United States v. Cade, 2024 WL 767546 (7th Cir. 2024)

The 7th Circuit Court of Appeals applied the attenuation doctrine when considering a motion to suppress incriminating statements and found that a vehicle search was legal because officers saw an open container of alcohol in plain view. The court also found that even if the officers conducted an unlawful seizure by directing an individual to stand near the back of the vehicle, the attenuation doctrine precludes exclusion because there were intervening circumstances between the alleged unlawful seizure and incriminating statements, and the officers did not act in bad faith or commit any misconduct that would warrant suppression.


On the evening of September 6, 2020, Chicago Police Officers Eric Myers and Bryan Perez Pacheo were on patrol in a marked squad car when they drove by Brandon Cade (“Cade”) and an unidentified female (“T.J.”) standing in the street next to a parked sedan. The officers saw Cade holding a bag over his shoulder, turned their car around, and pulled in front of the sedan with their emergency lights activated. When the officers approached, Cade no longer had the bag and T.J. was holding a red solo cup, which she admitted contained liquor.

Officer Pacheo then led Cade to the back of the vehicle while Officer Myers asked T.J. who owned the sedan and requested her identification. T.J. said that the sedan belonged to her grandmother. The officers asked Cade about the bag they previously saw him carrying, but he denied possessing any bag. Officer Myers then observed an unsealed bottle on the floor of the sedan’s back passenger area, which T.J. admitted was Don Julio (a brand of tequila). T.J. was directed to the rear of the vehicle with Cade, and Officer Myers proceeded to search the sedan.

During the search, Officer Myers located a bag on the driver’s seat and noticed a firearm inside. At this time, Officer Pacheo handcuffed Cade and T.J. to one another and Officer Myers asked if either of them had a license to carry a firearm. Cade and T.J. both stated they did not. Officer Pacheo read Cade and T.J. their Miranda rights, which they both acknowledged they understood. When asked who the gun belonged to, Cade admitted it was his. Cade was then placed under arrest. At the police station, Cade was read his Miranda rights again, and agreed to respond to questioning. Cade confirmed that the gun was his and that he had possessed the bag containing the gun before the stop. Cade was charged with possession of a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1).

District Court Proceedings

At the district court, Cade moved to suppress the gun and statements he made to the officers, and sought an evidentiary hearing. The district court denied Cade’s motion, finding that (1) the officers initially engaged in a consensual encounter with Cade and T.J.; (2) the officers thereafter had reasonable suspicion to execute an investigatory stop based on violations of city ordinances; (3) the officers had probable cause to search the sedan and bag based on the unsealed tequila bottle; and (4) even if they did not, Cade lacked standing to challenge the search of the sedan or bag. The district court also denied the request for an evidentiary hearing, finding that Cade did not identify any material factual disputes. Cade appealed this ruling.

7th Circuit Opinion

On appeal, Cade conceded that he lacked standing to challenge the admission of the gun because he had no reasonable expectation of privacy in the sedan or his abandoned bag. Therefore, he only challenged the ruling on the suppression of his statements.

The Initial Encounter

First, Cade argued that the initial encounter with the officers was an unlawful seizure in violation of the Fourth Amendment, and thus, his statements must be suppressed under the exclusionary rule. The exclusionary rule is a sanction that prohibits the use of evidence obtained through a Fourth Amendment violation. Davis v. United States, 564 U.S. 229, 231 (2011). However, the 7th Circuit found that Cade’s encounter with the officers was consensual, which is not a seizure under the Fourth Amendment. See United States v. Holly, 940 F.3d 995, 1000 (7th Cir. 2019) (a seizure occurs under the Fourth Amendment if a reasonable person would not feel free to leave, and not every encounter with police implicates the Fourth Amendment). In determining whether an encounter is consensual, courts consider the following factors: location of the interaction (private or public), number of officers present, extent to which the police presence was threatening, whether the officers showed weapons or physical force, the officers’ language and tone, whether the officers implied the defendant was suspected of a crime, and whether the defendant was informed he was free to leave. Holly, 940 F.3d at 1000. Applying these factors to the facts of this case, the 7th Circuit found that the district court did not clearly err in finding the initial encounter was consensual. Here, the officers calmly approached Cade and T.J. on a public road, asked reasonable questions about the contents of the solo cup, their conduct was not threatening, they did not show their weapons or speak aggressively, and did not imply that anyone was suspected of a crime.

Cade also argued that the officers demonstrated the requisite authority needed for a seizure when they displayed their emergency lights and parked in front of the sedan. The 7th Circuit rejected this argument, finding that the activation of emergency lights did not transform the initial consensual encounter into a seizure and that a reasonable person in Cade’s position would have felt he was free to leave. Here, Cade and T.J. were standing outside a vehicle as pedestrians on a street late at night when the officers first approached. The 7th Circuit noted that, when officers park in a public street to approach pedestrians on foot, the use of emergency lights on the parked vehicle does not necessarily convert a consensual encounter into a seizure, especially at night. United States v. Clements, 522 F.3d 790, 794-95 (7th Cir. 2008). In addition, the court recognized that, by stopping in the street, the officers were inevitably going to block at least one or two cars no matter where they parked. Moreover, Cade had been standing outside the car the whole time, and thus, a reasonable pedestrian in his position would have believed he was free to leave on foot.

