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Chicago, IL - Criminal defense lawyer represented defendant with a possession of more than 100 kilograms of marijuana charge.

On December 31, 2017, Deputy Derek Suttles of the
Morgan County Sheriff’s Office was conducting drug interdiction on the interstate near South Jacksonville, Illinois. He
saw an RV with a dirty Idaho license plate traveling on
No. 19-3490 3
Interstate 72 and followed it so he could read the plate.
Ahmad was driving the RV. His two children and his cousin
Muhammad Usama were passengers.
Ahmad exited the interstate and pulled into a Love’s
Truck Stop. He and Usama left the RV and went into the
convenience store. Deputy Suttles parked nearby and entered the store to use the bathroom. He saw Ahmad and
Usama but did not approach them. He returned to his squad
car, ran the RV’s license plate, and learned that it was registered to an elderly couple from Idaho. A store employee
then approached Suttles and informed him that Ahmad and
Usama were acting strangely and appeared to be waiting for
Suttles to leave. Eventually Ahmad and Usama returned to
their RV.
Now suspicious, Deputy Suttles waved Ahmad and
Usama over, and Ahmad complied. Suttles said that he was
“working drug interdiction” and that Ahmad “was free to
leave at any time but that [he] wanted to ask him a few
questions about his trip.” Ahmad agreed to talk, telling
Suttles that he was traveling with his two children and
Usama from Houston to Columbus, Ohio, to visit family. He
said that they first flew to Idaho because it was cheaper to
rent the RV there.
Ahmad’s geographically perplexing route increased the
deputy’s suspicions. He asked to see Ahmad’s driver’s
license and the rental agreement, and Ahmad returned to the
RV to retrieve the documents. While Ahmad was in the RV,
Suttles called Illinois State Trooper Eli Adams to see if he
and his drug dog Kilo were nearby.
4 No. 19-3490
Ahmad then returned to Suttles and handed him his license and the rental agreement. A few minutes passed while
the deputy ran a warrant check, which came back clean.
Suttles then asked for consent to search the RV. Ahmad gave
permission, but Suttles did not immediately commence a
search. He first asked Ahmad to summon Usama from the
RV. Ahmad did so. Suttles made the same prefatory comment that he had to Ahmad, telling Usama that he was free
to leave but that he’d like to ask a few questions about their
trip. Suttles noticed that Usama seemed cold and offered to
let him sit in the back of the police squad while they talked.
Usama agreed, and Suttles spoke with him for a few minutes
in the squad.
About 15 minutes into the encounter, Trooper Adams arrived with Kilo. The officers asked Ahmad if Kilo could sniff
around the outside of the RV. He consented. Kilo quickly
alerted to the presence of drugs. At that point Ahmad and
Usama were detained while the RV was searched. A large
quantity of marijuana was discovered, and the officers
placed Ahmad and Usama under arrest. Throughout the
entire encounter, Suttles spoke in a friendly and conversational tone and never drew his weapon.
Ahmad and Usama were initially charged in state court.
They moved to suppress the marijuana, and the state judge
held an evidentiary hearing at which Deputy Suttles was the
only witness. The judge denied the motion.
Federal charges followed. A grand jury indicted Ahmad
and Usama for possession with intent to distribute more
than 100 kilograms of marijuana in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). They again moved to suppress the
drugs, and the parties waived a second evidentiary hearing
No. 19-3490 5
and submitted the motion on the state-court transcript and
their written briefs. Drawing on facts developed at the state
evidentiary hearing, a magistrate judge recommended that
the district judge deny the motion. The district judge agreed,
ruling that the defendants’ encounter with Suttles was
consensual and did not become a seizure under the Fourth
Amendment until the dog alerted, so Ahmad’s consent to
search was voluntary.
Ahmad conditionally pleaded guilty, reserving the right
to appeal the denial of suppression. Usama’s case is not
before us.
II. Discussion
Ahmad’s appeal is limited to the suppression issue. A
warrantless search is unreasonable and thus unlawful under
the Fourth Amendment unless one of “a few specifically
established and well-delineated exceptions” applies. Arizona
v. Gant, 556 U.S. 332, 338 (2009) (quotation marks omitted).
At issue here is the consent exception. “[A] search authorized by consent is wholly valid.” Schneckloth v. Bustamonte,
412 U.S. 218, 222 (1973). “Because a person may voluntarily
waive his Fourth Amendment rights, no warrant is required
where the defendant consents to a search.” United States v.
James, 571 F.3d 707, 713 (7th Cir. 2009). Accordingly, police
officers may “conduct a warrantless search if verbal consent
is given.” United States v. Dean, 550 F.3d 626, 630 (7th Cir.
2008).
But “[c]onsent searches are valid only if the consent was
freely and voluntarily given.” United States v. Duran,
957 F.2d 499, 502 (7th Cir. 1992). Consent is involuntary if it
is tainted by “acquiescence to authority,” United States v.
