi gation tec hniques, such as noncustodia l qu es t i on i ng of

t he de t aine d p er so n. A Terry stop cannot be used as the bas is of a

“ful l sea rch” t hat would normal ly be warr anted only by the exist ence of probable cause, consent, or a val id arrest . Nor may the policeuse an investi gative stop to subject a s uspect to cust odial inte rrogat ion that would ordi narily requi re formalarres t and Miranda warning s. 855 F .2d at 759 (citations and internal quo tations omitted). Thus, w e must deter mine whether

theseoffic ers utili zed “brief, minimal ly i ntrusive inves tigation technique[s] ” appropriate under Terry
. Id. The offic ers ques tione d Acosta about what was in hi s car, asked hi m for permiss ion to s earch t

he car, sought per

missi on from Sade to s earch t he apart ment that he and A costa had just left, briefly searched the apartment, returned to ask Acosta for

permiss ion to ope n a bag the y found in t he apart ment, s earche d it, and13

then place d A costa und er ar rest. B ecau se this series of ac ts w as de sign ed to lead to a quick and n on-intrusive resolution of the o fficers’ reasonable suspicions, the first facto r w eigh s in fa vor of th e lega lity of th e stop . Under the se cond factor we ask whether the pol ice were dili gent i n pursuing thei r inves tigation, that

is, whether t

he methods t

he poli ce used were carri ed out with out u nne cessa ry de lay. See Sharpe , 470 U.S. at 686-87, 105 S. Ct . at

1575-76; Hardy , 855 F.2d at 759-60. Nothing in the record indi cates t hat the poli ce were less t han prompt in carrying out t heir on-the-sc ene investi gation. Each investigatory act logically led to the next act which w as done w ithout delay. Under the t

hird fa ctor we as k whether t he scope and intr

usivene ss of t

he deten tion e xcee ded the am oun t reaso nab ly nee ded by p olice to ensu re the ir pers ona l safety
. See Michigan v. Long , 463 U.S. 1032, 1047-48, 103 S. Ct . 3469, 347 9-8 0 (1 983 ); Penns yl vani a v. Mimms , 434 U.S. 106, 110-11, 98 S. Ct . 330, 333 (1977) (per

curiam). The Supreme Court has st ated t

hat off icer s may take
reasona ble steps to e nsure t

heir s afet y so long a s they

possess “an ar

tic ulabl e and objecti vely reasonabl e belief that t he suspect is potential ly dangerous.” Long , 463 U.S. at 1051, 103 S. Ct. at

3482 ( 1983) . I t f

oll ows, and o ur prior

opi nio ns c onfirm, that an i nvestigat ory stop does not necessarily ripen into an arr est because an offic er dr aw s his w eapo n, United States v. Roper , 702 F.2d 984, 987-88 (11th Cir.14

198 3), h and cuffs a su spec t, Un ited S tates v . Ha stam orir , 881 F.2d 1551, 1557 (11 th C ir. 19 89) , ord ers a s usp ect to lie face dow n on the g rou nd, Courson v. McM ill ian , 939 F.2d 1479, 1492-93 (11th Ci r. 1991), or secures a sus pect in the back of a p atrol c ar, Gil , 204 F.3d at 1351. While r estriction on fre edom of
mo vem ent is a facto r to b e take n into acco unt in deter min ing w heth er a p erso n is under arrest, it al one is not suffi cient to transform a Terry stop into a de fa cto
arre st. Ha stam orir , 881 F.2 d at 1 556
. Based on the nature of the offi cers’ re asonable suspici on that Acosta was
carr ying a larg e am oun t of m one y in h is car, th e off icers w ere ju stified in suspecting t

hat he may have had a weapon to protect himself and the money. It
wa s reas ona ble fo r on e or m ore o fficer s to d raw a gu n m om entar ily as A costa exit ed his c ar, a

nd for the offic ers t o fris k Acosta for weapons. During t

he stop t he officers prevented A costa from return ing to his car at least one time, but that was a reasonable precaution because the car had not been fully s earched for weapons at that p oint. It is not clear how long the office rs kept Acosta’s driver’s li cense afte r obtai ning it

from him for i denti fication pur poses, but it

was reasona

ble for the offic er who checked Acost a’s i denti ty t o reta in his lic ense during the shor t peri od while t he identity

check was being conducte d. Although not clea r from the record,15

the o fficer s ma y hav e take n an d reta ined Ac osta’s keys dur ing th e stop , and it appears that

