FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 13, 2010

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-12574

________________________

D. C. Docket No. 07-00120-CR-3-MCR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CESAR OSVALDO LUNA-ENCINAS,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(April 13, 2010)

Before BLACK, MARCUS and HIGGINBOTHAM, Circuit Judges.

*

MARCUS, Circuit Judge:

 Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit, *

sitting by designation.
Cesar Osvaldo Luna-Encinas was convicted of being an illegal alien in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2).

He appeals the district court’s denial of his motion to suppress pre-Miranda

statements he made to a police officer that led to the discovery of the firearm.

After thorough review, we affirm because Luna-Encinas was not in “custody”

when he made the relevant inculpatory statements to the police.

I.

We recite the facts as found by the district court in its order denying LunaEncinas’ motion to suppress; indeed, Luna-Encinas concedes that all of the district

court’s findings were supported by substantial evidence. Those facts, as developed

at a suppression hearing, are as follows.

At the time of his arrest on September 20, 2007, twenty-eight-year-old LunaEncinas lived in Pensacola, Florida, with his girlfriend in a second-floor room of

Wanda Caceres’ townhouse at 3407A Hernandez Street (“Townhouse A”). In that

room, Luna-Encinas stored a Sig Sauer .357 caliber pistol under the mattress. He

kept an empty pistol box, also bearing the Sig Sauer label, in the bedroom closet.

Law enforcement officers discovered the pistol box, and then the pistol, during the

course of a narcotics investigation on September 20, 2007, and later discovered

that Luna-Encinas could not legally possess the gun because he was not lawfully in

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the United States. The officers, however, were not looking for Luna-Encinas or his

gun when they arrived late that morning in the front yard of the neighboring

townhouse at 3407B Hernandez Street (“Townhouse B”).

Rather, earlier that day, at a local Federal Express office, City of Pensacola

police officers had intercepted a package addressed to Townhouse B containing

thirty pounds of marijuana. They quickly obtained a warrant to search Townhouse

B from a state-court judge and planned to make a controlled delivery there. Later

that morning, Pensacola Police Department detectives Marvin Miller and Eric

Hubley, federal Drug Enforcement agent Keith Humphreys, and Florida

Department of Law Enforcement agent Chris Webster began the controlled

delivery of the package. Webster, posing as a Federal Express employee, arrived

at Townhouse B to deliver the package, while the other officers remained nearby to

monitor the operation. Miller, Hubley, and Humphreys were dressed in plain

clothes but wore vests marked with police insignia.

As agent Webster neared the front of Townhouse B, several men were

standing in the yard in front of Townhouse A. One of them, later identified as

Alejandro Pulido-Govea, left the group and approached Webster. Pulido signed

for and accepted the package, and then entered Townhouse B. Webster left the

immediate vicinity, at which point the officers entered Townhouse B pursuant to

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the search warrant. They located the unopened package in a closet but, unable to

find Pulido, left the building to ask the neighbors about his whereabouts. A

neighbor told the officers that she had seen someone leave the adjacent Townhouse

B and enter Townhouse A. Hubley, along with a uniformed officer now on the

scene, proceeded to the front door of Townhouse A, while Humphreys and another

uniformed officer headed towards the back of the residence.

Entering the backyard of Townhouse A with their service weapons drawn

but pointed downward, Humphreys and the uniformed officer found the defendant

Luna-Encinas and another man identified as “Jose” doing yard work. Humphreys,

who was the only Spanish-speaking officer on the scene, explained to the two men

in Spanish -- and in a “serious” tone -- that the officers were looking for a specific

person, but that Humphreys knew that neither of the men was that person.

Humphreys inquired if there were any other males in Townhouse A and if anyone

had run through the yard or into the residence. Luna-Encinas and Jose answered

“no” to both questions. To make sure they were not armed, Humphreys then asked

them to raise their shirts to reveal their waistbands, and they complied. Neither

had a weapon. Humphreys directed Luna-Encinas and Jose to sit down until the

residence had been secured, telling them that the investigation would not take long.

Again, they complied, and for some ten minutes, the two officers, the defendant

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Luna-Encinas, and Jose remained in the backyard making small talk as the

investigation proceeded.