6 No. 19-3490
McGraw, 571 F.3d 624, 628 (7th Cir. 2009), or by police misconduct that overwhelms a defendant’s free will, such as
“illegal stops, detentions or arrests,” United States v. Jerez,
108 F.3d 684, 695 (7th Cir. 1997) (holding that a defendant’s
consent to search was involuntary because it immediately
followed an illegal seizure); see also United States v. Valencia,
913 F.2d 378, 382 (7th Cir. 1990) (“If the agents illegally
seized Valencia, the illegal seizure would have tainted his
subsequent consent, since his consent presumably was the
product of his detention.”).
There is no question that Ahmad expressly consented to
the search of the RV as well as the external dog sniff. He
contests the voluntariness of that consent, arguing that he
was unlawfully seized at the time he gave it. The question,
then, is whether a seizure occurred before Suttles asked him
for permission to search, vitiating his consent.
“[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.”
Florida v. Bostick, 501 U.S. 429, 434 (1991). “[A] person has
been ‘seized’ within the meaning of the Fourth Amendment … only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave.” Michigan v. Chesternut,
486 U.S. 567, 573 (1988) (quoting United States v. Mendenhall,
446 U.S. 544, 554 (1980)). If a reasonable person would feel
free “to disregard the police and go about his business,” no
seizure has occurred. California v. Hodari D., 499 U.S. 621, 628
(1991).
The “reasonable person” metric is an objective standard,
so Ahmad’s subjective state of mind is irrelevant. Estate of
Perry v. Wenzel, 872 F.3d 439, 457 (7th Cir. 2017). “Determin-
No. 19-3490 7
ing whether a seizure has occurred is a highly fact-bound
inquiry,” but a number of circumstances may be relevant,
including: whether the encounter occurred in a public place
or the police moved the person to a private location; whether
the officer told the person that he was free to leave; whether
the police limited the person’s movement via physical
touching, restraint, or other coercive conduct; whether the
officer informed the person that he was the target of an
investigation; and whether the person was deprived of
identification or other vital documents “without which he
could not leave.” United States v. Tyler, 512 F.3d 405, 410 (7th
Cir. 2008). Other relevant factors include whether there was
a “threatening presence of several officers and a display of
weapons” and “whether the officers’ tone of voice was such
that their requests would likely be obeyed.” United States v.
Shields, 789 F.3d 733, 743 (7th Cir. 2015) (quoting United
States v. Johnson, 680 F.3d 966, 975 n.4 (7th Cir. 2012)); see also
United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir. 1993);
United States v. Adebayo, 985 F.2d 1333, 1338 (7th Cir. 1993).
We agree with the district judge that Ahmad’s encounter
with Deputy Suttles was consensual and did not become a
seizure until the dog alerted and he and Usama were detained while the RV was searched. To begin, the entire
encounter—from Deputy Suttles’s initial questioning to
Ahmad’s eventual arrest—occurred in a public place, a
truck-stop parking lot. Suttles spoke in normal, conversational tones and made no verbal commands; he never raised
his voice or used a hostile tone. Ahmad was not physically
touched, and his movement was not otherwise constrained.
There was neither a “threatening presence of several officers” nor a “display of weapons.” Shields, 789 F.3d at 743
(quotation marks omitted). Suttles was the only officer on
8 No. 19-3490
the scene until Trooper Adams arrived with the drug dog—
by which time Ahmad had already consented to the
search—and Suttles never drew his weapon. Perhaps most
importantly, Suttles informed Ahmad that he was free to
leave and never indicated otherwise until after the dog
alerted. These factors weigh heavily against a finding of
seizure.
That leaves the most strenuously contested circumstance
in the case: the effect of the deputy’s possession of Ahmad’s
driver’s license and rental agreement, “documents without
which he could not leave.” Tyler, 512 F.3d at 410. Ahmad
urges us to hold that a seizure occurred when he handed
Suttles his driver’s license and the RV rental agreement. He
analogizes his situation to two other cases in which we have
held that an officer’s retention of a suspect’s ID amounted to
a seizure: Tyler and United States v. Cordell, 723 F.2d 1283 (7th
Cir. 1983). The analogy doesn’t hold in either case, but the
analysis requires a bit of unpacking because of the highly
fact-intensive nature of the inquiry.
In the first of these cases, two police officers approached
Earkle Tyler as he was walking down the street carrying an
open beer bottle. Tyler, 512 F.3d at 408. The officers told
Tyler that he was violating an open-container law. (They
were mistaken, but that fact had no effect on our seizure
analysis.) The officers asked Tyler for his identification, and
when he turned it over, they began a warrant check and told
him that he could not leave until they completed their check
of his record. Id. at 410. This combination of circumstances,
we said, amounted to a seizure:
A reasonable person would not feel free to
walk away after being confronted by two po-
No. 19-3490 9
lice officers and told he was committing a
crime in the officers’ presence. Moreover, the
officers retained Tyler’s identification while
they ran a warrant check and told him he could
not leave until the check was completed. Under these circumstances, a reasonable person
would have believed he was obliged to stay
put.
Id. at 410–11.
Tyler is easily distinguishable. The officers told the defendant that he was violating the law in their presence and
that he was not free to leave until they completed their
warrant check. Those circumstances are missing here.
Ahmad was told that he was free to leave at any time, and
Suttles never expressly accused him of any illegal activity.
Ahmad’s second case is Cordell. There two officers on
narcotics duty at O’Hare International Airport were monitoring an inbound flight from Miami, “a known ‘source’ city
for narcotics.” Cordell, 723 F.2d at 1284. They observed Kelly
Cordell deplane from the flight and proceed at a “very rapid
pace” through the terminal. Id. The officers approached,
identified themselves, and asked to speak with him. Cordell
agreed but appeared very nervous. The officers asked to see
his ID, and he gave them his Wisconsin driver’s license.
They then asked to see his airline ticket, and he produced a
ticket purchased with cash in the name of P. Baldwin. Id.
After receiving these contradictory documents, the agents
explained that they were “conducting a narcotics investigation” and asked to search Cordell’s bag. Id. He consented,
and the officers discovered 240 grams of cocaine.
10 No. 19-3490
Cordell was indicted for possessing cocaine with intent
to deliver. He moved to suppress the drugs, but the district
court denied the motion. Cordell challenged that ruling on
appeal, arguing that his consent to search his bag was involuntary because he was illegally seized when he gave it. We
first observed that the officers “were doing nothing that
could be construed as a Fourth Amendment seizure” when
they merely “identified themselves as police officers, asked
Cordell if he would speak to them, and requested his identification and airline ticket.” Id. at 1285. But when the officers
took possession of Cordell’s identification and “told [him]
they were conducting a narcotics investigation, the encounter … [became] a detention.” Id. By then, however, they had
developed reasonable suspicion to support a detention, so
we affirmed the denial of suppression. Id.
Ahmad reads Cordell as holding that a consensual encounter with an officer necessarily becomes a seizure as soon
as the officer takes possession of the person’s identification.
We disagree. First, as a general matter, the “totality of the
circumstances” inquiry is too fact specific to yield a rigid
rule. And later cases undercut any categorical understanding
of Cordell. For example, in United States v. Soto-Lopez,
995 F.2d 694 (7th Cir. 1993), we addressed another airport
narcotics-monitoring investigation like the one in Cordell.
There a DEA agent and a Chicago police officer were working drug interdiction at O’Hare monitoring inbound flights
from “source cities,” including San Jose, California. Jose
Soto-Lopez arrived on a flight from San Jose; as he made his
way from the gate, the officers approached him. They identified themselves and asked him if he would answer a few
questions. They told Soto-Lopez that he was not under arrest
and was free to leave. Id. at 696.
No. 19-3490 11
Soto-Lopez agreed to talk to the officers, and he produced his airline ticket, driver’s license, and resident-alien
card at their request. Id. The agents briefly retained the
documents while they conducted the interview, with one
officer reading the information on the documents out loud
so the other could write it down while they were talking. Id.
Soto-Lopez denied that he was transporting drugs but
appeared nervous. He gave the officers permission to search
his carry-on bag but denied having other luggage. When the
search of the carry-on bag turned up nothing, the officers let
him “proceed on his way” but followed him to baggage
claim where they watched as he waited there with another
man before leaving without collecting any additional luggage. Id. at 697. A search of his left-behind checked bag
revealed 10 kilos of cocaine, and he was later arrested. Id.
We held that the officers’ encounter with Soto-Lopez was
consensual and did not “escalate” to a seizure when the
officers briefly retained his identification and other documents while the interview was underway. Id. at 698. We
explained that the defendant “was not deprived of his ticket
or identification for an unusual length of time, nor was he
taken to an isolated area while the agents had his documents.” Id.
Soto-Lopez makes clear that an officer’s retention of a suspect’s identification does not necessarily transform an otherwise consensual encounter into a seizure. What’s important
is how long and under what circumstances the suspect’s identification documents were retained. Here, Suttles held
Ahmad’s driver’s license and the RV rental agreement for
only a few minutes before Ahmad consented to the search,
hardly an “unusual length of time.” And when weighed in
12 No. 19-3490
the balance with all of the other circumstances that we’ve
mentioned, the deputy’s brief retention of Ahmad’s documents did not transform this otherwise consensual encounter into a seizure. Ahmad’s consent to the search of the RV
was therefore voluntary. The judge properly denied the
suppression motion.

Outcome: AFFIRMED

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