his ca r was blocke d-in by t

he offi cers’ cars. Even if t hat happe ned, there is nothing to indicate Acosta asked the off icers t o move their cars, or to return his keys and li cense. Besides , the very nat ure of a Terry stop i ncludes stoppi ng a suspect from leaving. “[A]n investi gatory stop i s not an arrest despite t he fact t hat a reasonable pers on wou ld not beli eve he was free to leave. ” United Sta tes v. Blackman , 66 F.3d 1572, 1576 (11th Cir . 1995) (e mphasis omitte d). We conclude that the l evel of

rest raint imposed on Acost a was reas onably ne cessa ry to e ffect

the stop and ensu re the safety of th e off icers a t the sc ene. The fourth and final factor is whether the durat ion of the detention was
reasona ble. There is no rigi d time l imit ati on or bright linerule r egardi ng the permissibleduration of a Terry stop . See United States v. Pla ce , 462 U.S. 696, 709- 10, 103 S. Ct. 2637, 2645- 46 (1 983) (de cl ining t o ado pt a n “o uts ideti me limit ation” for a per

missible Terry stop ); see also Un ited S tates v . Pu rcell , 236 F.3d 127 4, 12 79 ( 11th Cir. 2 001 ), cert. denied , 534 U.S. 830, 122 S. Ct. 73 ( 2001). The test i s one of “common sense and ordinary human experience.” Sharpe , 47 0 U.S. at 685, 105 S. Ct. 1575. In Sharpe , the S upr eme Co urt ex plain ed th at in determining whether a dete ntion exceeds t he outer boundary for a Terry stop , we
mu st con sider wh ether the p olice d iligen tly pu rsue d a m eans of in vestig ation likely16

to co nfirm or d ispel th eir su spicio ns q uick ly, du ring wh ich tim e it w as ne cessa ry to detain the d efen dan t. Sharpe , 470 U.S. at 686, 105 S. Ct. at 1575. From our prior discu ssion , it sho uld b e ob viou s that w e belie ve th e off icers in this ca se did dilige ntly p ursu e a m eans of in vestig ation likely to con firm or d ispel th eir susp icion s qu ickly. We also believe that

the tota l amount of time Acosta was detai ned was
reasona ble i n relation to the purpos e of the stop. Although therecord i s not entir el y cl ear , i t appea

rs t hat Acosta was fi rst

st oppe d at

approxi mat el y 11: 05 a. m. and that he was arre sted s ometime a fter 11:25 a. m., at

which ti me he signe d the consent form permitting a search of his vehic le. Acosta cl aims that he was detained at

least thirt y minutes prior to his formal arres t, but even i f we take that as given t he result is sti ll t

he same. Thirty

minutes durati on is not beyond thepale of reasonableness f

or Terrystops, as our pri or deci sions makeclea r. In Gil , a drugconspiracy cas e, we reject ed the defendant’ s contenti on that because she was detained for approximat ely sevent y-five minutes in handcuffs in the bac k of a patrol car

her detenti on exceeded the durati on of an allowable Terry stop and ripene d into a

fullscal e arre st. 204 F.3d at 1350. In Hardy , a drug-conspiracy case, we approved a Terry st op of fi fty mi nut es d

urati on. 855 F. 2d at

761. By contra st, in Place , a drug pos sessi on case, the Supreme Court noted t hat, alt hough17

it was unwil ling to set a n absolute ti me limi t, t

he ninet y minutedetention of t

he suspect’s luggage in that case was too long for a Terry stop . Place , 462 U.S. at 709-10, 103 S. Ct . at

2645-46. Consi dering t he cir cumstanc es, a

nd in li ght of existing precedent, thirty minutes was a reasonable du ration for this Terry stop. Having concluded that the officers had reasonab le suspicion to justify a Terry stop, and that

the stop did not mat

ure into de fa cto arrest bef ore there was probable cause, we turn t o Acosta’s next attack on the admissibilit y of the evidence obta ined as a re sult o f the s top. IV. Acosta contends that he was in “ custody” for Mirandapurposes f rom the time h e w as firs t stop ped and there fore the o fficer s sho uld h ave r ead h im h is righ ts at t hat time ins tead of

