PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4344


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

ISMAEL AZUA-RINCONADA,

                     Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:16-cr-00005-FL-1)


Argued: September 28, 2018                                     Decided: January 28, 2019


Before NIEMEYER and KEENAN, Circuit Judges, and Norman K. MOON, United
States District Judge for the Western District of Virginia, sitting by designation.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Keenan and Judge Moon joined. Judge Keenan wrote a separate opinion, concurring.


ARGUED: Anne Margaret Hayes, Cary, North Carolina, for Appellant. Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Jennifer, P. May-
Parker, Acting First Assistant United States Attorney, Phillip A. Rubin, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
NIEMEYER, Circuit Judge:

      After Ismael Azua-Rinconada (“Azua”) was indicted for illegally entering the

United States in violation of 8 U.S.C. § 1326(a), he filed two motions to suppress all

statements and all other evidence obtained by law enforcement officers during their

encounter with him prior to his arrest. He alleged that the officers, acting without a

warrant, gained access to his residence through coercion, in violation of the Fourth

Amendment, and that they then subjected him to custodial interrogation without

providing him with Miranda warnings, in violation of the Fifth Amendment. Following a

hearing, the district court denied the motions, concluding that the officers received

voluntary consent to enter Azua’s residence and that Azua was not in custody when he

voluntarily gave answers to the officers’ questions. A jury then found Azua guilty of

violating § 1326(a), and the court sentenced him to time served and committed him to the

custody of the Department of Homeland Security for deportation.

      On appeal, Azua contends that the district court erred in denying his suppression

motions because (1) the law enforcement officers did not have valid consent to enter his

residence and thus needed a warrant, and (2) the officers’ interrogation of him was

custodial and thus violated his Fifth Amendment rights because no Miranda warnings

had been given. For the reasons that follow, we affirm.


                                            I

      On the morning of January 6, 2016, a team of six law enforcement officers

working with Homeland Security Investigations (“HSI”) set out on a “knock and talk”


                                            2
operation in a mobile home park in Robeson County, North Carolina. The team was led

by HSI Special Agent Bryan Moultis and included Corporal José Hernandez, a detective

in the Hoke County Sheriff’s Office who spoke Spanish. At approximately 9:30 a.m.,

Agent Moultis and Corporal Hernandez approached the trailer that was Azua’s residence

to conduct a “knock and talk.” At the time, Moultis was wearing a shirt with “police”

written across the chest, was carrying a holstered firearm, and had his badge around his

neck. Hernandez was also carrying a holstered firearm and was wearing a body cam that

recorded the interaction that followed.

       As Agent Moultis and Corporal Hernandez stood on either side of the front door of

the trailer, Hernandez knocked on the door. After receiving no response, he continued to

knock, saying “open the door” in Spanish. Hernandez then said, in English, “Publisher’s

Clearinghouse,” and Moultis remarked that he could hear voices from inside the

residence. Hernandez then knocked more forcefully and said in Spanish, “Open the door

or we’re going to knock it down,” followed, in English, by “Police, open the door.”

       When Azua and his fiancée, Amaryllis Powell, who was pregnant with Azua’s

child, heard the officers’ knocks and the threat to knock down the door, they became

scared. But when Azua realized that it was police who were at the door, he instructed

Powell to open it because, as he testified, “I knew nothing was going to happen to her.”

He also testified that he did not “believe that they were going to take the door down.”

Powell testified that when she opened the door following Azua’s instruction, she did so

“with consent” and found the officers to be “professional.”



                                            3
       After Powell opened the door, Corporal Hernandez greeted her and asked if she

was the only person home. She responded that she was. But when Agent Moultis

commented that he and Corporal Hernandez had “heard a whole lot more footsteps than

[hers],” Powell acknowledged that she was not alone. Moultis then asked Powell if she

would “mind if we came in and talked to you” and remarked, “we’d like to talk to you . . .

but it’s awfully cold out here.” Powell responded, “okay, you can come in” and gestured

with her hand for the officers to come inside. As she opened the door wider, she again

said, “okay, you can come in.” Corporal Hernandez said that he “appreciate[d] it” and

shook Powell’s hand.

