United States v. Olson

• Decision Date: 18 July 2022
• Docket Number: 21-2128
• Citation: 41 F.4th 792
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kyle C. OLSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

41 F.4th 792

UNITED STATES of America, Plaintiff-Appellee,

v.Kyle C. OLSON, Defendant-Appellant.

No. 21-2128

United States Court of Appeals, Seventh Circuit.

Argued February 17, 2022

Decided July 18, 2022

Corey Stephan, Assistant U.S. Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Joseph Aragorn Bugni, Jessica Arden Ettinger, Attorneys, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendant-Appellant.

Before Rovner, Hamilton, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Kyle Olson arrived in Madison, Wisconsin in the midst of the second night of violent civil unrest following the death of George Floyd and armed himself with a gun. Little did he know, three officers of the Madison Police Department observed Olson take the gun from the trunk of his car. In short order, the officers apprehended Olson, who turned out to be a felon, retrieved the gun, and placed him under arrest. Olson attempted unsuccessfully to suppress the gun and now appeals the district court's denial of his suppression motion. We affirm.

I. Background

A. The George Floyd Protests

Like many major American cities, Madison, Wisconsin was embroiled in violent and disruptive protests during the weekend of May 30–31, 2020, in the wake of George Floyd's death. In Madison, crowds of hundreds engaged in rampant looting, vandalism, arson, and widespread violence. This chaotic situation was dangerous for civilians and law enforcement alike. Some protestors wore body armor and gas masks and armed themselves with weapons, including guns. Members of the Madison Police Department ("MPD") were a particular target of some of the protestors. Protestors verbally threatened MPD officers with injury and death and hurled projectiles, injuring several officers. Over the course of the weekend, protestors torched a marked MPD squad car after stealing an AR-15 rifle from inside. In an attempt to restore order, Satya Rhodes-Conway, Mayor of Madison, declared a state of emergency on May 30, 2020, and imposed a city-wide curfew.¹ MPD officers were impressed into near 24-hour service.

Officers Christopher Marzullo, Daniel Hamilton, and Manuel Gatdula were on duty the evening of May 31, 2020. Marzullo was a 7-year veteran of the force while Hamilton and Gatdula were 13-year veterans. Around 11:00 p.m., the three officers were on the second floor of the Wisconsin Lutheran Chapel and Student Center which served as a law enforcement resupply and stand-down area. A group of MPD officers had recently left the chapel to render aid to a nearby officer who had been assaulted by the crowd. It was at this point, while overlooking the street below from the chapel's large, second-story window, that Marzullo, Hamilton, and Gatdula first saw Appellant Kyle Olson.²

Olson parked a car directly across from the chapel. He was drinking an unknown liquid, which Hamilton believed could be alcohol, from a "tallboy" aluminum can and looking around at his surroundings. Both Hamilton and Gatdula considered this behavior unusual under the circumstances. Hamilton noted Olson appeared to be "checking a full 360" and scanning his environment to ensure he was not followed or observed by law enforcement. Gatdula also interpreted Olson's behavior as designed to determine whether he was being watched. Given the unrest, Gatdula believed Olson was preparing to engage in activity he did not want seen or discovered. All three officers then watched Olson take a black pistol from the trunk of the car, tuck the gun into his waistband at the small of his back, and pull his shirt over the gun. The officers decided to confront Olson. Marzullo radioed the MPD command post that they were "going to deal with a gentleman that possibly has a [gun] outside the church."

Marzullo, Hamilton, and Gatdula exited the chapel and approached Olson with their service weapons drawn and trained on him. Marzullo ordered Olson to place his hands on the top of the car, and Olson immediately complied. Marzullo and Hamilton secured Olson's hands while Gatdula proceeded to pat down Olson's back. Gatdula felt what he believed to be the grip of a pistol at the small of Olson's back, lifted Olson's shirt, and pulled a black pistol from Olson's waistband. Gatdula then walked approximately 10 feet away to a sidewalk to inspect the gun, which was fully loaded with a round in the chamber. At some point during this sequence of events, Hamilton radioed the MPD command post "[gun] secure. One at gunpoint." Approximately 40 seconds elapsed between Marzullo's initial call to the MPD command post regarding the officers' intent to approach Olson and Hamilton's call that the gun was secure.