In the meantime, Miller and Hubley had approached the front of Townhouse

A. The group of men previously standing in the front yard had dispersed. Miller

knocked on the door, and, after several minutes, Wanda Caceres answered. Miller

explained that a narcotics investigation was under way and asked if anyone had

just come into the townhouse. According to the district court, it was not clear

whether Caceres answered “yes” or “no,” but she plainly did permit Miller and

Hubley to enter the dwelling. They stood at the entryway of the home, which was

near the foot of the stairs to the second floor. Caceres told Miller that several other

people were upstairs; at Miller’s request, Caceres asked them to come down. One

of the men descending the stairs was identified as Pulido; he was arrested and

placed in a squad car.

Miller then asked Caceres for consent to search her home, Townhouse A,

which she granted. At about that time, Pensacola Police Department detective

Miller, who was in the upstairs bedroom, spotted Luna-Encinas’ closed Sig Sauer

handgun box in the bedroom closet, which was empty except for a magazine and

some bullets. A young woman downstairs was brought up to the bedroom; she told

the officers that she lived in the room with her boyfriend (later determined to be

5
the defendant Luna-Encinas), but that she had no knowledge of the gun. Hubley

radioed to the other officers that there might be a firearm on the scene and, as he

left to retrieve written consent-to-search forms, instructed the uniformed officer in

the backyard to bring the two men detained there to the front of the townhouse.

Several minutes later, while Caceras was signing a consent form,

Humphreys and the other officer brought Luna-Encinas and Jose to the front yard

of Townhouse A. At no point had the two men been handcuffed, and the officers,

with their weapons holstered, walked behind them as they all traveled the thirty

feet separating the backyard from the front of the house. The officers did not

physically touch or otherwise restrain the defendant Luna-Encinas or Jose. When

the four men arrived in the front yard, one of the officers told Luna-Encinas and

Jose to sit on the ground. Luna-Encinas attempted to speak to Jose, but was told

not to.

Soon afterward, Caceres exited the house and, without prompting, identified

the defendant Luna-Encinas as the co-resident of the upstairs bedroom, where the

firearm box and bullets had been found. Hubley then asked Luna-Encinas where

the handgun was located, and Caceres translated Hubley’s question. Luna-Encinas

rose and approached Caceres, telling her that the gun was under the mattress in the

front bedroom. Caceres translated this response into English, as apparently did

6
Humphreys almost simultaneously.

Hubley and Humphreys immediately went upstairs and retrieved the

handgun from under the bedroom mattress. When they returned to the yard a few

moments later, Humphreys advised the defendant Luna-Encinas of his Miranda

rights in Spanish. From the time the officers first knocked on Caceres’ door until

the defendant made the admission about the location of the weapon, about fifteen

minutes had elapsed; about five minutes had passed since Luna-Encinas had been

brought to the front yard. After about ten more minutes, agent Craig Saier of the

federal Bureau of Alcohol, Tobacco, and Firearms arrived on the scene and

questioned Luna-Encinas further. Luna-Encinas admitted that he owned the

firearm and that he was an illegal alien. He was then arrested.

Luna-Encinas was charged with being an illegal alien in possession of a

firearm, in violation of Title 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). He moved

to suppress his statements concerning the location of the firearm, and the firearm

itself, claiming that they were obtained in violation of Miranda v. Arizona, 384

U.S. 436 (1966). The government in turn argued that Luna-Encinas was not in

“custody” for Miranda purposes at the time the officers questioned him about the

firearm in the front yard of Townhouse A.

After holding an evidentiary hearing, the district court denied the motion to

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suppress. The district court concluded that while the defendant had been “seized,”

he was not in “custody” for Fifth Amendment purposes. The district court

explained that a reasonable person in Luna-Encinas’ position -- i.e., one placed

under the control of several law enforcement officers for a matter of fifteen

minutes while a drug suspect was sought -- would not have understood his

detention to be anything other than “temporary and brief,” particularly given the

officers’ express assurances that he was not the person they were seeking, and the

fact that they never pointed a weapon at him. These circumstances, the district

court concluded, did not sufficiently resemble an arrest to constitute “custody.”