       Agent Moultis, Corporal Hernandez, and one other officer then entered the trailer.

The officers did not perform a security sweep, but they did request that Powell ask

everyone in the trailer to come to the living room “just for safety reasons.” At that point,

Oscar Lopez, Azua’s brother-in-law, who also lived at the residence, walked into the

living room while Powell took a seat on the couch. As Agent Moultis began to explain

why the officers were there, indicating that they had received information regarding

illegal activity in the area, Azua walked into the room and took a seat on the couch next

to Powell. Moultis greeted Azua by saying, “Hey man, how are you?” Moultis then

asked Azua, Powell, and Lopez if there were any firearms in the trailer. Lopez responded

that he was renting the trailer and owned some firearms. Moultis requested that Lopez

complete a consent form authorizing the police to search the premises, and he also asked

Lopez if a canine unit could come into the house to assist in the search. Lopez agreed.



                                             4
       While Lopez was filling out the consent-to-search form, Agent Moultis asked

Azua and Powell where they were from originally. Powell responded that she was from

North Carolina, and Azua responded that he was from Mexico, providing Moultis with

his Mexican voter registration card as identification. Agent Moultis then gave Azua a

questionnaire designed to determine a person’s immigration status. He requested that

Azua fill out the questionnaire, using phrases such as “I want you to start filling this out”

and explaining that he wanted Azua “to answer every question.”

       While Azua was filling out the questionnaire, Agent Moultis told Lopez to come

with him to the kitchen table, where Moultis asked Lopez questions regarding his

firearms and reports of illegal activity in the area. While Agent Moultis spoke with

Lopez, Azua and Powell sat on the couch alone as Azua completed the questionnaire.

       When Azua had completed the questionnaire, Agent Moultis came back to the

living room and took a seat on the couch to ask Azua about some of his answers. During

the discussion, Moultis became suspicious of Azua’s legal status. He asked Powell if she

had begun the process for Azua to become an American citizen, and Powell said that she

wanted to but had not yet done so. Agent Moultis then said to Azua, “You’re going to

have to help me out, because I can be a roadblock for that. I don’t necessarily want to,

but if I don’t feel like you are being honest with me, I will be.” Moultis further told Azua

that, according to his questionnaire, he was “an illegal alien” and that he had “no status in

the United States” and “should’ve never been here.”

       Agent Moultis then said to Azua, “Why don’t you come with me, grab some shoes

real quick, and we’re going to go to my car real quick. We’re not going to go anywhere,

                                             5
we’re just going to grab some fingerprints.” As Azua rose from the couch, Corporal

Hernandez told him to put on a jacket because it was cold outside, at which point Azua

walked into another room to change clothes. Azua then came back and followed Agent

Moultis to his vehicle where he allowed Moultis to fingerprint him. When Moultis ran a

check of the prints, he learned that Azua’s file contained two warrants for deportation.

He thereupon arrested Azua, and placed him in handcuffs.

      After Azua was indicted for illegal entry, in violation of 8 U.S.C. § 1326(a), he

filed two suppression motions — the first seeking to suppress all statements made to

officers in his residence and the second seeking to suppress all evidence taken from his

person and property. Following a hearing, a magistrate judge recommended that Azua’s

motions be denied, concluding that Powell “gave voluntary and knowing consent for

officers to enter the residence even if she heard Corporal Hernandez’s comment about

breaking down the door” and that Azua “was not in custody” so as to require Miranda

warnings. The district court adopted the recommendation of the magistrate judge as its

own and denied Azua’s motions by order dated March 2, 2017.

      A jury convicted Azua of illegal entry following trial, and the district court

sentenced him to time served. He was then deported to Mexico.


                                           II

      Azua contends first that the law enforcement officers, operating without a warrant,

gained entry into his residence through coercion — not by valid consent, as the officers

claimed — by threatening to break down the door with “an implied claim of lawful


                                           6
authority,” in violation of the Fourth Amendment. Because the entry was illegal, he

asserts, all statements he made and all evidence obtained following the entry should have

been suppressed.