Marzullo and Hamilton handcuffed Olson and Hamilton radioed the MPD command post they had "[o]ne [arrest] in front of the church." Twenty-four seconds elapsed between Hamilton's call to the MPD command post that the gun was secured and his call that the officers made an arrest. Marzullo searched Olson incident to arrest and discovered drug paraphernalia. During this search, Marzullo reported Olson "ma[de] an excited utterance stating that he was a felon."

While the officers took Olson into custody, they drew attention from an increasingly hostile crowd. Several people passed the officers yelling "fuck 12" and "let him go," presumably referring to Olson. Several large crowds of up to 100 people continued to gather and approach the officers' position from a block away. Hamilton believed the approaching crowds were responsible for setting several fires that night and damaging property, including with a baseball bat. For everyone's safety, Marzullo and Hamilton moved Olson out of the street to a nearby front porch where Marzullo radioed for assistance transporting Olson to the Dane County Jail. While awaiting transportation, Hamilton reported Olson confessed he was a convicted felon. All three officers filed written reports documenting their interaction with Olson in the early hours of June 1, 2020.

B. Motion to Suppress the Gun

The government charged Olson with one count of possession of a gun as a felon, in violation of 18 U.S.C. § 922(g)(1). Olson moved to suppress the gun as fruit of an illegal search shortly thereafter. Olson argued his encounter with the officers was either an arrest from its inception unsupported by probable cause or an unconstitutional Terry stop unsupported by reasonable suspicion.

The magistrate judge held a suppression hearing where, in addition to reviewing the officers' incident reports and the radio transmissions from the night in question, he took live testimony from Marzullo, Hamilton, and Gatdula. Although their testimony largely aligned with their reports, the officers' accounts at the suppression hearing expanded upon or diverged in a few key respects. All three officers testified they decided to confront Olson after seeing him place a gun in the waistband at the small of his back to confirm he was lawfully carrying. While holders of concealed carry weapon ("CCW") permits are permitted to concealed carry in Wisconsin, those without such permits are not. Gatdula testified that, in his professional experience, CCW holders do not place guns in the waistband at the small of their backs.

Given the proximate, ongoing civil unrest, the officers viewed their interaction with Olson as a high-risk encounter. The officers testified they feared Olson, who they suspected was armed with a gun, presented a danger both to officers and the public. The officers cited assaults on MPD officers and destruction of MPD property, threats of further violence, the recent theft of a rifle from a marked squad car, and large groups of protestors nearby. Marzullo in particular was concerned Olson might follow the group of MPD officers who recently left the chapel to assist an officer in distress. All three officers emphasized the rapid succession of events and lack of time to make decisions. Consequently, the officers testified it was necessary to approach Olson with their guns drawn and place him in handcuffs prior to his arrest.

Where the officers' testimony departs from their written reports is in their account of when, and how many times, Olson admitted to being a felon. Marzullo and Hamilton testified Olson said he was a felon shortly after Gatdula retrieved the gun from his waistband but before they placed Olson under arrest. Marzullo stated his written report was incorrect and should have indicated Olson admitted to being a felon before his arrest. Hamilton testified it was Olson's identification of himself as a felon that triggered the arrest. Gatdula testified Marzullo came up to him while he was inspecting the gun and told him Olson said he was a felon. Hamilton testified Olson made a second spontaneous admission as to his status as a felon after he was arrested while awaiting the arrest team on the nearby porch. When pressed why their written reports did not reflect this sequence of events, all three officers pointed to the unusual degree of stress and sleep deprivation they experienced that weekend. All three officers testified they did not review their reports until shortly before the suppression hearing.

The magistrate judge recommended denying Olson's suppression motion. First, the officers' use of force did not ripen the initial stop to an arrest. The magistrate judge determined Olson and his gun presented an "immediate, palpable danger" to officers and civilians. Second, the officers had reasonable suspicion to initiate an investigatory stop. The magistrate judge credited Hamilton and Gatdula's description of Olson's extensive visual survey of his surroundings as "countersurveillance" suggesting he wished to evade notice. The magistrate judge also cited the officers' professional experience that CCW holders do not typically carry their guns in the waistband at the small of their back. Combined with the "maelstrom of violence and danger" of the night in question, the officers reasonably suspected...