In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2981

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARVIN D. CLEMENTS, ALSO KNOWN AS MARVIN D. HERRON,

ALSO KNOWN AS MARVIN D. CLEMENTS-HERRON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 06 CR 9—Lynn Adelman, Judge.

____________

ARGUED FEBRUARY 20, 2008—DECIDED APRIL 14, 2008

____________

Before EASTERBROOK, Chief Judge, BAUER, and WOOD,

Circuit Judges.

BAUER, Circuit Judge. Defendant-Appellant Marvin D.

Clements was convicted of being a felon in possession of

a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2), after Milwaukee police officers discovered him

sitting in a car with a gun. On appeal, Clements argues

(1) that his encounter with the arresting officers constituted an illegal seizure in violation of his Fourth Amendment rights; and (2) that the district court judge violated
2 No. 07-2981

his due process rights by failing to sua sponte order a

competency hearing during trial. For the following reasons,

we affirm.

I. Background

On November 4, 2005, at approximately 10:40 p.m.,

City of Milwaukee police received an anonymous call

reporting that a suspicious person had been, and was

sitting in a white Oldsmobile with the motor running in

front of the caller’s house for over four hours. Two officers

responded to the call, drove up to the scene, and parked

their squad car approximately fifteen to twenty feet behind the white Oldsmobile at the address the caller provided. The officers shined a spotlight on the Oldsmobile

and activated their flashing red and blue lights. Clements,

the sole occupant of the Oldsmobile, was sitting in the

driver’s seat.

As the officers approached, Clements turned toward

the driver’s side window and raised a folded four-inch

knife. The officers backed away and ordered Clements to

drop the knife and get out of the car. Clements complied,

but as he got out of the car, a loaded .22 caliber rifle

magazine fell from his lap to the ground. The magazine

contained ten cartridges of .22 caliber long rifle ammunition.

The officers conducted a pat-down search of Clements

and escorted him to their squad car to ensure their

safety. One of the officers then returned to the white

Oldsmobile to check for any contraband or weapons. The

officers found a .22 caliber long rifle ammunition box

with four spent casings and two loaded cartridges in the
No. 07-2981 3

center console and a .22 caliber long barrel rifle lying

across the rear floorboard of the car.

On January 18, 2006, a grand jury indicted Clements for

illegally possessing a firearm as a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On

January 10, 2007, Clements’s trial attorney, Ann T. Bowe,

filed a motion for competency evaluation, which the

district court granted. On March 27, 2007, the district

court received a forensic report from a licensed clinical

psychologist who concluded that Clements exhibited

behavior consistent with Antisocial Personality Disorder, but that he was competent to stand trial. Clements

did not challenge that report, and on March 30, 2007, the

district court found Clements competent to stand trial.

On May 14, 2007, a trial commenced, and on that same

day, the jury returned a guilty verdict. On August 3, 2007,

the district court sentenced Clements to 48 months’ imprisonment.

During his trial and sentencing hearing, Clements

repeatedly interrupted the lawyers and the judge with

questions and comments. Despite being superfluous and

inarticulate, Clements’s interjections pertained to what

was being discussed at that point in the proceedings or

had to do with issues that he perceived to be unresolved.

At one point during the sentencing hearing, Clements

blamed his life hardships on being born on February 29th,

leap day, but later acknowledged the absurdity of such

a statement and conceded, “I don’t know what the leap

year thing is about here.” Clements then continued to

ramble on in his attempts to gain leniency from the sentencing judge, pointing to factors such as rehabilitation,

his children, the environment in which he grew up, the

evidence presented at trial, and a somewhat distorted

acceptance of the federal prison sentence that awaited him.
4 No. 07-2981

II. Discussion

On appeal, Clements makes two arguments. First, he

argues that the arresting officers’ encounter with him

constituted a seizure under the Fourth Amendment, and

was unsupported by a reasonable suspicion that he

was engaged in any criminal activity. Second, Clements

asserts that the district court judge violated his due process

rights by failing to order a competency hearing sua sponte

in light of his outbursts throughout the proceedings,

and that the error warrants a new trial. We address each

issue in turn.

A. Fourth Amendment Issue

Clements contends that the officers had no reason to

suspect that Clements was engaged in any criminal activity in the Oldsmobile, and that they effectively seized

him when they parked behind him, turned on their

lights, and approached the Oldsmobile. It logically follows that Clements’s position is that the evidence obtained from the encounter, namely the gun, was improperly seized and admitted into evidence. However,

Clements never raised this argument before the district

court.