       The district court, adopting the findings of fact made by the magistrate judge,

disagreed with Azua, finding that the officers were granted entry voluntarily. The court

found that the officers “approached the door of the residence in mid-morning, without

drawn weapons and knocked repeatedly without yelling or violent pounding on the door”

and that Azua “directed Powell to answer the door after recognizing the visitors as

officers.” It found further that “Powell was an adult fully capable of communicating

consent” and that once she “opened the door, officers did not use hostile, accusatory or

threatening language.” Rather, the officers “in conversational tone asked for permission

to enter to speak further because it was cold outside, and Powell freely and casually

allowed [them] to enter.” To the court, “[t]hese factors provide[d] significant evidence

supporting a determination of voluntariness.”        While the court acknowledged that

Corporal Hernandez’s statements that the officers were with Publisher’s Clearinghouse

and that they would knock down the door weighed against finding consent, it reasoned

that “when these statements are viewed in context . . . in light of the officers’ actions and

tone of delivery as seen on the video recording, they do not show that Powell’s consent

was ‘coerced by threats or force, or granted only in submission to a claim of lawful

authority’” (quoting Schneckloth v. Bustamonte, 

, 233 (1973)). The court

found that the “statements made and physical demeanor of the officers and Powell, both



                                             7
before and after Powell answered the door, [stood] in stark contrast to circumstances in

those cases where consent has been found involuntary.”

      It is, of course, well understood that “the Fourth Amendment generally prohibits

the warrantless entry of a person’s home, whether to make an arrest or to search for

specific objects.” Illinois v. Rodriguez, 

, 181 (1990). “The prohibition does

not apply, however, to situations in which voluntary consent has been obtained, either

from the individual whose property is searched or from a third party who possesses

common authority over the premises.” 

The question whether

consent to search is voluntary — as distinct from being the product of duress or coercion,

express or implied — is one “of fact to be determined from the totality of all the

circumstances.” 

. And because the question is one of fact,

review on appeal is conducted under the clear error standard. United States v. Lattimore,

, 650 (4th. Cir. 1996) (en banc).

      In this case, we conclude that the district court did not clearly err in finding that

the officers received voluntary consent to enter Azua’s residence. The body cam footage,

which is part of the record, shows that the encounter did indeed stand in “stark contrast”

to those cases where consent was found to be involuntary. See, e.g., Bumper v. North

Carolina, 

, 548–49 (1968) (finding consent to be involuntary where officers

falsely claimed they had a warrant); Gregg v. Ham, 

, 336–37, 342 (4th Cir.

2012) (finding consent to be involuntary where a physically disabled woman allowed an

officer, who was armed with a shotgun, and three bail bondsmen into her home after the

officer shook the door and said that she “had to let them come in or he was going to come

                                               8
in”); cf. United States v. Elie, 

, 1145–46 (4th Cir. 1997) (finding consent to

be voluntary where at least six officers were present), abrogated in part on other grounds

by Dickerson v. United States, 

(2000). Azua’s argument to the contrary

depends almost entirely on Corporal Hernandez’s statement, “open the door or we’re

going to knock it down.”

       While we do not condone Corporal Hernandez’s statement — and the government

has indeed rightly repudiated it — we nonetheless conclude that, in context, it did not

fatally infect the voluntariness of the consent. The effect of the statement was limited, as

demonstrated by the body cam footage, as well as by Powell’s testimony. The footage

convincingly shows that after Powell opened the door, the officers conversed with her in

a calm, casual manner and that Powell freely and with a degree of graciousness invited

the officers into the trailer. And Powell also testified that she had consented to the entry.

With this evidence, we cannot conclude that the district court clearly erred in finding that

consent to enter was given voluntarily. See 

. Accordingly,

we affirm the district court’s ruling that the officers had valid consent to enter Azua’s

residence and therefore that their entry did not violate the Fourth Amendment.


