"'If the district court's factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible.'" United States v. Zapata, 997 F.2d 751, 757 (10th Cir. 1993) (quoting United States v. Nicholson, 983 F.2d 983, 987 (10th Cir. 1993)). We consider first whether the district court correctly held that the encounter between Agent Small and Ms. Little was a seizure implicating the Fourth Amendment, rather than a consensual encounter.
A seizure occurs only when an officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen. United States v. Zapata, 997 F.2d 751, 756 (10th Cir. 1993). The Supreme Court in Florida v. Bostick held that, "in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter."
United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011). Defendant's "subjective state of mind" regarding police officers "may be relevant to some degree to the issue of the voluntariness of [her] consent," United States v. Zapata, 997 F.2d 751, 757 (10th Cir.1993), but must be considered in light of all the other relevant circumstances. United States v. Hill, 199 F.3d 1143, 1150 (10th Cir. 1999).
United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011). Defendant's "subjective state of mind" regarding police officers "may be relevant to some degree to the issue of the voluntariness of [her] consent," United States v. Zapata, 997 F.2d 751, 757 (10th Cir.1993), but must be considered in light of all the other relevant circumstances. United States v. Hill, 199 F.3d 1143, 1150 (10th Cir. 1999).
United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011). Defendant's "subjective state of mind" regarding police officers "may be relevant to some degree to the issue of the voluntariness of [her] consent," United States v. Zapata, 997 F.2d 751, 757 (10th Cir.1993), but must be considered in light of all the other relevant circumstances. United States v. Hill, 199 F.3d 1143, 1150 (10th Cir. 1999).
Ultimately, however, Defendant's reliance on his subjective state of mind is misplaced. "[P]olice may freely ask questions of any individual they choose . . . 'so long as the officers do not convey a message that compliance with their requests is required.'" United States v. Zapata, 997 F.2d 751, (10th Cir. 1993) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)). In determining whether the special agents seized Defendant by interviewing him at Sam's Club
The Tenth Circuit Court of Appeals has articulated a number of factors district courts are to consider in determining whether a police-citizen encounter was sufficiently coercive that a reasonable person would believe he was not free to end the encounter. These factors include, but are not limited to: (1) the number of officers present, (2) whether the officers had their weapons drawn, (3) physical touching by an officer, (4) language used aggressively or in a tone by an officer that indicates compliance is compulsory, (S) a request to accompany the officer to the station, (6) whether the encounter occurred in public view, (7) whether officers are uniformed or in plain clothes, and (8) whether defendant was specifically advised that he had the right to terminate the encounter or refuse to consent United States v, Sanchez, 89 F.3d 715, 718 (10th Cir. 1996) (citation omitted); United States v. Zapata, 997 F.2d 751, 756 (10th Cir. 1993) (citations omitted); United States v. Laboy, 979 F.2d 795, 798-99 (10th Cir. 1992) (citations omitted). Determining whether a seizure occurred during a police-citizen encounter is a fact-specific inquiry, to which no one fact is determinative, and therefore requires a court to decide from the totality of the circumstances whether a defendant has been seized.
Defendant does not argue that his consent was involuntary because of subjective factors such as his education level, lack of understanding of English, or mental disability. See Jones, 701 F.3d at 1319-20; United States v. Zapata, 997 F.2d 751, 757 (10th Cir. 1993). As set forth in the Court's "Findings of Fact," the Court finds that Perry requested permission of Defendant at each step in the encounter, from a request to speak with him at the beginning to the request for consent to search the black Nike duffel bag; the Court also finds that Defendant unequivocally, specifically, and freely gave consent to each request.
"When we review an order granting a motion to suppress, we accept the trial court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court's finding." United States v. Zapata, 997 F.2d 751, 756 (10th Cir. 1993) (internal quotation marks omitted). Whether consent was voluntarily given is a question of fact we review for clear error.
A "seizure" occurs when an officer, "by means of physical force or show of authority, . . . in some way restraint[s] the liberty of a citizen." United States v. Zapata, 997 F.2d 751, 756 (10th Cir. 1993) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). A "knock and talk," on the other hand, "is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion."