In the

United States Court of Appeals

For the Seventh Circuit

No. 16‐1105

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

EDWARD THOMPSON,

Defendant‐Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 CR 616 — Sara L. Ellis, Judge.

ARGUED SEPTEMBER 22, 2016 — DECIDED NOVEMBER 22, 2016

Before BAUER, POSNER, and MANION, Circuit Judges.

BAUER, Circuit Judge. Defendant–appellant, Edward

Thompson, was indicted on one count of possession with

intent to distribute 500 grams or more of cocaine in violation

of 21 U.S.C. § 841(a)(1). He filed a motion to suppress the

cocaine that was seized after he gave his consent for law

enforcement to search his apartment. He argued that a series

of Fourth Amendment violations led to the discovery of the
2 No. 16‐1105

contraband and that his consent was not voluntary. The district

court denied Thompson’s motion. We affirm.

I.  BACKGROUND

Thedistrict court helda suppression hearing,during which

it heard testimony from six witnesses. Thompson’s account of

the events differed in various respects from that of the law

enforcement officers involved. In his written opinion denying

Thompson’s motion, Judge Shadur did not set forth all of his

factualfindings in great detail; he did however, make clearthat

his analysis was basedonhisdeterminations that “Thompson’s

version of the events is not at all believable” and that there is

“no reason to credit” his testimony. The following is a synopsis

of the relevant facts based on those determinations.

On March 6, 2013, a joint task force of the Drug Enforce‐

ment Agency and Chicago Police Department was conducting

surveillance on the residence of Armando Soto in Cicero,

Illinois, as part of an ongoing investigation into a drug traffick‐

ing organization. The agents (for the sake of ease, we refer to

all law enforcement officials involved as “agents”) received

information that a man named Marvin Bausley would be

arriving at Soto’s house to pick up some or all of ten kilograms

of cocaine. Shortly before noon, agents observed Bausley drive

into the alley behind Soto’s house and enter the garage. After

approximately ten minutes, Bausley left the garage and, with

agents following, drove to an apartment building in Chicago,

Illinois.

Bausley parked on the street outside the building, and a

man, later identified as Thompson, came out of the building

wearing a backpack and entered Bausley’s car. Bausley drove
No. 16‐1105 3

once around the block and again stopped outside the apart‐

ment building, at which time Thompson exited the car and

reentered the building. The agents who saw Thompson go into

the building communicated this to Special Agent David

Reynolds, who was on the scene, but could not see Thompson.

Agent Reynolds quickly entered the apartment building, but

saw no one in the lobby. He recalled that an apartment at this

address had been of interest in their ongoing investigation; he

believed the relevant apartment number was 901. He saw that

the elevator door was open so he rode it to the ninth floor.

When Agent Reynolds arrived on the ninth floor, he saw

Thompson and a woman waiting for the elevator. Agent

Reynolds hadnot seenThompson earlier anddidnotrecognize

him as the man that had been in Bausley’s car.

AgentReynolds exited the elevator, and Thompson and the

woman entered. As he looked around the ninth floor common

area, other agents notified Agent Reynolds that the man who

was in Bausley’s car was now in the lobby. Thompson did not

have the backpack he was wearing earlier. Agent Reynolds

returned to the lobby, approached Thompson, and asked him

if he lived in the building. Thompson said he did not and that

he was only there to visit a friend on the fourth floor. Agent

Reynolds then asked if Thompson had just been on the ninth

floor, and again, Thompson said no.

Agent Reynolds told Thompson that he was not under

arrest and that he was not required to speak to the agents.

Agent Reynolds conducted a patdown to ensure that Thomp‐

son had no weapons. He found no weapons, but he retrieved

Thompson’s key ring. Agent Reynolds testified that he could
4 No. 16‐1105

not recall whether the keys were in Thompson’s pocket or in

his hand. The key ring held Thompson’s apartment keys, as

well as an electronic fob that was required for access to the

building’s elevators. Again, Agent Reynolds asked whether

Thompson had just been on the ninth floor and whether

Thompson lived in the building. Thompson again answered

“no” to both questions.

Atthis point,AgentReynolds asked Thompson if he would

speak to the agents on the ninth floor, and Thompson agreed.

Using the fob on the key ring, Agent Reynolds accessed the

elevator, and Thompson and the agents went to the ninth floor.

Thompson did not ask for his keys back at any point, and

Agent Reynolds testified that Thompson was not handcuffed.

Because Agent Reynolds believed that unit 901 was

relevant to theirinvestigation, the agents knocked on that door

with guns drawn. The resident of that unit answered and

agents ordered him to get on the floor, while they quickly

swept his apartment. After approximately a minute,the agents

realized this was the wrong unit and returned to the hallway.

Agent Reynolds then asked Thompson if he lived in unit

902, and Thompson said he did not. Agent Reynolds tried

Thompson’s key on the lock of 902 and the door opened. He

then asked Thompson if there was anyone inside the apart‐

ment, and Thompson did not respond. Agent Reynolds and

one other agent performed a sweep of the apartment, which

lasted approximately 30 to 45 seconds, to ensure no one else

was present. Finding no one in the apartment, the agents

returned to the hallway. Agent Reynolds then asked Thomp‐
No. 16‐1105 5

son if they could speak inside the apartment, and Thompson

agreed.

Once inside, Agent Reynolds again told Thompson that he

was not under arrest and that he did not have to talk to the

agents. He then asked Thompson for consent to search the

apartment. Agent Reynolds produced a written consent form

and read it to Thompson. He handed it to Thompson to allow

him to read it himself, and Thompson signed the form.

Thompson then told the agents that there was a gun in the TV

stand and that there were drugs and cash elsewhere in the

apartment. The agents recovered the gun, a kilogram of

cocaine, and $10,000 in cash. Thompson was not arrested that

day and agreed to cooperate with the agents in theirinvestiga‐

tion moving forward.Anumber ofdays later, whenThompson

stopped answering calls from the agents, he was arrested.

Thompson was charged with one count of possession with

intent to distribute 500 grams or more of cocaine, in violation

of 21 U.S.C. § 841(a)(1). Thompson filed a motion to suppress

the evidence recovered at his apartment, as well as statements

he made to the agents. The district court held a suppression

hearing, after which it denied Thompson’s motion. Thompson

pleaded guilty, but preserved the right to appeal the denial of

his motion to suppress, which he does now.

II.  DISCUSSION

On appeal, Thompson argues that, before he provided

consent to search his apartment, the DEA agents committed a

series of Fourth Amendment violations. He argues that the

evidence recovered was the fruit of those violations and, as

such, it should have been suppressed. He also argues that his
6 No. 16‐1105

consent was not voluntary. The district court did not find that

any constitutional violations occurred and held that Thomp‐

son’s consent was knowing and voluntary. We review the

district court’s factual findings for clear error and its legal

conclusions de novo. United States v. Bernitt, 392 F.3d 873, 876

(7th Cir. 2004). “In the context of a motion to suppress evi‐

dence, we give special deference to the district court’s rulings

due to the fact‐specific nature of the proceeding.” United States

v. Griffin, 150 F.3d 778, 783 (7th Cir. 1998) (citing United States

v. Stribling, 94 F.3d 321, 323 (7th Cir. 1996)).

A. Initial Stop

Thompson first complains of his initial encounter with law

enforcement. When he exited the elevator in the lobby, a

number of agents stopped him. Thompson argues that this

encounter constituted an unlawful seizure because the agents

did not have reasonable suspicion to stop and question him.

This argument is meritless. A law enforcement officer may

briefly stop an individual for investigative purposes if the

officer “has a reasonable suspicion supported by articulable

facts that criminal activity is afoot.” United States v. Ienco, 182

F.3d 517, 523 (7th Cir. 1999) (citing Terry v. Ohio, 392 U.S. 1,

21–22 (1968)). “An investigatory stop must be justifiedby some

objective manifestation that the person stopped is, or is about

to be, engaged in criminal activity.” United States v. Cortez, 449

U.S. 411, 417 (1981).

Here, the agents had ample reason to believe that Thomp‐

son was engaged in criminal activity. Minutes prior to the

encounter in the lobby, the agents witnessed Thompson get

into a car with Bausley, who they had reason to believe had
No. 16‐1105 7

just picked up a large amount of cocaine. They watched

Thompson enter the car wearing a backpack, circle the block

with Bausley, go back into the apartment building, and then

return to the lobby without the backpack. These facts were

more than sufficient for the agents to form a reasonable

suspicion that Thompson was engaged in criminal activity,

which justified their encounter with him in the lobby.

B. Agent Reynolds’ Frisk

Thompson’s next contention is that Agent Reynold’s frisk

of Thompson in the lobby was an unconstitutional search. An

officer conducting a lawful Terry stop may not automatically

frisk the subject of the stop. United States v. Williams, 731 F.3d

678, 686 (7th Cir. 2013) (citing Arizona v. Johnson, 555 U.S. 323,

323 (2009)). Such a frisk is lawful only when the officer has

some articulable suspicion that the subject might be armed

and dangerous. Id. As we just explained, by the time Agent

Reynolds encountered Thompson, he clearly had reason to

believe that Thompson was participating in a drug trafficking

operation. Based on that belief, it was reasonable for Agent

Reynolds to suspect that Thompson was armed because guns

are known tools of the drug trade, as our cases have recog‐

nized. See, e.g., United States v. Gully, 722 F.3d 901, 909 (7th Cir.