                                             III

       Azua also contends that after officers entered his residence, he “was in custody

when he was interrogated by Agent Moultis, and Agent Moultis failed to inform him of

his Miranda rights.”    He claims accordingly that his Fifth Amendment rights were

violated. To support his argument, Azua points to the fact that officers obtained entry


                                             9
into his residence by threatening to break the door down, causing him “to believe he was

required to comply with any demand or request made by the officers.” In addition, he

notes that no officer “told him [that] he was not under arrest or that he was free to leave.”

       In concluding that the questioning of Azua was not a custodial interrogation, the

district court found that Azua “was questioned on his couch in his living room in mid-

morning, next to Powell, with [Lopez] also in the same room interacting with the

officers” and that the “officers introduced themselves in conversational tone, without

raising their voices, pulling weapons or using force on any person.” It found that the

“officers asked permission before bringing in a canine officer for a search,” that the

“officers did not isolate [the] defendant, and [the] defendant went to his room alone to put

on warmer clothes before he followed Agent Moultis outside.” The court found further

that the “officers did not use threats or deception to obtain statements from [the]

defendant, but rather truthfully described the subjects they were investigating.” To the

court, “[t]hese factors all support[ed] the non-custodial and voluntary nature of the

statements given by [the] defendant.” While the court did recognize factors weighing in

favor of finding custody — namely, that the “officers never told [the] defendant he was

not under arrest or free to leave”; that “Moultis instructed [the] defendant to fill out an

immigration field questionnaire”; and that “Moultis suggested by his questions that [the]

defendant was suspected of an immigration violation” — the court viewed these factors

as insufficient “to transform the officers’ visit into a custodial interrogation” when

considering the totality of the circumstances.



                                             10
       The Fifth Amendment provides that “No person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. And the Supreme

Court has mandated the use of procedural measures to ensure that defendants, when

subjected to custodial interrogations, are advised of their Fifth Amendment rights. See

Miranda v. Arizona, 

, 444–45 (1966). Thus, unless a defendant is advised of

his Fifth Amendment rights pursuant to Miranda and voluntarily waives those rights,

statements he makes during a custodial interrogation must be suppressed. See United

States v. Giddins, 

, 879 (4th Cir. 2017).

       When determining whether an interrogation is custodial for purposes of Miranda,

“a court asks whether, under the totality of the circumstances, a suspect’s freedom of

action was curtailed to a degree associated with formal arrest.” United States v. Hashime,

, 282 (4th Cir. 2013) (internal quotation marks, brackets, and citation

omitted). “This inquiry is an objective one, and asks . . . whether a reasonable person

would have felt he or she was not at liberty to terminate the interrogation and leave.” 

(internal quotation marks, brackets, and citation omitted); see also J.D.B. v.

North Carolina, 

, 271 (2011) (noting that the inquiry does not take into

account “the subjective views harbored by either the interrogating officers or the person

being questioned” (internal quotation marks and citation omitted)). And since the inquiry

“calls for application of the controlling legal standard to the historical facts,” it “presents

a mixed question of law and fact qualifying for independent review.” 

(internal quotation marks and citation omitted).



                                              11
       In this case, we conclude that the totality of the circumstances supports the

conclusion that Azua was not in custody when questioned in his residence. For most of

his interaction with the officers, Azua was seated next to Powell on the couch, where he

elected to sit when entering the room, with the officers on the opposite side of the room.

