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United States v. Mays

United States Court of Appeals, Seventh Circuit

April 11, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
BERTON MAYS, Defendant-Appellant

         Argued January 14, 2016.

          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.

         For UNITED STATES OF AMERICA, Plaintiff - Appellee: Doris L. Pryor, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN.

         For BERTON MAYS, Defendant - Appellant: Sara J. Varner, Attorney, INDIANA FEDERAL COMMUNITY DEFENDERS, INC., Indianapolis, IN.

         Before FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.[*]

          OPINION

         Ripple, Circuit Judge.

         Berton Mays left the scene of a fight and was followed by an investigating officer who wanted to interview him about the altercation. Mr. Mays repeatedly declined to stop and talk to the officer, expressing his declination 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 employed 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 suppress 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 reasonable 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 Department Officer Matthew Coffing was on patrol in his police car on the southeast side of Indianapolis.[1] 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 involve violent crimes, robberies, narcotic investigations." [2] 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 present. 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 continued 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 continued to walk at a quick pace and said over his shoulder, " F--k you. I don't have to stop. What the f--k do you want?" [3] Officer Lepsky continued to follow Mr. Mays, asking him several times to stop and to talk with him about the fight, but Mr. Mays refused to stop, responding again, " F--k you. You don't have any reason to stop me." [4]

         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 the pockets of his shorts.[5] 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 you." [6] 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 be concealing something, a possible weapon." [7] 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 stop." [8]

         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 as his right side was going away from" the officer.[9] With his 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 and said, " Get the f--k off me." [10] As Mr. Mays continued to turn his body around toward Officer Lepsky, and as Officer Lepsky stepped back to create distance, the officer observed 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 observed 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 enforcement 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 possession of a firearm by a serious felon and resisting law enforcement. Several days later, two federal agents with the Bureau 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, 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 unconstitutional 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 suppress. The court explained that because " Mr. Mays never submitted to any show of authority," he was not seized for purposes of the Fourth Amendment until " Officer Lepsky used physical force to stop Mr. Mays from moving by placing his hand on Mr. Mays'[s] shoulder." [11] The court then concluded that " based on an objective analysis of the totality of the circumstances, at the time Officer Lepsky seized Mr. Mays, reasonable suspicion existed to conclude that Mr. Mays might have had a weapon and been about to use physical force against Officer Lepsky." [12] Because there was no Fourth Amendment violation, ...


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