waiti ng untilafte r they told him he was under arr est. The distric t cou rt did not a ddr ess th is issu e in its o rder , nor did th e ma gistra te jud ge in his corrected report and recomm endation. W e do addre ss the issue, because Acosta raised it in his motion to su ppress and in h is briefs to us. The right to Miranda wa rnin gs atta ches wh en cu stod ial inter rog ation beg ins. See Miranda v. Ari zona , 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966 ); Dickerson v. United States , 530 U.S . 428 , 435 , 120 S. C t. 232 6, 23 31 ( 200 0). Normally c ourts a

pply a t wo-part t est to deter

mine whether

a suspec t is in custody18

for Mirandapurposes: “fi rst, what were the circ umstance s surrounding the inte rrogat ion; a

nd second, given t

hose ci rcumsta

nces, would a reas onable pe rson have felt he or s he was not at liber ty to t erminate t

he interrogation and leave.” Thompson v. Keohane , 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995). As we have already di scussed, a suspec t who is detained during a Terry stop i s not fr ee to l eave from the b egin ning of th e stop until it e nds . If w e app lied th e gen eral Miranda custodi al t est l ite rally to Terry stop s, the r esult w ould be th at Miranda warnings are required befo re any questioning co uld occur du ring any Terry stop . The Supreme Court i n Ber kem er v. M cCa rty , 468 U.S. 420, 104 S. Ct. 3138 (19 84) , has in dicate d to th e con trary. In th at dec ision , the C our t explained that the non-threateni ng nature of a Terry stop i s the r eason for “theabsence of any sug gestio n in [ the C our t’s] op inion s that Terry stops a re subj ect to the di ctates of Miranda .” Id. at 440, 104 S. Ct. at 3150 (dict um). The holding of Berkemer is more li mited t

han the implications of that language , beca

use thecase involved a traffi c stop and not a Terry stop of a suspecte d felon. Nonetheless, the Berkemer decis ion and opi nion does provide gui dance on t he iss ue of when Miranda warnings may be required before inter rogation during a Terry stop . The guidance the Berkemer decis ion p rov ides s tems from the fa ct that tr affic stops, l ike Terry stops generally, are indeed stops. A reasonable person knows that19

he is not free to drive aw ay from a traffic stop un til it is completed, just as a reasonable person knows that he is not free to walk away from a Terry stop until it is over. If

the lack of fr eedom to leave were decisi ve, which is to say if every phrase in the Mirandaopin ion is to be app lied liter ally, the n all tra ffic sto ps as we ll as all Terry stop s gen erally w ould be su bject to the re quir eme nts o f that d ecisio n. Berkemer estab lishes that th ey are not. The Court expl ained in Berkemer that it “d ecline [d] to acco rd talis man ic power to the phrase in the Miranda opin ion,” that “ Miranda by its t erms applies wh enev er ‘a p erso n ha s bee n tak en in to cu stod y or o therw ise de priv ed o f his freedom of action in any s ignific ant way.’” Berkemer , 46 8 U.S. at 435- 37, 104 S. Ct. at 3148 (quoti ng Miranda , 384 U.S. at 444, 86 S. Ct. at 1612). Inste ad of asking whether a suspect re asonably would feel free to leave, the Berkemer Court instead sa id the questi on should be “whether a traffi c stop exerts upon a detained person pressu res that sufficiently impair his free exercise of his privilege against self-incriminati on to require that he be warned of his constitutional ri ghts.” Id. at 437 , 104 S. C t. at 31 49. P ut an othe r w ay, su spec ts “sub jected to res traints
com para ble to thos e asso ciated with a for mal a rrest,” mu st be a dvis ed o f their Mirandarigh ts. Id. at 44 1, 10 4 S . Ct. at 3 151 ; see also California v. Beheler , 463 U.S. 1121, 1125, 103 S . Ct. 3517, 3520 (1983) (per curiam).20

The Supreme Court re cognize d in Berkemer that a drive r deta ined during a typi cal t raffi c stop i s not fr ee to l eave, and is t herefor e “se iz[e d] within the meaning of [the Fourth] Amendmen [t]. ” Berkemer , 468 U.S . at 43 6-3 7, 10 4 S . Ct. at 3148. However, the Court recognized two key factors which, in the context of a traffic stop , mitig ate the pres sure s up on a detain ed p erso n so that h is ability to exerci se his privi lege against self incriminati on is not

so impai red that he nee d be warned of his constitutional ri ghts under Miranda . First, “detention of a motorist pursuant to a tr affic stop is presumptively temporary and brief. ” Id. at 437, 104 S. Ct. at 3149. Th e Court distinguished traffic stops, which ord inarily “last only a few minutes,” id. , from a “statio nho use in terro gatio n, w hich freq uen tly is prolonged, and in which t he deta inee of