The officers’ language, demeanor, and actions were calm and nonthreatening, and the

tenor of the interaction remained conversational. While it is true that Agent Moultis, in

explaining to Azua how to fill out the questionnaire, used command words of the kind

used when giving instructions, the body cam footage convincingly supports the view that

Moultis was not commanding Azua but simply explaining how to fill out the form in the

manner that such instruction is typically given.       And while Azua was undoubtedly

intimidated during the interaction by having police in his home, especially in view of his

immigration status, that intimidation appeared no greater than that which is characteristic

of police questioning generally. And “police questioning, by itself, is unlikely to result in

a [constitutional] violation.” INS v. Delgado, 

, 217 (1984) (observing in the

context of a Fourth Amendment seizure that, “while most citizens will respond to a police

request, the fact that people do so, and do so without being told they are free not to

respond, hardly eliminates the consensual nature of the response”). Moreover, Azua’s

questioning was markedly different from interrogations that have been found to be

custodial. See, e.g., 

–81 (noting that officers, equipped with a

battering ram, entered the defendant’s home with guns drawn, ordered everyone outside,

and subsequently questioned the defendant in a basement storage room for three hours);

United States v. Colonna, 

, 433–35 (4th Cir. 2007) (noting that officers

                                             12
awoke the defendant at gunpoint after kicking his bedroom door open, kept the defendant

under guard, and kept his family away from him while interrogating him for three hours

in a police vehicle); cf. United States v. Hargrove, 

, 177–82 (4th Cir. 2010)

(concluding that a two-hour interview was noncustodial despite an initial pat-down

search and an initial security sweep involving a number of officers who had their

weapons drawn); United States v. Parker, 

, 417–19 (4th Cir. 2001)

(concluding that a 30-minute interview in a bedroom with the door closed was

noncustodial).

       Azua again relies heavily on Corporal Hernandez’s statement that the officers

would knock down the door, contending that the statement gave him “good reason to

believe he was required to comply with any demand or request made by the officers.”

Azua seems to be arguing that Hernandez’s statement tainted his entire interaction with

the law enforcement officers, such that it necessarily rendered any following questioning

custodial.   But we agree with the district court that this argument is unpersuasive.

Hernandez’s statement was but one fact among many to be considered in determining the

overall tenor of Azua’s interaction with the officers, which was decidedly casual,

nonhostile, and noncoercive.

       Azua also points out that no one notified him that he was not under arrest or that

he was free to leave and contends that Agent Moultis implied that he was a suspect. But

the lack of such notification is not dispositive of the custody issue, see Davis v.

Allsbrooks, 

, 171–72 (4th Cir. 1985), and “even a clear statement by an



                                           13
officer that the person being questioned is a suspect does not alone determine custody,”

United States v. Howard, 

, 1155 (4th Cir. 1997).

      In sum, considering the totality of the circumstances, Azua’s “freedom of action”

was not “curtailed to a degree associated with formal arrest,” meaning that he was not in

custody and Miranda warnings were therefore not required. 

(internal quotation marks and citation omitted).         Accordingly, we conclude that the

district court did not err in concluding that Azua was not subject to custodial

interrogation in violation of the Fifth Amendment.

                                     *      *        *

      For the foregoing reasons, we affirm the judgment of the district court.

                                                                              AFFIRMED




                                           14
BARBARA MILANO KEENAN, Circuit Judge, concurring:

       I join the well-reasoned majority opinion in full. I agree that the district court did

not clearly err in concluding under the totality of the circumstances, including the

contemporaneous video recording, that Powell voluntarily permitted Corporal Hernandez

and Agent Moultis to enter her home. I further agree that the district court did not err in

concluding that Azua was not in custody for Miranda purposes when Agent Moultis

questioned Azua in his home.

       I nonetheless write separately to emphasize that the majority opinion should not be

construed as deviating from this Circuit’s well-established precedent that a defendant’s

alleged consent to a search of his property ordinarily will be deemed invalid when that

consent was obtained through an “officer’s misstatement of his or her authority.” United

States v. Saafir, 

, 266 (4th Cir. 2014). The present case presents a rare

exception to this general principle.

       Here, the facts show that after knocking on the dwelling door, Corporal Hernandez

stated in Spanish, “Open the door or we’re going to knock it down.” It is undisputed that

Corporal Hernandez lacked the authority to forcibly enter the home, because he and

Agent Moultis were engaging in a “knock and talk” without a search warrant and in the

absence of exigent circumstances. United States v. Cephas, 

, 494 (4th Cir.

