In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 23-1001 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

BRANDON CADE, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:21-cr-223-1 — Sharon Johnson Coleman, Judge. 

____________________ 

ARGUED NOVEMBER 30, 2023 — DECIDED FEBRUARY 26, 2024 

____________________ 

Before HAMILTON, KIRSCH, and PRYOR, Circuit Judges. 

KIRSCH, Circuit Judge. Brandon Cade and a female companion (“T.J.”) were standing in the street next to a parked 

sedan when two Chicago police officers approached. T.J. was 

drinking from a red solo cup. When the officers asked her 

what she was drinking, she stated that the drink contained 

alcohol. The officers also noticed an open bottle of alcohol in 

the back of the sedan. As a result, the officers executed a 

search of the car, during which they recovered a firearm. After 
2 No. 23-1001 

the officers read Cade and T.J. their Miranda rights, they asked 

about the firearm. Cade admitted that it belonged to him and 

that he did not have a proper license to carry the weapon. The 

officers consequently took Cade into custody. The government charged Cade with one count of possession of a firearm 

by a felon (18 U.S.C. § 922(g)(1)), after which Cade unsuccessfully sought to suppress evidence of the gun and his incriminating statements. He ultimately pleaded guilty but reserved 

his right to appeal the suppression ruling, though he now 

concedes he only has standing to seek suppression of his 

statements. Because the initial encounter with the officers was 

consensual, and because Cade’s incriminating statements 

were sufficiently attenuated from any allegedly unlawful seizure, we affirm. 

I 

On September 6, 2020, at around 8:30 pm, Chicago Police 

Officers Eric Myers and Bryan Perez Pacheco, each wearing 

body cameras, were patrolling a neighborhood in their 

marked car when they drove past Brandon Cade and T.J.

standing next to a white sedan. While doing so, they observed 

Cade carrying a bag over his shoulder. The officers turned 

their car around and drove back to Cade and T.J.’s location. 

After pulling over in front of the sedan and turning on their 

emergency lights, the officers exited their vehicle and approached Cade and T.J. 

Cade notably no longer had a bag on his person. T.J. was 

holding a red solo cup. When Officer Myers asked about the 

contents of the cup, T.J. admitted that it contained liquor. Officer Pacheco then began leading Cade to the rear of the vehicle. Simultaneously, Officer Myers asked T.J. about the sedan’s ownership and requested her identification. T.J.
No. 23-1001 3 

responded that the sedan belonged to her grandmother. 

While T.J. searched for her identification, the officers asked 

Cade about the bag they had previously seen him carrying, 

but he denied possessing any bag. Officer Myers then noticed 

an unsealed bottle on the floor of the sedan’s back passenger 

compartment. He asked T.J. if the bottle was Don Julio (a 

brand of tequila); she responded affirmatively. 

Officer Myers directed T.J. to step away from the sedan 

and move toward the rear alongside Cade. He then opened 

the driver door, found a large bag on the driver’s seat, and 

noticed a firearm inside of it. At the same time, Officer 

Pacheco handcuffed Cade and T.J. to one another, leaving 

both with one arm free. Officer Myers then asked Cade and 

T.J. if either of them had a license to carry a firearm; each responded that they did not. Officer Myers turned back to the 

sedan, pulled the firearm out of the bag, and emptied the 

magazine onto the roof of the car. 

While Officer Myers continued inspecting the firearm, Officer Pacheco read Cade and T.J. their Miranda rights. After 

Cade and T.J. acknowledged that they understood their 

rights, Officer Pacheco asked, “Whose gun is it?” Cade admitted the gun belonged to him. He also admitted he did not have 

a firearm license. Accordingly, Officer Pacheco placed Cade

under arrest. 

After the officers transported Cade to a police station, Officer Myers again read Cade his Miranda rights. Cade agreed 

to respond to questioning, and in doing so, confirmed that the

firearm found during the stop belonged to him. He added that

he had possessed the bag containing the firearm prior to the 

stop. 
4 No. 23-1001 

The government charged Cade with one count of possession of a firearm after a felony conviction in violation of 18 

U.S.C. § 922(g)(1). Cade moved to suppress the gun and the 

statements he made to police; he also sought an evidentiary 

hearing. The district court denied Cade’s motion, concluding 

(1) that the officers initially engaged in a consensual encounter with Cade and T.J.; (2) that the officers thereafter had reasonable suspicion to execute an investigatory stop based on 

violations of city ordinances; (3) that the officers had probable 

cause to search the sedan and bag based on the unsealed tequila bottle; and (4) that even if they did not, Cade lacked

standing to challenge the search of the sedan or bag. The district court also denied Cade’s request for an evidentiary hearing after determining that he failed to identify any material 

factual disputes. 