On January 24, 2008, Luna-Encinas pled guilty, reserving the right to appeal

the district court’s suppression order pursuant to Fed. R. Crim. P. 11(a)(2). On

April 24, 2008, the district court sentenced Luna-Encinas to eighteen months’

imprisonment and three years’ supervised release, noting that he would be deported

at the end of his prison term. This timely appeal followed.

II.

In an appeal of the district court’s denial of a defendant’s motion to

suppress, we review the district court’s findings of fact for clear error and its

application of the law to those facts de novo. United States v. Gil, 204 F.3d 1347,

1350 (11th Cir. 2000).

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Luna-Encinas claims that his statements leading to discovery of the firearm,

and the firearm itself, must be suppressed because he made the statements before

being advised of his Miranda rights, and because the discovery of the gun was,

effectively, the fruit of those statements. The Fifth Amendment provides to every

person a right against self-incrimination, U.S. Const. amend. V, and,

correspondingly, requires that trial courts exclude from evidence any incriminating

statements an individual makes before being warned of his rights to remain silent

and to obtain counsel. The entitlement to this warning, however, attaches only

“when custodial interrogation begins.” United States v. Acosta, 363 F.3d 1141,

1148 (11th Cir. 2004). Thus, Luna-Encinas was entitled to Miranda warnings only

if he was in custody at the time he made the statements in question.

Luna-Encinas argues that because “a reasonable person in [his] position

would not have felt free to leave or terminate the encounter[,] . . . Miranda

[warnings] should have been read.” Opening Br. at 6-7. And the government also

frames the question as whether, “under the totality of the circumstances, a

reasonable man in [Luna-Encinas’] position would feel a restraint on his freedom

of movement to such an extent that he would not feel free to leave.” Answering

Br. at 12 (quoting United States v. McDowell, 250 F.3d 1354, 1362 (11th Cir.

2001)). We previously have explained, however, that although a reasonable person

9
in the defendant’s position may feel constrained not to leave the scene of a police

encounter at a particular moment -- and thus may be deemed to have been “seized”

by law enforcement -- he will not necessarily be considered in “custody” for Fifth

Amendment purposes. United States v. Street, 472 F.3d 1298, 1310 (11th Cir.

2006).

Rather, “a free-to-leave inquiry reveals only whether the person questioned

was seized.” United States v. Newton, 369 F.3d 659, 672 (2d Cir. 2004) (emphasis

added). While “seizure is a necessary prerequisite to Miranda, . . . a court must

[also] ask whether . . . a reasonable person would have understood his freedom of

action to have been curtailed to a degree associated with formal arrest.” Id.

(emphasis added); see also United States v. Phillips, 812 F.2d 1355, 1359 (11th

Cir. 1987) (“[T]he ultimate inquiry, based on the circumstances of each case, is

whether there is a restraint on the suspect’s freedom of movement ‘of the degree

associated with a formal arrest.’” (quoting Minnesota v. Murphy, 465 U.S. 420,

430 (1984)).

In assessing whether a reasonable innocent person in Luna-Encinas’ position

“would have understood his freedom of action to have been curtailed to a degree

associated with formal arrest,” Newton, 369 F.3d at 672, we consider the totality

1

 “[U]nder the objective standard, the reasonable person from whose perspective 1

‘custody’ is defined is a reasonable innocent person.” United States v. Street, 472 F.3d 1298,

1309 (11th Cir. 2006) (quoting United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996)); see

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of the circumstances, “including whether the officers brandished weapons, touched

the suspect, or used language or a tone that indicated that compliance with the

officers could be compelled,” Street, 472 F.3d at 1309 (citation and quotation

marks omitted), as well as the location and length of the detention, see, e.g., United

States v. Brown, 441 F.3d 1330, 1348 (11th Cir. 2006) (location); United States v.

Medina-Villa, 567 F.3d 507, 519 (9th Cir. 2009) (duration). Doing so here, we

cannot say that Luna-Encinas was in “custody.”