ten i s aware t

hat ques tioning will c ontinue until he provides his inte rrogators the answers they seek.” Id. at 43 7-3 8, 10 4 S . Ct. at 3149. The Court expl ained t hat t he brie f and ty

pical ly spontaneous nat ure of t he
usu al traff

ic stop : redu ces th e dan ger th at the d river thro ugh sub terfu ge w ill be m ade to incrim inate h imse lf. O ne o f the in vestig ative te chn ique s that Miranda was designe d to guard a gainst was the use by poli ce of various ki nds of tri ckery- -such as “Mutt and J eff” r outine s--t o eli cit confess ions from suspects. A police off icer who stops a suspect on t he highway has little chan ce to d evelo p or imp leme nt a p lan o f this s ort. Id. at 43 8 n.2 7, 10 4 S . Ct. at 3 149 n.27 (inter nal cita tions om itted).21

The second factor associated with a tra ffic st op that the Berkemer Court recognized as reducing the pressure to re spond to incriminating questions i s that most traffi c detainee s would not “feel[] completely at the mercy of t he police. ” Id. at 438, 104 S. Ct. at 3149. The Court recogni zed that theinhere nt aut horit y of
arm ed p olice o fficer s “exe rt[s] so me p ressu re on the d etaine e to re spo nd to questions,” id. , but the Court concluded that thi s inherent aut hority was more than offset by other aspect s of such a

stop: Passersby, on foot or i n other cars, witness the i nteract ion of officer and motori st. This exposur e to publ ic vi ew both reduce s the a bility of an u nscr upu lous polic ema n to u se illeg itimate mea ns to elicit self-in crim inatin g state men ts and dim inish es the mo torist’s fear that, if he does not cooperat e, he will be s ubjected t o abuse. The fact t hat the detained motorist typically is confronted by on ly one or at most two polic emen furt

her mutes his se nse of vulnerabi lit y. In s hort, the atmosphere su rrounding an ordinary traffic stop is substantially less “police dominated” than that surrounding the kinds of inte rrogation at issuein Miranda

itself . . . . Id. at 438-39, 104 S. Ct. at 3149. The Tenth Circ uit in United States v. Perdue , 8 F.3d 1455, 1466 (10th Cir. 1993), t ook heed of t

he Supreme Court’ s disc ussion in Berkemer and app lied it to Terry stops. In the Perdue case the suspec t, al ong with his pregnant fiancee , were stopped in “an i solated, rural area not subject to the public’ s scruti ny,” he was forc ed o r ord ered to the gro und , and as the offic ers k ept th eir gu ns d raw n on him and his fiancee , he was questioned while ly ing face down, as police hel icopters22

circled ove rhea d. Id. at 1464-66. Aggressive physicalforce and handcuffs may hav e bee n us ed as we ll. Id. at 1458-59, 1464. The Tenth Circuit deter mined that allof the c ircumstances s urrounding t he dete ntion a

nd questi oning would le ad a reasonable person i n the detai nee’s position to feelhe was completely at the mercy of th e po lice. Id. at 1466 (c iting Berkemer , 468 U.S . at 43 7, 10 4 S . Ct. at 3 149 ). As a result, e ven though the stop was within the bounds of Terry , the Court decided that

it was the kind of “high ly intru sive, ‘n on- arre st’ enc oun ter[]” in which the Berkemer Court had i ndicated Miranda wa rnin gs m ight b e req uired
. Id. The case we have before us is differe nt from the Purdue case. Inste ad of being detained in a remote area f ar from publ ic sc ruti ny, Acost a was stoppe d in the parking lot of an apart

ment building in broad dayl ight. The offic ers’ actions were visibleto anyone in the ar ea who chose to look. Instead of bei ng questioned at gun poin t, Ac osta w as qu estion ed af ter an y w eapo ns w ere q uick ly pu t back into thei r holsters. Inste ad of bei ng forced to lieface down, Acosta remai ned sta nding the enti re time. No physical force was used against him. He w as not even handcuffed. He was not even placed in a police car at t he time. He was assured that h e w as no t und er ar rest. A nd, o f cou rse, th ere w as no preg nan t fianc ee w ith gun s po inted at her , and no p olice h elicop ters cir cling ove rhea d.23