Cade pleaded guilty, reserving his right to appeal the district court’s denial of the motion to suppress. The district 

court sentenced Cade to 65 months’ imprisonment. This 

timely appeal followed. 

II

When a district court denies a motion to suppress, we review findings of fact for clear error and conclusions of law de 

novo. United States v. Ruiz, 785 F.3d 1134, 1140–41 (7th Cir. 

2015). Cade has conceded that he lacks standing to challenge 

the admission of the gun because he had no reasonable expectation of privacy in the sedan or the bag he had abandoned. 

He now only seeks suppression of the incriminating statements he made after the gun was found. 
No. 23-1001 5 

A 

Cade first argues the initial encounter with the officers was 

an unlawful seizure, and any evidence recovered in the ensuing stop, which includes his statements, must be suppressed.

A seizure occurs under the Fourth Amendment if a reasonable person would not feel free to leave, but not every encounter with police officers implicates the Fourth Amendment. 

United States v. Holly, 940 F.3d 995, 1000 (7th Cir. 2019). We 

have recognized three basic categories of police-citizen encounters: 

The first category is an arrest, for which the 

Fourth Amendment requires that police have 

probable cause to believe a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to 

a brief, non-intrusive detention. This is also a 

Fourth Amendment “seizure,” but the officer 

need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that 

a person has committed or is committing a 

crime. The third category involves no restraint 

on the citizen’s liberty, and is characterized by 

an officer seeking the citizen’s voluntary cooperation through non-coercive questioning. This 

is not a seizure within the meaning of the Fourth 

Amendment. 

United States v. Shields, 789 F.3d 733, 743 (7th Cir. 2015) (quotation omitted). For the third category, often called a “consensual encounter,” see id., “the degree of suspicion that is required is zero,” United States v. Pace, 48 F.4th 741, 748 (7th Cir. 

2022) (cleaned up). To be sure, “[t]he Supreme Court has 
6 No. 23-1001 

stated clearly that there is no constitutionally cognizable seizure ‘simply because a police officer approaches an individual and asks a few questions.’” Id. (quoting Florida v. Bostick, 

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

In determining whether a police encounter was consensual, we consider these factors: (1) the location of the interaction, including whether it was in public; (2) the number of officers present; (3) the extent to which the police presence was 

threatening; (4) whether the officers made a show of weapons 

or physical force; (5) the officers’ language and tone; 

(6) whether the officers implied that the defendant was suspected of a crime; and (7) whether the defendant was informed he was free to leave. Holly, 940 F.3d at 1000. Whether 

a police-citizen encounter was consensual is a question of fact, 

so we review the district court’s determination for clear error. 

United States v. Whitaker, 546 F.3d 902, 906 (7th Cir. 2008). 

Applying the above factors, we conclude that the district 

court did not clearly err in deeming the initial encounter consensual. Officers Myers and Pacheco first drove past Cade and 

T.J. standing in the street alongside a parked sedan. When 

they returned to the pair, they pulled their car off to the side 

of the road slightly in front of the sedan, turned on their emergency lights, calmly exited their vehicle, and asked T.J. a reasonable question about the contents of her red solo cup. The 

interaction took place on a public road with other cars and 

people nearby, only two officers were present (matching the 

number of suspects), and the officers’ conduct was not threatening—they did not rush out of their vehicle or have their 

hands on their service firearms. Further, the officers did not

show their weapons, talk to Cade or T.J. in an aggressive tone, 

or imply that anyone was suspected of a crime. While the 
No. 23-1001 7 

officers did not inform Cade and T.J. that they could leave, the 

factors in Holly are “neither exhaustive nor exclusive.” 940 

F.3d at 1000 (quotation omitted). 

Cade argues that the officers demonstrated the requisite 

authority needed for a seizure by activating their emergency 

lights and positioning their vehicle in front of the sedan. Police officers routinely use emergency lights to signal motorists 

to stop, but encounters with pedestrians on the street can be 

different. When police officers park a police vehicle in a public 

street to approach pedestrians on foot, especially at night, the 

officers’ use of emergency lights on the parked vehicle does 

not necessarily convert a consensual encounter into a seizure. 

