United States v. Cade

93 F.4th 1056

UNITED STATES of America, Plaintiff-Appellee, v. Brandon CADE, Defendant-Appellant.

No. 23-1001

United States Court of Appeals, Seventh Circuit

Argued November 30, 2023

Decided February 26, 2024

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:21-cr-223-1 — Sharon Johnson Coleman, Judge.

Edward Anthony Liva, Jr., Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Stefan K. Fenner, Attorney, Stefan K. Fenner, Chicago, IL, for Defendant-Appellant.

Before Hamilton, Kirsch, and Pryor, Circuit Judges.

Kirsch, Circuit Judge.

Brandon Cade and a female companion ("T.J.") were standing in the street next to a parked sedan when two Chicago police officers approached. T.J. was drinking from a red solo cup. When the officers asked her what she was drinking, she stated that the drink contained alcohol. The officers also noticed an open bottle of alcohol in the back of the sedan. As a result, the officers executed a search of the car, during which they recovered a firearm. After the officers read Cade and T.J. their Miranda rights, they asked about the firearm. Cade admitted that it belonged to him and that he did not have a proper license to carry the weapon. The officers consequently took Cade into custody. The government charged Cade with one count of possession of a firearm by a felon (18 U.S.C. § 922(g)(1)), after which Cade unsuccessfully sought to suppress evidence of the gun and his incriminating statements. He ultimately pleaded guilty but reserved his right to appeal the suppression ruling, though he now concedes he only has standing to seek suppression of his statements. Because the initial encounter with the officers was consensual, and because Cade's incriminating statements were sufficiently attenuated from any allegedly unlawful seizure, we affirm.

I

On September 6, 2020, at around 8:30 pm, Chicago Police Officers Eric Myers and Bryan Perez Pacheco, each wearing body cameras, were patrolling a neighborhood in their marked car when they drove past Brandon Cade and T.J. standing next to a white sedan. While doing so, they observed Cade carrying a bag over his shoulder. The officers turned their car around and drove back to Cade and T.J.'s location. After pulling over in front of the sedan and turning on their emergency lights, the officers exited their vehicle and approached Cade and T.J.

Cade notably no longer had a bag on his person. T.J. was holding a red solo cup. When Officer Myers asked about the contents of the cup, T.J. admitted that it contained liquor. Officer Pacheco then began leading Cade to the rear of the vehicle. Simultaneously, Officer Myers asked T.J. about the sedan's ownership and requested her identification. T.J. responded that the sedan belonged to her grandmother. While T.J. searched for her identification, the officers asked Cade about the bag they had previously seen him carrying, but he denied possessing any bag. Officer Myers then noticed an unsealed bottle on the floor of the sedan's back passenger compartment. He asked T.J. if the bottle was Don Julio (a brand of tequila); she responded affirmatively.

Officer Myers directed T.J. to step away from the sedan and move toward the rear alongside Cade. He then opened the driver door, found a large bag on the driver's seat, and noticed a firearm inside of it. At the same time, Officer Pacheco handcuffed Cade and T.J. to one another, leaving both with one arm free. Officer Myers then asked Cade and T.J. if either of them had a license to carry a firearm; each responded that they did not. Officer Myers turned back to the sedan, pulled the firearm out of the bag, and emptied the magazine onto the roof of the car.

While Officer Myers continued inspecting the firearm, Officer Pacheco read Cade and T.J. their Miranda rights. After Cade and T.J. acknowledged that they understood their rights, Officer Pacheco asked, "Whose gun is it?" Cade admitted the gun belonged to him. He also admitted he did not have a firearm license. Accordingly, Officer Pacheco placed Cade under arrest.

After the officers transported Cade to a police station, Officer Myers again read Cade his Miranda rights. Cade agreed to respond to questioning, and in doing so, confirmed that the firearm found during the stop belonged to him. He added that he had possessed the bag containing the firearm prior to the stop.

The government charged Cade with one count of possession of a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). Cade moved to suppress the gun and the statements he made to police; he also sought an evidentiary hearing. The district court denied Cade's motion, concluding (1) that the officers initially engaged in a consensual encounter with Cade and T.J.; (2) that the officers thereafter had reasonable suspicion to execute an investigatory stop based on violations of city ordinances; (3) that the officers had probable cause to search the sedan and bag based on the unsealed tequila bottle; and (4) that even if they did not, Cade lacked standing to challenge the search of the sedan or bag. The district court also denied Cade's request for an evidentiary hearing after determining that he failed to identify any material factual disputes.

Cade pleaded guilty, reserving his right to appeal the district court's denial of the motion to suppress. The district court sentenced Cade to 65 months' imprisonment. This timely appeal followed.

II

When a district court denies a motion to suppress, we review findings of fact for clear error and conclusions of law de novo. United States v. Ruiz, 785 F.3d 1134, 1140-41 (7th Cir. 2015). Cade has conceded that he lacks standing to challenge the admission of the gun because he had no reasonable expectation of privacy in the sedan or the bag he had abandoned. He now only seeks suppression of the incriminating statements he made after the gun was found.

A

Cade first argues the initial encounter with the officers was an unlawful seizure, and any evidence recovered in the ensuing stop, which includes his statements, must be suppressed. A seizure occurs under the Fourth Amendment if a reasonable person would not feel free to leave, but not every encounter with police officers implicates the Fourth Amendment. United States v. Holly, 940 F.3d 995, 1000 (7th Cir. 2019). We have recognized three basic categories of police-citizen encounters:

The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment "seizure," but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen's liberty, and is characterized by an officer seeking the citizen's voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment.

United States v. Shields, 789 F.3d 733, 743 (7th Cir. 2015) (quotation omitted). For the third category, often called a "consensual encounter," see id., "the degree of suspicion that is required is zero," United States v. Pace, 48 F.4th 741, 748 (7th Cir. 2022) (cleaned up). To be sure, "[t]he Supreme Court has stated clearly that there is no constitutionally cognizable seizure 'simply because a police officer approaches an individual and asks a few questions.' " Id. (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)).

In determining whether a police encounter was consensual, we consider these factors: (1) the location of the interaction, including whether it was in public; (2) the number of officers present; (3) the extent to which the police presence was threatening; (4) whether the officers made a show of weapons or physical force; (5) the officers' language and tone; (6) whether the officers implied that the defendant was suspected of a crime; and (7) whether the defendant was in-formed he was free to leave. Holly, 940 F.3d at 1000. Whether a police-citizen encounter was consensual is a question of fact, so we review the district court's determination for clear error. United States v. Whitaker, 546 F.3d 902, 906 (7th Cir. 2008).

Applying the above factors, we conclude that the district court did not clearly err in deeming the initial encounter consensual. Officers Myers and Pacheco first drove past Cade and T.J. standing in the street alongside a parked sedan. When they returned to the pair, they pulled their car off to the side of the road slightly in front of the sedan, turned on their emergency lights, calmly exited their vehicle, and asked T.J. a reasonable question about the contents of her red solo cup. The interaction took place on a public road with other cars and people nearby, only two officers were present (matching the number of suspects), and the officers' conduct was not threatening—they did not rush out of their vehicle or have their hands on their service firearms. Further, the officers did not show their weapons, talk to Cade or T.J. in an aggressive tone, or imply that anyone was suspected of a crime. While the officers did not inform Cade and T.J. that they could leave, the factors in Holly are "neither exhaustive nor exclusive." 940 F.3d at 1000 (quotation omitted).

Cade argues that the officers demonstrated the requisite authority needed for a seizure by activating their emergency lights and positioning their vehicle in front of the sedan. Police officers routinely use emergency lights to signal motorists to stop, but encounters with pedestrians on the street can be different. When police officers park a police vehicle in a public street to approach pedestrians on foot, especially at night, the officers' use of emergency lights...