United States v. Berton Mays

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2152
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BERTON MAYS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cr-00230-JMS-TAB-1 — Jane E. Magnus-Stinson, Judge.
____________________
ARGUED JANUARY 14, 2016 — DECIDED APRIL 11, 2016
____________________
Before FLAUM and RIPPLE, Circuit Judges, and PETERSON,
District Judge. ∗
RIPPLE, Circuit Judge. Berton Mays left the scene of a fight
and was followed by an investigating officer who wanted to
∗ The Honorable James D. Peterson of the United States District Court for
the Western District of Wisconsin, sitting by designation.
2 No. 15-2152
interview him about the altercation. Mr. Mays repeatedly de-
clined to stop and talk to the officer, expressing his declina-
tion in colorful and abusive language. After observing
Mr. Mays’s demeanor and suspecting that he might be armed,
the officer told him to stop and touched his shoulder in order
to keep a distance between the two. Mr. Mays’s manner of
turning made the officer concerned for his safety, and he em-
ployed his already drawn Taser. A semi-automatic firearm
fell to the ground.
Mr. Mays ultimately was prosecuted in federal court for
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1). He pleaded guilty to the offense, but reserved the
right to appeal the district court’s denial of his motion to sup-
press the firearm, which he contended was the product of an
illegal seizure. He also reserved the right to appeal the district
court’s denial of his motion to suppress a statement he had
made to federal agents while he was in pretrial confinement.
Mr. Mays now appeals, raising these preserved challenges.
We affirm the judgment of the district court. As the district
court determined, the officer’s stop was supported by reason-
able suspicion as required by the Fourth Amendment. With
respect to the statement, there was no independent violation
of Mr. Mays’s Sixth Amendment right to counsel.
I
BACKGROUND
A.
On August 8, 2013, Indianapolis Metropolitan Police De-
partment Officer Matthew Coffing was on patrol in his police
No. 15-2152 3
1
car on the southeast side of Indianapolis. His area of patrol
was designated a “problem area or a hot spot” because of the
high number of “dispatched runs [to the area] that may in-
2
volve violent crimes, robberies, narcotic investigations.” At
approximately 6:00 p.m., Officer Coffing observed a fight in
progress involving three individuals: a female on the ground,
a male on top of her, and a second male attempting to pull the
first man off her. A fourth individual, Mr. Mays, was also pre-
sent. At the time of Officer Coffing’s approach, Mr. Mays,
while present, did not appear to be an active participant in the
fight. Officer Coffing requested backup and exited his car. As
he approached the four individuals, Mr. Mays began to walk
away. Officer Coffing asked Mr. Mays to stop, but he contin-
ued to walk. Officer Lepsky then arrived at the scene as
backup; Officer Coffing described Mr. Mays to Officer Lepsky
and asked him to make contact with Mr. Mays and to inquire
about his involvement, if any, with the fight.
Officer Lepsky initially followed Mr. Mays in his marked
police car, but soon parked, exited the car, and followed
Mr. Mays on foot. As he drew near, Officer Lepsky asked
Mr. Mays to stop and to identify himself, but Mr. Mays con-
tinued to walk at a quick pace and said over his shoulder, “F-
3
-k you. I don’t have to stop. What the f--k do you want?” Of-
ficer Lepsky continued to follow Mr. Mays, asking him sev-
eral times to stop and to talk with him about the fight, but
1 The facts we recite are taken from testimony given during the suppres-
sion hearing, credited by the district court, as well as the court’s findings
of fact in its order denying the motion to suppress.
2 R.62 at 11.
3 Id. at 15–16.
4 No. 15-2152
Mr. Mays refused to stop, responding again, “F--k you. You
4
don’t have any reason to stop me.”
As he got closer to Mr. Mays, Officer Lepsky, relying on
his training, noticed that Mr. Mays’s body language was
“[v]ery tight, aggressive looking,” and that his hands were in
5
the pockets of his shorts. Officer Lepsky again asked
Mr. Mays to stop and to remove his hands from his pockets.