2013) (“[I]t is widely known that guns and drugs go hand

in hand.”); see also United States v. Askew, 403 F.3d 496, 507

(7th Cir. 2005) (recognizing the “inherent danger in stopping

those suspected of drug trafficking, for which guns are known

tools of the trade.”). Moreover, Agent Reynolds knew that

Thompson had just lied to him about being on the ninth floor,

which likely raised his suspicion even higher. These circum‐

stances could have reasonably led Agent Reynolds to believe
8 No. 16‐1105

that Thompson might be armed, and therefore, justified the

patdown.

C. Thompson’s Keys and Trip to Ninth Floor

Thompson then argues that by taking his keys and accom‐

panying him to the ninth floor, Agent Reynolds committed an

unlawful seizure andconvertedthe encounterinto anunlawful

arrest without probable cause. Prior to taking his keys, Agent

Reynolds told Thompson that he was not under arrest and that

he did not have to speak to the agents. Additionally, before

using the keys to access the elevator, Agent Reynolds asked

Thompson if he would speak with the agents on the ninth floor

and Thompson agreed. Agent Reynolds testified that Thomp‐

son was never handcuffed. Thompson never asked for his keys

back andvoluntarily accompaniedthe agents to the ninth floor.

Based on these facts, we are not convinced that Thompson was

under arrest prior to, or upon arriving on the ninth floor.

But, even if we assume that Thompson was in fact under

arrest at this point, we find no constitutional violation because

Agent Reynolds had probable cause to arrest him. Prior to

frisking him and taking his keys, Agent Reynolds knew that

Thompson had lied to him about not being on the ninth floor.

Thompson repeated this lie once more before they entered the

elevator. Under 18 U.S.C. § 1001(a)(2), “[m]aking a materially

false statement to a federal agent is a crime.” United States v.

Beltran, 752 F.3d 671, 678 (7th Cir. 2014). When Thompson told

Agent Reynolds he was not on the ninth floor, Agent Reynolds

had probable cause to arrest him for violating that statute.

Thompson’s lies were material because they had the obvious

intention of misdirecting Agent Reynolds and his investiga‐
No. 16‐1105 9

tion. See United States v. Lupton, 620 F.3d 790, 806–07 (7th Cir.

2010) (“When statements are aimed at misdirecting agents and

their investigation, ... they satisfy the materiality requirement

of 18 U.S.C. § 1001.”). It does not matter whether Agent

Reynolds actually had this statute in mind at the time that

Thompson lied. See Beltran, 752 F.3d at 678 (citing Devenpeck v.

Alford, 543 U.S. 146, 153 (2004)). What is important for our

analysis is whether, given the facts Agent Reynolds knew at

the time, he could have reasonably believed that Thompson

made a false statement to him in violation of that statute. Id.

That was clearly the case here.

D. Sweep of Thompson’s Apartment

Finally, Thompson contends that his Fourth Amendment

rights were violated when Agent Reynolds put the key in the

lock of unit 902 and performed a sweep of the apartment

before obtaining Thompson’s consent. We have previously

characterized the placement of a key in a lock as a “search” for

Fourth Amendment purposes. United States v. Concepcion, 942

F.2d 1170, 1172 (7th Cir. 1991). However, because the privacy

interest in the information held by a lock (i.e., the verification

of the key owner’s address) is so small, officers do not need a

warrant or probable cause to perform such a search. See id. at

1173 (noting that law enforcement is entitled to learn a sus‐

pect’s address without a warrant and can do so in numerous

ways).
10 No. 16‐1105

As to the initial sweep of Thompson’s apartment, we agree

with the district court that this was not an unlawful search.“1

A ‘protective sweep’ is a quick and limited search of premises,

incident to an arrest and conducted to protect the safety of

police officers or others.” Maryland v. Buie, 494 U.S. 325, 327

(1990). An officer may perform a “cursory visual inspection of

those places in which a person might be hiding” if he has a

reasonable belief, based on specific and articulable facts, “that

the area swept harbored an individual posing a danger to the

officer or others.” Id. The inquiry as to the reasonableness and

validity of aprotective sweepis necessarily fact‐specific.United

States v. Burrows, 48 F.3d 1011, 1016 (7th Cir. 1995). “The less

intrusive a search, the less justification is required.” United

States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995). “The question

posed by the fourth amendment is not whether it would have

been reasonable to get a warrant, but whether the search itself

was reasonable.” Id. (citing United States v. Edwards, 415 U.S.

800, 807 (1974)).