“Waiver occurs when a criminal defendant intentionally

relinquishes a known right.” United States v. Brodie, 507

F.3d 527, 530 (7th Cir. 2007) (quoting United States v.

Haddad, 462 F.3d 783, 793 (7th Cir. 2006)). “Forfeiture

occurs when a defendant negligently fails to assert a

right in a timely fashion.” Id. While waiver extinguishes

any error and precludes appellate review, forfeiture of a

right warrants plain error review. Id.; see Haddad, 462

F.3d at 793; United States v. Staples, 202 F.3d 992, 995 (7th
No. 07-2981 5

Cir. 2000). A criminal defendant who does not move to

suppress evidence before trial waives the suppression

argument, unless he can show “good cause” for not

challenging the evidence at the district court. See Fed. R.

Crim. P. 12(b) and (e); see also United States v. Hargrove,

508 F.3d 445, 450 (7th Cir. 2007); Brodie, 507 F.3d at 530.

Clements argues that he failed to raise the Fourth

Amendment argument at the district court before trial

because his trial attorney was assigned to the case only

eight days prior to trial. According to Clements, his trial

counsel negligently failed to make any pretrial motions

because of a lack of time to prepare.

This argument is factually incorrect and does not

amount to “good cause” as required by Rule 12(e) for relief from waiver. The record shows that Ann T. Bowe,

Clements’s trial counsel, was appointed on March 8, 2006,

more than fourteen months before trial. Ms. Bowe filed

motions with the district court on Clements’s behalf,

including a motion to determine competency and a motion

for bail review. It can hardly be said that Ms. Bowe had

inadequate time to prepare for trial.

Moreover, Clements certainly knew that the government intended to use the evidence obtained from the

police encounter against him at trial; without it there

would have been no case. Even if Ms. Bowe had been

rushed in her trial preparation, she did not request a

continuance or otherwise indicate that she was ill-prepared. It is probable that she did not file any evidentiary

motions because she did not believe any to be appropriate or potentially successful. See United States v. Goudy,

792 F.2d 664, 672 (7th Cir. 1986) (holding that counsel’s

failure to file pretrial motions or to visit client in prison

does not indicate a lack of adequate preparation for trial).
6 No. 07-2981

Clements has failed to establish good cause for relief

from waiver.

Even if we considered Clements’s failure to seek suppression of the gun before trial as a forfeiture, and not

waiver, Clements still has not convinced us that the district

court plainly erred in admitting the evidence. The Fourth

Amendment only prevents police from seizing a person

without a reasonable suspicion of criminal activity. See

United States v. Scheets, 188 F.3d 829, 836 (7th Cir. 1999);

Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 473

(7th Cir. 1997); United States v. Rodriguez, 69 F.3d 136, 141

(7th Cir. 1995). A consensual encounter between an officer

and a private citizen does not trigger the Fourth Amendment. See United States v. Hendricks, 319 F.3d 993, 999-

1000 (7th Cir. 2003) (explaining that where a driver

stops his car on his own and no other coercive activity

occurs, the result is a consensual encounter); United States

v. Green, 111 F.3d 515, 520 n.1 (7th Cir. 1997) (same). A

consensual encounter becomes a seizure when a reasonable person in those circumstances would not feel free

to leave. See Brendlin v. California, ___ U.S. ___, 127 S.Ct.

2400, 2405-06 (2007); Hendricks, 319 F.3d at 1000. Circumstances that might indicate a seizure include the threatening presence of several officers, display of their weapons,

physical touching of the private citizen, use of forceful

language or tone of voice (indicating that compliance

with the officers’ request might be compelled), and the

location in which the encounter takes place. United States

v. Mendenhall, 446 U.S. 544, 554 (1980); Scheets, 188 F.3d

at 836-37.

The police encounter in this case was not a seizure for

Fourth Amendment purposes. Clements had voluntarily

stopped his car; he did not stop because of the flashing
No. 07-2981 7

police lights. Likewise, Clements was not seized when the

officers approached his car. The officers approached the

car to investigate why the car had been parked and running on a public street for four hours, a circumstance

unusual enough to at least merit some investigation. The

officers illuminated their flashing lights to alert the car’s

occupants that they were going to approach the vehicle.