Mr. Mays continued to walk away from the officer, removed
only his left hand from his pocket, and again cursed, “[F]--k
6
you.” Officer Lepsky observed that Mr. Mays continued to
keep his right hand in his pocket and angled his body away
from Officer Lepsky in a manner that the officer interpreted
as an attempt to shield the right side of his body from view.
To the officer, this demeanor suggested that Mr. Mays “may
7
be concealing something, a possible weapon.” Officer
Lepsky told Mr. Mays to remove his right hand from his
pocket, and Mr. Mays again stated, “F--k you. I don’t have to
8
stop.”
Now within an arm’s length of Mr. Mays, Officer Lepsky
ordered Mr. Mays to stop. At this point, Mr. Mays stopped
walking forward but “continued to move in a circular motion
9
as his right side was going away from” the officer. With his
4 Id. at 17.
5 Id. at 16.
6 Id. at 18.
7 Id. at 19.
8 Id.
9 Id. at 20.
No. 15-2152 5
right hand, Officer Lepsky reached down and readied his
Taser. He then reached across his body and placed his left
hand on Mr. Mays’s right shoulder in order to prevent him
from turning around and to keep distance between the two
men. At the same time, Officer Lepsky again directed
Mr. Mays to take his hand out of his right pocket. Mr. Mays,
however, turned his right shoulder away from Officer Lepsky
10
and said, “Get the f--k off me.” As Mr. Mays continued to
turn his body around toward Officer Lepsky, and as Of-
ficer Lepsky stepped back to create distance, the officer ob-
served a metallic object in Mr. Mays’s right hand, which he
recognized as a handgun. Officer Lepsky then utilized his
Taser, striking Mr. Mays in the chest. He then stepped back
and pulled out his service-issued firearm. The handgun ob-
served in Mr. Mays’s hand landed on the ground nearby and
was recovered by officers.
B.
Mr. Mays was placed under arrest for resisting law en-
forcement and for possessing a firearm as a felon. He was read
his Miranda rights and questioned about the gun and the fight,
but he claimed to have no knowledge of either. On August 9,
2013, Mr. Mays was charged in state court with unlawful pos-
session of a firearm by a serious felon and resisting law en-
forcement. Several days later, two federal agents with the Bu-
reau of Alcohol, Tobacco, Firearms, and Explosives visited
Mr. Mays in jail. He signed a waiver of his Miranda rights and
made an inculpatory statement. On August 21, 2013,
10 Id. at 23.
6 No. 15-2152
Mr. Mays was charged with possessing a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1). Later, a federal grand jury
indicted him on that charge; the state court charges against
him were dropped.
Mr. Mays filed a motion to suppress the evidence of the
firearm recovered on the ground that it was the product of an
illegal seizure. He also moved to suppress the inculpatory
statement made to federal agents as fruit of the unconstitu-
tional seizure or, alternatively, on the independent ground
that it was made in violation of his Sixth Amendment right to
counsel. The district court denied Mr. Mays’s motion to sup-
press. The court explained that because “Mr. Mays never sub-
mitted to any show of authority,” he was not seized for pur-
poses of the Fourth Amendment until “Officer Lepsky used
physical force to stop Mr. Mays from moving by placing his
11
hand on Mr. Mays’[s] shoulder.” The court then concluded
that “based on an objective analysis of the totality of the cir-
cumstances, at the time Officer Lepsky seized Mr. Mays, rea-
sonable suspicion existed to conclude that Mr. Mays might
have had a weapon and been about to use physical force
12
against Officer Lepsky.” Because there was no Fourth
Amendment violation, the court determined that the inculpa-
tory statement could not be suppressed as the fruit of that sei-
zure. The court also concluded that the Sixth Amendment was
not violated because Mr. Mays knowingly and voluntarily
had waived his right to counsel.
