On October 18, 2019, the Seventh Circuit Court of Appeals decided the United States v. Holly[i], which serves as an excellent review of the law related to consensual encounters.  The facts of Holly, both the officer’s version of events and Holly’s version, taken directly from the case, are as follows:

The officers testified that they had entered a parking lot in Altgeld Gardens to get a better view of the interior courtyard, which Officer Byrne considered a high-crime area based on arrests he had made there before. Around 4:00 p.m., Officer Byrne saw Holly walking on a sidewalk toward the police car. Officer Byrne said that as Holly neared the car, he made eye contact with the officers, formed a surprised and anxious look, and then turned sharply and walked swiftly in another direction, ultimately making his way behind a building and out of the officers’ sight. Both officers testified that Officer Caulfield then jogged after Holly and found him inside the courtyard, standing outside an apartment door and ringing the doorbell. (An occupant later told the officers she did not know Holly.)

Officer Caulfield said that he identified himself as police and asked Holly a single question: Do you have drugs or a gun? Yes, Holly replied, he had a gun in his pocket. Officer Caulfield took the gun and from there turned Holly toward a wall to arrest him. By then Officer Byrne had reached the apartment and assisted Officer Caulfield by handcuffing Holly. Both officers testified that at no point did they draw their own guns or touch Holly before placing him under arrest. A third officer, Raul Casales, responded to a backup call and met Officers Caulfield and Byrne about 15 to 20 seconds after Holly’s arrest. Officer Casales testified that he had drawn his gun but never pointed it at Holly.

Holly offered a starkly different account. He testified that he never saw the police car or made eye contact with any officer before being stopped and handcuffed. Holly instead stated that he was ringing a friend’s doorbell when he saw Officer Caulfield run around the corner and approach him with his gun drawn. According to Holly, Officer Caulfield then demanded that he put his hands up, grabbed him, and told him he was being stopped because there were burglaries in the neighborhood. Holly added that he did not feel free to leave because he had lived in the neighborhood for decades and knew the police stops there to be aggressive. Holly also diverged from the officers’ accounts regarding the sequence of events surrounding his arrest. He insisted that Officer Caulfield patted him down, found a bulge, and only then asked if he had a gun. By the time Officer Byrne arrived, Holly continued, Officer Caulfield had confiscated the gun and put his own gun away.[ii]

Holly was subsequently indicted under federal law for being a convicted felon in possession of a firearm.  Holly filed a motion to suppress and argued that his encounter with the officers was an impermissible seizure under the Fourth Amendment.

During the motion to suppress, the district heard the testimony discussed above in the facts.  The district court credited the officer’s testimony and reasoned that (1) Officers Caulfield, Byrne, and Casales testimony were consistent with each other, (2) their version of events was more logical because police don’t typically run up to people with their guns drawn to ask them a question, (3) Holly was less credible based on his criminal history (four time convicted felon), and (4) Holly offered three different explanations for why he had a gun.    The district court then held that this was a consensual encounter and denied the motion to suppress.

Holly appealed the denial of the motion to suppress to the Seventh Circuit Court of Appeals.  The issue was whether the police engaged in an impermissible seizure in violation of the Fourth Amendment during their encounter with Holly or conversely whether the police properly engaged in a consensual encounter with Holly, which led to the seizure of the gun.  If the encounter was impermissible under the Fourth Amendment the gun must be suppressed.  If the encounter was consensual, the gun is admissible.

At the outset, it is important to note that the court of appeals can only overturn a district court’s finding of fact, such as what factually occurred between the officers and Holly, if the district court’s finding was “clearly erroneous.”

The court of appeals first noted the law regarding consensual encounters between police and citizens.  The court stated

Not every police encounter implicates the Fourth Amendment. See United States vShields, 789 F.3d 733, 743 (7th Cir. 2015) (citing Florida vBostick, 501 U.S. 429, 439 (1991)). A seizure within the meaning of the Fourth Amendment takes place if, under the circumstances, a reasonable person would not feel free to leaveId. A consensual encounter, on the other hand, takes place if a reasonable person would feel free to ignore the police and go about his businessId.