The restraint

to which Acosta was subjected during the Terry stop i s the minimalamount nece ssary for such a

stop or c lose to it. The stop di d not involve the type of “ highly int

rusive” coercive atmosphere that may re quire Miranda warnings even before a formal arrest is made. The total ity of t he circumstances were such that a reasonabl e person in Acosta’s posi tion would not have believed that he was utt erly

at t he mercy of

the pol ice, away from the protec tion of any public scrutiny, and had better c onfess or else . No Mirandawarnings were requ ired a t the tim e. V. Ac osta c onte nds that th e distr ict cou rt erre d in d enyin g his mo tion to sup pres s the h eroin fou nd in the d uffle -bag that w as ins ide S ade’s apar tmen t. Neither the dis trict

court in it s order, nor the magist rate j udge in his correct ed report and recommendation, di scusse d the se arch of t he duffl e-bag. At the conclusion of the suppress ion hearing, however, the magis tratejudge concluded that the se arch of t

he bag was jus tif

ied on t he basi s of theconsent

given by Sade for the offic ers t o searc h his entire a partment . We need not r each t he iss ue of whether S ade’s consent to the search o f his apartment w as enough to relinquish Acosta’ s right s as to the duff le-ba g contained in t

he apart ment, be cause t

he1 In Bonner v. City of Pricha rd , 661 F.2d

1206, 1209(11th Cir. 1981) (e n banc),this Court adopted as binding precedent all decisions of the for mer Fifth Circuit handed down prior to October 1, 1981. 24 und ispu ted ev iden ce in th e rec ord sho ws that A costa him self co nsen ted sp ecifica lly to the searc h of

the b ag. Officer Salli ck tes tif

ied at the suppr essi on heari ng that when asked for t

he key and consent to sear ch the duffle-bag, Acosta “said, ‘yes[, ] [o]f course ,’ rea ched into hi s pocket

and produced a

set of keys and gave them t o me.” There was no
con trary te stimo ny o r evid ence at all, an d no reaso n to b elieve that th e ma gistra te judge or district co urt cou ld hav e had a ny bas is for no t crediting O fficer S allick’s undisput ed tes timony. We “do not ins ist that tri al cour

ts make f actua l fi ndings directly addressing each i ssue that a litigant rai ses,” Zack v. Co mm ’r , 291 F.3d 407, 412 (6t

h Cir. 2002) , but instea d adhere to the propos iti on that “fi ndings should be co nstrued liberally and found to be in conson ance w ith the judgment, so long as that j udgment is supported by evidence i n the record,” Gilb ert v. S terrett , 509 F.2d 1389 , 1393 (5th Cir. 1975) (cit ation and quotati on marks omitted). 1 The corrected report and recomm endation, as adopted b y the district court, did find as a fact th at “statem ents m ade b y the d efen dan t prio r to h is arre st w ere m ade f reely and voluntarily.” Acosta’s state ment consenting to a se arch of the duffle -bag was mad e bef ore h is arre st.25

“A consensua l sea

rch is constituti onal i f it is voluntary ; if

it i s the product of an ‘essent ially free and unconstrained choice.’ ” Un ited S tates v . Pu rcell , 236 F.3d 1274, 1281 (11t

h Cir. 2001) (quoti ng Sch neck loth v . Bu stam onte , 412 U.S. 218, 225, 93 S. Ct. 2041, 2047 (1973)) . Volunta rines s is a

questi on of fact

based on t

he totality o f the c ircum stanc es. Id. (citati on omitt ed). “ The government be ars t he bur den of p rov ing b oth th e exis tence of co nsen t and that th e con sent w as no t a fun ction of ac quie scen ce to a claim of law ful au thor ity bu t rathe r w as giv en fr eely and voluntarily.” United States v. Blake , 888 F.2d 795, 798 (11th Cir . 1989) (citing Un ited S tates v . M assell , 82 3 F. 2d15 03 , 15 07 (1 1th Cir. 19 87 ))
. As w e stated in Blake , deter min ing w heth er co nsen t wa s “vo lunta ry is n ot su scep tible to neat talismanic definitions; rather, the inquiry must be cond ucted on a case-b y-case analy sis. ” 888 F.2d at

798 (citing Sch neck loth , 412 U.S. at 224-25, 93 S. Ct. at 204 6). App lying these principles, and construing the r ecord in the light most favorabl e to t

he judgment , we conclude that Acosta di d consent

to thesearc h of the duffle -bag, a

nd his cons ent was voluntary . The dis tri ct cour t did not err i n refusing to suppre ss theresul ts of t hat se arch. VI.26

