FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 19, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellant,

 v.                                                          No. 19-2010
                                                   (D.C. No. 2:18-CR-02315-KG-1)
 FRANCISCO ARMANDO MARTINEZ,                                   (D.N.M.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MORITZ, McKAY, and CARSON, Circuit Judges.
                  _________________________________

      The Fourth Amendment protects citizens from unreasonable seizures by law

enforcement. If an inquisitive agent approaches someone who does not want to

respond, all the person must do is say so. But if one voluntarily answers an agent’s

non-coercive questions, the conversation falls outside the scope of the Fourth

Amendment even if, as is the case here, it reveals a crime. Defendant Francisco

Armando Martinez (“Defendant”) engaged in such a consensual encounter with law

enforcement here. We exercise jurisdiction under 18 U.S.C. § 3731 and reverse the

district court’s order granting his motion to suppress evidence from the encounter.



      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      While driving, United States Border Patrol Agents Robert Diharce and

Guillermo Ramirez (collectively, the “Agents”), passed Defendant’s vehicle. Agent

Diharce noticed that the back seat passengers appeared “crowded.” Agent Diharce

made a U-turn and followed Defendant’s vehicle for further observation. The Agents

trailed Defendant’s vehicle for twenty-one miles or so. Defendant eventually entered

a truck stop and pulled up to a gas pump. The Agents, in uniform with holstered

sidearms, followed Defendant’s vehicle into the gas station, parking approximately

ten feet behind Defendant’s vehicle in a way that did not impede its path of exit. At

this time, no one was “milling around” in the immediate vicinity of Defendant’s

vehicle, but customers may have been walking in and out of the convenience store.

One or two additional vehicles were parked at other gas pumps, but Defendant could

not see the other customers from where he stood.

      Upon pulling up to the pump, Defendant exited his vehicle and started walking

toward the convenience store. He reversed course, however, and returned to the

vehicle after Agent Diharce exited the Border Patrol truck. At this point, Agent

Diharce observed “four to five” people in the back seat of the vehicle. Agent Diharce

approached Defendant while Agent Ramirez stood on the rear passenger’s side of the

vehicle. Agent Diharce greeted Defendant with “Good morning,” and identified

himself as a Border Patrol agent. Agent Diharce immediately asked Defendant if he

was a United States citizen. Defendant replied in the affirmative. Agent Diharce

then asked Defendant if those inside the vehicle were his family. Defendant replied

                                          2
that he did not know the passengers, adding that he picked them up on the side of the

highway after they flagged him down. Agent Diharce used a “conversational tone”

and remained approximately three feet away from Defendant throughout the

exchange.

      Upon hearing that Defendant did not know the individuals in the back seat of

his vehicle, Agent Ramirez asked Defendant if he could speak to them. After

Defendant tacitly consented by lowering the passenger window, Agent Ramirez

questioned the passengers and determined that they were Mexican nationals without

immigration documents. Upon hearing this—about five minutes after arriving at the

gas station—Agent Diharce arrested Defendant.

      A federal grand jury indicted Defendant for conspiracy to transport illegal

aliens (8 U.S.C. § 1324(a)(1)(A)(v)(I)) and transporting illegal aliens (8 U.S.C.

§§ 1324(a)(1)(A)(ii), (a)(1)(B)(ii), and (a)(1)(A)(v)(II)). Defendant moved to

suppress all evidence that the Agents obtained on the day of his arrest. The district

court held a suppression hearing and issued a thorough and thoughtful order

suppressing Defendant’s statements, his passengers’ statements, and all other

evidence relating to the gas station encounter.

      The district court concluded the Agents violated Defendant’s Fourth

Amendment rights by subjecting him to an investigative detention without reasonable

suspicion.1 Consistent with its Fourth Amendment reasoning, the district court held


      1
       The government concedes it “did not press a reasonable-suspicion argument
below and does not ask the Court to consider it now.” Accordingly, we will focus
                                           3
that the Agents also violated Defendant’s Fifth Amendment rights by subjecting

Defendant to a custodial interrogation without first issuing Miranda warnings. The

government now appeals.

                                           II.

      The government contends the district court erred when it granted Defendant’s

motion to suppress. It argues that, under the totality of the circumstances,

Defendant’s interaction with the Agents was a consensual encounter that does not

implicate the Fourth Amendment. The government further contends the Agents did

not violate Defendant’s Fifth Amendment Miranda rights because they did not

subject Defendant to a custodial interrogation.

