Argued April 17, 2015.
As Corrected July 29, 2015.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:13-cr-136 -- Rudolph T. Randa, Judge.
For United States of America, Plaintiff - Appellee: Jonathan H. Koenig, Lisa A. Wesley, Office of The United States Attorney, Milwaukee, WI.
For Dontray A. Smith, Defendant - Appellant: Daniel W. Stiller, Federal Public Defender, Juval O. Scott, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI.
Before POSNER and WILLIAMS, Circuit Judges, and WOOD, District Judge.[*]
Williams, Circuit Judge.
Two Milwaukee Police Department officers on bicycle patrol were investigating gunshots around 16th and Center Street. They saw Dontray Smith crossing 16th Street as he prepared to enter an alley. The officers rode ahead of Smith into the alley and when they were five feet from Smith, they stopped and positioned their bicycles 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 statement to the officers and the gun they confiscated--was obtained 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 motion to suppress. After being sentenced to 37 months' imprisonment and three years of supervised release, Smith appeals. 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 circumstances 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.
On June 6, 2013, Michael Michalski and Michael Flannery, Milwaukee Police Department officers, were on bicycle patrol in the vicinity of North and Teutonia Avenues. At around 10 p.m., the officers heard three to four gunshots fired north of their location. They did not call dispatch to report the shots fired. Instead, they rode their bicycles to 2600 North 15th Street where they spoke with a witness who reported that he heard gunshots west of his location. The officers 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 engaging in any ...