2001) (“Warrantless entries into a residence are presumptively unreasonable.”). Thus,

Corporal Hernandez falsely implied that he had authority to execute his threat to “knock

down” the door, and his threat was an affront to the very purpose of a “knock and talk,”

which is to make a brief, investigatory inquiry at a home. See Westfall v. Luna, 

534, 545 (5th Cir. 2018) (citation omitted); Covey v. Assessor of Ohio Cty., 

,

192-93 (4th Cir. 2015).

       Nonetheless, I am persuaded that Corporal Hernandez’s statement, viewed in the

context of the contemporaneous video recording, did not invalidate Powell’s consent.

Both the visual image and the audio components of the recording are of excellent quality.

The recording shows that when Powell opened the door, Agent Moultis calmly greeted

her. The two engaged in a nonconfrontational conversation, with Agent Moultis speaking

in a modulated and relaxed tone. At the end of the conversation, Agent Moultis did not

demand entry into the residence but, instead, asked if Powell would “mind if [the

officers] came in and talked” because it was “awfully cold” outside.

       This exchange captured on the video recording stands in “stark contrast” to

circumstances in which we have held that an officer’s use of false statements or threats

rendered involuntary a defendant’s purported consent. For example, we have held that

law enforcement officers did not obtain voluntary consent to enter and search a home

after falsely claiming to the occupant that the officers had obtained a search warrant.

United States v. Rush, 

, 1009, 1011-12 (4th Cir. 2015); see also Bumper v.

North Carolina, 

, 548-50 (1968).

       And, in our decision in Saafir, we discussed the coercive effect of an officer’s

false representation of authority to search a defendant’s car. There, following a traffic

stop, an officer noticed a “hip flask” commonly used to hold alcohol in the vehicle’s

driver’s-side pocket. 

. The officer falsely informed the driver that

the flask provided the officer with probable cause to search the car. 

that

                                            16
this false assertion of law fatally tainted the ensuing search in which a weapon was

recovered, we emphasized that a search is unreasonable if it is based on law enforcement

action “engaging or threatening to engage in conduct that violates the Fourth

Amendment.” 

(quoting Kentucky v. King, 

, 462 (2011)).

       Other circuits likewise have emphasized that a defendant’s purported consent to a

search of his property will be deemed invalid when officers have misrepresented their

authority, or illegally have threatened action based on an assertion of police authority.

See United States v. Poe, 

, 1000 (8th Cir. 2006) (holding that officers did

not obtain valid consent to enter a home after ten minutes of persistent knocks and a

demand by the officers that the occupant open the door); United States v. Alberts, 

, 640 (8th Cir. 1983) (holding that an officer did not obtain valid consent to enter

the property after the officer’s false claim of having a valid search warrant); United States

v. Bolin, 

, 559-61 (7th Cir. 1975) (holding that officers did not obtain valid

consent to enter the defendant’s home after subjecting the defendant to custodial

interrogation and threatening, without any basis, that the defendant’s girlfriend would be

arrested).

        Here, the evidence shows that Corporal Hernandez’s statement was, in effect, a

misrepresentation of his authority to enter the home. After he made that statement,

however, neither officer exhibited any other aggressive conduct.           United States v.

Lattimore, 

, 650 (4th Cir. 1996) (considering the conditions under which

consent is given in assessing voluntariness). In fact, the video recording demonstrates

that Powell and the officers engaged in casual, nonconfrontational conversation, such that

                                             17
any coercive effect from Corporal Hernandez’s initial statement had dissipated by the

time Powell motioned to the officers to enter the dwelling.

       In my view, in the absence of such ameliorating context, a dishonest or reckless

threat such as the one made by Corporal Hernandez would have been sufficiently

coercive to invalidate Powell’s consent. See Schneckloth v. Bustamonte, 

,

227 (1973) (consent is a “fact to be determined from the totality of all the

circumstances”); 

. With this distinction in mind, I join in the

majority opinion holding that the district court did not clearly err in concluding under the

totality of the circumstances that Powell voluntarily consented to the officers’ entry into

her home.




                                            18