We begin with the encounter in the backyard of Townhouse A. LunaEncinas was not physically touched by the officers, he was neither threatened nor

intimidated verbally or physically, and a weapon was never pointed or directed at

him. Indeed, while the officers who first encountered Luna-Encinas had their

weapons drawn as they entered the backyard, the weapons were pointed downward

in a protective posture and were holstered shortly after the initial arrival. Further,

although the officers told Luna-Encinas to sit down while the house was being

secured, they assured him that this would not take long, and they expressly stated

at the outset that Luna-Encinas was not a suspect. That some of their words were

spoken in a “serious” tone does not render the situation materially closer to an

arrest, and we think that Luna-Encinas plainly was not in custody at this point.

also Florida v. Bostick, 501 U.S. 429, 437-38 (1991).

11
About ten minutes later, the officers escorted Luna-Encinas and Jose to the

front of Townhouse A, where they were again directed to sit down and, this time,

told not to speak. Based on Caceres’ spontaneous observation that Luna-Encinas

occupied the bedroom where the handgun box and some bullets had been found,

detective Hubley then asked Luna-Encinas, in English, about the firearm. Caceres

translated the question, Luna-Encinas responded that the firearm was in the

bedroom under the mattress, and Caceres translated the answer for the officers.

During the encounter, which lasted some five minutes, no one touched LunaEncinas or intimidated him verbally or physically. “No handcuffs were employed,

and no guns were drawn.” United States v. Moya, 74 F.3d 1117, 1119 (11th Cir.

1996) (concluding that defendant was not in custody, and citing United States v.

Blackman, 66 F.3d 1572, 1576-77 & n.4 (11th Cir. 1995), for the proposition that

even handcuffing and holding a suspect at gunpoint would not necessarily

constitute custody). Moreover, Luna-Encinas was on familiar ground in his own

front yard. As we explained in Brown, we are much “less likely to find the

circumstances custodial when the interrogation occurs in familiar or at least neutral

surroundings, such as the suspect’s home.” 441 F.3d at 1348 (quotation marks,

citation, and emphasis omitted). And Luna-Encinas’ detention in the front yard

lasted a mere five minutes. See Medina-Villa, 567 F.3d at 519. Finally, Luna12
Encinas at no point asked to leave the premises, nor informed the officers that he

did not wish to comply with any of their requests. See Phillips, 812 F.2d at 1362

(concluding that defendant was not in custody because, inter alia, he “never

requested a lawyer or to terminate the interview”).

In short, this record convinces us that Luna-Encinas was detained for a

relatively brief period in a neutral, outdoor location, while other officers searched

for a drug suspect who, as they had told Luna-Encinas, was not him. Even

accepting that Luna-Encinas had been “seized” as he sat on the ground in the front

yard of his home, we are convinced that a reasonable person in his position would

not have “understood his freedom of action to have been curtailed to a degree

associated with formal arrest.” Newton, 369 F.3d at 672. Luna-Encinas’ very

brief detention

did not involve the type of ‘highly intrusive’ coercive atmosphere that

may require Miranda warnings even before a formal arrest is made.

The totality of the circumstances were such that a reasonable person in

[Luna-Encinas’] position would not have believed that he was utterly

at the mercy of the police, away from the protection of any public

scrutiny, and had better confess or else. No Miranda warnings were

required at the time.

Acosta, 363 F.3d at 1150. Because Luna-Encinas was not in “custody” when he

made the statements leading to the discovery of the firearm, the officers were under

no obligation to advise him of his Miranda rights, and no Fifth Amendment

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violation occurred. Thus, the district court properly denied Luna-Encinas’ motion

to suppress both his pre-arrest statements and the firearm itself.

2

Accordingly, we AFFIRM the district court’s order denying Luna-Encinas’

motion to suppress.

 As it did in the district court, the government has argued on appeal that the public safety 2

exception to Miranda also applied -- the claim being that the officers acted under a pressing

exigency to find the gun and to prevent it from being used against any of the numerous persons

on the scene. See United States v. Spoerke, 568 F.3d 1236, 1249 (11th Cir. 2009). Since we

conclude that Luna-Encinas was not in custody and therefore not entitled to a Miranda warning,

we do not consider whether the public safety exception to Miranda would have applied.

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