USA v. Jetmir Qose

Filing

Opinion issued by court as to Appellant Jetmir Qose. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11098
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00260-RAL-EAJ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
JETMIR QOSE,

Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 8, 2017)
Before HULL, WILSON and BLACK, Circuit Judges.
PER CURIAM:

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Jetmir Qose appeals his convictions for transportation of child pornography,
18 U.S.C. § 2252(a)(1) and (b)(1), and possession of child pornography, 18 U.S.C.
§ 2252(a)(4)(B) and (b)(2). Qose raises two issues on appeal. First, he contends
the district court erred in denying his motion to suppress evidence seized during
the execution of a search warrant because the affidavit in support of the search
warrant did not contain probable cause. Qose also asserts the district court erred in
denying his motion to suppress his pre-arrest statement to law enforcement because
the statement was provided while he was in custody without being advised of his
rights under Miranda v. Arizona, 384 U.S. 436 (1966). After review,1 we affirm.
I. DISCUSSION
A. Probable Cause
“Probable cause to support a search warrant exists when the totality of the
circumstances allow a conclusion that there is a fair probability of finding
contraband or evidence at a particular location.” United States v. Brundidge, 170
F.3d 1350, 1352 (11th Cir. 1999). Our staleness doctrine “requires that the
information supporting the government’s application for a warrant must show that
probable cause exists at the time the warrant issues.” United States v. Bervaldi,
226 F.3d 1256, 1264 (11th Cir. 2000). Because “[t]here is no particular rule or

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In reviewing a district court’s ruling on a motion to suppress, we review factual findings
for clear error and the application of law to those facts de novo. United States v. Capers, 708
F.3d 1286, 1295 (11th Cir. 2013).
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time limit for when information becomes stale . . . staleness is an issue which must
be decided on the peculiar facts of each case.” Id. at 1265 (quotations
omitted). When determining staleness, courts should consider the length of time,
“nature of the suspected crime (discrete crimes or ongoing conspiracy), habits of
the accused, character of the items sought, and nature and function of the premises
to be searched.” Id. “[I]f an affidavit recites activity indicating protracted or
continuous conduct, time is of less significance.” Id. (quotations omitted). Stale
information can establish probable cause if “the government’s affidavit updates,
substantiates, or corroborates the stale material.” United States v. Jimenez,
224 F.3d 1243, 1249 (11th Cir. 2000) (quotations omitted).
The affidavit in support of the search warrant was not based upon stale
information. Although the investigation was initiated in September 2014, it was
confirmed in March 2015 that Besim Qose was still the subscriber to the internet
used by Jennifer123654. Federal agents conducted surveillance on the Qose
residence the same month they executed the search warrant and confirmed that
Qose resided in the condominium and typically left for work at approximately 6:30
a.m.
Even assuming the information within the affidavit was stale, however, the
agents who executed the warrant acted in good faith. Consequently, exclusion of
the evidence seized is not appropriate. The Supreme Court has established a good3

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faith exception to the judicially created exclusionary rule for evidence seized in
violation of the Fourth Amendment. United States v. Martin, 297 F.3d 1308,
1312-13 (11th Cir. 2002) (citing United States v. Leon, 468 U.S. 897, 923 (1984)).
This exception provides that courts generally should not render inadmissible
evidence obtained by law enforcement acting in reasonable reliance upon a search
warrant that is later found to be unsupported by probable cause. Id. at 1313. The
focus of a Leon inquiry is the law enforcement agent; thus, the court must consider
whether the officer acted reasonably and in an honest belief that he obtained a
valid search warrant before conducting a search. United States v. Taxacher, 902
F.2d 867, 871-72 (11th Cir. 1990).
Even if Agent Cumming’s affidavit was in some way lacking, Qose does not
contend, nor does the record show, that the district court erred in concluding that
the good-faith exception also justified denying the motion to suppress. See United
States v. Robinson, 336 F.3d 1293, 1295 (11th Cir. 2003) (reviewing de novo
whether the good-faith exception applies, and reviewing the underlying facts upon
which that determination is based for clear error). The record does not
demonstrate the agents acted in bad faith or were objectively unreasonable in
relying on the warrant. No evidence indicated Agent Cumming’s affidavit
contained any knowing or reckless falsities or the magistrate judge who issued the
warrant acted as a “rubber stamp” and failed to evaluate the information placed
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before him. Neither does the evidence establish Agent Cumming’s affidavit was
so inadequate in detail as to preclude the issuing judge from finding probable
cause. See Leon, 468 U.S. at 923 (providing while searches conducted pursuant to
warrants will rarely require suppression, there are four situations in which
suppression would be appropriate: (1) if the magistrate issuing a warrant was
“misled by information in the affidavit that the affiant knew was false or would
have known was false except for his reckless disregard of the truth;” (2) where “the
issuing magistrate wholly abandoned his judicial role;” (3) where the “warrant [is]
based on an affidavit so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable;” and (4) where a “warrant [is] so
facially deficient . . . that the executing officers cannot reasonably presume it to be
valid”). As such, the district court did not err in concluding that a factual basis
indicated that child pornography would be found at the Qose residence and Agent
Cumming’s reliance on the validity of the warrant was objectively reasonable.
B. Statement to Law Enforcement
The Fifth Amendment provides “[n]o person...shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda
v. Arizona, the Supreme Court established a law enforcement agent may not
conduct a custodial interrogation of a suspect before informing him of his rights

