### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 2982

U NITED S TATES OF A MERICA

Plaintiff

‐ Appellee

,

v.

D ONTRAY A. S MITH

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:13

‐ cr

‐ 136

— Rudolph T. Randa, Judge

.

____________________

A RGUED A PRIL 17, 2015

— D ECIDED J ULY 20, 2015

____________________

Before P OSNER and W ILLIAMS

, Circuit Judges, and W OOD

,

District Judge

. *

W ILLIAMS

, Circuit Judge

. Two Milwaukee Police Depart

‐

ment officers on bicycle patrol were investigating gunshots

around 16th and Center Street. They saw Dontray Smith

* Of the United States District Court for the Northern District of Illi

‐

nois, sitting by designation.2 No. 14

‐ 2982

crossing 16th Street as he prepared to enter an alley. The of

‐

ficers rode ahead of Smith into the alley and when they were

five feet from Smith, they stopped and positioned their bicy

‐

cles at a 45

‐ degree angle to him. One officer dismounted,

approached Smith, and asked whether he had a gun or any

other weapon in his possession. When Smith indicated that

he had a gun, the officers confiscated it and arrested him.

Smith was indicted for being a felon in possession of a

firearm under 18 U.S.C. § 922(g)(1). He filed a suppression

motion alleging evidence to be used against him—his state

‐

ment to the officers and the gun they confiscated—was ob

‐

tained through an unreasonable seizure in violation of his

Fourth Amendment rights. The district court found that

Smith’s encounter with the officers was consensual, and no

seizure had occurred. Smith entered a conditional plea

agreement, retaining the right to appeal the denial of his mo

‐

tion to suppress. After being sentenced to 37 months’ im

‐ prisonment and three years of supervised release, Smith ap

‐ peals. He argues that his encounter with the officers cannot

be treated as consensual because a reasonable person in his

situation would not have felt free to ignore the police and go

about his business. We agree that in light of all the circum

‐

stances surrounding the encounter, Smith was seized by the

officers. Since he was seized without reasonable suspicion,

Smith’s Fourth Amendment rights were violated. Therefore,

the district court erred by not suppressing the evidence, and

we reverse.

I. BACKGROUND

On June 6, 2013, Michael Michalski and Michael Flan

‐

nery, Milwaukee Police Department officers, were on bicycle

patrol in the vicinity of North and Teutonia Avenues. AtNo. 14

‐ 2982 3

around 10 p.m., the officers heard three to four gunshots

fired north of their location. They did not call dispatch to re

‐

port the shots fired. Instead, they rode their bicycles to 2600

North 15th Street where they spoke with a witness who re

‐ ported that he heard gunshots west of his location. The offic

‐

ers made no further inquiries of this witness and did not ask

whether he possessed a weapon.

The officers rode one block west on Clarke Street and

turned north on North 16th Street towards Center Street. In

this residential area, they saw Dontray Smith crossing North

16th Street. Smith, a resident of the neighborhood, had just

left an alley on the east side of the street and was preparing

to enter an alley on the west side. He was not running or en

‐ gaging in any other suspicious behavior, nor was he coming

from the direction where the shots were reportedly fired.

The officers rode ahead of Smith into the alley. When the

officers were roughly 20 feet in front of Smith (and all were

in the alley), they made a U

‐ turn to face Smith and began

closing the distance. They stopped approximately five feet in

front of Smith, positioning their bicycles at a 45

‐ degree angle

to face him. Neither Michalski nor Flannery identified him

‐

self as an officer, said hello, or asked Smith for identifying

information. Officer Michalski got off his bicycle and ap

‐ proached Smith with his hand on his gun. 1 He asked Smith,

“Are you in possession of any guns, knives, weapons, or an

‐ ything illegal?”