11 R.61 at 9–10.
12 Id. at 13.
No. 15-2152 7
Mr. Mays pleaded guilty to being a felon in possession un-
der 18 U.S.C. § 922(g)(1) and was sentenced to ninety-six
months’ imprisonment to be followed by a two-year term of
supervised release. Mr. Mays reserved the right to appeal the
district court’s denial of his suppression motion and, in due
course, timely filed an appeal in this court.
II
DISCUSSION
We review the district court’s denial of Mr. Mays’s motion
to suppress under a two-pronged standard of review; we re-
view de novo the court’s ultimate conclusion that Of-
ficer Lepsky had reasonable suspicion to stop Mr. Mays; we
review the court’s findings of historical fact under the clear
error standard. United States v. Griffin, 652 F.3d 793, 797 (7th
Cir. 2011); United States v. Ford, 333 F.3d 839, 843 (7th Cir.
2003).
A.
The Fourth Amendment protects against unreasonable
searches and seizures. See U.S. Const. amend. IV. The Su-
preme Court has made clear that an investigatory stop, which
constitutes only a limited intrusion into an individual’s pri-
vacy, is reasonable, and therefore permissible, “if the officer
making the stop is ‘able to point to specific and articulable
facts’ that give rise to a reasonable suspicion of criminal activ-
ity.” United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994)
(quoting Terry v. Ohio, 392 U.S. 1, 21–22 (1968)). “[R]easonable
suspicion requires more than a hunch but less than probable
8 No. 15-2152
cause and considerably less than preponderance of the evi-
dence.” Gentry v. Sevier, 597 F.3d 838, 845 (7th Cir. 2010) (in-
ternal quotation marks omitted). “When determining
whether an officer had reasonable suspicion, courts examine
the totality of the circumstances known to the officer at the
time of the stop, including the experience of the officer and
the behavior and characteristics of the suspect.” United States
v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006). This assessment
requires that the court engage in an objective analysis that is
“based on common-sensical judgments and inferences about
human behavior.” United States v. Baskin, 401 F.3d 788, 791
(7th Cir. 2005) (quoting Illinois v. Wardlow, 528 U.S. 119, 125
(2000)).
The Fourth Amendment only protects against unreasona-
ble searches and seizures. Therefore, “[o]ur first task is to as-
certain the point at which Fourth Amendment concerns be-
came implicated.” Ford, 333 F.3d at 844. A Fourth Amendment
seizure is “not a continuous fact”; it is a single act that occurs
at a discrete point in time. California v. Hodari D., 499 U.S. 621,
625 (1991) (internal quotation marks omitted). A seizure may
be effected in either of two ways: “through physical
force…[or] through a show of authority and submission to the
assertion of authority.” Griffin, 652 F.3d at 798 (emphasis
omitted) (internal quotation marks omitted). As we have ex-
plained:
[T]he Supreme Court applie[s] a two-part test to
decide whether a person had been seized such
that Fourth Amendment protections are trig-
gered (whether that seizure be an arrest, a Terry
stop, or otherwise): first, determine whether
any physical force simultaneously accompanied
No. 15-2152 9
the officer’s show of authority, and second, de-
termine whether the defendant failed to comply
with that show of authority. If no physical force
accompanied the show of authority and a per-
son chose to ignore or reject that show of au-
thority, the defendant is not seized until the of-
ficer applied physical force and the person sub-
mitted to the officer’s show of authority.…
…[U]nder this test, a fleeing suspect—even one
who is confronted with an obvious show of au-
thority—is not seized until his freedom of
movement is terminated by intentional applica-
tion of physical force or by the suspect’s submis-
sion to the asserted authority.
United States v. $32,400.00, in U.S. Currency, 82 F.3d 135, 138–
39 (7th Cir. 1996) (footnote omitted) (internal quotation marks
omitted).