      “In reviewing a district court’s ruling on a motion to suppress evidence, we

view the evidence in the light most favorable to the prevailing party and accept the

district court’s findings of fact unless they are clearly erroneous.” United States v.

Hernandez, 

, 1263 (10th Cir. 2017). “We review de novo the relevant

circumstances to determine whether an interaction between an individual and a law

enforcement officer is a consensual encounter that does not implicate the Fourth

Amendment.” 

(“the ultimate determination of reasonableness under the

Fourth Amendment” is a question of law that we review de novo (id. at 1271)). For

the purposes of Miranda and the suppression of evidence under the Fifth Amendment,

we similarly “review de novo the district court’s determination that an individual is


our Fourth Amendment analysis exclusively on whether Defendant’s encounter with
law enforcement was a consensual encounter or an investigative detention.
                                           4
in custody, but we give deference to the district court’s findings of fact and to its

credibility determinations.” United States v. Revels, 

, 1273 (10th Cir.

2007) (citation omitted).

                                           A.

      The Fourth Amendment protects individuals against unreasonable searches and

seizures by law enforcement. See U.S. Const. amend. IV. But “[i]t does not

proscribe voluntary cooperation.” Florida v. Bostick, 

, 439 (1991). We

have identified three types of police-citizen encounters:

      (1) consensual encounters which do not implicate the Fourth
      Amendment; (2) investigative detentions which are Fourth Amendment
      seizures of limited scope and duration and must be supported by a
      reasonable suspicion of criminal activity; and (3) arrests, the most
      intrusive of Fourth Amendment seizures and reasonable only if
      supported by probable cause.

United States v. Ringold, 

, 1171 (10th Cir. 2003) (citation omitted). A

seizure does not occur just because an officer “approaches an individual and asks a

few questions.” 

. Instead, such an encounter will not trigger

the Fourth Amendment “unless it loses its consensual nature.” 

issue in this case is whether the Agents’ encounter with

Defendant was consensual and, therefore, not a violation of the Fourth Amendment.

In determining if an encounter is consensual, “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.” 

(internal


                                            5
quotation marks omitted) (quoting 

). This “test allows

officers to make inquiries so long as they [do not] throw their official weight around

unduly.” 

“There are no per se rules that govern this inquiry; rather,

every case turns on the totality of the circumstances presented.” 

(internal

quotation marks and citation omitted).

      We have “enumerated a non-exhaustive list of factors to be considered in

determining whether a reasonable person would feel free to terminate his encounter

with the police.” 

are:

      the location of the encounter, particularly whether the defendant is in an
      open public place where he is within the view of persons other than law
      enforcement officers; whether the officers touch or physically restrain
      the defendant; whether the officers are uniformed or in plain clothes;
      whether their weapons are displayed; the number, demeanor and tone of
      voice of the officers; whether and for how long the officers retain the
      defendant’s personal effects such as tickets or identification; and
      whether or not they have specifically advised defendant at any time that
      he had the right to terminate the encounter or refuse consent.

“Although no single factor is dispositive, the strong presence

of two or three factors may be sufficient to support the conclusion a seizure

occurred.” 

marks and citation omitted).

      The government contends that Defendant’s interaction with the Agents was a

consensual encounter because: (1) it occurred in a public place, (2) the Agents did

not create a coercive environment, and (3) Agent Diharce did not question Defendant

in a coercive manner. We agree.

      Initially, the location of the interaction weighs in favor of consensuality in this

case because the encounter occurred at a public place in full view of other customers

                                           6
and Defendant’s passengers. While location is not determinative, “it is an important

factor.” United States v. Little, 

, 1510 (10th Cir. 1994) (en banc)

(recognizing that “[o]n more than one occasion[,] the Supreme Court has recognized

the importance of location in the seizure determination” (collecting cases)). Indeed,

the Supreme Court and our Court have placed great weight on location—concluding

encounters in the presence of others are more likely to be consensual than encounters

where no members of the public are present. Compare United States v. Drayton, 

, 204 (2002), with 

.

      In this case, the Agents approached Defendant in broad daylight at a gas

station open to the public. Cf. 