Without identifying themselves appropriately to the

car’s occupants, the officers would have put themselves

at risk in approaching a parked car late at night. Other

than illuminating their flashing lights for identification

and safety purposes, the officers did nothing that could

have made Clements feel that his freedom was restrained: they did not draw their weapons, they did not

surround Clements’s car with multiple squad cars or

officers or otherwise prevent him from driving away,

they did not lay a hand on Clements, and they did not use

forceful language or tone of voice until after the officers

felt threatened by Clements’s gesture with the knife. Up to

this point, the circumstances could not have caused a

reasonable person to feel restrained.

The officers’ observation of Clements following the

initial contact quickly gave the officers a reason to seize

Clements. Clements gestured with the knife in the direction of the officers, which reasonably made the officers

feel threatened. United States v. Evans, 994 F.2d 317, 320

(7th Cir. 1993) (noting that the Fourth Amendment only

precludes unreasonable seizures). The officers appropriately ordered Clements to drop the knife and get out of the

car, during which a rifle magazine fell from his lap, again

providing suspicion of criminal activity. Therefore, the

district court did not err plainly or otherwise by admitting the evidence obtained during this police encounter.
8 No. 07-2981

B. Competency Issue

Clements also argues that the district court erred by not

sua sponte ordering a competency hearing based on

Clements’s trial conduct. Clements acknowledges that

he was found competent six weeks before trial based on

the psychologist’s report. Nevertheless, he asserts that

his disruptive conduct at trial provided reasonable cause

for the district court to believe he was mentally incompetent to stand trial.

A court may, on its own motion, order a hearing on the

competency of a defendant “if there is reasonable cause

to believe that the defendant may presently be suffering

from a mental disease or defect rendering him mentally

incompetent to the extent that he is unable to understand

the nature and consequences of the proceedings against

him or to assist properly in his defense.” 18 U.S.C.

§ 4241(a); United States v. Savage, 505 F.3d 754, 758 (7th

Cir. 2007); see Pate v. Robinson, 383 U.S. 375, 385 (1966)

(holding that a judge must provide a competency hearing

on his own motion if the evidence raises a bona fide

doubt as to the defendant’s competence to stand trial). The

district court is in the best position to determine the need

for a competency hearing. Savage, 505 F.3d at 760. We

review the district court’s decision not to order a competency hearing during trial for abuse of discretion. United

States v. Andrews, 469 F.3d 1113, 1121 (7th Cir. 2006); United

States v. Wilbourn, 336 F.3d 558, 559 (7th Cir. 2003).

Despite his disruptive interjections throughout the trial

and at his sentencing hearing, Clements’s conduct did

not suggest that he did not understand the proceedings

against him or that he was unable to assist with his own

defense. Six weeks prior to trial, a licensed clinical psychologist concluded that Clements appeared to experience
No. 07-2981 9

symptoms of Antisocial Personality Disorder, but was

competent to stand trial. Neither Clements nor the government challenged that report. Clements has not provided us with a single example of his conduct that would

suggest incompetence; instead, Clements has focused his

argument on the statements made by Clements’s trial

counsel, the prosecutor, and the judge at sentencing,

which do nothing more than acknowledge that Clements

exhibited behavior consistent with Antisocial Personality

Disorder. See Savage, 505 F.3d at 759 (“The mere fact that

a criminal defendant has a personality disorder does

not prevent the defendant from appreciating the proceedings or assisting in his defense.”) (citing United States v.

Teague, 956 F.2d 1427, 1432 (7th Cir. 1992)). Clements’s

attorney did not seek an additional competency evaluation once the trial was underway, nor did any party

suggest that Clements did not understand the proceedings or was unable to assist counsel with his defense.

See Savage, 505 F.3d at 760 (“Significant weight is given to

counsel’s representations concerning his client’s competence and counsel’s failure to raise the competency issue.”);

see, e.g., United States v. Ewing, 494 F.3d 607, 623 (7th Cir.

2007).

Furthermore, the trial transcript is devoid of evidence

of “irrational” behavior. While Clements was at times

disruptive, his objections, questions, and suggestions

were generally pertinent to the issues being addressed,

indicating that Clements was fully attentive to the proceedings and readily offered suggestions and opinions

about the evidence and his defense. Clements also testified

on his own behalf and demonstrated an ability to understand and answer questions logically and coherently.

Clements’s behavior at trial does not suggest incompe-
10 No. 07-2981

tence; it was merely Clements’s attempts to interject

his own view of the issues and generally frustrate the

progress of the trial. See Savage, 505 F.3d at 759. The district court’s decision not to order a competency hearing

during trial was correct.

III. Conclusion

For the reasons stated above, we affirm.

USCA-02-C-0072—4-14-08