The parties agree that, during the early stages of the en-
counter, Mr. Mays did not submit to Officer Lepsky’s re-
peated requests that he speak with him. Their disagreement
centers on the proper characterization of the final seconds of
the officer’s interaction with Mr. Mays. The Government con-
tends, and the district court agreed, that the seizure occurred
when Officer Lepsky placed his hand on Mr. Mays’s shoulder
as he began to turn. Mr. Mays asserts that, when he ceased to
walk forward, he was submitting to Officer Lepsky’s author-
ity and that, consequently, any Fourth Amendment assess-
ment must be made at that precise moment. Mr. Mays argues
that the district court’s conclusion to the contrary is unsup-
ported, given the variations in Officer Lepsky’s sworn ac-
counts as to whether the officer ever physically touched
10 No. 15-2152
13
Mr. Mays. In neither his initial incident report nor his taped
14
statement made in connection with the state charges did Of-
ficer Lepsky mention any touching. However, the officer later
swore in a supplemental affidavit that he placed his left hand
on Mr. Mays’s right shoulder immediately prior to Mr. Mays
15
turning around. Finally, Officer Lepsky’s testimony at the
suppression hearing, which included a physical reenactment
of the encounter, was that Mr. Mays stopped and began to
turn in a circular motion, which prompted Officer Lepsky to
place his left hand on Mr. Mays’s right shoulder to maintain
distance. The district court credited Officer Lepsky’s hearing
testimony, a factual determination that Mr. Mays contends
was clearly erroneous.
We generally defer to the district court’s credibility deter-
minations at suppression hearings “because we recognize
that, unlike our review of transcripts, the district court had
the opportunity to listen to testimony and observe the de-
meanor of witnesses.” United States v. Garrett, 757 F.3d 560,
568 (7th Cir. 2014) (internal quotation marks omitted). We will
therefore only reverse if we are “left with the definite and firm
conviction that a mistake has been made,” such as when “a
district court credited exceedingly improbable testimony.”
United States v. Bass, 325 F.3d 847, 850 (7th Cir. 2003) (internal
quotation marks omitted); see also United States v. Biggs, 491
F.3d 616, 621 (7th Cir. 2007) (holding that “determinations of
witness credibility can virtually never be clear error” (internal
13 R.40-1 at 1.
14 R.50-1 at 4.
15 R.48-1 at 3.
No. 15-2152 11
quotation marks omitted)). With this deference in mind, we
cannot say that Officer Lepsky’s hearing testimony was so im-
probable that the district court clearly erred in crediting it.
At the suppression hearing, Mr. Mays’s defense counsel
took the opportunity to confront Officer Lepsky with the dis-
crepancies in his accounts of the incident. When specifically
asked why his description of the incident in the taped state-
ment did not include the physical touching, Officer Lepsky
responded that the attorney conducting the interview “did
16
not ask me if I put my hands on Mr. Mays.” Defense counsel
pressed Officer Lepsky on the issue several more times, but
after receiving the same answer abandoned the line of ques-
tioning. Ultimately, the district court found the discrepancies
in Officer Lepsky’s accounts “understandable given the quick
17
succession of events.” The district court, having listened to
this testimony and observed both the demeanor of the officer
and the reenactment of the encounter, was on solid ground in
accepting the testimony at the suppression hearing as true.
The district court was also correct in determining that the of-
ficer’s show of force by placing his hand on Mr. Mays’s shoul-
der while asserting his authority constituted the seizure of
Mr. Mays for purposes of the Fourth Amendment.
B.
Having ascertained the point at which the Fourth Amend-
ment was implicated, “we must now evaluate, under an ob-
jective standard, the totality for the circumstances known to
16 R.62 at 33.
17 R.61 at 3 n.4.
12 No. 15-2152
Officer [Lepsky] at that time and determine if a reasonable of-
ficer in those circumstances would have been suspicious.”
Ford, 333 F.3d at 844 (internal quotation marks omitted). The
district court concluded that when Officer Lepsky physically
seized Mr. Mays, “reasonable suspicion existed to conclude
that Mr. Mays might have had a weapon and been about to
18
use physical force against Officer Lepsky.” We agree with
the court’s conclusion.