, 1270 (treating a police-

citizen encounter that occurred at night along a fenced-in construction site where no

other individuals or cars were present as a non-public encounter even though the

location was technically accessible to the public). And, importantly, other patrons

were filling up with gas and accessing the convenience store at the same time.2

Although nobody else was “milling around” Defendant’s vehicle, the presence of



      2
         The record does not establish whether the other patrons—either in the store
or at the pumps—actually witnessed the conversation unfold between Defendant and
Agent Diharce. The absence of this information, however, does not change the
analysis as the totality of the circumstances make clear the location was a public one
in active use by others at the time of the encounter. The test, after all, does not turn
on whether anyone at the truck stop noticed, but instead on whether others were
present. See United States v. Thompson, 

, 1227 (10th Cir. 2008)
(observing that a parking lot encounter occurred in a public setting because several
people were present at the scene, even though those in the parking lot were otherwise
engaged in their own conversations with law enforcement at the time of the
defendant’s encounter).
                                           7
other patrons at the truck stop increases a reasonable person’s readiness to decline to

participate in a conversation with police. See 

(finding a

police-citizen encounter to be consensual, largely because the interaction occurred

“in the public space outside [a] service station”). Thus, the encounter maintained a

meaningful level of public exposure with other patrons in the vicinity at a public

location.

      The next factor also weighs in favor of the encounter being consensual because

the Agents approached Defendant in a non-threatening manner, did not block his path

of exit, and did not otherwise restrain him. See United States v. Easley, 

, 1080 (10th Cir. 2018) (observing that “when we speak of a coercive

environment, we mean an environment that is the creation of law enforcement

conduct”), cert. denied, 

(2019). Of course, we recognize “the natural

tendency of any person . . . to feel somewhat cowed when a law enforcement officer

approaches and begins to ask questions.” 

. This tendency,

however, does not mean that the mere approach of uniformed law enforcement agents

amounts “to a show of authority that would indicate to a reasonable person that he

had to” answer an agent’s questions. 

To the contrary, if agents approach

an individual in a “nonthreatening” manner, a reasonable person under the

circumstances is more likely to feel “free to decline the [agents’] requests or




                                           8
otherwise terminate the encounter,” thus supporting the consensual nature of any

subsequent interaction. 

(citation omitted). Such is the case here.3

       Additionally, “the number of officers is one of many factors to consider.”

. Although “the presence of more than one officer

increases the coerciveness of an encounter[,] . . . the presence of two uniformed and

armed officers does not automatically transform every police-citizen encounter into a

nonconsensual one.” 

Instead, we look at agent conduct rather

than mere presence. See United States v. Jones, 

, 1314 (10th Cir.

2012). Here, both Agents exited their vehicle upon arriving at the gas station, but

only Agent Diharce approached Defendant, while Agent Ramirez remained on the



       3
         Defendant asks us to infer that a reasonable person under the circumstances would
recognize that the Agents were following him on the highway, given the distance for and
proximity from which the Agents followed Defendant’s vehicle. As Defendant conceded
at oral argument, however, the district court did not make an express factual finding that
Defendant knew the Agents were following him. We likewise determine that the district
court did not rely on a potential inference that Defendant knew the Agents followed him at
all. Accordingly, we decline to draw any inference beyond the facts found by the district
court, and we independently find no evidence in the record to suggest that Defendant was
aware the Agents were following him at any point before he reached the gas station. See,
e.g., United States v. Vercher, 

, 1261 (10th Cir. 2004) (reiterating that factual
“inferences and conclusions drawn therefrom, are matters for the trial judge”).

        Even if we did agree with Defendant that we should consider the circumstances of
the Agents’ pursuit of Defendant, we conclude that the “earlier interaction does not convert
the later meeting into a nonconsensual encounter.” 

(reasoning
that the fact that an officer “drove past defendants on the Interstate without pulling them
over, before his ensuing turnaround and approach to them at the service station, did not
amount to a show of authority that would indicate to a reasonable person that he had to
comply with [the officer’s] inquiries” because the driver “chose to leave the highway and
voluntarily stopped [his] vehicle at the service station” (id.)) Accordingly, Defendant’s
awareness of the Agents on the highway, or lack thereof, does not affect our analysis.
                                              9
opposite side of Defendant’s vehicle. The presence of two agents in this case is not

particularly coercive because the Agents did not surround Defendant in a way that

prevented him “from simply entering his vehicle and driving away.” 

(observing that “although [two officers] were standing on either side of

[the defendant] and the gas pump,” that did not diminish the consensual nature of the

encounter because “nothing prevented [Defendant] from simply entering his vehicle

and driving away”).

      Likewise, only Agent Diharce initiated conversation with Defendant. Where

only one agent approaches an individual, even though multiple agents are present,

“there [is] no threatening presence of several officers.” See 

. Indeed, a one-on-one conversation is less coercive than one in which an

individual must field questions from multiple agents, which is more likely to make a

reasonable person feel “outnumbered.” See United States v. Bloom, 

,

1454 (10th Cir. 1992), overruled on other grounds by United States v. Simpson, 

, 1148 (10th Cir. 2010). Even though Agent Ramirez later asked to speak

with Defendant’s passengers, the fact that only Agent Diharce directly approached

and questioned Defendant limits the coerciveness of the encounter. See 

(reasoning that although “four officers were on the premises,” the

fact that only one directly questioned the defendant supported the consensual nature

of the encounter).

      Moreover, the Agents did not otherwise intimidate, touch, or restrict

Defendant’s movement. See 

(determining an encounter was

                                          10
consensual because “[t]here was no application of force, no intimidating movement,

no overwhelming show of force, no brandishing of weapons, no blocking of exits, no

threat, no command, not even an authoritative tone of voice”). That the Agents were

in uniform and visibly armed carries “little weight in the analysis.” 

–05. Indeed, Agent Diharce stood a respectful distance from Defendant

and behaved in a “non-threatening” manner towards Defendant. The Agents also

parked “approximately ten feet” behind Defendant’s vehicle, which maintained an

unobstructed exit path. See 

(concluding that an encounter

was consensual where the officers parked their patrol car “15 or 20 feet” away from

the suspect’s vehicle in a way that did not impede the suspect’s path). Accordingly,

the Agents did not create a coercive environment because the Agents did not

threaten, command, or otherwise prevent Defendant from extracting himself from an

otherwise consensual encounter.4

      Finally, Agent Diharce did not question Defendant in a coercive manner

because his non-threatening demeanor and conversational tone during the brief


      4
         Defendant relies heavily on the Fourth Circuit’s opinion in United States v.
Jones, 

(4th Cir. 2012) to argue that a reasonable person in Defendant’s
circumstances would not feel free to end the encounter, thus making the encounter an
investigative 

. This case is materially different than Jones,
where officers encountered a driver on private property—as opposed to at a gas
station open to the public—parked in a way that blocked the driver’s exit, did not
dispute that the interaction was a “stop,” asked the driver to lift his shirt, and then
physically touched the driver during a pat down. 

There, the officers’
joint approach, requests for physically invasive action, and tacit characterization of
the encounter as a “stop,” were all “traditional hallmark[s]” of a coercive encounter,
entirely absent from the case before us. See 

Thus, we do not find
Jones persuasive for purposes of deciding this case.
                                          11
inquiry outweigh whether he asked incriminating questions without requesting

permission to do. Initially, “there is nothing unlawful about the practice of

approaching individuals and asking them potentially incriminating questions, and

there is no per se rule requiring law enforcement officials to specifically advise those

individuals they do not have to answer police questions.” United States v.

Broomfield, 

, 1275 (10th Cir. 2000) (citations omitted). Indeed, “the

mere fact that officers ask incriminating questions is not relevant to the totality-of-

the-circumstances inquiry—what matters instead is the manner in which such

questions were posed.” 

(internal quotation marks and

citation omitted) (emphasis added). Specifically, “[a]ccusatory, persistent, and

intrusive questioning can turn an otherwise voluntary encounter into a coercive one.”

cf. 

(reasoning that not every “accusatory

assertion” is sufficiently coercive to make a reasonable person feel “that he was not

free to discontinue the encounter and go about his business”).5


      5
         Preliminarily, Defendant argues that this determination is a factual finding
subject only to clear error review, but “the presence of coercive police activity has
generally been considered . . . an issue for de novo review.” See Derrick v. Peterson,

, 818 (9th Cir. 1990), overruled on other grounds by United States v.
Preston, 

(9th Cir. 2014) (internal quotation marks and citation
omitted)); cf. United States v. Zapata, 

, 758 (10th Cir. 1993)
(independently concluding that an agent subjected an individual to “fairly routine
questioning” even though the district court found that the agent’s manner of
questioning was “accusatory and potentially incriminating”). Even if he were
correct, however, his position still fails upon review for clear error because the
district court’s conclusion regarding the “coercive manner” of Agent Diharce’s
questioning is ultimately belied by the other factual findings in its order—namely,
that “Agent Diharce’s demeanor was non-threatening and he used a conversational
tone when speaking to Defendant.”
                                           12
           Upon introducing himself and Agent Ramirez as Border Patrol agents, Agent

Diharce asked Defendant, “Are you a United States citizen?,” and then “if the people

in the [vehicle] were his family.” Even assuming Agent Diharce’s questions were

“incriminating” in nature, his “demeanor was non-threatening and he used a

conversational tone when speaking to Defendant,” which mitigates any coerciveness

inherent in the question. See Ringold, 

–74 (concluding that an

officer’s “non[-]threatening manner” and “friendly” tone makes a reasonable person

feel free to decline to answer even an officer’s “incriminating questions”).6 The

subject matter of Agent Diharce’s initial question—immigration status—was also not

so intrusive as to disrupt the consensual nature of the encounter. See I.N.S. v.

Delgado, 

, 216 (1984) (concluding that “interrogation relating to one’s

identity . . . does not, by itself, constitute a Fourth Amendment seizure”). Agent

Diharce’s inquiry consisted of only two short questions, and he did not retain any of

Defendant’s effects, which further decreases the level of intrusion. See 

(listing “whether and for how long the officers retain the

defendant’s personal effects such as tickets or identification” as another relevant

factor).




       6
        Defendant asserts that that the officer in Ringold did not immediately
approach the suspect and initiated the conversation with small talk before asking
“incriminating” questions “about illegal drugs and guns.” 

.
Even though Agent Diharce did not delay in approaching or questioning Defendant
here, those distinctions appear slight given the commonalities in officer demeanor,
tone, and nature of questions.
                                           13
      That Agent Diharce did not request permission to speak with Defendant or

advise Defendant of his right to terminate the encounter also carries “little weight in

our analysis.” 

; see also 

(concluding that a reasonable person need not receive such a notification to

understand that he retains the right to terminate an encounter). The Supreme Court

has “expressly rejected [a] rule which made all police encounters non-consensual

where officers failed to advise individuals of their right not to comply with their

requests.” 

(citing 

). As the

Supreme Court reasoned, an agent does not suggest to a reasonable person that he

cannot terminate an encounter when the agent speaks “in a polite, quiet voice” and

does “not brandish a weapon or make any intimidating movements.” 

–04. Agent Diharce’s conversational tone without brandishing his

weapon or making any other intimidating movement demonstrates that Defendant

should have reasonably felt free to terminate the encounter. Thus, the manner—

rather than the substance—of Agent Diharce’s questions to Defendant does not

outweigh the other factors that support the conclusion that the Agents encounter with

Defendant was consensual, rather than an investigative detention.

      Under the totality of the circumstances, we hold that the Agents’ conduct

should not have conveyed to a reasonable person that he “was not free to decline the

[Agents’] requests or otherwise terminate the encounter.” 

.

Thus, the encounter “falls clearly within the lines of a consensual encounter as drawn

by Supreme Court precedent and our own prior rulings.” 

.

                                           14
Accordingly, we reverse the district court’s order granting Defendant’s motion to

suppress under the Fourth Amendment.

                                           B.

      The government further contends that the Agents did not violate Defendant’s

Fifth Amendment Miranda rights because a consensual encounter does not amount to

a custodial investigation. Under the circumstances, we agree the Agents were not

required to provide Defendant with Miranda warnings.

      The Fifth Amendment provides a “privilege against self-incrimination during

‘custodial interrogation.’” United States v. Rodriguez-Garcia, 

, 1568

(10th Cir. 1993) (Miranda warnings require that officers inform a suspect of the right

to remain silent and to an attorney before initiating a custodial interrogation); accord

Miranda v. Arizona, 

(1966). Thus, “Miranda [warnings] need only be

given to a suspect at the moment that suspect is in custody and the questioning meets

the legal definition of interrogation.” United States v. Jones, 

, 1239

(10th Cir. 2008) (internal quotation marks and citation omitted) (emphasis added).

      Generally, assessing whether a Fourth Amendment seizure and a custodial

interrogation under Miranda occurred are “analytically distinct inquiries.” 

. Our law, however, is well-settled that a consensual encounter with

law enforcement is not subject to the strictures of Miranda. See, e.g., 

(concluding that a consensual encounter is not “enough to trigger the

Miranda requirements”). Defendant engaged in a consensual encounter with law

enforcement, so we conclude that the Agents did not subject Defendant to a custodial

                                           15
interrogation. 

Part II(A). Thus, the encounter was not subject to the

strictures of Miranda. See 

. Accordingly, we reverse the

district court’s holding that the Agents violated Defendant’s Fifth Amendment rights.

                                         III.

      For the foregoing reasons, we REVERSE the district court’s order granting

Defendant’s motion to suppress and remand for further proceedings consistent with

this order and judgment.


                                           Entered for the Court


                                           Joel M. Carson III
                                           Circuit Judge




                                         16