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against self-incrimination. 384 U.S. 436, 473-74 (1966). Statements made in
violation of Miranda are not admissible at trial. Id. at 444-45.
We described the test for determining whether an interaction is custodial as
follows:
A defendant is in custody for the purposes of Miranda when
there has been a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.
Whether [a defendant] was in custody prior to his formal arrest
depends on whether under the totality of the circumstances, a
reasonable man in his position would feel a restraint on his
freedom of movement to such extent that he would not feel free
to leave. The test is objective: the actual, subjective beliefs of
the defendant and the interviewing officer on whether the
defendant was free to leave are irrelevant. Under the objective
standard, the reasonable person from whose perspective
‘custody’ is defined is a reasonable innocent person.
United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (quotations and
citations omitted). Although the location of an interview is not necessarily
dispositive in determining whether a person is in custody, courts are much less
likely to find a custodial encounter when the interrogation occurs “in familiar or at
least neutral surroundings, such as the suspect’s home.” Id. at 1348 (quotation and
brackets omitted).
We consider several factors in determining whether a suspect is in custody,
“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.” United States v. Street, 472 F.3d 1298, 1309 (11th Cir. 2006)
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(quotation omitted). An interviewee’s “status as a suspect, and the coercive
environment that exists in virtually every interview by a police officer of a crime
suspect,” does not automatically create a custodial situation. United States v.
Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000).
The district court did not err in denying Qose motion to suppress his
statement to police. The court’s conclusion the interview was not custodial was
based upon the record: Qose admitted he was told twice the interview was
voluntary and he was free to leave; the agents’ weapons were holstered; at no time
did an agent physically touch Qose; the interview occurred in the parking lot of his
residential community; Qose voluntarily entered the vehicle; he was not
handcuffed or restrained in any way; his requests for water and temperature change
during the interview were honored; he never asked to leave and never requested a
lawyer; and he was provided with a telephone. In addition, Qose signed a consent
form “freely and voluntarily without fear of threats; coercion, or promises of any
kind,” allowing the FBI to assume his online identity. The court emphasized the
fact Qose told his employer he would be late to work—instead of stating he would
not be in that day—as evidence of Qose’s belief he was not under arrest. Whether
or not Qose requested a lawyer was an issue of credibility, and the court credited
the testimony of Agent Cumming and Detective Wagoner on that point.

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Moreover, even if a Miranda violation occurred, any error in admitting the
statement would be harmless beyond a reasonable doubt given the overwhelming
evidence of Qose’s guilt. See United States v. Arbolaez, 450 F.3d 1283, 1292
(11th Cir. 2006) (“The admission of statements obtained in violation of Miranda is
subject to harmless error scrutiny.”). Even discounting Qose’s statement, the
parties stipulated beyond a reasonable doubt that an undercover agent downloaded
13 files containing child pornography from user Jennifer 123654 on a P2P file
sharing program located in Florida. The IP address Jennifer 123654 was using was
registered to Besim Qose, who lived in the same home as Jetmir Qose. A search
warrant was executed at the residence, and agents seized a Lenovo laptop computer
named “Jetmir-PC” within the Microsoft Windows operating system. Qose’s
mother informed agents that neither she nor her husband use Qose’s laptop, their
household internet is secured with a password, and she was not aware of anyone
outside the family having the password.
The parties further stipulated that computer contained numerous files
detailing chats between Qose and P2P users, including a chat providing the
undercover agent the password to access Qose’s child pornography. At least 42
images depicting child pornography were located on the computer, which also
utilized a media player application to access a child pornography video nine times.
The Samsung hard drive contained multiple video files depicting child
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pornography, and the Seagate hard drive contained at least one image downloaded
by the undercover agent who accessed Jennifer 123654’s files on the P2P program
as well as numerous video fragments containing child pornography. Thus, even
assuming the court did err in admitting Qose’s statement, the remaining evidence is
so overwhelming that it is clear beyond a reasonable doubt that the statement did
not affect the verdict, and any error was thus harmless.
II. CONCLUSION
In conclusion, the district court did not err in denying Qose’s motion to
suppress evidence obtained during execution of the search warrant because the
affidavit in support of the warrant was not based upon stale information. In
addition, even if the information in the affidavit was stale, the district court did not
err in denying the motion because the agents acted in reasonable reliance in
executing the warrant. The district court also did not err in denying Qose’s motion
to suppress his statement. Qose was not in custody at the time he spoke to law
enforcement. Moreover, even if the court did err in admitting the statement, such
error is harmless in light of the overwhelming evidence of guilt against Qose.
Accordingly, we affirm Qose’s convictions.
AFFIRMED.

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