January 14, 2016.
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.
UNITED STATES OF AMERICA, Plaintiff - Appellee: Doris L.
Pryor, Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
BERTON MAYS, Defendant - Appellant: Sara J. Varner, Attorney,
INDIANA FEDERAL COMMUNITY DEFENDERS, INC., Indianapolis, IN.
FLAUM and RIPPLE, Circuit Judges, and PETERSON, District
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.
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.
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.
August 8, 2013, Indianapolis Metropolitan Police Department
Officer Matthew Coffing was on patrol in his police 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 involve 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 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.
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?"
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."
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. 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."  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."  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."
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. 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."  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.
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
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."  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."  Because there was no
Fourth Amendment violation, ...