W e turn now to the final is sue: w heth er the offic er w ho q uestio ned Ac osta at t he United St ates Customs Servi ce HIDTA headquarters, violated hi s right s by conti nuing thequesti oning after Acosta had arguably invoked hi s right s. The appli cable law is wel l set tle d. When a person unde rgoing a c ustodi al i nterr ogati on state s that he wishes to remain sile nt the questi oning must end, and if he expresses a des ire to c ons ult w ith an attorn ey, the que stion ing m ust ce ase u ntil on e is pro vide d fo r him
. Miranda , 38 4 U.S. at 47 3-7 4, 86 S. C t. at 16 27- 28; see also Coleman v. Singletary , 30 F .3d 1 420 , 142 3 (1 1th C ir. 19 94)
. Ho we ver, it is also w ell settled that law enfo rcem ent o fficer s hav e no duty to stop an inter

rogation where the suspect ’s invocation of either of those righ ts is equivocal. The Supreme Court has held that: “If the s uspect’s s tatement i s not an
una mb iguo us o r un equ ivoc al req uest f or co uns el, the o fficer s hav e no oblig ation to stop questioni ng him.” Davis v. United States , 512 U.S . 452 , 461 -62 , 114 S. C t. 2350, 2356 (1994). And we have held that: “ [T]he same rule [ appli es] to a suspect’s ambiguous or equivocal references to the ri ght to cut off questioning as to the ri ght to counsel. ” Coleman , 30 F.3d at 1424 . “A s usp ect m ust ar ticulate his desire t o cut off questi oning with sufficie nt clarity that a reasonable poli ce officer in thecirc umstance s would understand the s tat ement t o be an ass erti on of the right to remain sil ent. If the statement i s ambiguous or equivoca l, t

hen the pol ice have2 The facts we recount in connection with this issue are either drawn straight from the

district court’s findings, which it entered after c onducting an evidentiary hearing, or they

are lifted from the transcript of the interrogation. The a ccuracy of that transcript is uncontested, and it formed the basis for most of the district court’s findings. 27 no duty t o clarify t

he suspec t’s inte nt, a

nd they may

proceed wit

h the interrogation.” Id. This cas e is onein which t he arre steemade contr adictory st atement s about whether he wis hed to i nvoke his rights or was will ing to c ontinueanswering questions. Acosta was at the United States Customs Service HID TA h eadquarters being questioned aft er he was arrested. He already had been read his ri ghts once and app aren tly had not in dicate d, am bigu ous ly or o therw ise, tha t he w ished to invoke them . Agent O casio, was doing the questioning (A gent M iles was also present). After A costa had already m ade a num ber of incriminating statements, Agent Ocasio de cided to back up Acosta ’s ea rli er oralwaiver of rights with a written one. A written waiver form was brought in, and aft er each statement of a Mirandaright

was read t o Acosta, he was asked whet her he under stood; he ackn ow ledg ed th at he d id by reply ing “O kay,” or “E xactly ,” or “P erfe ctly.” 2 But A costa ref

used to sign the waiv er form . He sa id, “that w aiver (U I) I’m not go ing to sig n it.” Oc asio rep lied: “Hu h? N o. if you don ’t wan t to sign it. I’m not te lling you that

you have t o sign i t, (UI).” To that, Acosta responde d: “No, no, no, I’ ll s ign thi s for you t hat t hose are my right s.” Ocas io the n had Acosta r ead out28

loud the en tire fo rm s tating all of h is righ ts and had him initial ea ch p art to in dicate that he understood his rights. After Acost a had fi nished r eading out loud thestatement of hi s right s and initial ing theform to i ndicate that he understood them, t

he foll owing trans pired: OCASI O: No w, u h... do you wa nt to w aive y our righ ts

or n ot? ACOST A: No, I’m n ot going to w aive my rights. OCASI O: Okay. ACOST A: I can collab orate , I can talk w ith yo u no w... OCASI O: Do yo u wan t to talk to us? ACOST A: I’ll talk w ith yo u... (U I) m y inter rog ation
... OCASI O: You know w hat i t means to waive

your ri ghts, right ? Do you understand what that mean s? ACOST A: No , I un ders tand wh at the r ights are.

W hat h app ens is that, m aybe
... OCASI O: W ell, (U I), w hat, w hat it m eans ... ACOST A: ...(U I)... OCASI O:
... to waive, what, the word waive does

not mean t

hat you a re going to waive all you r righ ts com ... com pletely
... ACOST A: I un ders tand , but th at...29

OCASI O:
... because as you read here, what that

mea ns, u h, tha t is, w hat it m eans is that if, if you ’re talk ing to us an d it comes to a

point where you do not want to t alk any

more, you c an stop, you can stop tal king, and not say anything else, okay? ACOST A: No , I me an, I’ll te ll you som ethin g, I

am w illing to talk whatever, why? (ellips es as f

oun d in o rigin al) Agent Ocasio t

hen expla ined t o Acosta t hat he want ed him to unde rsta nd wh at he w as rea ding and not g et con fuse d. A costa replie d tha t he u nde rstoo d his righ ts bu t wa nted to “av oid a ny m isun ders tand ings in the futu re.” A costa attem pted to ex plain : When I tell you, “Iwaive my rights.. .” I can

waive any right t

hat any
... uh, any right t hat you tel l me. “ Oh, what is t

his?” “No, you, you sign ed h ere. Y ou d on’t h ave r ights to anyth ing.” The conversation continued and Acosta acknowledged the drugs that had been fou nd in his p osse ssion
. Agent Ocasio t

hen ret urned to t

he question of whethe r Acosta would s ign the fo rm: OCASI O: Rig ht? Ok ay. W hat I’m telling you is

the fol lowing, oka

y. Whether

you sign this or not

sign this, and you’re30 going to cooperate with us and you’re going to talk wit

h us in any , of, you kno w, y ou h ave to und erstan d tha t if you’re going to talk wit h us we have to know that, we wa... we want to say that you are talki ng with us today, on this day. ACOST A: In o ther w ord s, this is bein g rec ord ed.

In th is reco rdin g I tell y ou... OCASI O: Uh-hum. ACOST A:
... I am going to cooperate with you at

this m om ent, rig ht at th is ver y insta nt. To me ev... everyt

hing you need, I can answer al l your que sti ons without the need to sig n tha t I w aive m y righ ts... OCASI O: Okay. ACOST A:
.. .be cau se Iam not goi ng t o wai ve my rights. OCASI O: Th is thin g is ru nnin g, rig ht? MILES: Yes. OCASI O: Okay, okay, well, that is al l I want you to under stand. ACOST A: Right, I understand it perfectly. OCASI O: What I’m going to do here is that I ,

look.. . He says he agree s, he’ s going t o c oo pe rat e wit h u s, hi s, he kn ows t hi s i s b eing re co rd edont ap e. He says th at, uh , but h e’s no t goin g to31 sign the, t

he... the bottom of the form here, yo u kn ow ? S o I told h im that’s fine , yo u kno w? MILES: Okay. OCASI O: That’s what he wants, it ’s fine. MILES: Okay. OCASI O: That’s not a prob lem with us. MILES: Ye ah. Ju st pu t, uh... OCASI O: So I’m g oing to m ake a note dow n he re... MILES: ...yeah , just p ut it’s, u h, “V erba lly

agre es to c oop erate. W ill not s ign.” OCASI O: Yeah. MILES: Just put the date and time in thebox where they

belong t here, though. (ellipses as found in original ) The questioning then continued without any further reference to the w aiver of rights. The one thi ng that

is cl ear fr om all of

this is t hat Acost a refus ed to si gn a writt en waiver of

his ri ghts. However, the Supre me Court’s decis ion in No rth Carolina v. Butle r , 441 U.S. 369, 99 S. Ct. 1755 ( 1979), and a number of our decis ions, esta

blis h that an arre stee ’s re fusalto si gn a waiver of right s form is not
eno ugh to co nstitu te an in voc ation of rig hts. See Jones v. Dugger , 928 F.2d 1020,32

1027 (11th Cir . 1991) (“A refusalto si gn a written waiver f orm does not
con clusiv ely ind icate th at the s usp ect w ishes to rem ain sile nt.”); United States v. Boon San Chong , 829 F.2d 1572, 1574 (11th C ir. 1987) (the def endant’s “ refusal to sig n the wa iver f

orm did n ot ren der s ubs equ ent q uestio ning imp rop er”) ; United State s v. E irin , 778 F.2d 722, 728 (11th Cir . 1987) (“ Merely re fusing to sign a waiver of rights form without an attorney’s gui dance is not synonymous with an affirmative request for ass istance of counsel.”). W e hav e to g o be yon d A costa ’s refu sal to s ign th e w ritten f orm in or der to
ascer tai n whether he une quivocal ly and unambiguously invoked hi s right s. The close st A costa cam e to d oing that w as w hen he w as ask ed w heth er he wa nted to waive his rights a

nd said: “No, I’ m not going to waive my rights.” If t hat had been all A costa had said, it m ight w ell hav e bee n clea r eno ugh , but w hen Ag ent O casio assented by simply uttering “Okay,” Acosta volunteered: “ I can colla borate, I c an talk with you now...” ( ellipses as found in original ) When O casio sought to cl arify thos e tw o inc ons istent s tatem ents, a s he h ad th e righ t to do , by as king if A costa
wa nted to talk with the o fficer s, A costa said h e w ould . Typ ical of the am bigu ity in wh at A costa said a bou t wh ether he w anted to talk or w aive h is righ ts is his state ment that: “I am going to cooperate wit h you at this moment, ri ght at thi s very inst ant. To me ev... everyt hing you nee d, I ca

n answer al l your que sti ons without33

thenee d to si gn that

I wai ve myri ght s [] bec aus e I am not goi ng t o wai ve my righ ts.” (ellip sis as f

oun d in o rigin al) Relying primarily upo n the transcript of the interrogation, but also
con sider ing th e testim ony of O fficer Oc asio a t the ev iden tiary h earin g on this issue, the district court found that Acosta h ad waived his Miranda right s without prodding by t

he offi cers, indeed t

hat t here was “ a complete absenc e of any coercive conduct

on the par

t of t he offi cers. ” It noted Office r Ocasio’ s tes timony giving his impression that Acosta had b een “hung u p” on on e particular Spanish
wo rd an d ha d ref

used to sig n the wa iver b ecau se he thou ght th at if he sign ed, in Ocasio’s words, “he wouldn’t have right s to anythi ng.” How ever, the di stric t court al so correctly observed that t he test i s an obje ctive o ne an d “ask s, w ould a rea son able, n ative S pan ish-s peak ing o fficer in Ag ent O casio ’s plac e hav e un ders tood Ac osta’s statem ents a s inv okin g his righ t to silence , or his ri ght to an attorney?” The court concluded that, “when considered in theappropri ate c ontext ,” a r easonabl e offi cer i n Ocasio’ s position would not hav e inter prete d A costa ’s statem ents a s exp ressin g a d esire to invo ke h is righ t to remain silent. Th e district cou rt also app ears to h ave ad opted Off icer O casio’s inte rpret ati on of Acosta’ s statement s, bec ause i n recount ing thetota lit y of the circ umstance s the c ourt par enthetical ly stated t hat Acost a “re fused t o sign t he34

Rights Fo rm out of co ncern that he w ould be w aiving rights not otherw ise iden tified in the fo rm.” Officer Ocasio’ s impres sion about the statement s Acosta made in connec tion with his refusalto sign the waiver, which the distri ct court adopte d, may be
accurate. Or the tr

uth may be t

hat Acost a was will ing to talk wit h the off icer s and
answ er their qu estions, an d do so w ithout an attorney b eing p resent, bu t he didn ’t want to sign a writte n waiver of his rights bec ause he thought that a signed waiver might be irrevocabl e. Either of t hose two constructions are at lea st as pla usible as one that views Acosta ’s statement s as i ndicating that he di d not wish t o tal k to the offic ers either t

hen or ever

without a

n att orney pre sent. However, it matte rs not which interpre tation of Acosta’s seem ingly self-contradictory statements is the best one. What matters is that t here are competing reas onable inter pretati ons of what Ac osta m eant, a nd th ey po int in d iffere nt dir ection s. W e hav e no ted b efor e, albe it in a di ffere nt cont ext, that the exi stenc e of “t

wo reasonabl e, competing interpretations” i s “the very definition of ambiguity. ” Doe v . Bush , 261 F.3d 1037, 1062 (11th Cir . 2001). The existence of t hree pl ausibl e, di ffering inte rpret ati ons inst ead of t

wo only deepens the ambi guity . Becaus e Acosta di d not
una mb iguo usly a nd u neq uivo cally in vok e his r ight to rem ain sile nt or his rig ht to35

counselwhile being questi oned, t he dist rict court di d not err

in denying his moti on to su ppr ess. AF FIR M ED .