1 At the suppression hearing, Officer Michalski testified that he was

trained to approach someone suspected of having a firearm with a hand

on his weapon and that this training would have been part of his behav

‐

ior on the evening of the officers’ encounter with Smith.4 No. 14

‐ 2982

According to the officers, Smith then “nodded towards

like his right side, his head down, and he said ‘Yes, I have a

gun.’” At this point, Officer Flannery got off his bicycle and

asked Smith if he had a concealed weapon permit, to which

he responded “no.” The officers handcuffed Smith and

searched his front pocket to recover a gun. After seizing the

gun, the officers obtained Smith’s identifying information.

At approximately 10:13 p.m., the officers notified dispatch

that they had arrested Smith. Officer Michalski recorded the

encounter as a “field interview” in the police report.

Smith was indicted for being a felon in possession of a

firearm under 18 U.S.C. § 922(g)(1). He filed a suppression

motion alleging his statement to the officers and the gun

were obtained through an unreasonable seizure in violation

of his Fourth Amendment rights. After an evidentiary hear

‐ ing, the magistrate judge recommended that his suppression

motion be denied because no seizure had occurred and no

constitutional interests were implicated. The district court

issued an order adopting the magistrate’s recommendation.

Smith then entered into a conditional plea agreement that

allowed him to retain his right to appeal the denial of his

motion to suppress. He was sentenced to 37 months’ impris

‐

onment and three years of supervised release. This appeal

followed.

II. ANALYSIS

In reviewing the district court’s denial of a motion to

suppress, we review its factual findings for clear error and

legal questions de novo

. United States v. Schmidt

, 700 F.3d 934,

937 (7th Cir. 2012). In this appeal, the sole issue presented is

a legal one: whether a police encounter in an alley of the

type described above constitutes a “seizure” within theNo. 14

‐ 2982 5

meaning of the Fourth Amendment. The government con

‐

ceded at oral argument, and we accept for purposes of this

decision, that the officers lacked the reasonable suspicion

required to justify a seizure and that, if a seizure took place,

the gun found on Smith’s person must be suppressed as

tainted fruit.

It is well established that a seizure does not occur merely

because a police officer approaches an individual and asks

him or her questions. See, e.g.

, Florida v. Royer

, 460 U.S. 491,

497 (1983) (“[L]aw enforcement officers do not violate the

Fourth Amendment by merely approaching an individual on

the street or in another public place, by asking him if he is

willing to answer some questions, by putting questions to

him if the person is willing to listen, or by offering in evi

‐

dence in a criminal prosecution his voluntary answers to

such questions.”); accord United States v. Childs

, 277 F.3d 947,

950 (7th Cir. 2002). So long as a reasonable person would feel

free to disregard the police and go about his or her business,

the encounter is consensual and no reasonable suspicion is

required. Florida v. Bostick

, 501 U.S. 429, 434 (1991) (citing

Terry v. Ohio

, 392 U.S. 1, 19 n.16 (1968)).

The “crucial” test for determining if there has been a sei

‐

zure is “whether taking into account all of the circumstances

surrounding the encounter, the police conduct would have

communicated to a reasonable person that he was not at lib

‐

erty to ignore the police presence and go about his busi

‐

ness.” Bostick

, 501 U.S. at 434. While this test is an ”objective”

one, it is “necessarily imprecise” because “what constitutes a

restraint on liberty prompting a person to conclude that he is

not free to ‘leave’ will vary, not only with the particular po

‐

lice conduct at issue, but also with the setting in which the6 No. 14

‐ 2982

conduct occurs.” Michigan v. Chesternut

, 486 U.S. 567, 573–74

(1988).

Circumstances that suggest a seizure include “the threat

‐ ening presence of several officers, display of their weapons,

physical touching of the private citizen, use of forceful lan

‐

guage 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. Clements

,

522 F.3d 790, 794 (7th Cir. 2008) (citing United States v.

Mendenhall

, 446 U.S. 544, 554 (1980)). Courts also consider

whether police made statements to the citizen intimating

that he or she was a suspect of a crime, United States v. Borys

,

766 F.2d 304, 311 (7th Cir. 1985), whether the citizen’s free

‐

dom of movement was intruded upon in some way, Ches

‐

ternut

, 486 U.S. at 575, whether the encounter occurred in a

public or private place, United States v. Adebayo

, 985 F.2d

1333, 1338 (7th Cir. 1993), and whether the officers informed

the suspect that he or she was free to leave. Id

. These factors,

however, are neither exhaustive nor exclusive. See Menden

‐

hall

, 446 U.S. at 554 (indicating that such factors are merely

“[e]xamples”).

With this guidance mind, we turn to the circumstances

surrounding the encounter in this case. Smith, while walking

alone at night in an alley, was intercepted by two armed, ful

‐ ly uniformed police officers. Leading up to this encounter,

the officers waited for Smith to enter the alley, rather than

engaging with him on the more open and presumably illu

‐

minated street. The officers rode past Smith into the alley

and then made a U

‐ turn to face him. When they were five

feet from Smith, the officers stopped and positioned their

bicycles at a 45

‐ degree angle to him, obstructing his intendedNo. 14

‐ 2982 7

path forward. Officer Michalski dismounted from his bicycle

and approached Smith with his hand on his gun. Neither of

‐

ficer introduced himself, engaged in any pleasantries with

Smith, or asked Smith for his name. Nor did the officers ask

Smith general investigatory questions, such as whether he

had heard gunshots. Instead, Officer Michalski posed a sin

‐ gle, accusatory question to Smith: “Are you in possession of

any guns, knives, weapons, or anything illegal?” Smith was

not informed that he was at liberty to ignore the question.

Given these factors—in particular, the location of the en

‐

counter in a dark alley, the threatening presence of multiple

officers, the aggressive nature of the questioning, and the

fact that Smith’s freedom of movement was physically ob

‐

structed by the positioning of the officers and their bicy

‐

cles—we conclude that a reasonable person in Smith’s situa

‐

tion would not have felt at liberty to ignore the police pres

‐

ence and go about his business. Therefore, we find that

Smith was seized for purposes of the Fourth Amendment.

In arguing that this encounter should be treated as a con

‐

sensual one, the government emphasizes that its location

was “public.” While it is true that the alley in which Smith

was approached is public, the fact remains that alleys are by

their nature less travelled and narrower than streets. A citi

‐

zen approached in an alley will very often be alone, as Smith

was, and have limited room in which to maneuver, condi

‐

tions that may contribute to the reasonable belief that simply

walking away from the police is not an option. See, e.g., Unit

‐

ed States v. Jerez

, 108 F.3d 684, 692 (7th Cir. 1997) (“When a

person is in a confined area, encircling the area in an intimi

‐ dating fashion contributes to a reasonable belief that ignor

‐ ing the law enforcement presence is not an option.”); cf

.8 No. 14

‐ 2982

United States. v. Drayton

, 536 U.S. 194, 204 (2002) (noting that

“a reasonable person may feel

... more secure in his or her

decision not to cooperate with police on a bus than in other

circumstances” because “many fellow passengers are pre

‐

sent [on a bus] to witness officers’ conduct”). Alleys are dis

‐ tinguishable from the sorts of open, populated spaces in

which police questioning is typically deemed consensual.

Compare Florida v. Rodriguez

, 469 U.S. 1, 4 (1984) (no seizure

where questioning occurred in “public area of the airport”),

with Royer

, 460 U.S. at 508–09 (questioning in enclosed, win

‐

dowless room constituted a seizure). 2

The government also stresses that Smith was not physi

‐ cally touched during the encounter. While the touching of a

citizen by an officer is indicative of coercion, Clements

, 522

F.3d at 794, we disagree with the suggestion that physical

contact is required to find that a seizure has taken place. A

seizure may transpire any time police conduct “communi

‐

cate[s] to the reasonable person an attempt to capture or oth

‐

erwise intrude upon [his] freedom of movement.” Ches

‐

ternut

, 486 U.S. at 575. Such a communication can occur ab

‐

sent physical contact such as when police activate a siren or

flashers, or, as in this case, when police act “aggressively to

block [a person’s] course or to control his direction or

speed.” See id. at 575.

2 Even questioning in the most circumscribed of spaces may be

deemed non

‐ coercive if, for example, police explicitly communicate to

the citizen that compliance is not required. See United States v. Thompson

,

106 F.3d 794, 798 (7th Cir. 1997) (rejecting argument there could be no

consensual interrogation of citizen in confines on a police squad car

where trooper explicitly informed citizen she was free to leave). Here,

however, no such message was conveyed to Smith.No. 14

‐ 2982 9

The government also contends that no seizure occurred

here because the officers did not entirely block Smith’s

“path” or his “exit” from the alley with their bicycles. Ac

‐ cording to the government, all Smith had to do to end the

encounter was walk “around” or “through” the officers.

Common sense dictates that no reasonable person in an alley

would feel free to walk “through” two armed officers on bi

‐ cycles. And our case law makes clear that officers need not

totally restrict a citizen’s freedom of movement in order to

convey the message that walking away is not an option. In

United States v. Burton

, 441 F.3d 509 (7th Cir. 2006), three po

‐

lice officers approached the defendant’s car on their bicycles.

Id

. at 510. One of the officers placed his bicycle in front of the

car and the others placed their bikes on either side of it. Id

. at

510–11. We held that “[i]t [was] a reasonable, in fact a com

‐ pelling, inference that the police placed their bikes where

they did in order to make sure that Burton didn’t drive away

before they satisfied themselves that there was no criminal

activity afoot. By doing this they ‘seized’ the car, though in a

severely attenuated sense.” Id

. at 511. Although it was theo

‐ retically possible for Smith, like the defendant in Burton

, to

extricate himself from the situation by reversing course, the

officers’ positioning nonetheless was sufficient to communi

‐

cate to a reasonable person that he was not free to leave

. See

also United States v. Pavelski

, 789 F.2d 485, 488 (7th Cir. 1986)

(noting that a reasonable person “bounded on three sides by

police patrol cars, would not have believed that he was free

to leave”); Jerez

, 108 F.3d at 692 (noting that a “confined area

... contribute[s] to a reasonable belief that ignoring the law

enforcement presence is not an option”).

Lastly, the government argues that the police did not

convey any message to Smith that he was a suspect in an10 No. 14

‐ 2982

ongoing investigation. The line between a consensual con

‐

versation and a seizure is crossed when police convey to an

individual that he or she is suspected of a crime. See Borys

,

766 F.2d at 311. While the government posits that in order to

convey such a message, police must say “you are a suspect,”

such magic words are not required. Any statement that “in

‐

timate[s] that an investigation has focused on a specific indi

‐

vidual easily could induce a reasonable person to believe

that failure to cooperate would lead only to formal deten

‐

tion.” See id. at 311 (citing United States v. Berry

, 670 F.2d 583,

597 (11th Cir. 1982) (en banc)). In other words, courts must

look to the totality of the circumstances when determining

whether an officer’s words or conduct have conveyed the

reasonable belief to a citizen that he or she is suspected of a

crime. In the context of this highly charged encounter—

which involved no pleasantries, the cornering of a lone citi

‐

zen in an alley, and the posing of the sole question, “do you

have a weapon?”—we find that a reasonable person in

Smith’s position would believe he or she was suspected of

some criminal wrongdoing, and as such, not at liberty to

walk away.

We note that our assessment is consistent with the offic

‐

ers’ own contemporaneous and subsequent descriptions of

the encounter. In his police report, Officer Michalski de

‐

scribed the encounter with Smith as a “field interview. A

“field interview,” according to the Milwaukee Police De

‐ partment’s Standard Operating Procedure (SOP), is “the

brief detainment of an individual

... based on articulable

reasonable suspicion, for the purposes of determining the

individual’s identity and resolving the member’s suspicions

concerning criminal activity.” SOP § 085. In other words, it is

a seizure (a Terry stop, to be precise). By contrast, the SOPNo. 14

‐ 2982 11

defines a “social contact” as a consensual encounter with a

citizen for the “purpose of asking questions or

... infor

‐

mation gathering.” Id

. No reasonable suspicion is required

for this sort of encounter, but a “proper introduction” by the

officer is recommended. See id

. (“Police members should

safeguard their actions and requests so that a reasonable

person does not perceive the contact as a restraint on their

freedom. Police members will be respectful, attempt to build

rapport, and keep the contact as brief as possible.”). 3

The officers’ testimony at the suppression hearing also

indicates the coercive nature of the encounter. According to

Officer Flannery, Smith was not at liberty to simply walk

away from the officers:

Q. If Mr. Smith looked up to you and said “go screw

yourself” and kept walking, would you have consid

‐

ered him to be cooperative?

A. Honestly, not really, no.

Q. And then what would you have done?

A. Probably would have stopped him.

During his testimony, Officer Michalski stated the en

‐

counter with Smith was a “field interview,” rather than a cit

‐

izen contact, and suggested that Smith was a suspect in the

shooting incident that the officers were investigating that

night. He explained that since he had heard gunshots in the

3 The version of the Milwaukee Police Department’s SOP governing

citizen contacts and field interviews effective at the time of Smith’s arrest

is available at

http://city.milwaukee.gov/ImageL ibrary/Groups/cityFPC/agendas3/

130516_PD_C.pdf (last visited July 1, 2015).12 No. 14

‐ 2982

area, “for safety reasons, walking in an alley like that, I’m

going to ask someone are they in possession of anything like

that—guns, knives, a weapon or something like that.” He

further clarified that were the encounter a consensual “citi

‐

zen contact,” he would have posed different questions, such

as “[d]id you see somebody run through a yard? We’re look

‐ ing for somebody.” He reiterated that if he is “going to a

shots fired call I’m going to ask that person, ‘Do you have a

gun on you?’”

The government would have us believe that a “reasona

‐

ble person” would view this encounter in a manner at odds

with how it would be classified by the Milwaukee Police

Department’s Standard Operating Procedures, how the of

‐

ficers viewed the encounter, and obviously how Smith him

‐

self perceived it. We simply cannot ignore the coercive na

‐

ture of this encounter. Of course, the subjective beliefs and

intent of the officers are relevant to the assessment of the

Fourth Amendment implications of police conduct only to

the extent they have been conveyed to the person confront

‐

ed. Mendenhall

, 446 U.S. at 554, n. 6. But in this case, we find

that Officers Flannery and Michalski intended to and in fact

did communicate to Smith precisely what was going on—

that he was a suspect in their investigation and was not free

to leave before submitting to their questioning.

Finally, we address Smith’s argument that the reasonable

person test should take into account Smith’s race. Specifical

‐ ly, he contends that no reasonable person in his “position”—

as a young black male confronted in a high

‐ crime, high

‐

poverty, minority

‐ dominated urban area where police

‐

citizen relations are strained—would have felt free to walkNo. 14

‐ 2982 13

away from the encounter with Officers Flannery and Michal

‐

ski.

The Supreme Court dealt with a similar argument in

United States v. Mendenhall

, 446 U.S. 544, 554 (1980). There,

the respondent suggested that as “a female and a Negro,”

she “felt unusually threatened by the officers, who were

white males.” Id

. at 558. While the Court stated that these

factors “were not irrelevant,” it also found they were not

“decisive,” ruling that the totality of the evidence demon

‐

strated voluntarily consent to police questioning. Id

.

We do not deny the relevance of race in everyday police

encounters with citizens in Milwaukee and around the coun

‐

try. Nor we do we ignore empirical data demonstrating the

existence of racial profiling, police brutality, and other racial

disparities in the criminal justice system. But today we echo

the sentiments of the Court in Mendenhall that while Smith ʹ s

race is “not irrelevant” to the question of whether a seizure

occurred, it is not dispositive either. Even without taking in

‐

to account Smith’s race, we are able to find on the strength of

the other factors discussed that this encounter constituted a

seizure.

III. CONCLUSION

The judgment of the district court is V ACATED

, and this

case is R EMANDED for further proceedings consistent with

this opinion.