In determining whether an encounter is consensual, we consider several factors:

• where the interaction took place, including whether it was in public;

• how many police officers were present;

• the extent to which the police presence was threatening;

• whether the officers made any show of weapons or physical force;

• the officers’ language and tone;

• whether the police suggested the defendant was suspected of crime; and

• whether officers told the defendant he was free to leave. See id.These factors “are neither exhaustive nor exclusive.” United States vSmith, 794 F.3d 681, 684 (7th Cir. 2015) (citing United States vMendenhall, 446 U.S. 544, 554 (1980)).[iii]

Thus, if a reasonable person in Holly’s situation would have felt free to leave or disregard the police, the encounter is consensual; if a reasonable person would not feel free to leave, the encounter is seizure under the Fourth Amendment.

The court of appeals next examined if the district court’s factual determinations in this case were “clearly erroneous.”  The court noted that that the undisputed facts were as follows: (1) the police did not obstruct Holly’s route on the sidewalk or in the courtyard, (2) they spoke to him in a public place, (3) they asked him a single question about whether he had “drugs or a gun” and (4) Holly chose to answer that he had a gun. The court noted that

[T]he police do not violate the Fourth Amendment by merely approaching a person in public and asking him questions. See Florida vRoyer, 460 U.S. 491, 497 (1983).[iv]

The court of appeals also noted that the district court reasoned that Holly was a four-time convicted felon and had good reason to lie to escape punishment.  Further, the district court noted that Holly’s offer of three inconsistent explanations for possessing the gun demonstrated a lack of credibility.  On the other hand, the court observed that the officers had no incentive to engage in misconduct during this encounter, because they knew that the area was being recorded by video surveillance.  Further, the court found no incentive for the officers to lie after the fact.

The court of appeals then stated

Against this backdrop, the district court concluded that Holly’s encounter with the police was voluntary. It found that Officer Caulfield was alone when he jogged after Holly and made no show of force—he did not pull a gun, touch Holly, or tell him to put his hands up. Rather, upon catching up with Holly, Officer Caulfield promptly asked a direct question—do you have drugs or a gun?—and instantly received an equally direct answer—yes. The question was not advanced in a coercive tone or with an accompanying threat. Given these circumstances, a reasonable person in Holly’s shoes would have felt free to leave. See Bostick, 501 U.S. at 439; United States vThornton, 463 F.3d 693, 698 (7th Cir. 2006) (holding that an encounter was consensual where three officers approached a defendant in public and did not show weapons, touch him, or use a tone or language that would have communicated to the defendant that he was seized).[v]

On appeal, Holly argued that his case is similar to the Seventh Circuit case, the United States v. Smith.[vi]  In Smith, the defendant was walking alone at night when two officers in uniform waited for him to enter an alley.  After he entered the alley, the officer’s rode past him on their bicycles, did a U-turn to face Smith, and obstructed his path.  One officer got off of his bicycle, walked up to Smith with his hand on his gun, and asked, “Are you in possession of guns, knives, weapons, or anything illegal?”[vii]  The Seventh Circuit held that this encounter was an impermissible seizure after considering the location, that the officers blocked Smith’s path, the threating presence of multiple officers, and the “aggressive nature” of the question.

The Seventh Circuit then examined the similarities and differences between Smith and Holly’s case.  The similarities were that in both cases the police wore uniforms, approached a person, and asked a question.  However, the officer who asked Holly about guns or drugs was alone at the time of the question whereas in Smith, there were two officers present during the question.  Further, in Holly’s case the officers did not block his path, draw his weapon, or use a tone of voice intended to compel an answer.   As such, Smith does not change the outcome of Holly’s case.

As such, the court of appeals affirmed the decision of the district court.

[Note:  This article will not discuss Holly’s argument regarding evidence preservation].



[i] No. 19-1216 (7th Cir. Decided October 18, 2019)

[ii] Id. at 3-4

[iii] Id. at 6-7 (emphasis added)

[iv] Id. at 7

[v] Id. at 8

[vi] 794 F.3d 681 (7th Cir. 2015)

[vii] Id. at 685

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