The 7th Circuit Court of Appeals said a firearm discovered by police was not the product of an illegal seizure and affirmed the denial of a man’s motion to suppress it. The court also held the statement he gave to police did not violate his Sixth Amendment right to counsel.
Berton Mays left the scene of a fight on the southeast side of Indianapolis and was followed by Indianapolis Metropolitan Police officers Matthew Coffing and Lepsky. Lepsky tried to ask him about the incident, but Mays refused in “colorful and abusive language.” Lepsky thought Mays might be armed and told him to stop. The officer touched his shoulder to keep distance between the two. Mays turned, and Lepsky was concerned for his safety so he Tased him. When he did, a semi-automatic firearm fell to the ground.
Mays was arrested for resisting law enforcement and possessing a firearm as a felon. During that time he signed a waiver of his Miranda rights and made an inculpatory statement to officers. He later filed a motion to suppress evidence of the firearm after he pleaded guilty to possession of a firearm by a felon, saying it was obtained during an illegal seizure. He also filed a motion to suppress the statement he gave claiming it was fruit of the seizure or that it was made violating his Sixth Amendment right to counsel.
The 7th Circuit applied a two-part test to determine whether the seizure was legal, citing its decision United States v. $32,400 in U.S. Currency, 82 F.3d 135,138-39 (7th Circ. 1996). The first part is whether there was physical contact at the same time of the show of authority, and second part is whether the defendant failed to comply.
Mays said the test should fail because of inconsistencies in Lepsky’s testimony, sometimes saying he touched Mays and sometimes not mentioning it. However, the 7th Circuit agreed with the District Court when it said the discrepancies in Lepsky’s testimony could be understandable considering the quick succession of events. But, the District Court found the officer placing his hand on Mays’ shoulder constituted the seizure of Mays for purposes of the Fourth Amendment, which the appellate court affirmed.
But the 7th Circuit also said Mays failed to comply. Mays used “colorful and abusive language” to signify he would not comply and began walking away. Also, although there was no proof Mays was in the fight, he was walking away from the scene and the fight took place in a high-crime area. Based on the totality of the circumstances, it was reasonable for the officer to infer that Mays had a weapon in his hand and may use it.
The case is United States of America v. Berton Mays, 15-2152.