Attenuation Between the Alleged Unlawful Conduct and Incriminating Statements

Next, Cade argued that the officers did not have reasonable suspicion to seize him near the back of sedan and handcuff him to T.J. The 7th Circuit recognized that it need not decide whether any seizure at the back of the sedan was unlawful because the statements Cade sought to suppress were attenuated from any alleged unlawful conduct. Attenuation occurs when something such as time or another event breaks the chain of causation between allegedly unlawful practices and evidence that is obtained. Where there is attenuation, evidence is not suppressed under the exclusionary rule.

Three Part Test

To determine attenuation, courts 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.” United States v. Reed, 349 F.3d 457, 463 (7th Cir. 2003).

The facts relevant to the attenuation analysis here are that Cade was directed to the back of the sedan after T.J. admitted her cup contained alcohol and Officer Myers saw an unsealed bottle of alcohol in plain view on the floor by the backseat, which is in violation of Illinois law. See 625 ILCS 5/11-502(a). This observation provided probable cause to search the vehicle for additional evidence or contraband. Officer Myers then found the firearm while conducting a lawful search, and it was only after he discovered the gun and Cade acknowledged that he understood his Miranda rights, that Cade made the incriminating statements he sought to suppress. The court applied these facts to each prong of the attenuation test:

1. Temporal Proximity

Under the attenuation doctrine, temporal proximity refers to the timing between the alleged unlawful conduct and the evidence obtained. If there is only a short period of time between the two, then it is assumed that the illegal conduct produced the evidence, and that evidence should be suppressed under the exclusionary rule. However, a large timing gap is not required, as the court has found attenuation when only a few minutes had passed between illegal conduct and the evidence at issue. United States v. Carter, 573 F.3d 418, 425 (7th Cir. 2009). In this case, the 7th Circuit noted that, if Cade was unlawfully seized, the temporal proximity factor would weigh against attenuation. The timeline of this incident was very quick, even shorter than a few minutes, as Cade’s statements were made right after he was moved to the rear of the car (which is the point of the allegedly unlawful seizure). Although this factor does not support attenuation, a single factor is not dispositive. 573 F.3d at 425.

2. Intervening Circumstances

Intervening circumstances between the allegedly unlawful seizure and the incriminating statements may be found to break the chain of causation. In other words, it is less likely that the evidence was a product of illegal conduct when other events occurred that separate the allegedly unlawful seizure and the statements that were obtained. Here, the 7th Circuit found that there were significant intervening circumstances between Cade’s allegedly unlawful seizure and his incriminating statements. Although these events occurred quickly under the temporal proximity factor, separating each event is relevant to assess whether there are intervening circumstances that break the chain of causation. Here, the officers saw an open container of alcohol and conducted a valid search with probable cause. During that search, they found a bag resembling the one they previously saw Cade holding. The officers then found a gun in the bag. After reading Cade and T.J. their Miranda rights, Cade admitted to owning the gun without a valid license. All these events are important, but specifically, the recovery of a gun pursuant to a lawful search is a wholly intervening set of circumstances that “severed the causal connection” between the alleged unlawful seizure and the statements. Reed, 349 F.3d at 464. Thus, the intervening circumstances weigh in favor of attenuation.

3. Purpose and Flagrancy of Police Misconduct

The purpose and flagrancy factor asks whether law enforcement acted in bad faith, and is considered the most important factor because the exclusionary rule will not be employed when suppression would do nothing to deter police misconduct. United States v. Davis, 44 F.4th 685, 689 (7th Cir. 2022). The 7th Circuit found that there is simply no evidence of bad faith in this case, and Cade made no argument to the contrary. The officers reasonably approached Cade and T.J., had probable cause to search the sedan, and read Cade his Miranda rights before he made any statements. Therefore, this factor also favors attenuation because there was no police misconduct. Based on the foregoing, the 7th Circuit found that Cade’s incriminating statements were sufficiently attenuated from his allegedly unlawful seizure, and suppression is not warranted.

Evidentiary Hearing

Finally, the 7th Circuit considered whether the district court abused its discretion by denying Cade’s request for an evidentiary hearing before deciding the 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). The two factual disputes Cade raised were: (1) whether the tequila bottle in the sedan was unsealed; and (2) whether he obstructed traffic. The 7th Circuit found that the first dispute is irrelevant because Cade conceded he lacked standing to challenge the search of the sedan. The second dispute is also irrelevant because the initial encounter was consensual, and the remainder of the encounter stemmed from T.J.’s open container of alcohol. As such, an evidentiary hearing was not necessary.

Authored by: 

not pictured: Lily McKay