Here, the agents were involved in a long term investigation

of a large scale drug trafficking organization. As we have

established, guns are known tools of the drug trade and

interactions with those suspectedofdrug traffickingpresent an

inherent dangerto law enforcement. As the door was opening,

1

  Thompson argues that we must remand on this point because the district

court did not address its argument that the sweep constituted an unlawful

search. We disagree. The district court’s written opinion states, “In brief,

this Court credits the government’s position that no search of Thompson’s

residential apartment was conducted, even after he had given oral consent

to such a search, until Thompson was presented with and signed the

consent–to–search form.”
No. 16‐1105 11

Agent Reynolds asked Thompson whether anyone was inside

andreceivedno response.Thompson hadalready liedtoAgent

Reynolds about being on the ninth floor and when he used the

key on the lock, he knew that Thompson had lied again about

living in the building. Those facts are sufficient to give a

reasonable agent cause to take precautions. He and one other

agent performed a sweep for 30 to 45 seconds, during which

time they did not move any items or search inside any contain‐

ers or compartments. They did not find any contraband in this

initial sweep and did not linger in the apartment any longer

than needed to secure it. Upon completing the sweep, they

exited the apartmentto obtain Thompson’s consent to perform

a search. The agents’ actions here were minimally intrusive

and reasonable under the circumstances. See id.

Thompson also contends that this was an illegal search

because a protective sweep can only be valid if it is performed

incident to an arrest. Ignoring that this stands in contrast to his

earlier argument that he was under arrest when the agents

accompanied him to the ninth floor, his argument fails for

other reasons. First, this Court has held that an arrest is not a

requirement for a valid protective sweep. United States v.

Starnes, 741 F.3d 804, 810 (7th Cir. 2013) (“Thus the constitu‐

tionality of a protective sweep does not depend on whether

that sweep is incidental to a search warrant, an arrest warrant,

or a consensual search.”). Second, as already discussed, the

agents had probable cause for Thompson’s arrest before they

entered the apartment.
12 No. 16‐1105

E. Voluntariness of Thompson’s Consent

We now turn to the voluntariness of Thompson’s consent

to search his apartment.Thompsonargues that his consent was

tainted by the constitutional violations committed by the

agents leading up to that consent. See, e.g., United States v.

Robeles‐Ortega, 348 F.3d 679, 681 (7th Cir. 2003) (setting forth

the factors used to determine whether consent to search is

tainted by an initially illegal search (citation omitted)). We

need not address this argument, however, because, as ex‐

plained above, we do not find any Fourth Amendment

violations that could have tainted Thompson’s consent.

Therefore, we need only determine whether the district

court correctly found that Thompson’s consent to search his

apartment was given voluntarily. “Whether an individual’s

consentto search was voluntary is a factual question, which we

review for clear error.”  United States v. Richards, 741 F.3d 843,

847 (7th Cir. 2014). The following factors are considered in

determining whether consent is voluntary: (1) the age, educa‐

tion, and intelligence of the individual; (2) whether he was

advised of his rights; (3) whether he was in custody; (4) how

long the individual was detained prior to consenting; (5)

whether consent was given immediately or after several

requests; and (6) whether the officers used physical coercion.

Id. at 848. “Our determination does not depend on a single

controlling factor, but carefully considers ‘all of the surround‐

ing circumstances.’” Id. (quoting Schneckloth v. Bustamonte, 412

U.S. 218, 226 (1973)).

Thompson argues, unpersuasively, that the district court

did not make findings of fact sufficient to support its determi‐
No. 16‐1105 13

nation that Thompson’s consent was voluntary. It is true that

the district court did not explicitly address each of the above

listed factors in its written opinion. However, it is clear from

the record that the court heard testimony regarding all of the

factors and “all of the surrounding circumstances.”

There was no contention that Thompson’s age or level of

intelligence prevented him from providing voluntary consent.

Prior to giving his consent, Thompson was told twice (once in

the lobby and once in the apartment) that he was not under

arrest and that he did not have to speak to the agents. By

Thompson’s own estimation, the entire ordeal lasted approxi‐

mately 30 minutes. Thompson was asked, and agreed, to go

with the agents to the ninth floor. After the protective sweep,

and while he and all of the agents were standing outside the

apartment, Thompson was asked, and agreed, to speak with

agents inside his apartment. There, Agent Reynolds read him

the consent form, Thompson read it himself, and then pro‐

ceeded to fill it out and sign it. Thompson did not claim that he

was asked more than once to provide his consent. There was

no contention that any of the agents used or threatened

physical force against Thompson. After providing his consent,

Thompson voluntarily directed the agents to the locations of

the contraband in his apartment. Given “all of the surrounding

circumstances,” the district court did not commit clear errorin

determining that Thompson’s consent was voluntary.

III.  CONCLUSION

The agents did not commit any violations of Thompson’s

Fourth Amendment rights that could have tainted his consent

to search his apartment. We do not find clear error in the
14 No. 16‐1105

district court’s determination that Thompson’s consent was

given voluntarily. Therefore, we AFFIRM the denial of his

motion to suppress.