See United States v. Clements, 522 F.3d 790, 794–95 (7th Cir. 

2008) (“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.”); cf. Pace, 48 

F.4th at 749 (encounter was consensual until officer established reasonable suspicion and then activated emergency 

lights, initiating stop). Here, Cade and T.J. stood outside of a 

vehicle as pedestrians on a street late at night. In this context, 

the officers’ activation of emergency lights did not transform

their initial consensual encounter with Cade and T.J. into a 

seizure. 

As for blocking T.J.’s car, such tactics can contribute to 

non-consensual stops of parked cars, even when occupants 

have exited their cars. See, e.g., United States v. Green, 111 F.3d 
8 No. 23-1001 

515, 517 (7th Cir. 1997) (officers parked to block driveway 

where driver had just exited his own vehicle); United States v. 

Pavelski, 789 F.2d 485, 488–89 (7th Cir. 1986) (three police cars 

blocked car that suspect had exited). In this case, however, 

Cade and T.J. had been outside the car all along, and by stopping in the street, the officers were necessarily going to block 

in at least one or two cars no matter where they stopped. The 

district court found that a reasonable person in Cade’s position, as a pedestrian approached by officers in the manner 

they did, would have believed he was free to leave, at least on 

foot. That finding was not clearly erroneous. 

B 

Notwithstanding the consensual encounter, Cade next argues that his statements should be suppressed because the officers did not have reasonable suspicion to seize him near the 

rear of the sedan and handcuff him to T.J. See Terry v. Ohio, 

392 U.S. 1, 27 (1968). The government disagrees, countering 

that the officers had the reasonable suspicion needed to effectuate an investigatory stop. We need not decide whether any

seizure at the back of the sedan was unlawful, however, because the statements Cade seeks to suppress were attenuated 

from any allegedly unlawful conduct. See United States v. 

Reed, 349 F.3d 457, 463 (7th Cir. 2003) (“A confession obtained 

through custodial interrogation after an illegal arrest must be 

excluded from evidence unless the confession is attenuated 

enough from the illegal arrest.”); see also United States v. Liss, 

103 F.3d 617, 620 (7th Cir. 1997) (“We need not decide whether 

the police exceeded the scope of Liss's consent ... because we 

find that Liss’s subsequent consent to search his home purged 

the evidence seized under the warrant of any taint from the 

illegal search of the barn.”). While the government raises 
No. 23-1001 9 

attenuation for the first time on appeal, Cade did not file a 

reply brief to address the issue or to argue waiver. Regardless, 

the government, as appellee, may present new arguments for 

affirmance when the district court record is adequately developed, even if the argument was not presented before the district court. See United States v. Gaines, 918 F.3d 793, 803 n.11 

(10th Cir. 2019). Here, all the facts pertinent to attenuation 

were before the district court. In evaluating attenuation, we 

consider “the temporal proximity of the illegal conduct to the 

statements, the presence of any intervening circumstances, 

and, most importantly, the purpose and flagrancy of the police misconduct.” Reed, 349 F.3d at 463. 

Recall that Cade was directed toward the rear of the sedan 

shortly after T.J. admitted that her cup contained alcohol. Officer Myers then noticed, in plain view, an unsealed bottle of 

tequila on the floor by the backseat of the sedan. At that point, 

the officers had probable cause to search the sedan for additional contraband or evidence. See 625 Ill. Comp. Stat. 5/11-

502(a) (“[N]o driver may transport, carry, possess or have any 

alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.”); United States v. McGuire,

957 F.2d 310, 314 (7th Cir. 1992) (“Once Trooper Newman discovered that McGuire was transporting open, alcoholic liquor 

in violation of Illinois law ... he had probable cause to believe 

that the car contained additional contraband or evidence.”).

Upon conducting the lawful search, Officer Myers found 

Cade’s firearm. Only after that discovery, and after acknowledging that he understood his Miranda rights, did Cade make 

the incriminating statements he now seeks to suppress. 
10 No. 23-1001 

First, we acknowledge that if Cade was unlawfully seized, 

the temporal proximity factor weighs against attenuation. But 

this single factor is not dispositive. See United States v. Carter, 

573 F.3d 418, 425 (7th Cir. 2009) (“We have previously held 

that a search was attenuated from illegal conduct even where 

only a few minutes passed between the conduct and the 

search.”) (citing United States v. Parker, 469 F.3d 1074, 1078–79 

(7th Cir. 2006)). Moreover, the incriminating statements were 

made in such a short period because Officer Myers found the 

gun only a few minutes after Cade was moved to the rear of 

the vehicle. 

Next, there were significant intervening circumstances between Cade’s allegedly unlawful seizure and his incriminating statements. The officers saw open alcohol in the rear passenger compartment of T.J.’s sedan and conducted a lawful 

search supported by probable cause. During the search, the 

officers found a bag bearing a striking resemblance to the one 

they had previously seen on Cade’s person, but which Cade 

affirmatively denied ever holding. The officers then found a 

gun in that bag. After the officers read Cade and T.J. their Miranda rights, Cade confessed that he owned the gun but lacked 

the required license. Though Cade’s confession would not 

have occurred but for his allegedly unlawful seizure at the 

back of the sedan, a but for cause does not automatically taint 

evidence and compel suppression. See United States v. Meece, 

580 F.3d 616, 619 (7th Cir. 2009) (“Evidence is not automatically tainted ‘simply because it would not have come to light 

but for the illegal actions of the police.’”) (quoting Wong Sun 

v. United States, 371 U.S. 471, 487–88 (1963)); Liss, 103 F.3d at 

620 (“[T]he Supreme Court has rejected a ‘but for’ test of suppression.”). Rather, the independent recovery of the gun pursuant to a lawful search constituted a wholly intervening set 
No. 23-1001 11 

of circumstances that “sever[ed] the causal connection” between the seizure and Cade’s Mirandized statements. Reed, 349 

F.3d at 464 (citation omitted); see also id. (remarking that the 

“discovery of other incriminating evidence implicating the 

defendant and causing the defendant to confess spontaneously” constituted an intervening circumstance) (citing Rawlings v. Kentucky, 448 U.S. 98, 108–09 (1980)); United States v. 

Conrad, 673 F.3d 728, 734 (7th Cir. 2012) (noting that while Miranda warnings alone are not sufficient for attenuation, they 

“can nonetheless be a relevant consideration” with regard to 

intervening circumstances).

The final factor, the purpose and flagrancy of the police 

misconduct, likewise favors attenuation. This “most important” factor asks whether law enforcement acted in bad 

faith. United States v. Davis, 44 F.4th 685, 689 (7th Cir. 2022)

(quotation omitted). “This inquiry matters because we do not 

employ the exclusionary rule when ‘suppression would do 

nothing to deter police misconduct.’” Id. (quoting Davis v. 

United States, 564 U.S. 229, 232 (2011)). There is simply no evidence of bad faith by the officers in this case, and Cade makes 

no developed argument to the contrary. The officers reasonably engaged with Cade and T.J., had probable cause to search 

T.J.’s vehicle, and read Cade his Miranda rights before he 

made his incriminating statements. See Conrad, 673 F.3d at 736 

(finding that a reading of Miranda rights supported attenuation under the purpose and flagrancy factor). Cade’s incriminating statements were sufficiently attenuated from his allegedly unlawful seizure, and suppression is unwarranted. 

C 

One final point. The district court did not abuse its discretion by denying an evidentiary hearing before deciding
12 No. 23-1001 

Cade’s motion to suppress. A district court need only conduct 

an evidentiary hearing when “a substantial claim is presented 

and there are disputed issues of material fact that will affect 

the outcome of the motion.” United States v. Edgeworth, 889 

F.3d 350, 353 (7th Cir. 2018) (quotation omitted). 

Cade raises two factual disputes: (1) whether the tequila

bottle in the back of the sedan was unsealed and (2) whether 

he obstructed traffic. Because Cade concedes that he lacks 

standing to challenge the search of the sedan, whether the tequila bottle was unsealed is irrelevant. And as discussed 

above, the officers’ initial encounter with Cade and T.J. was 

consensual, with the remainder of the encounter stemming

from T.J.’s open container of alcohol. Thus, whether Cade obstructed traffic is likewise irrelevant. Without any material

factual disputes, an evidentiary hearing is not needed. 

AFFIRMED