First, although the Government concedes that Of-
ficer Lepsky did not have reasonable suspicion to believe that
Mr. Mays actually was involved in the fight, he knew that
Mr. Mays had left the scene upon the arrival of Officer Coff-
ing, a factor that we have held can be “suggestive of wrong-
doing and can be…considered in a court’s determination of
…reasonable suspicion.” United States v. Carlisle, 614 F.3d 750,
756 (7th Cir. 2010); see Wardlow, 528 U.S. at 124 (holding that
“unprovoked flight upon noticing the police” is pertinent to
the reasonable suspicion analysis); Lawshea, 461 F.3d at 860
(refusing to draw a constitutional distinction between run-
ning from the police and walking away evasively); United
States v. Valentine, 232 F.3d 350, 357 (3d Cir. 2000) (“In evalu-
ating the totality of the circumstances, we must also take into
account that Valentine and the two men with him immedi-
ately began walking away from the patrol car when it arrived.
Walking away from the police hardly amounts to the head-
long flight considered in Wardlow and of course would not
give rise to reasonable suspicion by itself, even in a high-crime
area, but it is a factor that can be considered in the totality of
the circumstances.”). Officer Lepsky also knew that the fight
18 Id. at 13.
No. 15-2152 13
had taken place in a high-crime area. Although this fact alone
“cannot, in and of itself, support a particularized suspi-
cion…an officer is permitted to consider a location’s charac-
teristics when assessing a situation.” United States v. Oglesby,
597 F.3d 891, 894 (7th Cir. 2010).
Further, as Officer Lepsky testified at the suppression
hearing, Mr. Mays’s repeated refusal to stop, his agitated, pro-
fane responses, and his aggressive demeanor all provided ad-
ditional cause for concern. See United States v. Lenoir, 318 F.3d
725, 729 (7th Cir. 2003) (“A suspect’s failure to halt upon po-
lice command to do so…support[s] a finding of reasonable
suspicion.”). Indeed, these factors, filtered through the of-
ficer’s training and experience, caused Officer Lepsky to ask
Mr. Mays to remove his hands from his pockets. See Oglesby,
597 F.3d at 894 (“Police officers are permitted to rely on their
experience and training in forming a reasonable suspicion.”).
And Mr. Mays’s response—to remove only his left hand but
not his right, and to angle the right side of his body away as
he continued walking—“made it reasonable for [Of-
ficer Lepsky] to infer that [Mr. Mays’s] stance was potentially
calculated to keep a weapon hidden or out of reach.” Id. at
894–95.
Finally, when Officer Lepsky and Mr. Mays were only an
arm’s length apart, Mr. Mays, after repeatedly rebuffing the
officer’s requests to stop walking, abruptly stopped moving
forward but “continued to move in a circular motion” as he
19
turned his body around toward the officer. It was at that
19 R.62 at 20.
14 No. 15-2152
point that Officer Lepsky seized Mr. Mays by reaching out
and grabbing his shoulder.
Based on the totality of the circumstances known to Of-
ficer Lepsky at that moment, it was reasonable for the officer
to infer that Mr. Mays had a weapon in his right hand and
was rounding to use physical force. It was reasonable to sus-
pect that the man who was turning toward him in such a fash-
ion was not merely having a change of heart and acquiescing
in the officer’s request for a consensual interview. Rather, the
officer had an articulable reason to believe that the man before
him was armed and a danger to his safety. The seizure was
therefore permissible under the Fourth Amendment.
C.
Because we find no Fourth Amendment violation,
Mr. Mays’s contention that his inculpatory statement was the
fruit of an illegal seizure must fail. As for Mr. Mays’s inde-
pendent argument under the Sixth Amendment, he offers no
evidence that his waiver of his right to counsel was not vol-
untary, knowing, and intelligent. See Montejo v. Louisiana, 556
U.S. 778, 786 (2009). Absent such evidence, “when a defend-
ant is read his Miranda rights…and agrees to waive those
rights, that typically does the trick.” Id.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED