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
The district court held a 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
factual findings in great detail; he did however, make clear that
his analysis was based on his determinations 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 had not seen Thompson earlier and did not recognize
him as the man that had been in Bausley’s car.
Agent Reynolds 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.
At this point, Agent Reynolds 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 their investigation, 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 their investiga‐
tion moving forward. A number of days later, when Thompson
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 justified by 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 and converted the encounter into an unlawful
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 and voluntarily accompanied the 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 a protective sweep is 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 suspected of drug trafficking present an
inherent danger to 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
and received no response. Thompson had already lied to Agent
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 apartment to 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. Thompson argues 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
consent to 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 error in
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.